Pub Date : 2019-03-29DOI: 10.4337/9781786438553.00014
M. Sassóli
{"title":"Scope of application: when does IHL apply?","authors":"M. Sassóli","doi":"10.4337/9781786438553.00014","DOIUrl":"https://doi.org/10.4337/9781786438553.00014","url":null,"abstract":"","PeriodicalId":231099,"journal":{"name":"International Humanitarian Law","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127573381","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-03-29DOI: 10.4337/9781786438553.00013
M. Sassóli
{"title":"Respect of the law","authors":"M. Sassóli","doi":"10.4337/9781786438553.00013","DOIUrl":"https://doi.org/10.4337/9781786438553.00013","url":null,"abstract":"","PeriodicalId":231099,"journal":{"name":"International Humanitarian Law","volume":"146 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123380056","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-09-01DOI: 10.1017/cbo9781316337028.008
E. Crawford, Alison Pert
1. Introduction The law of armed conflict contains many measures that are designed to protect the civilian population – found in the general provisions on distinction, proportionality and discrimination, but also in more specific rules on targeting, such as the prohibitions on targeting civilian objects or objects indispensable to the survival of the civilian population. These rules can be categorised as “rules providing protection of the civilian population against the direct effects of military operations and other acts of hostility”. However, there is an additional body of rules in the Conventions that aim to protect civilians from other effects of the armed conflict, and specifically those who find themselves in the hands of an adverse party to the conflict. This is most commonly seen in situations of belligerent occupation, where the rules are designed to protect civilians from arbitrary treatment or any acts of violence perpetrated against them by the Occupying Power (OP). This chapter will examine the rules on belligerent occupation in international armed conflicts, as well as some of the general rules that exist to protect civilians from arbitrary treatment when they find themselves in the hands of an adverse party. 2. General protections for civilians Geneva Convention IV and Additional Protocol I contain general rules for the protection of all civilian inhabitants of any territory. The ICTY in Tadic described GC IV as intending to protect “civilians (in enemy territory, occupied territory or the combat zone) who do not have the nationality of the belligerent in whose hands they find themselves, or who are stateless persons”. As outlined in Article 51(2) of Protocol I, the fundamental rule relating to civilians is that they are immune from attack. No definition of the term “civilian” exists in either the Hague Regulations or Geneva Conventions, but is contained in Article 50 of Protocol I which defines civilians thus: 1. A civilian is any person who does not belong to one of the categories of persons referred to in Article 4A(1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.
{"title":"The Law of Occupation and the Protection of Civilians","authors":"E. Crawford, Alison Pert","doi":"10.1017/cbo9781316337028.008","DOIUrl":"https://doi.org/10.1017/cbo9781316337028.008","url":null,"abstract":"1. Introduction The law of armed conflict contains many measures that are designed to protect the civilian population – found in the general provisions on distinction, proportionality and discrimination, but also in more specific rules on targeting, such as the prohibitions on targeting civilian objects or objects indispensable to the survival of the civilian population. These rules can be categorised as “rules providing protection of the civilian population against the direct effects of military operations and other acts of hostility”. However, there is an additional body of rules in the Conventions that aim to protect civilians from other effects of the armed conflict, and specifically those who find themselves in the hands of an adverse party to the conflict. This is most commonly seen in situations of belligerent occupation, where the rules are designed to protect civilians from arbitrary treatment or any acts of violence perpetrated against them by the Occupying Power (OP). This chapter will examine the rules on belligerent occupation in international armed conflicts, as well as some of the general rules that exist to protect civilians from arbitrary treatment when they find themselves in the hands of an adverse party. 2. General protections for civilians Geneva Convention IV and Additional Protocol I contain general rules for the protection of all civilian inhabitants of any territory. The ICTY in Tadic described GC IV as intending to protect “civilians (in enemy territory, occupied territory or the combat zone) who do not have the nationality of the belligerent in whose hands they find themselves, or who are stateless persons”. As outlined in Article 51(2) of Protocol I, the fundamental rule relating to civilians is that they are immune from attack. No definition of the term “civilian” exists in either the Hague Regulations or Geneva Conventions, but is contained in Article 50 of Protocol I which defines civilians thus: 1. A civilian is any person who does not belong to one of the categories of persons referred to in Article 4A(1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.","PeriodicalId":231099,"journal":{"name":"International Humanitarian Law","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124217542","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-09-01DOI: 10.1017/cbo9781316337028.004
E. Crawford, Alison Pert
1. Introduction As noted in Chapter 1, international humanitarian law (IHL) or the jus in bello (law in war) is one of the oldest bodies of international law and aims to regulate the conduct of States and individual participants in an armed conflict, and to protect people and property. The law seeks to balance twin objectives: the needs of the armed forces of a State (or non-State group) to prosecute the armed conflict, and the humanitarian need to protect those who do not, or no longer, take direct part in the hostilities (known as hors de combat or “out of combat”). Initially, the law only regulated the conduct of States in international armed conflicts; now, the law governs the conduct of States and non-State actors, in international and non-international armed conflicts, and contains a plethora of rules, drawn from treaties, customary international law and other sources, covering weapons, methods of warfare, targeting and the treatment of persons hors de combat . All of these rules find their origins in more general overarching principles of IHL; it is these general principles and specific sources that are explored in this chapter. 2. The law of armed conflict: purpose, concepts, scope, application As stated above, IHL seeks to regulate conduct in armed conflicts. At first glance, such an aim would seem nonsensical – how can one regulate warfare? How can you prohibit certain kinds of killing, wounding and property destruction, while permitting other kinds of violence? Indeed, this very sentiment was expressed by Admiral Lord Fisher, First Sea Lord of the Royal Navy: “the humanizing of War! You might as well talk of the humanizing of Hell … As if war could be civilized! If I'm in command when war breaks out I shall issue my order – ‘The essence of war is violence. Moderation in war is imbecility. Hit first, hit hard, and hit everywhere.’” However, contrary to Fisher's bleak outlook, history has shown that over the centuries many societies, from many different parts of the globe, have attempted to place limitations on conduct in armed conflict.
{"title":"The Contemporary Legal Basis of International Humanitarian Law and Its Fundamental Principles","authors":"E. Crawford, Alison Pert","doi":"10.1017/cbo9781316337028.004","DOIUrl":"https://doi.org/10.1017/cbo9781316337028.004","url":null,"abstract":"1. Introduction As noted in Chapter 1, international humanitarian law (IHL) or the jus in bello (law in war) is one of the oldest bodies of international law and aims to regulate the conduct of States and individual participants in an armed conflict, and to protect people and property. The law seeks to balance twin objectives: the needs of the armed forces of a State (or non-State group) to prosecute the armed conflict, and the humanitarian need to protect those who do not, or no longer, take direct part in the hostilities (known as hors de combat or “out of combat”). Initially, the law only regulated the conduct of States in international armed conflicts; now, the law governs the conduct of States and non-State actors, in international and non-international armed conflicts, and contains a plethora of rules, drawn from treaties, customary international law and other sources, covering weapons, methods of warfare, targeting and the treatment of persons hors de combat . All of these rules find their origins in more general overarching principles of IHL; it is these general principles and specific sources that are explored in this chapter. 2. The law of armed conflict: purpose, concepts, scope, application As stated above, IHL seeks to regulate conduct in armed conflicts. At first glance, such an aim would seem nonsensical – how can one regulate warfare? How can you prohibit certain kinds of killing, wounding and property destruction, while permitting other kinds of violence? Indeed, this very sentiment was expressed by Admiral Lord Fisher, First Sea Lord of the Royal Navy: “the humanizing of War! You might as well talk of the humanizing of Hell … As if war could be civilized! If I'm in command when war breaks out I shall issue my order – ‘The essence of war is violence. Moderation in war is imbecility. Hit first, hit hard, and hit everywhere.’” However, contrary to Fisher's bleak outlook, history has shown that over the centuries many societies, from many different parts of the globe, have attempted to place limitations on conduct in armed conflict.","PeriodicalId":231099,"journal":{"name":"International Humanitarian Law","volume":"232 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134390986","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-09-01DOI: 10.1017/cbo9781316337028.011
E. Crawford, Alison Pert
1. Introduction The law of armed conflict, like international law more generally, faces unique problems when it comes to the implementation and enforcement of its rules. International law, unlike domestic legal systems, has no central hierarchical system or institution that can enforce or implement its rules. Implementation, enforcement and accountability under IHL are thus decentralised, and effected through various means and methods, including domestic and international judicial, quasi-judicial, legislative and diplomatic measures, as well as through mechanisms such as public scrutiny and public education. This chapter examines the manifold ways in which the law of armed conflict is implemented and enforced, and operates to hold those who violate the law accountable. 2. Common Article 1: the obligation to ensure respect The starting point for implementation, enforcement and accountability is Common Article 1 of the Geneva Conventions, which outlines the general obligation under IHL that all parties to the Conventions must “undertake to respect and to ensure respect for the present Convention in all circumstances”. The ICJ has held that this principle is customary international law, and is also applicable in non-international armed conflicts. What the Article actually means in practice is somewhat complex. The Commentaries to the Conventions explain it thus: it would not, for example, be enough for a State to give orders or directives to a few civilian or military authorities, leaving it to them to arrange as they pleased for the details of their execution. It is for the State to supervise their execution. Furthermore, if it is to keep its solemn engagements, the State must of necessity prepare in advance, that is to say in peacetime, the legal, material or other means of loyal enforcement of the Convention as and when the occasion arises. It follows, therefore, that in the event of a Power failing to fulfil its obligations, the other Contracting Parties (neutral, allied or enemy) may, and should, endeavour to bring it back to an attitude of respect for the Convention. This explanation highlights a number of key elements regarding implementation and enforcement of IHL. First, the State must follow the rules to which it has agreed to be bound. Second, the State must ensure that those rules are followed at all times, through supervision of its organs and subsidiaries tasked with prosecuting the armed conflict.
{"title":"Implementation, Enforcement and Accountability","authors":"E. Crawford, Alison Pert","doi":"10.1017/cbo9781316337028.011","DOIUrl":"https://doi.org/10.1017/cbo9781316337028.011","url":null,"abstract":"1. Introduction The law of armed conflict, like international law more generally, faces unique problems when it comes to the implementation and enforcement of its rules. International law, unlike domestic legal systems, has no central hierarchical system or institution that can enforce or implement its rules. Implementation, enforcement and accountability under IHL are thus decentralised, and effected through various means and methods, including domestic and international judicial, quasi-judicial, legislative and diplomatic measures, as well as through mechanisms such as public scrutiny and public education. This chapter examines the manifold ways in which the law of armed conflict is implemented and enforced, and operates to hold those who violate the law accountable. 2. Common Article 1: the obligation to ensure respect The starting point for implementation, enforcement and accountability is Common Article 1 of the Geneva Conventions, which outlines the general obligation under IHL that all parties to the Conventions must “undertake to respect and to ensure respect for the present Convention in all circumstances”. The ICJ has held that this principle is customary international law, and is also applicable in non-international armed conflicts. What the Article actually means in practice is somewhat complex. The Commentaries to the Conventions explain it thus: it would not, for example, be enough for a State to give orders or directives to a few civilian or military authorities, leaving it to them to arrange as they pleased for the details of their execution. It is for the State to supervise their execution. Furthermore, if it is to keep its solemn engagements, the State must of necessity prepare in advance, that is to say in peacetime, the legal, material or other means of loyal enforcement of the Convention as and when the occasion arises. It follows, therefore, that in the event of a Power failing to fulfil its obligations, the other Contracting Parties (neutral, allied or enemy) may, and should, endeavour to bring it back to an attitude of respect for the Convention. This explanation highlights a number of key elements regarding implementation and enforcement of IHL. First, the State must follow the rules to which it has agreed to be bound. Second, the State must ensure that those rules are followed at all times, through supervision of its organs and subsidiaries tasked with prosecuting the armed conflict.","PeriodicalId":231099,"journal":{"name":"International Humanitarian Law","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127699503","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2009-12-01DOI: 10.1016/B978-0-323-05226-9.50006-2
M. Lopez-Viego
{"title":"Preface to the First Edition","authors":"M. Lopez-Viego","doi":"10.1016/B978-0-323-05226-9.50006-2","DOIUrl":"https://doi.org/10.1016/B978-0-323-05226-9.50006-2","url":null,"abstract":"","PeriodicalId":231099,"journal":{"name":"International Humanitarian Law","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121377465","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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