Pub Date : 2020-06-22DOI: 10.1163/18781527-01101003
R. Grace
This article examines the role of international humanitarian law (ihl) and humanitarian principles in the discourse of humanitarian negotiation. The article is based on extensive, semi-structured interviews conducted with 53 humanitarian practitioners about their experiences engaging in negotiations in the field. The article proceeds in four parts. Part 1 discusses two key factors at play during humanitarian negotiation processes. The first factor is the counterpart’s familiarity with relevant legal and normative frameworks. The second factor is the interests that can drive counterparts’ behavior. Part 2 presents a framework for understanding how the interaction of these two factors – familiarity and interest-alignment – can shape the discourse of humanitarian negotiation. Part 3 addresses the impact of these same issues on the humanitarian side of the negotiation. In particular, there is the possibility that humanitarian actors themselves might also lack familiarity with ihl and/or humanitarian principles and might find that their interests exist in tension with humanitarian laws and principles. The final section offers concluding remarks.
{"title":"Humanitarian Negotiation with Parties to Armed Conflict","authors":"R. Grace","doi":"10.1163/18781527-01101003","DOIUrl":"https://doi.org/10.1163/18781527-01101003","url":null,"abstract":"This article examines the role of international humanitarian law (ihl) and humanitarian principles in the discourse of humanitarian negotiation. The article is based on extensive, semi-structured interviews conducted with 53 humanitarian practitioners about their experiences engaging in negotiations in the field. The article proceeds in four parts. Part 1 discusses two key factors at play during humanitarian negotiation processes. The first factor is the counterpart’s familiarity with relevant legal and normative frameworks. The second factor is the interests that can drive counterparts’ behavior. Part 2 presents a framework for understanding how the interaction of these two factors – familiarity and interest-alignment – can shape the discourse of humanitarian negotiation. Part 3 addresses the impact of these same issues on the humanitarian side of the negotiation. In particular, there is the possibility that humanitarian actors themselves might also lack familiarity with ihl and/or humanitarian principles and might find that their interests exist in tension with humanitarian laws and principles. The final section offers concluding remarks.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":"11 1","pages":"68-96"},"PeriodicalIF":0.9,"publicationDate":"2020-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18781527-01101003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48488171","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 : 2020-06-22DOI: 10.1163/18781527-bja10016
Hyeran Jo
Does international law matter on the periphery, where potential subjects are marginalized with uncertain legal status and without lawmaking power? Under what conditions would international law matter among the actors on the periphery, to be accepted as law, remain relevant, and eventually be complied with? By adopting an interdisciplinary perspective from international law and international relations, this article assesses how international humanitarian law (ihl) is accepted and adhered to among the non-state armed actors (nsaas). The author argues that international law matters on the periphery when two conditions are met. The first is when incentives of nsaas are compatible with ihl’s goal of restraint. The second is when the interpretation of ihl at the local level is consistent with international law at the global level. This article provides ample examples of nsaas’ words and deeds to illustrate the arguments.
{"title":"International Humanitarian Law on the Periphery","authors":"Hyeran Jo","doi":"10.1163/18781527-bja10016","DOIUrl":"https://doi.org/10.1163/18781527-bja10016","url":null,"abstract":"Does international law matter on the periphery, where potential subjects are marginalized with uncertain legal status and without lawmaking power? Under what conditions would international law matter among the actors on the periphery, to be accepted as law, remain relevant, and eventually be complied with? By adopting an interdisciplinary perspective from international law and international relations, this article assesses how international humanitarian law (ihl) is accepted and adhered to among the non-state armed actors (nsaas). The author argues that international law matters on the periphery when two conditions are met. The first is when incentives of nsaas are compatible with ihl’s goal of restraint. The second is when the interpretation of ihl at the local level is consistent with international law at the global level. This article provides ample examples of nsaas’ words and deeds to illustrate the arguments.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":"11 1","pages":"97-115"},"PeriodicalIF":0.9,"publicationDate":"2020-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18781527-bja10016","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44911186","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 : 2020-06-22DOI: 10.1163/18781527-bja10008
Tara Smith
: At its seventy-first session in 2019, the International Law Commission (ILC) provisionally adopted twenty-eight draft principles related to the protection of the environment before, during and after armed conflict. This article argues that the ILC ought to consider proposing a framework convention as the final outcome of this project, as this could result in better protection of the environment than draft principles. Framework conventions have featured in international environmental law but they have not yet been used to progressively develop the law of armed conflict. This article argues that the hybrid legal nature of protecting the environment during the conduct of hostilities ought to incorporate solutions from relevant fields of international law. To that end, there are many merits to proposing a framework convention approach in the final outcome of the ILC’s programme of work on this issue.
{"title":"A Framework Convention for the Protection of the Environment in Times of Armed Conflict: A New Direction for the International Law Commission’s Draft Principles?","authors":"Tara Smith","doi":"10.1163/18781527-bja10008","DOIUrl":"https://doi.org/10.1163/18781527-bja10008","url":null,"abstract":": At its seventy-first session in 2019, the International Law Commission (ILC) provisionally adopted twenty-eight draft principles related to the protection of the environment before, during and after armed conflict. This article argues that the ILC ought to consider proposing a framework convention as the final outcome of this project, as this could result in better protection of the environment than draft principles. Framework conventions have featured in international environmental law but they have not yet been used to progressively develop the law of armed conflict. This article argues that the hybrid legal nature of protecting the environment during the conduct of hostilities ought to incorporate solutions from relevant fields of international law. To that end, there are many merits to proposing a framework convention approach in the final outcome of the ILC’s programme of work on this issue.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":"11 1","pages":"148-162"},"PeriodicalIF":0.9,"publicationDate":"2020-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18781527-bja10008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43340672","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 : 2020-06-22DOI: 10.1163/18781527-01101001
Margherita Stevoli
This contribution intends to assess the interplay between the proportionality rule and the prohibition of starvation, detailing how proportionality assessments undertaken by warring parties prior to launching attacks must take into consideration the food security situation of the affected civilian population, and the possibility of causing starvation. The article provides and analysis of the prohibition of starvation included in the Additional Protocols, outlining its inherent limitations. It then argues the need of evaluating the so-called “conflict-induced hunger” under the lens of the proportionality rule and gives an overview of how parties can include the evaluation of food insecurity and malnutrition levels in their assessment of collateral damages.
{"title":"Famine as a Collateral Damage of War","authors":"Margherita Stevoli","doi":"10.1163/18781527-01101001","DOIUrl":"https://doi.org/10.1163/18781527-01101001","url":null,"abstract":"This contribution intends to assess the interplay between the proportionality rule and the prohibition of starvation, detailing how proportionality assessments undertaken by warring parties prior to launching attacks must take into consideration the food security situation of the affected civilian population, and the possibility of causing starvation. The article provides and analysis of the prohibition of starvation included in the Additional Protocols, outlining its inherent limitations. It then argues the need of evaluating the so-called “conflict-induced hunger” under the lens of the proportionality rule and gives an overview of how parties can include the evaluation of food insecurity and malnutrition levels in their assessment of collateral damages.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":"11 1","pages":"163-186"},"PeriodicalIF":0.9,"publicationDate":"2020-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18781527-01101001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44081042","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 : 2020-06-22DOI: 10.1163/18781527-bja10015
Cédric Cotter, Ellen Policinski
The International Review of the Red Cross, an academic journal produced by the International Committee of the Red Cross (icrc) and published by Cambridge University Press, traces its origins back more than 150 years. Throughout its existence, the publication has featured international humanitarian law (ihl) prominently. Because of this, it is possible to trace how the icrc was communicating publicly about ihl since 1869, allowing researchers to draw conclusions about how that body of law has evolved. In this article, the authors divide the history of the Review into five time periods, looking at trends over time as ihl was established as a body of law, was expanded to address trends in the ways war was waged, was disseminated and promoted to the international community, and how it is interpreted in light of current conflicts. Based on the way the law has been represented in the Review, the authors draw conclusions about the evolution of the law itself over time, and lessons this may provide for those who seek to influence the future development of the law regulating armed conflict.
{"title":"A History of Violence","authors":"Cédric Cotter, Ellen Policinski","doi":"10.1163/18781527-bja10015","DOIUrl":"https://doi.org/10.1163/18781527-bja10015","url":null,"abstract":"The International Review of the Red Cross, an academic journal produced by the International Committee of the Red Cross (icrc) and published by Cambridge University Press, traces its origins back more than 150 years. Throughout its existence, the publication has featured international humanitarian law (ihl) prominently. Because of this, it is possible to trace how the icrc was communicating publicly about ihl since 1869, allowing researchers to draw conclusions about how that body of law has evolved. In this article, the authors divide the history of the Review into five time periods, looking at trends over time as ihl was established as a body of law, was expanded to address trends in the ways war was waged, was disseminated and promoted to the international community, and how it is interpreted in light of current conflicts. Based on the way the law has been represented in the Review, the authors draw conclusions about the evolution of the law itself over time, and lessons this may provide for those who seek to influence the future development of the law regulating armed conflict.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2020-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18781527-bja10015","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47815768","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 : 2020-06-22DOI: 10.1163/18781527-bja10001
D. Mauri
The issue of lethal autonomous weapons systems (laws) goes to the heart of the debate on new warfare technologies: States, international organizations, non-governmental organizations and civil society at large have long been discussing the acceptability of ‘autonomous killing’. The present contribution zooms in on the position held by the Holy See, exploring its content and the main arguments which support the call of a ban on such technology. Both diplomatic statements and doctrinal teachings will be tackled. Importantly, a solid argument for a prohibition of laws is based on the moral unacceptability of autonomous killing, which may assume also a legal standing through the so-called Martens Clause. The history and the actual content of the Clause will be analyzed in order to explore whether – and to what extent – it can be interpreted so as to offer a legal ground for rejecting laws. It will be argued that the Holy See is in a particularly fit position to advocate for a renewed appraisal of the Martens Clause that may help the pro-ban front to structure a more principled debate.
{"title":"The Holy See’s Position on Lethal Autonomous Weapons Systems","authors":"D. Mauri","doi":"10.1163/18781527-bja10001","DOIUrl":"https://doi.org/10.1163/18781527-bja10001","url":null,"abstract":"The issue of lethal autonomous weapons systems (laws) goes to the heart of the debate on new warfare technologies: States, international organizations, non-governmental organizations and civil society at large have long been discussing the acceptability of ‘autonomous killing’. The present contribution zooms in on the position held by the Holy See, exploring its content and the main arguments which support the call of a ban on such technology. Both diplomatic statements and doctrinal teachings will be tackled. Importantly, a solid argument for a prohibition of laws is based on the moral unacceptability of autonomous killing, which may assume also a legal standing through the so-called Martens Clause. The history and the actual content of the Clause will be analyzed in order to explore whether – and to what extent – it can be interpreted so as to offer a legal ground for rejecting laws. It will be argued that the Holy See is in a particularly fit position to advocate for a renewed appraisal of the Martens Clause that may help the pro-ban front to structure a more principled debate.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":"11 1","pages":"116-147"},"PeriodicalIF":0.9,"publicationDate":"2020-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46068302","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 : 2020-06-22DOI: 10.1163/18781527-01101002
Karolina Aksamitowska
Pre-colonial African communities had a well-established system of human rights protection applicable to armed conflicts, which became lost as a result of the break-up of traditional societies. This paper will show that traditional rules can be revived and integrated into future conflict management efforts. The ancient authentically African roots of international humanitarian law (ihl) could serve as receptors forming the basis for ihl and human rights law dissemination. Listening to local communities and learning about their aspirations and cultural practices should inform the peacebuilding programmes which need to be introduced before the cessation of hostilities. In the long run, engaging the armed non-state actors in the development of norms, could help improve certainty and predictability of ihl. Recent efforts by Geneva Call comprising a study of indigenous cultural norms relating to civilians’ protection in Mali underline the growing importance of integrating local approaches in ihl dissemination.
{"title":"Traditional Approaches to the Law of Armed Conflict","authors":"Karolina Aksamitowska","doi":"10.1163/18781527-01101002","DOIUrl":"https://doi.org/10.1163/18781527-01101002","url":null,"abstract":"Pre-colonial African communities had a well-established system of human rights protection applicable to armed conflicts, which became lost as a result of the break-up of traditional societies. This paper will show that traditional rules can be revived and integrated into future conflict management efforts. The ancient authentically African roots of international humanitarian law (ihl) could serve as receptors forming the basis for ihl and human rights law dissemination. Listening to local communities and learning about their aspirations and cultural practices should inform the peacebuilding programmes which need to be introduced before the cessation of hostilities. In the long run, engaging the armed non-state actors in the development of norms, could help improve certainty and predictability of ihl. Recent efforts by Geneva Call comprising a study of indigenous cultural norms relating to civilians’ protection in Mali underline the growing importance of integrating local approaches in ihl dissemination.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":"11 1","pages":"5-35"},"PeriodicalIF":0.9,"publicationDate":"2020-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18781527-01101002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41362207","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 : 2020-06-13DOI: 10.1163/18781527-01102002
Barrie Sander, N. Tsagourias
Reflecting on the covid-19 infodemic, this paper identifies different dimensions of information disorder associated with the pandemic, examines how online platform governance has been evolving in response, and reflects on what the crisis reveals about the relationship between online platforms, international law, and the prospect of regulation. The paper argues that online platforms are intermediary fiduciaries of the international public good, and for this reason regulation should be informed by relevant standards that apply to fiduciary relationships.
{"title":"The covid-19 Infodemic and Online Platforms as Intermediary Fiduciaries under International Law","authors":"Barrie Sander, N. Tsagourias","doi":"10.1163/18781527-01102002","DOIUrl":"https://doi.org/10.1163/18781527-01102002","url":null,"abstract":"Reflecting on the covid-19 infodemic, this paper identifies different dimensions of information disorder associated with the pandemic, examines how online platform governance has been evolving in response, and reflects on what the crisis reveals about the relationship between online platforms, international law, and the prospect of regulation. The paper argues that online platforms are intermediary fiduciaries of the international public good, and for this reason regulation should be informed by relevant standards that apply to fiduciary relationships.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2020-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18781527-01102002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47677058","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 : 2020-06-02DOI: 10.1163/18781527-01102001
Antonio Coco, T. Dias
While disease outbreaks remain to a certain extent unforeseeable, international law provides a comprehensive legal framework requiring States to prevent their harmful consequences, effectively respond to ensuing health emergencies, and cooperate in achieving those aims. This contribution shows that, within this framework, many rules take the form of ‘due diligence’ obligations. Obligations of due diligence, albeit inherently flexible to accommodate different capabilities and circumstances, are binding on States. They impose a duty to act according to a standard of ‘good governance’: a State must employ its best efforts to realise certain common goals. At least five key sets of rules establishing due diligence duties are relevant to the Covid-19 outbreak: a) the ‘no-harm’ principle; b) international disaster law; c) the International Health Regulations; d) international human rights law; and e) international humanitarian law. We preliminarily identify some of the actions required from States to prevent new outbreaks and respond to the pandemic, whilst assessing compliance with applicable rules. We conclude that hard lessons learned during the current pandemic should spur more decisive action to prevent and address future public health emergencies.
{"title":"Prevent, Respond, Cooperate","authors":"Antonio Coco, T. Dias","doi":"10.1163/18781527-01102001","DOIUrl":"https://doi.org/10.1163/18781527-01102001","url":null,"abstract":"While disease outbreaks remain to a certain extent unforeseeable, international law provides a comprehensive legal framework requiring States to prevent their harmful consequences, effectively respond to ensuing health emergencies, and cooperate in achieving those aims. This contribution shows that, within this framework, many rules take the form of ‘due diligence’ obligations. Obligations of due diligence, albeit inherently flexible to accommodate different capabilities and circumstances, are binding on States. They impose a duty to act according to a standard of ‘good governance’: a State must employ its best efforts to realise certain common goals. At least five key sets of rules establishing due diligence duties are relevant to the Covid-19 outbreak: a) the ‘no-harm’ principle; b) international disaster law; c) the International Health Regulations; d) international human rights law; and e) international humanitarian law. We preliminarily identify some of the actions required from States to prevent new outbreaks and respond to the pandemic, whilst assessing compliance with applicable rules. We conclude that hard lessons learned during the current pandemic should spur more decisive action to prevent and address future public health emergencies.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":"-1 1","pages":"1-19"},"PeriodicalIF":0.9,"publicationDate":"2020-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18781527-01102001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64426244","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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