Pub Date : 2023-04-24DOI: 10.1163/18781527-bja10070
Emma Lush
In years past, much of the discussion around International Humanitarian Law and International Human Rights Law has been dedicated to considering the convergence of the two regimes; to discover a way to increase respect for the protection of the individual in armed conflict. Meanwhile, egregious violations of individual’s human rights continue to occur in armed conflicts – those in Ukraine, Yemen, Ethiopia, Afghanistan, and many others. This paper surveys the relationship between the two international disciplines, and considers that though ihl and ihrl are two regimes that have different aims, both contain norms that strive for the protection of the individual in armed conflict. Ultimately, this paper argues that protection of individuals in armed conflict can be strengthened by importing ihl norms into the ihrl framework. This cross-pollination allows treaty bodies to interpret, and make comments about, State Parties’ adherence to ihl that can increase respect for those norms, given ihrl’s associated enforcement mechanisms and communications machinery.
{"title":"The View through a Different Lens: Increasing Respect for International Humanitarian Law through the Use of the International Human Rights Law Framework","authors":"Emma Lush","doi":"10.1163/18781527-bja10070","DOIUrl":"https://doi.org/10.1163/18781527-bja10070","url":null,"abstract":"\u0000In years past, much of the discussion around International Humanitarian Law and International Human Rights Law has been dedicated to considering the convergence of the two regimes; to discover a way to increase respect for the protection of the individual in armed conflict. Meanwhile, egregious violations of individual’s human rights continue to occur in armed conflicts – those in Ukraine, Yemen, Ethiopia, Afghanistan, and many others. This paper surveys the relationship between the two international disciplines, and considers that though ihl and ihrl are two regimes that have different aims, both contain norms that strive for the protection of the individual in armed conflict. Ultimately, this paper argues that protection of individuals in armed conflict can be strengthened by importing ihl norms into the ihrl framework. This cross-pollination allows treaty bodies to interpret, and make comments about, State Parties’ adherence to ihl that can increase respect for those norms, given ihrl’s associated enforcement mechanisms and communications machinery.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2023-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43325599","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 : 2023-04-17DOI: 10.1163/18781527-bja10067
Andrea Marilyn Pragashini Immanuel
{"title":"Daniela L. Caglioti, War and Citizenship: Enemy Aliens and National Belonging from the French Revolution to the First World War","authors":"Andrea Marilyn Pragashini Immanuel","doi":"10.1163/18781527-bja10067","DOIUrl":"https://doi.org/10.1163/18781527-bja10067","url":null,"abstract":"","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2023-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46562481","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 : 2023-03-22DOI: 10.1163/18781527-bja10066
R. McLaughlin
Within a broader discussion as to the place and role of self-defence within Rules of Engagement, this article seeks to describe some of the drafting and application issues that often present when employing Rules of Engagement – as a distillation of law, policy, operational context, and capability – to resolve, or to encapsulate the resolution achieved, in each mission-specific dialogue between operational context and the law of individual self-defence. To this end, the analysis will focus primarily (but not exclusively) upon the availability to military members of the ‘right’ of individual self-defence in otherwise law of armed conflict-governed operations.
{"title":"Rules of Engagement and the Situation of Individual Self-Defence: Applicable Law and Coherence with Operational Context","authors":"R. McLaughlin","doi":"10.1163/18781527-bja10066","DOIUrl":"https://doi.org/10.1163/18781527-bja10066","url":null,"abstract":"\u0000Within a broader discussion as to the place and role of self-defence within Rules of Engagement, this article seeks to describe some of the drafting and application issues that often present when employing Rules of Engagement – as a distillation of law, policy, operational context, and capability – to resolve, or to encapsulate the resolution achieved, in each mission-specific dialogue between operational context and the law of individual self-defence. To this end, the analysis will focus primarily (but not exclusively) upon the availability to military members of the ‘right’ of individual self-defence in otherwise law of armed conflict-governed operations.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2023-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47252479","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 : 2023-03-22DOI: 10.1163/18781527-bja10065
Annabelle Lukin, Alexandra I. García Marrugo
All texts, including all legal texts, are constructed in language. All legal constructs and discriminations are an effect of language. As such, linguistics and text analysis should be considered a necessary adjunct to legal studies and, in particular, to critical legal studies. While the disciplines of linguistics and law are increasingly interacting, there is a paucity of linguistic analysis in the field of the international laws of war. This paper seeks to open doors to collaboration, by viewing the texts of the international laws of war from three linguistic perspectives: as a ‘register’, as a ‘corpus’, and in terms of their lexicogrammatical patterning. In terms of register, the international laws of war herald a new form of textual practice, the function and effects of which are subject to debate. As a corpus, some dominant lexical habits of these texts are explored and interpreted for their ideological implications and reactances. Finally, an examination of covert lexicogrammatical meanings in this register, via a small extract from Article 8 of the Rome Statute, illuminates the contradictory meanings that these texts navigate. These three perspectives offer a preliminary glimpse into the value of linguistic analysis for critical perspectives on the international laws of war.
{"title":"The International Laws of War: Linguistic Analysis from the Perspectives of Register, Corpus and Grammatical Patterning","authors":"Annabelle Lukin, Alexandra I. García Marrugo","doi":"10.1163/18781527-bja10065","DOIUrl":"https://doi.org/10.1163/18781527-bja10065","url":null,"abstract":"\u0000All texts, including all legal texts, are constructed in language. All legal constructs and discriminations are an effect of language. As such, linguistics and text analysis should be considered a necessary adjunct to legal studies and, in particular, to critical legal studies. While the disciplines of linguistics and law are increasingly interacting, there is a paucity of linguistic analysis in the field of the international laws of war. This paper seeks to open doors to collaboration, by viewing the texts of the international laws of war from three linguistic perspectives: as a ‘register’, as a ‘corpus’, and in terms of their lexicogrammatical patterning. In terms of register, the international laws of war herald a new form of textual practice, the function and effects of which are subject to debate. As a corpus, some dominant lexical habits of these texts are explored and interpreted for their ideological implications and reactances. Finally, an examination of covert lexicogrammatical meanings in this register, via a small extract from Article 8 of the Rome Statute, illuminates the contradictory meanings that these texts navigate. These three perspectives offer a preliminary glimpse into the value of linguistic analysis for critical perspectives on the international laws of war.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2023-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43381656","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 : 2023-03-21DOI: 10.1163/18781527-bja10063
T. Kirabira, L. Choukroune
This article examines the existing post-war recovery framework employed in Uganda to address concerns with housing, land and property (hlp) rights, particularly in Uganda’s post-war recovery period. It explores the integration of special categories of victims, i.e., internally displaced persons (idp s) and children born of war (cbw), with a key focus on how hlp rights are integrated into – or left out of – the transitional justice (tj) process. hlp rights fit within the broader pictures of customary practices and tj, since they enable idp s and cbw to integrate into the post-war communities. Our findings from the Uganda case study cast some doubt on the current process and aim to influence future interventions by emphasising that progress with securing hlp rights for those affected by war and violence is an integral part of any legitimate post-war recovery process and tj interventions.
{"title":"Uganda’s Post-War Transitional Justice Process","authors":"T. Kirabira, L. Choukroune","doi":"10.1163/18781527-bja10063","DOIUrl":"https://doi.org/10.1163/18781527-bja10063","url":null,"abstract":"\u0000This article examines the existing post-war recovery framework employed in Uganda to address concerns with housing, land and property (hlp) rights, particularly in Uganda’s post-war recovery period. It explores the integration of special categories of victims, i.e., internally displaced persons (idp s) and children born of war (cbw), with a key focus on how hlp rights are integrated into – or left out of – the transitional justice (tj) process. hlp rights fit within the broader pictures of customary practices and tj, since they enable idp s and cbw to integrate into the post-war communities. Our findings from the Uganda case study cast some doubt on the current process and aim to influence future interventions by emphasising that progress with securing hlp rights for those affected by war and violence is an integral part of any legitimate post-war recovery process and tj interventions.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2023-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42933070","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 : 2023-03-20DOI: 10.1163/18781527-bja10064
Christopher Greenwood
This article considers certain aspects of the reality and efficacy of ihl. It looks at problems concerning the scope of ihl, including the question of what constitutes an armed conflict, the difficulties of disentangling international and non-international elements in some armed conflicts and debates about the application of ihl in United Nations peacekeeping. The article also examines whether ihl has acquired detail at the expense of practicality and calls for training of military personnel aimed at the development of a humanitarian reflex. It discusses the relationship between ihl and human rights law. Finally, it considers some of the problems in securing compliance with ihl.
{"title":"The Practical Reality and Efficacy of International Humanitarian Law: Some Reflections","authors":"Christopher Greenwood","doi":"10.1163/18781527-bja10064","DOIUrl":"https://doi.org/10.1163/18781527-bja10064","url":null,"abstract":"\u0000This article considers certain aspects of the reality and efficacy of ihl. It looks at problems concerning the scope of ihl, including the question of what constitutes an armed conflict, the difficulties of disentangling international and non-international elements in some armed conflicts and debates about the application of ihl in United Nations peacekeeping. The article also examines whether ihl has acquired detail at the expense of practicality and calls for training of military personnel aimed at the development of a humanitarian reflex. It discusses the relationship between ihl and human rights law. Finally, it considers some of the problems in securing compliance with ihl.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2023-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42158509","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 : 2023-01-13DOI: 10.1163/18781527-bja10060
Steven van de Put
States have been increasingly engaging in a practice of ex gratia payments during armed conflict as a way to win ‘hearts and minds’ or mitigate local animosity from combat operations that cause civilian loss or damage. These represent voluntary payments for damages which are not the result of a violation of the laws of war. This practice provides a contrast to reparations, which are the result of a legal obligation to remedy breaches of law. This article critically assesses how these two concepts interact with each other. Analysing the current practice, this work argues that ex gratia payments can represent another barrier for victims seeking redress. Crucial here is that these payments are seen as both an explicit and implicit waiver of any future claims. This ignores the potential for synergy between the two concepts on both moral and operational grounds. To better facilitate this potential synergy, this article takes inspiration from some of the human rights jurisprudence surrounding reparations programs and considers ex gratia payments in light of their standards instead of accepting them as a blanket waiver. This would align these payments better with both the operational and moral imperatives underlying these payments.
{"title":"Ex Gratia Payments and Reparations: A Missed Opportunity?","authors":"Steven van de Put","doi":"10.1163/18781527-bja10060","DOIUrl":"https://doi.org/10.1163/18781527-bja10060","url":null,"abstract":"\u0000States have been increasingly engaging in a practice of ex gratia payments during armed conflict as a way to win ‘hearts and minds’ or mitigate local animosity from combat operations that cause civilian loss or damage. These represent voluntary payments for damages which are not the result of a violation of the laws of war. This practice provides a contrast to reparations, which are the result of a legal obligation to remedy breaches of law. This article critically assesses how these two concepts interact with each other. Analysing the current practice, this work argues that ex gratia payments can represent another barrier for victims seeking redress. Crucial here is that these payments are seen as both an explicit and implicit waiver of any future claims. This ignores the potential for synergy between the two concepts on both moral and operational grounds. To better facilitate this potential synergy, this article takes inspiration from some of the human rights jurisprudence surrounding reparations programs and considers ex gratia payments in light of their standards instead of accepting them as a blanket waiver. This would align these payments better with both the operational and moral imperatives underlying these payments.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2023-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43779977","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 : 2022-12-19DOI: 10.1163/18781527-13020002
{"title":"Peer Reviewers","authors":"","doi":"10.1163/18781527-13020002","DOIUrl":"https://doi.org/10.1163/18781527-13020002","url":null,"abstract":"","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2022-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47383377","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 : 2022-12-12DOI: 10.1163/18781527-bja10059
M. Schmitt
War and international humanitarian law (IHL) exist and evolve in a synergistic relationship. On the one hand, treaty and customary law norms can proactively shape warfare. But on the other, changes in the nature of warfare often determine IHL’s path forward, for if IHL is to remain effective, it must remain responsive to the context in which it is to be applied. This article offers tentative reflections on how future conflict may affect the evolution of IHL’s conduct of hostilities rules as applied to ‘cyber capabilities’. It concludes that current and future cyber capabilities and vulnerabilities are driving the positions of States and the wider international community regarding cyber operations during armed conflict. In particular, it predicts movement in the direction of interpreting IHL rules restrictively, that is, in a manner that provides enhanced protection for the civilian population, sometimes at the expense of military advantage.
{"title":"International Humanitarian Law and the Conduct of Cyber Hostilities: Quo Vadis?","authors":"M. Schmitt","doi":"10.1163/18781527-bja10059","DOIUrl":"https://doi.org/10.1163/18781527-bja10059","url":null,"abstract":"\u0000War and international humanitarian law (IHL) exist and evolve in a synergistic relationship. On the one hand, treaty and customary law norms can proactively shape warfare. But on the other, changes in the nature of warfare often determine IHL’s path forward, for if IHL is to remain effective, it must remain responsive to the context in which it is to be applied. This article offers tentative reflections on how future conflict may affect the evolution of IHL’s conduct of hostilities rules as applied to ‘cyber capabilities’. It concludes that current and future cyber capabilities and vulnerabilities are driving the positions of States and the wider international community regarding cyber operations during armed conflict. In particular, it predicts movement in the direction of interpreting IHL rules restrictively, that is, in a manner that provides enhanced protection for the civilian population, sometimes at the expense of military advantage.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2022-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46234060","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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