Pub Date : 2021-12-01DOI: 10.1163/18781527-bja10040
Stefano D’Aloia
{"title":"Natia Kalandarishvili-Mueller, Occupation and Control in International Humanitarian Law","authors":"Stefano D’Aloia","doi":"10.1163/18781527-bja10040","DOIUrl":"https://doi.org/10.1163/18781527-bja10040","url":null,"abstract":"","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45169157","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 : 2021-11-29DOI: 10.1163/18781527-bja10039
Alonso Gurmendi Dunkelberg
Samuel Moyn’s latest book, Humane: How the United States Abandoned Peace and Reinvented War, offers a compelling re-reading of the history of the laws of war not as the precursors of international humanitarian law, but as enablers of what he calls “inhumane war”. Instead of advancing the cause of humanization of war, Moyn argues in favour of pacificism and the abolition of war in its entirety. And yet, Moyn’s decision to tell his history through two interconnected but different parts – one on the broader history of the laws of war and another on the very recent present of US domestic politics – forces the book to embrace a North Atlantic, Anglo-American vision of international law that robs it of valuable insights from the Global South and its relationship to the same body of laws. In this review essay, I explore these missed connections seeking to offer a more global approach to the history of war and peace.
塞缪尔·莫因（Samuel Moyn）的最新著作《人道主义：美国如何放弃和平和重新发动战争》（Humane:How the United States Hadded Peace and Reinvented War）令人信服地重读了战争法的历史，战争法不是国际人道主义法的前身，而是他所说的“不人道战争”的推动者。莫因没有推进战争人性化的事业，而是主张和平主义和全面废除战争。然而，莫因决定通过两个相互关联但不同的部分讲述他的历史——一个是关于更广泛的战争法历史，另一个是美国国内政治的近期现状——迫使这本书拥抱北大西洋，英美对国际法的看法剥夺了全球南方及其与同一法律体系的关系的宝贵见解。在这篇综述文章中，我探讨了这些缺失的联系，试图为战争与和平的历史提供一种更全球化的方法。
{"title":"It’s a Trap! Re-Thinking Samuel Moyn’s Humane Beyond the North Atlantic","authors":"Alonso Gurmendi Dunkelberg","doi":"10.1163/18781527-bja10039","DOIUrl":"https://doi.org/10.1163/18781527-bja10039","url":null,"abstract":"\u0000Samuel Moyn’s latest book, Humane: How the United States Abandoned Peace and Reinvented War, offers a compelling re-reading of the history of the laws of war not as the precursors of international humanitarian law, but as enablers of what he calls “inhumane war”. Instead of advancing the cause of humanization of war, Moyn argues in favour of pacificism and the abolition of war in its entirety. And yet, Moyn’s decision to tell his history through two interconnected but different parts – one on the broader history of the laws of war and another on the very recent present of US domestic politics – forces the book to embrace a North Atlantic, Anglo-American vision of international law that robs it of valuable insights from the Global South and its relationship to the same body of laws. In this review essay, I explore these missed connections seeking to offer a more global approach to the history of war and peace.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42210124","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 : 2021-11-29DOI: 10.1163/18781527-bja10038
Remzije Istrefi, Arben Hajrullahu
This article examines challenges in seeking justice for Conflict-Related Sexual Violence (crsv) survivors in Kosovo. It analyses the roles and responsibilities of international missions and how deficiencies impact the prosecution and adjudication of crsv by Kosovo’s justice system. A key question is why two decades after the 1998–1999 war in Kosovo survivors of crsv cannot find justice? The end of the international mandates, the large number of war crime cases transferred, unfinished files, and the necessity for specific expertise in handling the gender-based violence are some of the existing challenges which undermine the prosecution and adjudication of crsv in Kosovo. The International Criminal Tribunal for the former Yugoslavia (icty) established accountability for sexual violence in armed conflicts. This article seeks to scaffold the icty experience by developing an accurate and comprehensive understanding of the nature of crsv and by examining its impact on survivors and victims’ alike. This paper then explores how a contexualist interpretation of international and domestic criminal law provisions can prioritise the prosecution of crsv amid other pressing needs in Kosovo.
{"title":"Conflict-Related Sexual Violence in Kosovo and Lessons to be Learned from the International Criminal Tribunal for the former Yugoslavia","authors":"Remzije Istrefi, Arben Hajrullahu","doi":"10.1163/18781527-bja10038","DOIUrl":"https://doi.org/10.1163/18781527-bja10038","url":null,"abstract":"\u0000This article examines challenges in seeking justice for Conflict-Related Sexual Violence (crsv) survivors in Kosovo. It analyses the roles and responsibilities of international missions and how deficiencies impact the prosecution and adjudication of crsv by Kosovo’s justice system. A key question is why two decades after the 1998–1999 war in Kosovo survivors of crsv cannot find justice? The end of the international mandates, the large number of war crime cases transferred, unfinished files, and the necessity for specific expertise in handling the gender-based violence are some of the existing challenges which undermine the prosecution and adjudication of crsv in Kosovo. The International Criminal Tribunal for the former Yugoslavia (icty) established accountability for sexual violence in armed conflicts. This article seeks to scaffold the icty experience by developing an accurate and comprehensive understanding of the nature of crsv and by examining its impact on survivors and victims’ alike. This paper then explores how a contexualist interpretation of international and domestic criminal law provisions can prioritise the prosecution of crsv amid other pressing needs in Kosovo.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49034661","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 : 2021-11-09DOI: 10.1163/18781527-bja10037
Alexandra Wormald
Recent years have seen a rising global consensus on the need to ensure appropriate protections for the environment during and after armed conflict. In this context, the International Law Commission provisionally adopted 28 draft principles on the protection of the environment in relation to armed conflicts in July 2019. With stakeholder consultation having concluded in June 2021, this article investigates what practical impacts the corporate due diligence and liability provisions in the draft principles are likely to have on the protection of the environment during and after armed conflict, should the principles be implemented as currently drafted.
{"title":"Protecting the Environment During and After Armed Conflict, the International Law Commission and an Overdue Due Diligence Duty for Corporations","authors":"Alexandra Wormald","doi":"10.1163/18781527-bja10037","DOIUrl":"https://doi.org/10.1163/18781527-bja10037","url":null,"abstract":"\u0000 Recent years have seen a rising global consensus on the need to ensure appropriate protections for the environment during and after armed conflict. In this context, the International Law Commission provisionally adopted 28 draft principles on the protection of the environment in relation to armed conflicts in July 2019. With stakeholder consultation having concluded in June 2021, this article investigates what practical impacts the corporate due diligence and liability provisions in the draft principles are likely to have on the protection of the environment during and after armed conflict, should the principles be implemented as currently drafted.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45734917","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 : 2021-10-26DOI: 10.1163/18781527-bja10036
S. McKenzie, Eve Massingham
The obligations of international humanitarian law are not limited to the attacker; the defender is also required to take steps to protect civilians from harm. The requirement to take precautions against the effects of attack requires the defender to minimize the risk that civilians and civilian objects will be harmed by enemy military operations. At its most basic, it obliges defenders to locate military installations away from civilians. Furthermore, where appropriate, the status of objects should be clearly marked. It is – somewhat counterintuitively – about making it easier for the attacker to select lawful targets by making visible the distinction between civilian objects and military objectives. The increasing importance of digital infrastructure to modern life may make complying with these precautionary obligations more complicated. Maintaining separation between military and civilian networks is challenging as both operate using at least some of the same infrastructure, relying on the same cables, systems, and electromagnetic spectrum. In addition, the speed at which operations against digital infrastructure can occur increases the difficulty of complying with the obligation – particularly if such operations involve a degree of automation or the use of artificial intelligence (ai). This paper sets out the source and extent of the obligation to take precautions against hostile military operations and considers how they might apply to digital infrastructure. As well as clarifying the extent of the obligation, it applies the obligation to take precautions against hostile military operations to digital infrastructure, giving examples of where systems designers are taking these obligations into account, and other examples of where they must.
{"title":"Taking Care Against the Computer","authors":"S. McKenzie, Eve Massingham","doi":"10.1163/18781527-bja10036","DOIUrl":"https://doi.org/10.1163/18781527-bja10036","url":null,"abstract":"\u0000The obligations of international humanitarian law are not limited to the attacker; the defender is also required to take steps to protect civilians from harm. The requirement to take precautions against the effects of attack requires the defender to minimize the risk that civilians and civilian objects will be harmed by enemy military operations. At its most basic, it obliges defenders to locate military installations away from civilians. Furthermore, where appropriate, the status of objects should be clearly marked. It is – somewhat counterintuitively – about making it easier for the attacker to select lawful targets by making visible the distinction between civilian objects and military objectives.\u0000The increasing importance of digital infrastructure to modern life may make complying with these precautionary obligations more complicated. Maintaining separation between military and civilian networks is challenging as both operate using at least some of the same infrastructure, relying on the same cables, systems, and electromagnetic spectrum. In addition, the speed at which operations against digital infrastructure can occur increases the difficulty of complying with the obligation – particularly if such operations involve a degree of automation or the use of artificial intelligence (ai).\u0000This paper sets out the source and extent of the obligation to take precautions against hostile military operations and considers how they might apply to digital infrastructure. As well as clarifying the extent of the obligation, it applies the obligation to take precautions against hostile military operations to digital infrastructure, giving examples of where systems designers are taking these obligations into account, and other examples of where they must.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48083438","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 : 2021-10-11DOI: 10.1163/18781527-bja10035
Owiso Owiso
In August 2015, the Government of South Sudan and other parties to the country’s civil conflict signed a peace agreement, the Agreement on the Resolution of the Conflict in the Republic of South Sudan, aimed at ending the civil conflict that broke out on 15 December 2013. After this agreement failed to hold, South Sudan descended into a second wave of civil conflict. A recommitment to the agreement was secured through regional efforts on 12 September 2018. Dubbed the Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan, the agreement provides a transitional justice architecture which includes a truth commission, a hybrid court and a reparations authority. This paper examines the potential of the proposed Commission for Truth, Reconciliation and Healing to contribute towards sustainable transitional justice solutions in South Sudan, based on contemporary standards and practice of transitional justice. Through historical, descriptive and analytical approaches, the paper grapples with South Sudan’s complex truth-seeking journey following years of multi-layered conflict.
{"title":"Seeking ‘Truth’ After Devastating, Multi-Layered Conflict","authors":"Owiso Owiso","doi":"10.1163/18781527-bja10035","DOIUrl":"https://doi.org/10.1163/18781527-bja10035","url":null,"abstract":"In August 2015, the Government of South Sudan and other parties to the country’s civil conflict signed a peace agreement, the Agreement on the Resolution of the Conflict in the Republic of South Sudan, aimed at ending the civil conflict that broke out on 15 December 2013. After this agreement failed to hold, South Sudan descended into a second wave of civil conflict. A recommitment to the agreement was secured through regional efforts on 12 September 2018. Dubbed the Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan, the agreement provides a transitional justice architecture which includes a truth commission, a hybrid court and a reparations authority. This paper examines the potential of the proposed Commission for Truth, Reconciliation and Healing to contribute towards sustainable transitional justice solutions in South Sudan, based on contemporary standards and practice of transitional justice. Through historical, descriptive and analytical approaches, the paper grapples with South Sudan’s complex truth-seeking journey following years of multi-layered conflict.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43785241","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 : 2021-09-21DOI: 10.1163/18781527-bja10034
Aurélien Godefroy
{"title":"Jérôme de Hemptinne, Les conflits armés en mutation","authors":"Aurélien Godefroy","doi":"10.1163/18781527-bja10034","DOIUrl":"https://doi.org/10.1163/18781527-bja10034","url":null,"abstract":"","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45300369","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 : 2021-09-17DOI: 10.1163/18781527-BJA10032
R. Alley
Ensuring humanitarian law compliance and repression of its violations receives constant reiteration but to mixed effect. While international judicial, jurisprudential and investigatory modalities have advanced, requisite State level competencies exhibit marked variability. This paper devotes most attention to disadvantaged States – those that, for whatever reason, lack the judicial, institutional or administrative capacity to ensure humanitarian law compliance and repression of its violations. Here a profile of 46 States is selected for review, 20 of which are identified as impacted by previous or continuing forms of armed conflict. Data from the World Justice Project’s 2020 Rule of Law Index is utilised. Chosen indicators assess individual State legislative, judicial, due process, and criminal investigatory capacities as perceived and recorded by local publics and individual experts. A comparative evaluation of this data reveals differences within profiles of disadvantaged States. They are investigated to better comprehend humanitarian law compliance challenges facing such States. They include international cooperation, utilisation of amnesties, and the conduct of armed non-state actors. The paper’s central thesis is that humanitarian law compliance, and repression of its violations, remains inadequate without remediation of the capacity impediments evident in disadvantaged States.
{"title":"Humanitarian Law Compliance","authors":"R. Alley","doi":"10.1163/18781527-BJA10032","DOIUrl":"https://doi.org/10.1163/18781527-BJA10032","url":null,"abstract":"\u0000 Ensuring humanitarian law compliance and repression of its violations receives constant reiteration but to mixed effect. While international judicial, jurisprudential and investigatory modalities have advanced, requisite State level competencies exhibit marked variability. This paper devotes most attention to disadvantaged States – those that, for whatever reason, lack the judicial, institutional or administrative capacity to ensure humanitarian law compliance and repression of its violations. Here a profile of 46 States is selected for review, 20 of which are identified as impacted by previous or continuing forms of armed conflict. Data from the World Justice Project’s 2020 Rule of Law Index is utilised. Chosen indicators assess individual State legislative, judicial, due process, and criminal investigatory capacities as perceived and recorded by local publics and individual experts. A comparative evaluation of this data reveals differences within profiles of disadvantaged States. They are investigated to better comprehend humanitarian law compliance challenges facing such States. They include international cooperation, utilisation of amnesties, and the conduct of armed non-state actors. The paper’s central thesis is that humanitarian law compliance, and repression of its violations, remains inadequate without remediation of the capacity impediments evident in disadvantaged States.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46350733","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 : 2021-09-09DOI: 10.1163/18781527-BJA10033
D. Matyas
{"title":"Giovanni Mantilla, Lawmaking Under Pressure: International Humanitarian Law and Internal Armed Conflict","authors":"D. Matyas","doi":"10.1163/18781527-BJA10033","DOIUrl":"https://doi.org/10.1163/18781527-BJA10033","url":null,"abstract":"","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45672323","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 : 2021-06-17DOI: 10.1163/18781527-bja10031
E. Owusu
One of the most debated subjects among academics and experts in the fields of International Humanitarian Law and International Criminal Law is the principle of individual criminal responsibility for war crimes. Even more contentious is that aspect of the principle relating to crimes committed under superior orders – a legal strategy employed by many defendants at the Nuremberg war crimes trials. This paper contributes to the debate by establishing the extent to which Article 33 of the Rome Statute, which adopts the conditional liability approach, is justified. The article achieves its objective by critically discussing the subject from a combination of legal, psychological and moral philosophical perspectives. It presents a historical account of the superior orders defence, highlighting how two conflicting liability doctrines, absolute liability and conditional liability, have traditionally been applied by the courts, and taking a stance in favour of the latter. The article, however, underlines some pressing questions that Article 33 raises. It offers a brief exegesis of the emotion of fear to show how it may destroy voluntariness, arguing that as a modifier of voluntariness, grave fear, in certain circumstances, should exculpate perpetrators in claims of crime under superior orders, even where the orders were manifestly unlawful.
{"title":"‘Guilty of Having Been Obedient’","authors":"E. Owusu","doi":"10.1163/18781527-bja10031","DOIUrl":"https://doi.org/10.1163/18781527-bja10031","url":null,"abstract":"\u0000One of the most debated subjects among academics and experts in the fields of International Humanitarian Law and International Criminal Law is the principle of individual criminal responsibility for war crimes. Even more contentious is that aspect of the principle relating to crimes committed under superior orders – a legal strategy employed by many defendants at the Nuremberg war crimes trials. This paper contributes to the debate by establishing the extent to which Article 33 of the Rome Statute, which adopts the conditional liability approach, is justified. The article achieves its objective by critically discussing the subject from a combination of legal, psychological and moral philosophical perspectives. It presents a historical account of the superior orders defence, highlighting how two conflicting liability doctrines, absolute liability and conditional liability, have traditionally been applied by the courts, and taking a stance in favour of the latter. The article, however, underlines some pressing questions that Article 33 raises. It offers a brief exegesis of the emotion of fear to show how it may destroy voluntariness, arguing that as a modifier of voluntariness, grave fear, in certain circumstances, should exculpate perpetrators in claims of crime under superior orders, even where the orders were manifestly unlawful.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43006432","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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