Focussing on the interplay between rules of international law applicable in peacetime and rules applicable during armed conflicts, this contribution examines the impact on the jus post bellum. In this context certain specific legal obligations are discussed to answer the question whether and if so, how their application post-conflict may be affected by the peacebuilding process after the (former) armed conflict. Essential norms of the protection of victims during armed conflicts continue to be relevant for peace operations and post-conflict peacebuilding. This includes guiding principles and effective measures of control for operational detentions; law enforcement operations to secure the security and safety of peacekeepers; the protection of the environment and efforts to strengthen the role of States and international organizations as well as their accountability in post-conflict reconstruction. The author demonstrates that jus post bellum requires due diligence during military operations, responsible planning and precautions. He submits that post-conflict peacebuilding should be characterized by pragmatic limitation, conciliation and participation of the parties. This suggests certain deviations from peacetime principles and rules, deviations that may include certain limits of protection which will, however, be balanced out by the temporary nature of peacebuilding measures. While such interplay between the different branches of international law remains subject to changing situations, a few general principles are considered to be relevant for the jus post bellum. Even if codification remains difficult, further case-oriented research is encouraged to confirm general principles and rules of this important branch of international law.
{"title":"The Interplay Between ‘Peacetime’ Law and the Law of Armed Conflict: Consequences for Post-Conflict Peacebuilding","authors":"Dieter Fleck","doi":"10.1093/jcsl/krab007","DOIUrl":"https://doi.org/10.1093/jcsl/krab007","url":null,"abstract":"Focussing on the interplay between rules of international law applicable in peacetime and rules applicable during armed conflicts, this contribution examines the impact on the jus post bellum. In this context certain specific legal obligations are discussed to answer the question whether and if so, how their application post-conflict may be affected by the peacebuilding process after the (former) armed conflict. Essential norms of the protection of victims during armed conflicts continue to be relevant for peace operations and post-conflict peacebuilding. This includes guiding principles and effective measures of control for operational detentions; law enforcement operations to secure the security and safety of peacekeepers; the protection of the environment and efforts to strengthen the role of States and international organizations as well as their accountability in post-conflict reconstruction. The author demonstrates that jus post bellum requires due diligence during military operations, responsible planning and precautions. He submits that post-conflict peacebuilding should be characterized by pragmatic limitation, conciliation and participation of the parties. This suggests certain deviations from peacetime principles and rules, deviations that may include certain limits of protection which will, however, be balanced out by the temporary nature of peacebuilding measures. While such interplay between the different branches of international law remains subject to changing situations, a few general principles are considered to be relevant for the jus post bellum. Even if codification remains difficult, further case-oriented research is encouraged to confirm general principles and rules of this important branch of international law.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/krab007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41601016","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}
{"title":"Laura Íñigo Álvarez, Towards a Regime of Responsibility of Armed Groups in International Law","authors":"E. Vacca","doi":"10.1093/JCSL/KRAB005","DOIUrl":"https://doi.org/10.1093/JCSL/KRAB005","url":null,"abstract":"","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46632482","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}
Albeit the prohibition of recruitment and use in hostilities of children is an established norm of international law, recognized under both international humanitarian law and international human rights law, the problem still remains. The main actors responsible for this reality are non-state armed groups (NSAGs), which kept recruiting and involving children in various tasks, including direct participation in hostilities (DPH). This in turn generates a dilemma regarding targetability of such children: whether to extend the special protection afforded to them by international law from being recruited and/or used in hostilities for targeting purposes as well. Additionally, the difficulty to determine targeting rules in the context of non-international armed conflicts (NIACs), which led to controversies as to targetability of even adult members of NSAGs while they do not take a direct part in hostilities, exacerbates the dilemma. This piece, accepting persuasiveness of the proposal in the ICRC Interpretive Guidance that those members of armed groups who have continuous combat function (CCF) are targetable, in addition to civilians taking a direct part in hostilities, questions whether children with such function/role are targetable in the same manner as adults of the same position. It is argued here that though children can be targeted during their DPH or when they have CCF, there is support in the law that the notions of DPH and CCF should be applied to them differently than adults. The piece also analyzes if the same means and methods used to target adults could be lawful when employed against children.
{"title":"Targeting of Children in Non-International Armed Conflicts","authors":"F. Birhane","doi":"10.1093/JCSL/KRAB004","DOIUrl":"https://doi.org/10.1093/JCSL/KRAB004","url":null,"abstract":"\u0000 Albeit the prohibition of recruitment and use in hostilities of children is an established norm of international law, recognized under both international humanitarian law and international human rights law, the problem still remains. The main actors responsible for this reality are non-state armed groups (NSAGs), which kept recruiting and involving children in various tasks, including direct participation in hostilities (DPH). This in turn generates a dilemma regarding targetability of such children: whether to extend the special protection afforded to them by international law from being recruited and/or used in hostilities for targeting purposes as well. Additionally, the difficulty to determine targeting rules in the context of non-international armed conflicts (NIACs), which led to controversies as to targetability of even adult members of NSAGs while they do not take a direct part in hostilities, exacerbates the dilemma. This piece, accepting persuasiveness of the proposal in the ICRC Interpretive Guidance that those members of armed groups who have continuous combat function (CCF) are targetable, in addition to civilians taking a direct part in hostilities, questions whether children with such function/role are targetable in the same manner as adults of the same position. It is argued here that though children can be targeted during their DPH or when they have CCF, there is support in the law that the notions of DPH and CCF should be applied to them differently than adults. The piece also analyzes if the same means and methods used to target adults could be lawful when employed against children.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/JCSL/KRAB004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48322636","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}
The recent targeted strike resulting in the death of Qassem Soleimani has received extensive attention for its violations of international law by the US. However, one area that has not been considered following the 3 January 2020 attack is the possible consequences this may have for Iran's nuclear non-proliferation legal obligations. Iranian officials have previously alluded to the possibility of Iran withdrawing from the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) 1968 following the US withdrawal from the Joint Comprehensive Plan of Action in May 2018 and re-imposition of targeted economic sanctions against Iran. This article considers whether Iran can withdraw from the NPT, thus freeing Iran from its legal commitments not to develop nuclear weapons. It revisits the withdrawal provisions found in Article X of the NPT and examines the invocation of the ‘extraordinary events’ clause by other states in relation to other instruments too. In light of this, the discussion considers whether Iran can legally withdraw from the NPT, before concluding with some thoughts as to whether it should in fact pursue this option.
{"title":"Going, Going, Gone? Assessing Iran's Possible Grounds for Withdrawal from the Treaty on the Non-Proliferation of Nuclear Weapons","authors":"Christopher P. Evans","doi":"10.1093/JCSL/KRAB001","DOIUrl":"https://doi.org/10.1093/JCSL/KRAB001","url":null,"abstract":"\u0000 The recent targeted strike resulting in the death of Qassem Soleimani has received extensive attention for its violations of international law by the US. However, one area that has not been considered following the 3 January 2020 attack is the possible consequences this may have for Iran's nuclear non-proliferation legal obligations. Iranian officials have previously alluded to the possibility of Iran withdrawing from the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) 1968 following the US withdrawal from the Joint Comprehensive Plan of Action in May 2018 and re-imposition of targeted economic sanctions against Iran. This article considers whether Iran can withdraw from the NPT, thus freeing Iran from its legal commitments not to develop nuclear weapons. It revisits the withdrawal provisions found in Article X of the NPT and examines the invocation of the ‘extraordinary events’ clause by other states in relation to other instruments too. In light of this, the discussion considers whether Iran can legally withdraw from the NPT, before concluding with some thoughts as to whether it should in fact pursue this option.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/JCSL/KRAB001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43709802","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}
This article discusses the ‘Safe Schools Declaration’ and the ‘Guidelines for Protecting Schools and Universities from Military use during Armed Conflict’. The latter are set of non-binding guidelines that aim to improve the protection of schools and universities during armed conflict. The former is a political declaration through which States can endorse the Guidelines. The article looks at the drafting process of the two documents, which involved non-governmental organizations (NGOs), international organizations and States. The article argues that the involvement of NGOs can be seen as reflective of a trend in which NGOs are increasingly involved in normative International Humanitarian Law (IHL) development. The role of international organizations was less pronounced, but nevertheless notable because international organizations traditionally do not have an active role in the field of IHL. The article contains an analysis of the Declaration and Guidelines, against the background of the applicable legal framework to the protection of schools and universities during armed conflict. It concludes that the principal focus of the Guidelines is the prevention of the use of schools and universities by armed forces in support of the military effort. IHL does not contain a rule prohibiting such use, but it can have far-reaching negative consequences for education. Other guidelines relate to, inter alia (limitations to), destroying or attacking schools and universities. These guidelines, while sometimes using phraseology from provisions of IHL treaty law, also largely go beyond existing obligations under IHL.
{"title":"Keeping Camouflage Out of the Classroom: The Safe Schools Declaration and the Guidelines for Protecting Schools and Universities from Military Use During Armed Conflict","authors":"M. Zwanenburg","doi":"10.1093/JCSL/KRAB002","DOIUrl":"https://doi.org/10.1093/JCSL/KRAB002","url":null,"abstract":"This article discusses the ‘Safe Schools Declaration’ and the ‘Guidelines for Protecting Schools and Universities from Military use during Armed Conflict’. The latter are set of non-binding guidelines that aim to improve the protection of schools and universities during armed conflict. The former is a political declaration through which States can endorse the Guidelines. The article looks at the drafting process of the two documents, which involved non-governmental organizations (NGOs), international organizations and States. The article argues that the involvement of NGOs can be seen as reflective of a trend in which NGOs are increasingly involved in normative International Humanitarian Law (IHL) development. The role of international organizations was less pronounced, but nevertheless notable because international organizations traditionally do not have an active role in the field of IHL. The article contains an analysis of the Declaration and Guidelines, against the background of the applicable legal framework to the protection of schools and universities during armed conflict. It concludes that the principal focus of the Guidelines is the prevention of the use of schools and universities by armed forces in support of the military effort. IHL does not contain a rule prohibiting such use, but it can have far-reaching negative consequences for education. Other guidelines relate to, inter alia (limitations to), destroying or attacking schools and universities. These guidelines, while sometimes using phraseology from provisions of IHL treaty law, also largely go beyond existing obligations under IHL.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61097775","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}
Peace agreements are frequently violated. These violations can result in the resumption of armed conflict. Yet, while there is an entire body of political science literature on the factors that influence the success or failure of peace agreements, there are only few legal scholars who deal with the implementation and enforcement of peace agreements. Law has the potential to play a critical role in peace agreement enforcement. At present, however, it is prevented from fulfilling this potential due to controversies on the legal nature of peace agreements, and the limited number of available legal enforcement mechanisms. This article will address some of these controversies on the basis of a Colombian case study. Compared to other contemporary peace agreements, the Colombian peace agreement of 24 November 2016 with the FARC is detailed and comprehensive. It created a range of monitoring mechanisms, such as two UN political missions, a comprehensive follow-up commission (CSIVI), and an international observation mechanism. Despite the abundance of these monitoring mechanisms, gaps in protection remain. An analysis of the mechanisms shows that some peace agreement violations could not be adequately addressed by any of the available mechanisms—be it due to their political nature, or due to their limited mandates. Bearing in mind the relative sophistication of the Colombian peace agreement, this is reason for concern. The article aims to demonstrate the role that law could play in enforcing peace agreements, while also discussing persisting systemic shortcomings in the applicable legal framework.
{"title":"The Role of Law in Enforcing Peace Agreements: Lessons Learned from Colombia","authors":"C. Müller","doi":"10.1093/JCSL/KRAA027","DOIUrl":"https://doi.org/10.1093/JCSL/KRAA027","url":null,"abstract":"\u0000 Peace agreements are frequently violated. These violations can result in the resumption of armed conflict. Yet, while there is an entire body of political science literature on the factors that influence the success or failure of peace agreements, there are only few legal scholars who deal with the implementation and enforcement of peace agreements. Law has the potential to play a critical role in peace agreement enforcement. At present, however, it is prevented from fulfilling this potential due to controversies on the legal nature of peace agreements, and the limited number of available legal enforcement mechanisms. This article will address some of these controversies on the basis of a Colombian case study. Compared to other contemporary peace agreements, the Colombian peace agreement of 24 November 2016 with the FARC is detailed and comprehensive. It created a range of monitoring mechanisms, such as two UN political missions, a comprehensive follow-up commission (CSIVI), and an international observation mechanism. Despite the abundance of these monitoring mechanisms, gaps in protection remain. An analysis of the mechanisms shows that some peace agreement violations could not be adequately addressed by any of the available mechanisms—be it due to their political nature, or due to their limited mandates. Bearing in mind the relative sophistication of the Colombian peace agreement, this is reason for concern. The article aims to demonstrate the role that law could play in enforcing peace agreements, while also discussing persisting systemic shortcomings in the applicable legal framework.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49629511","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}
The Security Council’s recent intractability in the face of human rights and humanitarian crises has directed increased attention to the General Assembly’s secondary responsibility for international peace and security. Despite considerable academic attention to the issue, however, significant questions remain regarding the scope of the Assembly’s powers. One of the most significant of these questions is whether the Assembly may authorise conduct that would otherwise be unlawful. This question is important, because while there is good authority to support the proposition that the Assembly may recommend measures up to and including the use of force, if the Assembly is not also competent to authorise such measures, we are left with the unsatisfactory scenario in which the Assembly is legally competent to make recommendations that States may not legally be able to act upon. Drawing on the International Law Commission’s 2018 Draft Articles on Subsequent Agreement and Subsequent Practice, as well as those on Identification of Customary International Law, this article explores whether an authorising competence on the part of the General Assembly can be grounded in the Assembly’s practice. Specifically, it considers whether the Assembly’s practice of recommending and seemingly purporting to authorise coercive measures may amount to ‘established practice’, thus forming part of the ‘rules of the organisation’ within the meaning of the Vienna Convention on the Law of Treaties (VCLT); or alternatively if it can be considered ‘subsequent practice’ within the meaning of the VCLT; or alternatively it may attest to a rule of customary international law.
{"title":"Revisiting the Legal Effect of General Assembly Resolutions: Can an Authorising Competence for the Assembly be Grounded in the Assembly’s ‘Established Practice’, ‘Subsequent Practice’ or Customary International Law?","authors":"R. Barber","doi":"10.1093/jcsl/kraa025","DOIUrl":"https://doi.org/10.1093/jcsl/kraa025","url":null,"abstract":"\u0000 The Security Council’s recent intractability in the face of human rights and humanitarian crises has directed increased attention to the General Assembly’s secondary responsibility for international peace and security. Despite considerable academic attention to the issue, however, significant questions remain regarding the scope of the Assembly’s powers. One of the most significant of these questions is whether the Assembly may authorise conduct that would otherwise be unlawful. This question is important, because while there is good authority to support the proposition that the Assembly may recommend measures up to and including the use of force, if the Assembly is not also competent to authorise such measures, we are left with the unsatisfactory scenario in which the Assembly is legally competent to make recommendations that States may not legally be able to act upon. Drawing on the International Law Commission’s 2018 Draft Articles on Subsequent Agreement and Subsequent Practice, as well as those on Identification of Customary International Law, this article explores whether an authorising competence on the part of the General Assembly can be grounded in the Assembly’s practice. Specifically, it considers whether the Assembly’s practice of recommending and seemingly purporting to authorise coercive measures may amount to ‘established practice’, thus forming part of the ‘rules of the organisation’ within the meaning of the Vienna Convention on the Law of Treaties (VCLT); or alternatively if it can be considered ‘subsequent practice’ within the meaning of the VCLT; or alternatively it may attest to a rule of customary international law.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2020-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa025","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44017750","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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