The requirement of organization is supposed to be of special importance in international humanitarian law (IHL). In the situation of international armed conflict (IAC), this requirement is implicit as part of the collective conditions to be fulfilled by irregular/independent armed groups to enable their members to claim the prisoners of war status under Article 4 A(2) of the Third Geneva Convention. In a non-international armed conflict (NIAC), the eponymous requirement serves, alongside the requirement of intensity of violence, as the threshold condition for ascertaining the onset of a NIAC. While the requirement of organization has not caused much of disputes in IACs, the international criminal tribunals have shown a willingness to examine scrupulously if armed groups in NIACs are sufficiently organized. Still, this article argues that there is need for a nuanced assessment of the organizational level of an armed group in some specific phases of the ongoing armed conflict whose legal character switches (from an NIAC to an IAC, vice-versa, and from a NIAC to a law-enforcement model). It explores what rationales and argumentative model may be adduced to explain such varying standards for organization in different contexts.
{"title":"Thresholds in Flux—the Standard for Ascertaining the Requirement of Organization for Armed Groups under International Humanitarian Law","authors":"Yutaka Arai-Takahashi","doi":"10.1093/jcsl/kraa024","DOIUrl":"https://doi.org/10.1093/jcsl/kraa024","url":null,"abstract":"\u0000 The requirement of organization is supposed to be of special importance in international humanitarian law (IHL). In the situation of international armed conflict (IAC), this requirement is implicit as part of the collective conditions to be fulfilled by irregular/independent armed groups to enable their members to claim the prisoners of war status under Article 4 A(2) of the Third Geneva Convention. In a non-international armed conflict (NIAC), the eponymous requirement serves, alongside the requirement of intensity of violence, as the threshold condition for ascertaining the onset of a NIAC. While the requirement of organization has not caused much of disputes in IACs, the international criminal tribunals have shown a willingness to examine scrupulously if armed groups in NIACs are sufficiently organized. Still, this article argues that there is need for a nuanced assessment of the organizational level of an armed group in some specific phases of the ongoing armed conflict whose legal character switches (from an NIAC to an IAC, vice-versa, and from a NIAC to a law-enforcement model). It explores what rationales and argumentative model may be adduced to explain such varying standards for organization in different contexts.","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/kraa024","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43622567","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}
How do we know when a Non-International Armed Conflict (NIAC) is over? What does International Humanitarian Law (IHL) say about its temporal scope of application during NIAC? In practice, identifying the end of a NIAC can prove exceptionally difficult. In part, this is the result of the complex spectrum of factors that contribute to the existence and continuance of NIAC, and in particular the objectives that underpin and propel a NIAC. In addition, the virtual silence of IHL regarding its temporal scope of application adds another layer of complexity to identifying the end of a NIAC. While considerable research has focused on IHL’s threshold of activation during NIAC, much less attention has been given to its threshold of termination. However, the looming threat of the so-called ‘forever war’ has stimulated fresh interest in determining when and how NIACs (legally) end. This article provides a forensic examination of the temporal scope of IHL during NIAC, with an exclusive focus on IHL’s threshold of termination. It examines two of the leading approaches for determining the temporal scope of NIAC, and argues that neither approach is entirely satisfactory, and as a result, advances and explores a novel alternative—a ‘functional approach’ for determining IHL’s threshold of termination during NIAC.
{"title":"A Forever War? Rethinking the Temporal Scope of Non-International Armed Conflict","authors":"Nathan Derejko","doi":"10.1093/jcsl/kraa018","DOIUrl":"https://doi.org/10.1093/jcsl/kraa018","url":null,"abstract":"\u0000 How do we know when a Non-International Armed Conflict (NIAC) is over? What does International Humanitarian Law (IHL) say about its temporal scope of application during NIAC? In practice, identifying the end of a NIAC can prove exceptionally difficult. In part, this is the result of the complex spectrum of factors that contribute to the existence and continuance of NIAC, and in particular the objectives that underpin and propel a NIAC. In addition, the virtual silence of IHL regarding its temporal scope of application adds another layer of complexity to identifying the end of a NIAC. While considerable research has focused on IHL’s threshold of activation during NIAC, much less attention has been given to its threshold of termination. However, the looming threat of the so-called ‘forever war’ has stimulated fresh interest in determining when and how NIACs (legally) end. This article provides a forensic examination of the temporal scope of IHL during NIAC, with an exclusive focus on IHL’s threshold of termination. It examines two of the leading approaches for determining the temporal scope of NIAC, and argues that neither approach is entirely satisfactory, and as a result, advances and explores a novel alternative—a ‘functional approach’ for determining IHL’s threshold of termination during NIAC.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2020-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa018","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46615673","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}
Among international scholars, much emphasis has been given on how in situations of warfare, international humanitarian law can impact upon international human rights law (IHRL). The opposite scenario has been little explored. On this account, the article will explore how under the influence of IHRL in instances of wounded civilians feeling mental anguish as a result of their uncertainty whether or not they will remain alive, a state can be found as violating these civilians’ right to life vida digna facet. At the same time, the article will proceed to analyze how such vida digna mental anguish parameter must be seen not just as general carte blanche for expanding the notion of psychological injury beyond cases of mental harm in all military operations, but as relevant only in instances, like ‘kill or capture’ operations where the state is seen in a position to consider in advance the conditions under which a military engagement takes place.
{"title":"The Psychological Impact of Military Operations on Civilians and the UN Human Rights Committee Japalali Decision: Exploring Mental Anguish under a Vida Digna, Right to Life Prism","authors":"Solon Solomon","doi":"10.1093/jcsl/kraa017","DOIUrl":"https://doi.org/10.1093/jcsl/kraa017","url":null,"abstract":"\u0000 Among international scholars, much emphasis has been given on how in situations of warfare, international humanitarian law can impact upon international human rights law (IHRL). The opposite scenario has been little explored. On this account, the article will explore how under the influence of IHRL in instances of wounded civilians feeling mental anguish as a result of their uncertainty whether or not they will remain alive, a state can be found as violating these civilians’ right to life vida digna facet. At the same time, the article will proceed to analyze how such vida digna mental anguish parameter must be seen not just as general carte blanche for expanding the notion of psychological injury beyond cases of mental harm in all military operations, but as relevant only in instances, like ‘kill or capture’ operations where the state is seen in a position to consider in advance the conditions under which a military engagement takes place.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2020-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43128752","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}
Peacekeepers occupy a liminal legal position, having never been provided for in the UN Charter. That said, a detailed legal regime has grown up around peacekeepers, both in terms of how they are protected by the criminal law and the jurisdictional regime that surrounds them. The piece argues that this relates to two sides of protection, which reflects dual image that has arisen around them. The first is that of international ‘saviours’ acting on behalf of a purported international community who have little more power than their moral authority, and therefore are worthy of additional protection from criminal law. This is shown through an analysis of the 1994 Convention on the Safety of United Nations and Associated Personnel and the relevant provisions of the Rome Statute of the International Criminal Court. However, peacekeepers have also been accused, of, and committed various crimes against the populations they are sent to protect. When this occurs, international law enters at a different level, casting peacekeepers as nationals of their sending State and placed in a jurisdictional regime that functionally, if not by design, protects ‘our boys’ from facing criminal liability for their conduct. This is investigated through analysis of peacekeepers’ Status of Forces Agreements and the Rome Statute regime applicable to them. These deeply inconsistent narratives, of peacekeepers as representatives of international good intentions, and national actors, operate in tandem to shield them from the consequences of their conduct. We recommend a holistic approach that is understanding, but less forgiving.
{"title":"Peacekeepers: Internationalist Protectors or National Perpetrators, Protected Either Way?","authors":"R. Cryer, N. Perova","doi":"10.1093/jcsl/kraa020","DOIUrl":"https://doi.org/10.1093/jcsl/kraa020","url":null,"abstract":"\u0000 Peacekeepers occupy a liminal legal position, having never been provided for in the UN Charter. That said, a detailed legal regime has grown up around peacekeepers, both in terms of how they are protected by the criminal law and the jurisdictional regime that surrounds them. The piece argues that this relates to two sides of protection, which reflects dual image that has arisen around them. The first is that of international ‘saviours’ acting on behalf of a purported international community who have little more power than their moral authority, and therefore are worthy of additional protection from criminal law. This is shown through an analysis of the 1994 Convention on the Safety of United Nations and Associated Personnel and the relevant provisions of the Rome Statute of the International Criminal Court. However, peacekeepers have also been accused, of, and committed various crimes against the populations they are sent to protect. When this occurs, international law enters at a different level, casting peacekeepers as nationals of their sending State and placed in a jurisdictional regime that functionally, if not by design, protects ‘our boys’ from facing criminal liability for their conduct. This is investigated through analysis of peacekeepers’ Status of Forces Agreements and the Rome Statute regime applicable to them. These deeply inconsistent narratives, of peacekeepers as representatives of international good intentions, and national actors, operate in tandem to shield them from the consequences of their conduct. We recommend a holistic approach that is understanding, but less forgiving.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2020-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa020","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41306812","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}
On the basis of the case studies of deprivation of nationality and the non-repatriation and possible prosecution of foreign fighters and their families, this article will argue that some counter-terrorism measures, adopted under the justification of protecting national security, will not make these countries, and thus also the individuals under its jurisdiction, safer. Hence, it is wondered whether the notion of national security is both spatially and temporally still in sync with the hyperconnected world in which we live and in which terrorists operate—and whether it is not better to move to the adoption of the broader concept of sustainable security. This article will then turn to the question of whether ordinary citizens (or NGOs litigating on their behalf) could use their existing right to security of person to block those inefficient measures and if not, whether they should be able to operationalise the concept of sustainable security in the human rights context. The article will assert that while the general concept of sustainable security can certainly help at the policy level in encouraging governments to move away from mere national security thinking and thus assist in adopting counter-terrorism measures that provide true, durable security, the situation is different at the level of human rights. The existing right to security of person arguably does not go that far to be able to block the inefficient counter-terrorism measures as discussed in this article and an extension of this right, to a right to sustainable security of person, should not be pursued.
{"title":"Towards a Right to Sustainable Security of Person in Times of Terrorism? Assessing Possibilities and Limitations Through a Critical Evaluation of Citizenship Stripping and Non-Repatriation Policies","authors":"C. Paulussen","doi":"10.1093/jcsl/kraa022","DOIUrl":"https://doi.org/10.1093/jcsl/kraa022","url":null,"abstract":"\u0000 On the basis of the case studies of deprivation of nationality and the non-repatriation and possible prosecution of foreign fighters and their families, this article will argue that some counter-terrorism measures, adopted under the justification of protecting national security, will not make these countries, and thus also the individuals under its jurisdiction, safer. Hence, it is wondered whether the notion of national security is both spatially and temporally still in sync with the hyperconnected world in which we live and in which terrorists operate—and whether it is not better to move to the adoption of the broader concept of sustainable security. This article will then turn to the question of whether ordinary citizens (or NGOs litigating on their behalf) could use their existing right to security of person to block those inefficient measures and if not, whether they should be able to operationalise the concept of sustainable security in the human rights context. The article will assert that while the general concept of sustainable security can certainly help at the policy level in encouraging governments to move away from mere national security thinking and thus assist in adopting counter-terrorism measures that provide true, durable security, the situation is different at the level of human rights. The existing right to security of person arguably does not go that far to be able to block the inefficient counter-terrorism measures as discussed in this article and an extension of this right, to a right to sustainable security of person, should not be pursued.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2020-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa022","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45249708","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}
There is considerable literature to suggest that non-state actors in armed conflicts often function independently and form strategic partnerships with external (or third) states with common goals in return for material benefits such as procurement of arms and training. This article seeks to make an empirical analysis of the existing armed conflicts to ascertain the kind of relationship that armed non-state actors have formed with externally supporting states. The existing rule of attribution of ‘effective control’ would be inappropriate if it can be established that the relationship between the non-state actors and the externally supporting states is not that of a principal and an agent. If non-state actors are independent in their functioning and approach in an armed conflict, it is important to directly regulate their conduct under the law.
{"title":"Alternative to the Existing Rule of Attribution for Use of Force by Non-State Actors in an Armed Conflict","authors":"B. Khaitan","doi":"10.1093/jcsl/kraa016","DOIUrl":"https://doi.org/10.1093/jcsl/kraa016","url":null,"abstract":"\u0000 There is considerable literature to suggest that non-state actors in armed conflicts often function independently and form strategic partnerships with external (or third) states with common goals in return for material benefits such as procurement of arms and training. This article seeks to make an empirical analysis of the existing armed conflicts to ascertain the kind of relationship that armed non-state actors have formed with externally supporting states. The existing rule of attribution of ‘effective control’ would be inappropriate if it can be established that the relationship between the non-state actors and the externally supporting states is not that of a principal and an agent. If non-state actors are independent in their functioning and approach in an armed conflict, it is important to directly regulate their conduct under the law.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2020-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa016","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43181000","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}
anyone who is a researcher or a teacher in international Humanitarian law (iHl) has had the opportunity to read some of Marco sassòli’s works. one of his best-known publications – titled How Does Law Protect in War. Cases, Documents and Teaching Ma-terials on Contemporary Practice in International Humanitarian Law (iCrC, English editions – 1999, 2005, 2011; french editions in 2003 and 2012) – was originally co-authored with antoine a. bouvier, and then jointly with anne Quintin (from the third edition) and julia Grignon (the online platform). This casebook, which has also been available online since 2014 (https://casebook.icrc.org) is an extremely useful re-source tool, systematically updated and available in several language versions (arabic, Chinese, English, french, russian, serbo-Croatian, spanish). However, despite the fact that How Does Law Protect in War contains some introductory remarks to each of the chapters, which explain basic notions or rules of iHl, the publication is still only a casebook – not a handbook of iHl. since it lacks detailed analyses, many problems are just remarked upon, with suggestions for further readings, and the explanations are very limited and rudimentary, thus leaving a reader with a feeling of wanting more. sassòli, who is also known for his tremendous teaching skills, was both tempted and encouraged – especially by his numerous students – to write a handbook on international Humanitarian law. He finally decided to take up the challenge and he managed to achieve it in a great fashion. He has just published International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare , Edward Elgar 2019. However, do not be fooled by the title. it is not just a classic handbook which will make students’ and researchers’ lives easier by explaining the principles applied in armed conflicts in short and simple words. This is a full-fledged monograph, a treatise on iHl which confirms sassòli’s position as a master in all debates concerning iHl-related issues.
任何国际人道法的研究人员或教师都有机会阅读马可sassòli的一些作品。他最著名的出版物之一——《战争中的法律如何保护》。《当代国际人道法实践案例、文件和教材》(红十字国际委员会，1999年、2005年、2011年英文版);法语版(2003年和2012年)——最初与antoine a. bouvier合作，然后与anne Quintin(第三版)和julia Grignon(在线平台)合作。本案例手册自2014年起在网上提供(https://casebook.icrc.org)，是一个非常有用的资源工具，系统更新并提供多种语言版本(阿拉伯文、中文、英文、法文、俄文、塞尔维亚-克罗地亚文、西班牙文)。然而，尽管《法律如何在战争中提供保护》在每一章中都包含了一些介绍性的评论，这些评论解释了国际人道法的基本概念或规则，但这本出版物仍然只是一本案例手册，而不是一本国际人道法手册。由于缺乏详细的分析，许多问题只是评论，并提出进一步阅读的建议，而解释非常有限和初级，因此给读者留下了一种想要更多的感觉。sassòli也以其高超的教学技巧而闻名，他受到许多学生的诱惑和鼓励，编写一本关于国际人道主义法的手册。他最终决定接受挑战，并成功地完成了任务。他刚刚出版了《国际人道法:战争中产生的问题的规则、争议和解决方案》，爱德华·埃尔加2019年版。但是，不要被标题所迷惑。它不仅仅是一本经典的手册，通过简短和简单的文字解释武装冲突中适用的原则，使学生和研究人员的生活更轻松。这是一本完整的专著，一篇关于国际人道法的论文，证实了sassòli在有关国际人道法相关问题的所有辩论中作为大师的地位。
{"title":"Marco Sassòli, International Humanitarian Law: Rules, Controversies and Solutions to Problems Arising in Warfare","authors":"J. Padín","doi":"10.1093/JCSL/KRAA021","DOIUrl":"https://doi.org/10.1093/JCSL/KRAA021","url":null,"abstract":"anyone who is a researcher or a teacher in international Humanitarian law (iHl) has had the opportunity to read some of Marco sassòli’s works. one of his best-known publications – titled How Does Law Protect in War. Cases, Documents and Teaching Ma-terials on Contemporary Practice in International Humanitarian Law (iCrC, English editions – 1999, 2005, 2011; french editions in 2003 and 2012) – was originally co-authored with antoine a. bouvier, and then jointly with anne Quintin (from the third edition) and julia Grignon (the online platform). This casebook, which has also been available online since 2014 (https://casebook.icrc.org) is an extremely useful re-source tool, systematically updated and available in several language versions (arabic, Chinese, English, french, russian, serbo-Croatian, spanish). However, despite the fact that How Does Law Protect in War contains some introductory remarks to each of the chapters, which explain basic notions or rules of iHl, the publication is still only a casebook – not a handbook of iHl. since it lacks detailed analyses, many problems are just remarked upon, with suggestions for further readings, and the explanations are very limited and rudimentary, thus leaving a reader with a feeling of wanting more. sassòli, who is also known for his tremendous teaching skills, was both tempted and encouraged – especially by his numerous students – to write a handbook on international Humanitarian law. He finally decided to take up the challenge and he managed to achieve it in a great fashion. He has just published International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare , Edward Elgar 2019. However, do not be fooled by the title. it is not just a classic handbook which will make students’ and researchers’ lives easier by explaining the principles applied in armed conflicts in short and simple words. This is a full-fledged monograph, a treatise on iHl which confirms sassòli’s position as a master in all debates concerning iHl-related issues.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2020-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/JCSL/KRAA021","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43745783","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}
Since the adoption of the UN Charter, states have concluded numerous international disarmament treaties. What are their core features, and are there any trends in their design? This article discusses the five global disarmament treaties, namely the 1971 Biological Weapons Convention, the 1992 Chemical Weapons Convention, the 1997 Anti-Personnel Mine Ban Convention, the 2008 Convention on Cluster Munitions and the 2017 Treaty on the Prohibition of Nuclear Weapons. It first considers how a broad set of prohibitions of activities with respect to specific weapons has evolved over time. Then, it analyses the treaties’ implementation and compliance support mechanisms as well as their procedural aspects regarding entry into force and withdrawal. This article finds that a pattern has developed over the last two decades to outlaw all and any use of weapons by disarmament treaty, without first instituting a prohibition on their use under international humanitarian law (IHL). It also finds that reporting obligations, meetings of States Parties and treaty-related institutions are generally created, either directly by treaty or by subsequent state party decisions. Finally, there is a tendency to make the treaty’s entry into force easier, and the withdrawal more difficult. It is argued that these trends arise from states’ attempt to establish more easily disarmament treaties, design more robust disarmament treaties and more effectively protect civilians. The article concludes by reflecting whether these trends form the basis of a new branch of international law—international disarmament law—and discusses them in the context of emerging weapons and technologies.
{"title":"Trends in Global Disarmament Treaties","authors":"Stuart Casey-Maslen, T. Vestner","doi":"10.1093/jcsl/kraa014","DOIUrl":"https://doi.org/10.1093/jcsl/kraa014","url":null,"abstract":"\u0000 Since the adoption of the UN Charter, states have concluded numerous international disarmament treaties. What are their core features, and are there any trends in their design? This article discusses the five global disarmament treaties, namely the 1971 Biological Weapons Convention, the 1992 Chemical Weapons Convention, the 1997 Anti-Personnel Mine Ban Convention, the 2008 Convention on Cluster Munitions and the 2017 Treaty on the Prohibition of Nuclear Weapons. It first considers how a broad set of prohibitions of activities with respect to specific weapons has evolved over time. Then, it analyses the treaties’ implementation and compliance support mechanisms as well as their procedural aspects regarding entry into force and withdrawal. This article finds that a pattern has developed over the last two decades to outlaw all and any use of weapons by disarmament treaty, without first instituting a prohibition on their use under international humanitarian law (IHL). It also finds that reporting obligations, meetings of States Parties and treaty-related institutions are generally created, either directly by treaty or by subsequent state party decisions. Finally, there is a tendency to make the treaty’s entry into force easier, and the withdrawal more difficult. It is argued that these trends arise from states’ attempt to establish more easily disarmament treaties, design more robust disarmament treaties and more effectively protect civilians. The article concludes by reflecting whether these trends form the basis of a new branch of international law—international disarmament law—and discusses them in the context of emerging weapons and technologies.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa014","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42855718","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":"John Reynolds, Empire, Emergency, and International Law","authors":"W. Said","doi":"10.1093/jcsl/kraa012","DOIUrl":"https://doi.org/10.1093/jcsl/kraa012","url":null,"abstract":"","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa012","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46876830","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 weaker party in asymmetrical conflicts often attempts to protect itself from attack in a fashion prohibited by international law, particularly by using human shields. This article examines whether the traditional characterization of shielding based on subjective intent (the voluntary or involuntary nature of shielding) has any legal consequence and if so, how subjective intent can result in a change of status under international humanitarian law. This article argues that protective status cannot be altered solely through the intent of protected persons. In light of a careful analysis of treaty law, the author proposes a new understanding of the threshold of harm requirement of direct participation in hostilities and suggests that all human shields should be considered persons directly participating in hostilities, even when they do not possess a legally relevant will. Consequently, this article calls for an equal treatment of human shields due to their status as direct participants in hostilities. The article also calls for clarification of law by states on this issue, for there are inherent tensions within the law of armed conflict between the applicable law and state policies, in light of the relevant legal norms regulating the consequences of human shielding.
{"title":"Human Shielding, Subjective Intent, and Harm to the Enemy","authors":"B. K. Kelemen","doi":"10.1093/jcsl/kraa015","DOIUrl":"https://doi.org/10.1093/jcsl/kraa015","url":null,"abstract":"\u0000 The weaker party in asymmetrical conflicts often attempts to protect itself from attack in a fashion prohibited by international law, particularly by using human shields. This article examines whether the traditional characterization of shielding based on subjective intent (the voluntary or involuntary nature of shielding) has any legal consequence and if so, how subjective intent can result in a change of status under international humanitarian law. This article argues that protective status cannot be altered solely through the intent of protected persons. In light of a careful analysis of treaty law, the author proposes a new understanding of the threshold of harm requirement of direct participation in hostilities and suggests that all human shields should be considered persons directly participating in hostilities, even when they do not possess a legally relevant will. Consequently, this article calls for an equal treatment of human shields due to their status as direct participants in hostilities. The article also calls for clarification of law by states on this issue, for there are inherent tensions within the law of armed conflict between the applicable law and state policies, in light of the relevant legal norms regulating the consequences of human shielding.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2020-11-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa015","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48034052","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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