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Protection of Detainees from Sexual Violence under International Humanitarian Law 根据国际人道主义法保护被拘留者免遭性暴力
IF 0.8 Q2 Social Sciences Pub Date : 2020-10-10 DOI: 10.1093/jcsl/kraa010
S. Bradley
This article addresses the question of whether current frameworks under international humanitarian law offer adequate protection to persons detained for reasons relating to armed conflict from crimes of sexual violence. Sexual violence against detainees is a persistent issue in both international and non-international armed conflicts. Sexual violence against male detainees is also a widespread issue, with men and boys constituting the bulk of persons detained in conflict, and also facing unique barriers in reporting abuses. An evaluation of current legal frameworks under the Geneva Conventions of 1949 and the Additional Protocols of 1977 identifies key fault-lines in the law, including a widespread statutory characterisation of sexual violence as a crime principally committed against women. Case law demonstrates a resultant tendency to conceptualise sexual abuse of male detainees as torture, rather than sexual violence. Additionally, state interpretations of the law reflect this absence of gender neutrality. Compliance mechanisms are furthermore held back by the lack of clarity and specificity of prohibitions on sexual violence against detainees in international and non-international armed conflicts. Ultimately, options for strengthening the law in this area are subject to the political will of states and carry the risk of winding back existing standards of protection. The development of a non-binding but standard-setting instrument devised with the support of states and specifically prohibiting the issue of sexual violence against detainees in gender- neutral and comprehensive terms may ultimately be the most effective means of strengthening existing legal frameworks.
本文讨论的问题是,现行国际人道主义法框架是否为因与武装冲突有关的原因而被拘留的人提供充分保护,使其免遭性暴力犯罪。对被拘留者的性暴力在国际性和非国际性武装冲突中都是一个持续存在的问题。对男性被拘留者的性暴力也是一个普遍问题,在冲突中被拘留者中,男性和男孩占大多数,他们在报告虐待行为方面也面临独特的障碍。对1949年《日内瓦公约》和1977年《附加议定书》下的现行法律框架的评价指出了法律中的主要缺陷,包括普遍将性暴力定性为主要针对妇女的犯罪。判例法表明,由此产生的一种趋势是,将对男性被拘留者的性虐待概念化为酷刑,而不是性暴力。此外,各州对法律的解释反映了性别中立的缺失。此外,由于禁止在国际性和非国际性武装冲突中对被拘留者实施性暴力的规定不够明确和具体,遵守机制也受到阻碍。最终,加强这一领域法律的选择取决于各国的政治意愿,并有可能使现有的保护标准倒退。在各国的支持下制定一项不具约束力但制定标准的文书,具体禁止以性别中立和全面的方式对被拘留者实施性暴力,最终可能是加强现有法律框架的最有效手段。
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引用次数: 0
Accounting for Those in the Hands of the Belligerent: Security Detainees, the Missing and the Dead in the Israeli–Hamas Conflict 交战方的责任:以色列-哈马斯冲突中的安全拘留者、失踪者和死者
IF 0.8 Q2 Social Sciences Pub Date : 2020-10-07 DOI: 10.1093/jcsl/kraa019
A. Margalit
Five Israeli nationals, two soldiers and three civilians, have gone missing since the 2014 Israeli–Hamas violent escalation, and they are currently held incommunicado by Palestinian armed groups in the Gaza Strip. In response, the Israeli Government revoked some entitlements from Hamas security detainees held in Israel. It also withholds bodies of Palestinian militants, killed while carrying out attacks against Israelis, refusing to hand them over to the families. The bodies are to be buried in Israel until Israeli nationals, or their remains, are repatriated by Hamas. In several instances where the authorities returned the remains to the next of kin, they imposed various restrictions on the funeral arrangements. The Israeli Supreme Court recently examined the Government’s practices, with some judges finding them unlawful. These developments call for the analysis of the matter under the law of armed conflict (LOAC), taking into account that other States involved in armed conflict encounter similar challenges. This article accordingly discusses some of the legal obligations arising when persons, or their remains, are believed to be in the hands of the belligerent party. It also considers the legality of certain measures taken to promote their repatriation.
自2014年以色列-哈马斯暴力升级以来,已有五名以色列国民、两名士兵和三名平民失踪,他们目前被加沙地带的巴勒斯坦武装组织单独监禁。作为回应,以色列政府撤销了被关押在以色列的哈马斯安全拘留者的一些权利。它还扣留了在袭击以色列人时被杀害的巴勒斯坦激进分子的尸体,拒绝将其移交给家属。这些尸体将被埋葬在以色列,直到哈马斯遣返以色列国民或其遗体。在一些情况下,当局将遗体归还给近亲,并对葬礼安排施加了各种限制。以色列最高法院最近审查了政府的做法,一些法官认定这些做法是非法的。这些事态发展要求根据武装冲突法对此事进行分析,同时考虑到其他卷入武装冲突的国家也面临类似的挑战。因此,本条讨论了当人员或其遗体被认为掌握在交战国手中时产生的一些法律义务。它还审议了为促进遣返他们而采取的某些措施的合法性。
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引用次数: 2
Reviving the Principle of Non-Intervention in Cyberspace: The Path Forward 恢复网络空间不干预原则:前进之路
IF 0.8 Q2 Social Sciences Pub Date : 2020-07-31 DOI: 10.1093/jcsl/kraa011
Thibault Moulin
The applicability of existing rules of international law (namely sovereignty or the prohibition to use force) is currently challenged in cyberspace. In contrast, the relevance of the non-intervention principle is accepted by states and raises less questions about the ‘territoriality’ or the ‘militarization’ of cyberspace. At first sight, it thus appears as a convenient source for the regulation of cyberthreats. However, the Nicaragua case also established a stringent test for a foreign interference to qualify as an unlawful intervention. First, it must bear ‘on matters in which each State is permitted, by the principle of State sovereignty to decide freely’ (ie the ‘domaine réservé’). Then, it must involve ‘methods of coercion in regard to such choices’. I contend that both criteria are maladjusted to address cyberthreats and must be reconceptualised. In fact, the domaine réservé describes domains where states are free from international rules. However, few domains, including electoral processes or main economic orientations, are totally isolated from international law. I thus argue that it must be reconceptualised into the so-called ‘domaine privilégié’. It consists of a domain with clear-cut contours, unaffected by the developments of international law, which encompasses the fundamental interests of a state and its population. Then, coercion describes situations where a state is compelled to act, or to refrain from acting, in a certain fashion. This traditional approach is also problematic, and I argue that coercion must be understood in terms of deprivation of control.
现有国际法规则(即主权或禁止使用武力)的适用性目前在网络空间受到挑战。相比之下,不干涉原则的相关性为各国所接受,对网络空间的“领土性”或“军事化”提出的问题较少。因此,乍一看,它似乎是监管网络威胁的方便来源。然而,尼加拉瓜案也确立了一项严格的标准,即外国干涉是否有资格成为非法干预。第一,它必须涉及“根据国家主权原则允许每个国家自由决定的事项”(即“管辖领域”)。然后,它必须包含“关于这种选择的强制方法”。我认为,这两个标准都不适用于解决网络威胁,必须重新定义。事实上,域r服务描述了国家不受国际规则约束的域。但是,很少有领域,包括选举进程或主要经济方向,是完全脱离国际法的。因此,我认为必须将其重新定义为所谓的“领域特权”。它是一个轮廓清晰的领域,不受国际法发展的影响,它包括一个国家及其人民的根本利益。然后,强制描述了一个国家被迫以某种方式采取行动或不采取行动的情况。这种传统的方法也是有问题的,我认为强迫必须从剥夺控制的角度来理解。
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引用次数: 1
Liability in Joint Military Operations—The Green Desert Case 联合军事行动中的责任——绿色沙漠案例
IF 0.8 Q2 Social Sciences Pub Date : 2020-07-01 DOI: 10.1093/jcsl/kraa008
Peter Vedel Kessing
Almost all international military operations today are joint military operations where several states collaborate to carry out concrete operations, such as combat or arrest operations. This raises pertinent and difficult questions in relation to state responsibility if international law obligations are breached during the operation, not least: Which state or states are responsible? In June 2018, a Danish High Court found Denmark responsible in its complicity for Iraqi ill-treatment of 18 Iraqis who were detained by the Iraqi military in a joint Danish–Iraqi military operation in Iraq in November 2004. Danish soldiers did not exercise control over the Iraqi troops; the detainees were not captured by Danish soldiers or at any time subject to their control or jurisdiction; and Danish forces did not participate in or witness any ill-treatment during the operation. Nevertheless, the Danish High Court found that the Danish defence forces were liable to pay compensation to the 18 Iraqi detainees because Danish defence forces ‘should have known’ that there was a real risk of Iraqi ill-treatment of detainees and paid to little attention to the risk when planning and participating in the operation. The article discusses the Danish High Court judgment. Is it a problem that the High Court decided the case on the basis of Danish compensation law and largely ignores international law standards? And would the Danish defence forces have been responsible if assessed on the basis of State responsibility standards in international law?
如今,几乎所有的国际军事行动都是联合军事行动,几个国家合作开展具体行动,如作战或逮捕行动。如果在行动中违反了国际法义务,这就提出了与国家责任有关的相关而棘手的问题,尤其是:哪个国家或哪些国家应对此负责?2018年6月,丹麦高等法院认定丹麦对2004年11月丹麦和伊拉克在伊拉克的联合军事行动中被伊拉克军方拘留的18名伊拉克人的伊拉克虐待同谋负有责任。丹麦士兵没有控制伊拉克军队;被拘留者没有被丹麦士兵抓获,也没有在任何时候受到丹麦士兵的控制或管辖;丹麦部队在行动中没有参与或目睹任何虐待行为。然而,丹麦高等法院认定,丹麦国防军有责任向18名伊拉克被拘留者支付赔偿金,因为丹麦国防军“应该知道”伊拉克确实存在虐待被拘留者的风险,并且在计划和参与行动时很少注意这一风险。文章讨论了丹麦高等法院的判决。高等法院根据丹麦赔偿法裁决此案,在很大程度上无视国际法标准,这是一个问题吗?如果根据国际法中的国家责任标准进行评估,丹麦国防军会承担责任吗?
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引用次数: 1
Applying Core Principles of International Humanitarian Law to Military Operations in Space 将国际人道法核心原则应用于空间军事行动
IF 0.8 Q2 Social Sciences Pub Date : 2020-07-01 DOI: 10.1093/jcsl/kraa005
J. Mawdsley
This article looks at how international humanitarian law may apply to military operations in space. Though the laws of war are well established on earth, space poses new challenges to the principles of distinction, proportionality and precaution in attack. Future scenarios whereby operations might be directed against moon-based objects, or where military astronauts might be deployed into space raise further questions as to how these principles should apply. By considering the laws of war as they are enforced on earth, and through engagement with academic opinion, this article seeks to understand the level of protection provided by the law when applied to this new domain. In anticipation of official clarification, this approach leads to reasoned arguments for reform in key areas. The challenges posed are addressed through both a contemporary and a future lens. Broad conclusions that the law of armed conflict does not shift seamlessly into space are strengthened by the numerous anomalies that ensue.
这篇文章探讨了国际人道主义法如何适用于太空军事行动。尽管战争定律在地球上已经确立,但太空对攻击中的区分、相称和预防原则提出了新的挑战。未来的行动可能针对月球物体,或者军事宇航员可能被部署到太空,这进一步引发了这些原则应该如何应用的问题。通过考虑战争法在地球上的执行情况,并通过与学术界的意见交流,本文试图了解法律在应用于这一新领域时所提供的保护水平。在期待官方澄清的情况下,这种方法为关键领域的改革提出了合理的论据。所提出的挑战是通过当代和未来的视角来解决的。随之而来的许多反常现象强化了武装冲突法没有无缝转移到太空的广泛结论。
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引用次数: 2
Young Terrorists or Child Soldiers? ISIS Children, International Law and Victimhood 年轻恐怖分子还是儿童兵?ISIS儿童,国际法和受害者
IF 0.8 Q2 Social Sciences Pub Date : 2020-07-01 DOI: 10.1093/jcsl/krz034
Conrad Nyamutata
Since the Syrian conflict broke out, a significant number of Western citizens travelled to the warzone to join the Islamic State of Iraq and Syria (ISIS). By common definitions, some of the persons travelled as ‘children’. However, since the defeat of ISIS, Western countries are facing a conundrum on how to treat these young former fighters. The status of these children has been contentious. Among the Western countries, there does not seem to be a clear position or consistent approach on how such children should be treated. It would appear that the approaches towards the dilemma on these young persons have, predominantly, been dictated by the political whims of individual states. Generally, the children have been regarded as young ‘terrorists’ likely to pose danger to Western societies if repatriated back. However, the perceptions and actions towards these minors seem to depart from the normative approaches to children associated with armed conflict. The widely reported case of British teenager Shamima Begum shone the spotlight on the predicaments of children formerly associated with ISIS. This article makes a case for the treatment of ISIS-associated children to be considered as child soldiers. When analysed closely, these children deserve protections accorded to all children recruited for purposes of warfare. Recent case law seems to imply that such protection does not cease even after the age of 18 years. All considered, the denial of repatriation appears inimical to normative standards on children associated with armed conflict. Furthermore, the approaches of some of the Western countries could be vulnerable to criticism for violation of the rule of law. The arbitrary revocation of citizenship and barring of returns appear starkly in conflict with norms of natural justice. With this in mind, this article asserts that a consistent approach would require the Western approaches to treat ISIS-associated children as victims first and accord them protections recognised in international law.
自叙利亚冲突爆发以来,大量西方公民前往战区加入伊拉克和叙利亚伊斯兰国(ISIS)。根据常见的定义,有些人是以“儿童”身份旅行的。然而,自从ISIS被击败以来,西方国家面临着如何对待这些年轻的前战士的难题。这些儿童的地位一直存在争议。在西方国家中,似乎没有明确的立场或一致的方法来对待这些儿童。看来,解决这些年轻人困境的方法主要是由各个国家的政治奇思妙想决定的。一般来说,这些儿童被视为年轻的“恐怖分子”,如果遣返,可能会对西方社会构成危险。然而,对这些未成年人的看法和行动似乎偏离了对与武装冲突有关的儿童的规范做法。被广泛报道的英国青少年沙米玛·贝古姆的案件使人们关注到以前与ISIS有关联的儿童的困境。这篇文章提出了将与伊斯兰国有关联的儿童视为儿童兵的理由。如果仔细分析,这些儿童应该得到保护,所有为战争目的招募的儿童都应该得到保护。最近的判例法似乎暗示,这种保护即使在18岁之后也不会停止。综合考虑,拒绝遣返似乎不符合关于与武装冲突有关的儿童的规范性标准。此外,一些西方国家的做法可能容易受到违反法治的批评。任意撤销公民身份和禁止遣返似乎与自然正义准则背道而驰。考虑到这一点,这篇文章断言,一个一致的方法将需要西方方法首先将与ISIS有关的儿童视为受害者,并给予他们国际法承认的保护。
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引用次数: 7
The British Army’s Training in International Humanitarian Law 英国军队的国际人道主义法训练
IF 0.8 Q2 Social Sciences Pub Date : 2020-07-01 DOI: 10.1093/jcsl/kraa006
Elizabeth Stubbins Bates
States must disseminate international humanitarian law (IHL) and integrate it into military instruction. Implementation of the IHL training obligation was delayed in the UK; when the government asserted that IHL was inapplicable to colonial warfare, resisted the development of the IHL of non-international armed conflict, and was keen to maintain the nuclear deterrent. Absent or perfunctory IHL training correlated with recurrent violations of the prohibitions of torture and inhuman treatment, from the 1950s to the 2000s. Despite official assertions that the British Army’s training in IHL was being reformed following the death of Baha Mousa in British military custody in 2003, there were gradual changes from 2004 to 2011, and more thorough improvements from 2012 to 2017. Training materials for soldiers and officers now offer breadth and detail on IHL, with elements of international human rights law. They implement the 71 recommendations in the Baha Mousa Public Inquiry Report which the Ministry of Defence accepted, and are supplemented by practical training. Yet these are reactive reforms, which still lack norm-by-norm evaluation of soldiers’ understanding. Prohibitions on humiliating or degrading treatment of a sexual nature, and on the intentional infliction of severe mental pain and suffering are (respectively) under-emphasised and absent. References to the necessity of restraint positions (as opposed to the prohibited stress positions) may cause confusion. There is a simplistic suggestion that reprisals are lawful if they are politically authorised. Training reforms have been cited as one reason to close criminal investigations into alleged war crimes: a response which neglects coexistent investigatory obligations.
各国必须传播国际人道主义法,并将其纳入军事指导。英国延迟履行国际人道主义法培训义务;当政府断言国际人道主义法不适用于殖民战争,抵制非国际武装冲突国际人道主义法律的发展,并热衷于维持核威慑时。从20世纪50年代到21世纪初,缺乏或敷衍了事的国际人道主义法培训与一再违反禁止酷刑和不人道待遇的规定有关。尽管官方声称,2003年巴哈·穆萨在英国军方羁押期间死亡后,英国军队在国际人道主义法中的训练正在进行改革,但从2004年到2011年,情况发生了逐步变化,从2012年到2017年,情况得到了更彻底的改善。士兵和军官的培训材料现在提供了国际人道主义法的广度和细节,以及国际人权法的要素。他们执行了国防部接受的巴哈穆萨公共调查报告中的71项建议,并辅以实际培训。然而,这些都是被动的改革,仍然缺乏对士兵理解的规范评估。禁止性性质的侮辱性或有辱人格的待遇,以及禁止故意造成严重的精神痛苦和折磨(分别)没有得到充分强调和重视。提及约束位置的必要性(与禁止的压力位置相反)可能会引起混淆。有一种简单化的说法认为,如果得到政治授权,报复是合法的。培训改革被认为是结束对战争罪指控的刑事调查的原因之一:这种回应忽视了共存的调查义务。
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引用次数: 3
Human Rights at the Time of Transition: How Security Forces Can be Held Accountable in a Divided Community? 过渡时期的人权:如何在分裂的社区中追究安全部队的责任?
IF 0.8 Q2 Social Sciences Pub Date : 2020-07-01 DOI: 10.1093/jcsl/krz031
M. Qafisheh
The Palestinian Authority has established various mechanisms to monitor its security forces and hold them accountable over human rights violations. This article explores and assesses the accountability measures that deal with the human rights abuses arising from the excessive use of force in light of international standards, particularly human rights treaties that Palestine has acceded to in recent years. The use of force may occur in different contexts, including during demonstrations, while enforcing the law against criminal acts, searches, lawlessness, in detention, interrogation, investigation and in prisons. The article traces the accountability processes that arise in such circumstances. Alongside reviewing domestic legislation and cases as well as citing relevant literature, the article employs empirical qualitative field research approach by conducting a series of interviews with senior security officials, particularly top commanders and those in charge of accountability within the government and security agencies along with NGOs, experts, academics and field-based international institutions.
巴勒斯坦权力机构建立了各种机制来监督其安全部队,并追究他们对侵犯人权行为的责任。本文根据国际标准,特别是巴勒斯坦近年来加入的人权条约,探讨和评估了处理因过度使用武力而造成的侵犯人权行为的问责措施。使用武力可能发生在不同的情况下,包括在示威期间,在执法打击犯罪行为、搜查、无法无天、拘留、审讯、调查和监狱中。这篇文章追溯了在这种情况下出现的问责程序。除了审查国内立法和案例以及引用相关文献外,本文还采用了实证定性实地研究方法,对高级安全官员,特别是最高指挥官和政府和安全机构内部负责问责的人,以及非政府组织、专家、,学术界和实地国际机构。
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引用次数: 1
Johanna Friman, Revisiting the Concept of Defence in the Jus ad Bellum: The Dual Face of Defence. Hart Publishing, 2017 约翰娜·弗里曼(Johanna Friman),《重新审视法院的辩护概念:辩护的两面性》。哈特出版社,2017
IF 0.8 Q2 Social Sciences Pub Date : 2020-07-01 DOI: 10.1093/JCSL/KRZ019
K. Chan
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引用次数: 0
M. Lattimer and P. Sands (eds), The Grey Zone: Civilian Protection Between Human Rights and the Laws of War. Hart, 2018 M.Lattimer和P.Sands(编辑),《灰色地带:人权与战争法之间的平民保护》。哈特,2018
IF 0.8 Q2 Social Sciences Pub Date : 2020-07-01 DOI: 10.1093/JCSL/KRZ015
J. Odermatt
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引用次数: 0
期刊
JOURNAL OF CONFLICT & SECURITY LAW
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