The article analyses the application of international humanitarian law (IHL) to UN ‘peace operations’ when, due to their factual involvement in hostilities, they become parties to a non-international armed conflict. It argues that the notion of party to the conflict allows to focus on the collective entity and its obligations, and to infer the status of individual members of the operation from the mission's collective status. In assessing the consequences of that scenario, the article further discusses the external and internal borders of the scope of the notion of party to the conflict as applied to UN peace operations, and examines the impact of the loss of protection from attack on the principle of distinction. It concludes by suggesting that, in light of the increasing involvement of UN peace operations in situations that factually amount to armed conflict, an evolutionary interpretation of the theory of IHL's application to the situation is needed.
{"title":"From Peacekeepers to Parties to the Conflict: An IHL’s Appraisal of the Role of UN Peace Operations in NIACs","authors":"Bianca Maganza","doi":"10.1093/jcsl/krz032","DOIUrl":"https://doi.org/10.1093/jcsl/krz032","url":null,"abstract":"\u0000 The article analyses the application of international humanitarian law (IHL) to UN ‘peace operations’ when, due to their factual involvement in hostilities, they become parties to a non-international armed conflict. It argues that the notion of party to the conflict allows to focus on the collective entity and its obligations, and to infer the status of individual members of the operation from the mission's collective status. In assessing the consequences of that scenario, the article further discusses the external and internal borders of the scope of the notion of party to the conflict as applied to UN peace operations, and examines the impact of the loss of protection from attack on the principle of distinction. It concludes by suggesting that, in light of the increasing involvement of UN peace operations in situations that factually amount to armed conflict, an evolutionary interpretation of the theory of IHL's application to the situation is needed.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":"25 1","pages":"209-236"},"PeriodicalIF":0.8,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/krz032","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48215549","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":"William A. Schabas, The Trial of the Kaiser","authors":"D. Turns","doi":"10.1093/JCSL/KRZ016","DOIUrl":"https://doi.org/10.1093/JCSL/KRZ016","url":null,"abstract":"","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/JCSL/KRZ016","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44524525","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 present article provides legal analysis of the concept of ‘protracted armed violence’ which is part of the commonly accepted definition of non-international armed conflict (NIAC). The International Criminal Tribunal for former Yugoslavia interpreted this notion as the intensity requirement. However, the practice of other international legal institutions that use this concept (such as International Criminal Court and some other judicial institutions) is not always coherent with this finding. This fact raised several theoretical and practical issues in the process of interpretation and implementation of international legal norms. Therefore, the aim of the article is to critically reassess the ‘protracted armed violence’ concept in various branches of international law and to contribute to the better understanding of the NIAC phenomenon.
{"title":"Protracted Armed Violence as a Criterion for the Existence of Non-international Armed Conflict: International Humanitarian Law, International Criminal Law and Beyond","authors":"Miloš Hrnjaz, Janja Simentić Popović","doi":"10.1093/jcsl/kraa009","DOIUrl":"https://doi.org/10.1093/jcsl/kraa009","url":null,"abstract":"\u0000 The present article provides legal analysis of the concept of ‘protracted armed violence’ which is part of the commonly accepted definition of non-international armed conflict (NIAC). The International Criminal Tribunal for former Yugoslavia interpreted this notion as the intensity requirement. However, the practice of other international legal institutions that use this concept (such as International Criminal Court and some other judicial institutions) is not always coherent with this finding. This fact raised several theoretical and practical issues in the process of interpretation and implementation of international legal norms. Therefore, the aim of the article is to critically reassess the ‘protracted armed violence’ concept in various branches of international law and to contribute to the better understanding of the NIAC phenomenon.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2020-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa009","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43991664","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}
During non-international armed conflicts, fighting parties have repeatedly denied international humanitarian relief to the civilian population under their territorial control leaving them at the brink of starvation. Debates on criminal accountability for violating the prohibition of the use of starvation against the civilian population as a method of warfare have yet to address the question of ownership of the right to consent to offers of international humanitarian relief before criminalising their denial. In respect of such right to consent at the strategic level, there are divergent interpretations on the application of the principle of symmetrical rights and obligations of fighting parties in the realm of international humanitarian relief. Humanitarian and state-centric perspectives, respectively, grant or deny non-state armed groups an independent right to consent to offers of international humanitarian relief. The humanitarian perspective argues that the asymmetry of such right in favour of the government party to the conflict and at the expense of the non-state armed groups is no longer justified, especially when the right of control at the operational level (after an offer has been accepted) is equally bestowed upon all parties to the conflict. The state-centric perspective defends the exclusive right of the government party to the conflict and fears that an equal right to strategic consent for non-state armed groups would increase their legitimacy. This study argues that neutrality upheld by international humanitarian relief actors, including impartial humanitarian bodies, such as the ICRC, and the Security Council gives rise to an interdependent exercise of the right to strategic consent by all fighting parties instead.
{"title":"Do Non-State Armed Groups Have a Legal Right to Consent to Offers of International Humanitarian Relief?","authors":"Matthias Vanhullebusch","doi":"10.1093/jcsl/kraa007","DOIUrl":"https://doi.org/10.1093/jcsl/kraa007","url":null,"abstract":"\u0000 During non-international armed conflicts, fighting parties have repeatedly denied international humanitarian relief to the civilian population under their territorial control leaving them at the brink of starvation. Debates on criminal accountability for violating the prohibition of the use of starvation against the civilian population as a method of warfare have yet to address the question of ownership of the right to consent to offers of international humanitarian relief before criminalising their denial. In respect of such right to consent at the strategic level, there are divergent interpretations on the application of the principle of symmetrical rights and obligations of fighting parties in the realm of international humanitarian relief. Humanitarian and state-centric perspectives, respectively, grant or deny non-state armed groups an independent right to consent to offers of international humanitarian relief. The humanitarian perspective argues that the asymmetry of such right in favour of the government party to the conflict and at the expense of the non-state armed groups is no longer justified, especially when the right of control at the operational level (after an offer has been accepted) is equally bestowed upon all parties to the conflict. The state-centric perspective defends the exclusive right of the government party to the conflict and fears that an equal right to strategic consent for non-state armed groups would increase their legitimacy. This study argues that neutrality upheld by international humanitarian relief actors, including impartial humanitarian bodies, such as the ICRC, and the Security Council gives rise to an interdependent exercise of the right to strategic consent by all fighting parties instead.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2020-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42882662","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 targeting protocols applied by forces during armed conflict are some of the most secretive documents held by any military. However, their role in applying principles of international humanitarian law (IHL) means that they are key to understanding their development. This piece is primarily concerned with practical and operational application of the precautionary principle under IHL; how much knowledge is sufficient to carry out an attack lawfully during modern armed conflict. In order to establish if a standard has developed with the increase in intelligence, surveillance and reconnaissance technology, this piece uses the framework of an investigation into an incident in Kunduz, Afghanistan in 2009. I explore the difficulties of obtaining information post-incident, the differential standards expected by North Atlantic Treaty Organization (NATO) and the Bundesgerichtshof (German Federal Court of Justice), and the manner in which these can be evaluated through the principles of proportionality, distinction and precautions in attack. The piece looks at the interrelated issues raised by the Rules of Engagement and Tactical Directives, as well as the problems surrounding the clarity of intelligence available. I argue that this case is demonstrative of the failings inherent in the application and practical use of the precautionary principle outlined by IHL. The lack of transparency afforded in, and after, incidents of this nature prevents objective analysis and so the development of IHL can be obfuscated. I conclude that the lack of information following incidents of this kind confuses any intelligence standard that exists under IHL.
{"title":"Insufficient Knowledge in Kunduz: The Precautionary Principle and International Humanitarian Law","authors":"E. Marchant","doi":"10.1093/jcsl/krz033","DOIUrl":"https://doi.org/10.1093/jcsl/krz033","url":null,"abstract":"\u0000 The targeting protocols applied by forces during armed conflict are some of the most secretive documents held by any military. However, their role in applying principles of international humanitarian law (IHL) means that they are key to understanding their development. This piece is primarily concerned with practical and operational application of the precautionary principle under IHL; how much knowledge is sufficient to carry out an attack lawfully during modern armed conflict. In order to establish if a standard has developed with the increase in intelligence, surveillance and reconnaissance technology, this piece uses the framework of an investigation into an incident in Kunduz, Afghanistan in 2009. I explore the difficulties of obtaining information post-incident, the differential standards expected by North Atlantic Treaty Organization (NATO) and the Bundesgerichtshof (German Federal Court of Justice), and the manner in which these can be evaluated through the principles of proportionality, distinction and precautions in attack. The piece looks at the interrelated issues raised by the Rules of Engagement and Tactical Directives, as well as the problems surrounding the clarity of intelligence available. I argue that this case is demonstrative of the failings inherent in the application and practical use of the precautionary principle outlined by IHL. The lack of transparency afforded in, and after, incidents of this nature prevents objective analysis and so the development of IHL can be obfuscated. I conclude that the lack of information following incidents of this kind confuses any intelligence standard that exists under IHL.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":"25 1","pages":"53-79"},"PeriodicalIF":0.8,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/krz033","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46300534","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 article analyses the legal regime applicable to military operations seeking to gain the collaboration of enemy elements under International Humanitarian Law (IHL). Apart from addressing the prima facie legality of these practices, the article addresses some trends forming in state practice regarding limitations to its general permission. Throughout the review of academic opinions, treaty provisions, state practice and examples from armed conflicts, the author evaluates the evolution of the legal framework applicable to such tactics and provides some possible interpretations that can guide the developing process of the conduct of hostilities in the near future.
{"title":"Betrayal in War: Rules and Trends on Seeking Collaboration under IHL","authors":"Manuel Galvis Martínez","doi":"10.1093/jcsl/kraa002","DOIUrl":"https://doi.org/10.1093/jcsl/kraa002","url":null,"abstract":"\u0000 The article analyses the legal regime applicable to military operations seeking to gain the collaboration of enemy elements under International Humanitarian Law (IHL). Apart from addressing the prima facie legality of these practices, the article addresses some trends forming in state practice regarding limitations to its general permission. Throughout the review of academic opinions, treaty provisions, state practice and examples from armed conflicts, the author evaluates the evolution of the legal framework applicable to such tactics and provides some possible interpretations that can guide the developing process of the conduct of hostilities in the near future.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":"25 1","pages":"81-99"},"PeriodicalIF":0.8,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47978740","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}
Common Article 1 of the Geneva Conventions of 1949 is foundational, but not exceptional: the duty to respect and ensure respect for the Conventions must be considered within the framework of public international law as a whole. The Article obliges each High Contracting Party and its organs to respect the Geneva Conventions, and to ensure respect for these Conventions by the population over which it exercises authority and any other persons or groups whose conduct is attributable to it. This scope is demonstrated by the ordinary meaning of the term, subsequent agreements, subsequent practice and other relevant rules of international law, and confirmed by reference to the travaux preparatoires. In particular, erga omnes status does not affect it. As a matter of good faith performance of the Conventions, each High Contracting Party also has a duty not to encourage violations by others. Common Article 1 does not require, as some authors have argued, the prevention or termination of breaches of the Geneva Conventions by other parties to conflict, but High Contracting Parties may choose to take steps toward doing so, as a matter of policy.
{"title":"The Common Approach to Article 1: The Scope of Each State’s Obligation to Ensure Respect for the Geneva Conventions","authors":"Verity Robson","doi":"10.1093/jcsl/kraa004","DOIUrl":"https://doi.org/10.1093/jcsl/kraa004","url":null,"abstract":"\u0000 Common Article 1 of the Geneva Conventions of 1949 is foundational, but not exceptional: the duty to respect and ensure respect for the Conventions must be considered within the framework of public international law as a whole. The Article obliges each High Contracting Party and its organs to respect the Geneva Conventions, and to ensure respect for these Conventions by the population over which it exercises authority and any other persons or groups whose conduct is attributable to it. This scope is demonstrated by the ordinary meaning of the term, subsequent agreements, subsequent practice and other relevant rules of international law, and confirmed by reference to the travaux preparatoires. In particular, erga omnes status does not affect it. As a matter of good faith performance of the Conventions, each High Contracting Party also has a duty not to encourage violations by others. Common Article 1 does not require, as some authors have argued, the prevention or termination of breaches of the Geneva Conventions by other parties to conflict, but High Contracting Parties may choose to take steps toward doing so, as a matter of policy.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":"25 1","pages":"101-115"},"PeriodicalIF":0.8,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46891981","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}
Humanity and military necessity are often said to be ‘principles’ of the law of armed conflict (LOAC). However, for Dworkin, a concept must satisfy certain criteria in order to earn the status of a principle. First, principles carry different weightings to each other so that one may triumph in the event of a clash. Secondly, principles are capable of superseding positive rules so that coherence in the regime over which they preside is maintained. This article contends that neither criterion is satisfied by humanity or military necessity. Consequently, it argues that these concepts are not truly principles and that, instead, they are better viewed as ‘pillars’ of the LOAC.
{"title":"Pillars not Principles: The Status of Humanity and Military Necessity in the Law of Armed Conflict","authors":"E. Winter","doi":"10.1093/jcsl/kraa001","DOIUrl":"https://doi.org/10.1093/jcsl/kraa001","url":null,"abstract":"\u0000 Humanity and military necessity are often said to be ‘principles’ of the law of armed conflict (LOAC). However, for Dworkin, a concept must satisfy certain criteria in order to earn the status of a principle. First, principles carry different weightings to each other so that one may triumph in the event of a clash. Secondly, principles are capable of superseding positive rules so that coherence in the regime over which they preside is maintained. This article contends that neither criterion is satisfied by humanity or military necessity. Consequently, it argues that these concepts are not truly principles and that, instead, they are better viewed as ‘pillars’ of the LOAC.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":"25 1","pages":"1-31"},"PeriodicalIF":0.8,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46746721","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}
International humanitarian law (IHL) provides the occupying power extensive legal tools in order to allow it to control and govern the local occupied population, with the possibility of establishing a military law system being one of the most influential. The military law system gives the Military Commander of the occupied area an immense power as a potential legislator and judicial authority, but what happens when this legal system encounters the limitations placed by IHL in general and Occupation Law in particular? To examine this question, this article will present the case of the Israeli Military Court system in the Palestinian Occupied Territories and its use, abuse and misuse of international law norms. Based on the 5565 published rulings of the Military Court of Appeals, this research identifies all of the cases that refer to international law. This article suggests that the evolving approaches of the courts to international law are, in fact, a tool to justify and advance Israeli interests over the rights of the Palestinian defendants. Moreover, the article presents the potential impact these rulings have on the law in Palestine, the law in Israel and customary international law.
{"title":"The Rulings of the Israeli Military Courts and International Law","authors":"Nery Ramati","doi":"10.1093/JCSL/KRZ017","DOIUrl":"https://doi.org/10.1093/JCSL/KRZ017","url":null,"abstract":"\u0000 International humanitarian law (IHL) provides the occupying power extensive legal tools in order to allow it to control and govern the local occupied population, with the possibility of establishing a military law system being one of the most influential. The military law system gives the Military Commander of the occupied area an immense power as a potential legislator and judicial authority, but what happens when this legal system encounters the limitations placed by IHL in general and Occupation Law in particular? To examine this question, this article will present the case of the Israeli Military Court system in the Palestinian Occupied Territories and its use, abuse and misuse of international law norms. Based on the 5565 published rulings of the Military Court of Appeals, this research identifies all of the cases that refer to international law. This article suggests that the evolving approaches of the courts to international law are, in fact, a tool to justify and advance Israeli interests over the rights of the Palestinian defendants. Moreover, the article presents the potential impact these rulings have on the law in Palestine, the law in Israel and customary international law.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/JCSL/KRZ017","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42484896","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 examines international law on the use of countermeasures against peacetime cyber operations that fall below the armed attack threshold. It focuses on collective countermeasures— ie, measures taken by states which have not been affected by the cyber operation but which have been requested to assist by the state victim to these operations. While a general right for non-injured states to take countermeasures has not been recognised in international law, this article demonstrates that there is some support for this right in circumstances where the injured state requests assistance from a non-injured state. It argues that a limited right of collective countermeasures should be recognised in the cyber context. This is warranted as it expands the remedies available to states subject to cyber operations and offers a way for less technologically advanced states to obtain assistance when subject to malicious cyber operations from their adversaries
{"title":"Cyber Operations and Collective Countermeasures under International Law","authors":"S. Haataja","doi":"10.1093/jcsl/kraa003","DOIUrl":"https://doi.org/10.1093/jcsl/kraa003","url":null,"abstract":"\u0000 This article examines international law on the use of countermeasures against peacetime cyber operations that fall below the armed attack threshold. It focuses on collective countermeasures— ie, measures taken by states which have not been affected by the cyber operation but which have been requested to assist by the state victim to these operations. While a general right for non-injured states to take countermeasures has not been recognised in international law, this article demonstrates that there is some support for this right in circumstances where the injured state requests assistance from a non-injured state. It argues that a limited right of collective countermeasures should be recognised in the cyber context. This is warranted as it expands the remedies available to states subject to cyber operations and offers a way for less technologically advanced states to obtain assistance when subject to malicious cyber operations from their adversaries","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":"25 1","pages":"33-51"},"PeriodicalIF":0.8,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48319716","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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