Pub Date : 2021-01-14DOI: 10.1017/S0021223720000266
Atul Alexander, Saiesh Kamath
{"title":"The Persistent Objector Rule in International Law James A. Green Oxford University Press, 2016, 352 pp, £90, ISBN 9780198704218","authors":"Atul Alexander, Saiesh Kamath","doi":"10.1017/S0021223720000266","DOIUrl":"https://doi.org/10.1017/S0021223720000266","url":null,"abstract":"","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S0021223720000266","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41448732","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-14DOI: 10.1017/s0021223720000230
A. Herzberg
The operation of military courts is clearly allowed for and, in some cases, mandated by international humanitarian law (IHL). Nevertheless, the use of military courts has been one of the most controversial and hotly debated areas of human rights. Despite the ostensibly exclusive military domain, many human rights bodies have registered significant scepticism towards this type of justice. Consequently, they have sought actively to regulate this ‘IHL space’ with scant attention to the requirements of IHL itself. The article examines comments, case law, draft rules and other measures taken by two human rights frameworks: the United Nations Human Rights Council and the African Commission on Human and People's Rights. It will analyse how, since 2000, these bodies have approached the issue of IHL when assessing the legitimacy and operation of military courts. For instance, do they consider IHL as a source of law guiding their efforts and rely on IHL instruments? How do they resolve conflicts between IHL and international human rights law? Additionally, the article will consider the validity, legality and effectiveness of these efforts. It concludes that, in reviewing military courts, there exists significant neglect of IHL in human rights frameworks. Through overlooking IHL or relegating it to a sub-specialty of international human rights law, these bodies not only ignore applicable law, they deprive themselves of the wealth of expertise found in commentary, debate, jurisprudence and practice in the IHL sphere. Instead, integrating IHL analysis and theory and affording it its appropriate respect within relevant human rights discussions will allow for greater legal and policy coherence, and human rights bodies will be better placed to fulfil their mandates.
{"title":"Lex Generalis Derogat Legi Speciali: IHL in Human Rights Regulation of Military Courts Operating in Situations of Armed Conflict","authors":"A. Herzberg","doi":"10.1017/s0021223720000230","DOIUrl":"https://doi.org/10.1017/s0021223720000230","url":null,"abstract":"The operation of military courts is clearly allowed for and, in some cases, mandated by international humanitarian law (IHL). Nevertheless, the use of military courts has been one of the most controversial and hotly debated areas of human rights. Despite the ostensibly exclusive military domain, many human rights bodies have registered significant scepticism towards this type of justice. Consequently, they have sought actively to regulate this ‘IHL space’ with scant attention to the requirements of IHL itself. The article examines comments, case law, draft rules and other measures taken by two human rights frameworks: the United Nations Human Rights Council and the African Commission on Human and People's Rights. It will analyse how, since 2000, these bodies have approached the issue of IHL when assessing the legitimacy and operation of military courts. For instance, do they consider IHL as a source of law guiding their efforts and rely on IHL instruments? How do they resolve conflicts between IHL and international human rights law? Additionally, the article will consider the validity, legality and effectiveness of these efforts. It concludes that, in reviewing military courts, there exists significant neglect of IHL in human rights frameworks. Through overlooking IHL or relegating it to a sub-specialty of international human rights law, these bodies not only ignore applicable law, they deprive themselves of the wealth of expertise found in commentary, debate, jurisprudence and practice in the IHL sphere. Instead, integrating IHL analysis and theory and affording it its appropriate respect within relevant human rights discussions will allow for greater legal and policy coherence, and human rights bodies will be better placed to fulfil their mandates.","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/s0021223720000230","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47183962","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-14DOI: 10.1017/S0021223720000242
Dilek Kurban
In his well-researched biography, Mike Chinoy chronicles Kevin Boyle's life and career as a scholar, activist and lawyer, bringing to light his under-appreciated role in the civil rights movement in Northern Ireland and the efforts to find a peaceful solution to the conflict, as well as his contributions to human rights movements in the United Kingdom, Europe and the world. Are You With Me? is an important contribution to the literature on the actors who have shaped the norms, institutions and operations of human rights. In its efforts to shed light on one man, the book offers a fresh alternative to state-centric accounts of the origins of human rights. The book offers a portrait of a social movement actor turned legal scholar who used the law to contest the social inequalities against the minority community to which he belonged and to push for a solution to the underlying political conflict, as well as revelations of the complex power dynamics between human rights lawyers and the social movements they represent. In these respects Are You With Me? also provides valuable insights for socio-legal scholars, especially those focusing on legal mobilisation. At the same time the book could have provided a fuller and more complex biographical account had Chinoy been geographically and linguistically comprehensive in selecting his interviewees. The exclusion of Kurdish lawyers and human rights advocates is noticeable, particularly in light of the inclusion of Boyle's local partners in other contexts, such as South Africa.
{"title":"An Intimate Yet Anglo-Centric Account of a Renaissance Human Rights Man","authors":"Dilek Kurban","doi":"10.1017/S0021223720000242","DOIUrl":"https://doi.org/10.1017/S0021223720000242","url":null,"abstract":"In his well-researched biography, Mike Chinoy chronicles Kevin Boyle's life and career as a scholar, activist and lawyer, bringing to light his under-appreciated role in the civil rights movement in Northern Ireland and the efforts to find a peaceful solution to the conflict, as well as his contributions to human rights movements in the United Kingdom, Europe and the world. Are You With Me? is an important contribution to the literature on the actors who have shaped the norms, institutions and operations of human rights. In its efforts to shed light on one man, the book offers a fresh alternative to state-centric accounts of the origins of human rights. The book offers a portrait of a social movement actor turned legal scholar who used the law to contest the social inequalities against the minority community to which he belonged and to push for a solution to the underlying political conflict, as well as revelations of the complex power dynamics between human rights lawyers and the social movements they represent. In these respects Are You With Me? also provides valuable insights for socio-legal scholars, especially those focusing on legal mobilisation. At the same time the book could have provided a fuller and more complex biographical account had Chinoy been geographically and linguistically comprehensive in selecting his interviewees. The exclusion of Kurdish lawyers and human rights advocates is noticeable, particularly in light of the inclusion of Boyle's local partners in other contexts, such as South Africa.","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S0021223720000242","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46318642","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-15DOI: 10.1017/s0021223720000229
L. Brugnoli
During times of military occupation following an armed conflict it is not uncommon for the victors to implement mass detention programmes aimed both at providing security and bringing criminals to justice. International human rights regimes serve as overarching guidance for these programmes but are subject to broad interpretations, so it is often unclear what regulations or laws should inform day-to-day operations. Military and civilian lawyers may find themselves practising in a foreign jurisdiction for which they have no training or experience, let alone licensure. Law enforcement officers and military police are forced to adapt long-held practices to a new environment. Questions arise as to the rights that detained individuals possess, as these programmes frequently combine rules from different legal systems with no clear authoritative hierarchy. Attention is focused on the treatment of detained individuals with far less emphasis placed on their due process rights or other fundamental legal freedoms. This article examines one such instance, the US detention programme in Iraq, and highlights the numerous ethical and professional conflicts presented when members of one justice system are transplanted into another without proper preparation and background.
{"title":"Denying Due Process While Promoting Democracy: The Iraqi Detention Story","authors":"L. Brugnoli","doi":"10.1017/s0021223720000229","DOIUrl":"https://doi.org/10.1017/s0021223720000229","url":null,"abstract":"During times of military occupation following an armed conflict it is not uncommon for the victors to implement mass detention programmes aimed both at providing security and bringing criminals to justice. International human rights regimes serve as overarching guidance for these programmes but are subject to broad interpretations, so it is often unclear what regulations or laws should inform day-to-day operations. Military and civilian lawyers may find themselves practising in a foreign jurisdiction for which they have no training or experience, let alone licensure. Law enforcement officers and military police are forced to adapt long-held practices to a new environment. Questions arise as to the rights that detained individuals possess, as these programmes frequently combine rules from different legal systems with no clear authoritative hierarchy. Attention is focused on the treatment of detained individuals with far less emphasis placed on their due process rights or other fundamental legal freedoms. This article examines one such instance, the US detention programme in Iraq, and highlights the numerous ethical and professional conflicts presented when members of one justice system are transplanted into another without proper preparation and background.","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2020-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/s0021223720000229","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41799763","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-11DOI: 10.1017/S0021223720000205
Conor Donohue
Military justice as a body of law was subject to much criticism in the preceding decades before undergoing significant reforms to ensure that fair trial rights could be achieved. However, modern military justice systems are appropriate mechanisms for addressing law of armed conflict (LOAC) violations committed by service members. It is argued that the goals of military justice are consistent with LOAC, and that military justice has a valid legal basis to try violations. Such trials have a large body of precedent. The purported disadvantages of military trials are sufficiently mitigated to prevent cover-ups and unfair trials. Furthermore, military justice offers several benefits that cannot be achieved in a civilian or international forum. It is concluded that although military legal systems are imperfect, their role in the enforcement of international criminal law is worthy of further debate.
{"title":"The ‘Soul of an Army’: A Defence of Military Court Trials for Violations of the Law of Armed Conflict","authors":"Conor Donohue","doi":"10.1017/S0021223720000205","DOIUrl":"https://doi.org/10.1017/S0021223720000205","url":null,"abstract":"Military justice as a body of law was subject to much criticism in the preceding decades before undergoing significant reforms to ensure that fair trial rights could be achieved. However, modern military justice systems are appropriate mechanisms for addressing law of armed conflict (LOAC) violations committed by service members. It is argued that the goals of military justice are consistent with LOAC, and that military justice has a valid legal basis to try violations. Such trials have a large body of precedent. The purported disadvantages of military trials are sufficiently mitigated to prevent cover-ups and unfair trials. Furthermore, military justice offers several benefits that cannot be achieved in a civilian or international forum. It is concluded that although military legal systems are imperfect, their role in the enforcement of international criminal law is worthy of further debate.","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2020-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S0021223720000205","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45933190","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-10DOI: 10.1017/S0021223720000217
Claire Simmons
Drafters of international humanitarian law (IHL) treaties clearly envisaged a role for military justice systems in the implementation and enforcement of these treaties. Nevertheless, the adequacy of military jurisdiction over violations of international law is being questioned in certain spheres. In the context of these debates this article considers the domestic rationale for military justice systems and explores the role and limits of military jurisdiction in combating impunity for violations of IHL. In focusing on the need to effectively repress and suppress all violations of IHL, the article addresses the extent to which some sort of military justice may be necessary for the effective enforcement of certain provisions. It also explores the way in which increased scrutiny of the impact of these justice systems on the rights of individuals has led to restrictions on the format and scope of military jurisdiction. Although there are difficulties in internationalising the discussion on military jurisdiction because of differences in domestic legal traditions, the choice of effective IHL enforcement mechanisms, which includes the choice of military or civilian jurisdiction, is key in combating impunity for violations of this body of law and protecting the rights of those involved.
{"title":"The Scope of Military Jurisdiction for Violations of International Humanitarian Law","authors":"Claire Simmons","doi":"10.1017/S0021223720000217","DOIUrl":"https://doi.org/10.1017/S0021223720000217","url":null,"abstract":"Drafters of international humanitarian law (IHL) treaties clearly envisaged a role for military justice systems in the implementation and enforcement of these treaties. Nevertheless, the adequacy of military jurisdiction over violations of international law is being questioned in certain spheres. In the context of these debates this article considers the domestic rationale for military justice systems and explores the role and limits of military jurisdiction in combating impunity for violations of IHL. In focusing on the need to effectively repress and suppress all violations of IHL, the article addresses the extent to which some sort of military justice may be necessary for the effective enforcement of certain provisions. It also explores the way in which increased scrutiny of the impact of these justice systems on the rights of individuals has led to restrictions on the format and scope of military jurisdiction. Although there are difficulties in internationalising the discussion on military jurisdiction because of differences in domestic legal traditions, the choice of effective IHL enforcement mechanisms, which includes the choice of military or civilian jurisdiction, is key in combating impunity for violations of this body of law and protecting the rights of those involved.","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2020-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S0021223720000217","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43659876","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-01DOI: 10.1017/s002122372000014x
M. Shaw, Y. Shany, Y. Ronen
{"title":"Introduction","authors":"M. Shaw, Y. Shany, Y. Ronen","doi":"10.1017/s002122372000014x","DOIUrl":"https://doi.org/10.1017/s002122372000014x","url":null,"abstract":"","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/s002122372000014x","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46320112","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-01DOI: 10.1017/S0021223720000163
R. Arnold
There seems to have been a shift in the state-centric vision of international relations, following the increasing role of non-state actors (NSAs) on the international scene, particularly in the context of armed conflicts. Ezequiel Heffes, Marcos Kotlik and Manuel Ventura, editors of International Humanitarian Law and Non-State Actors, present through this collection of contributions an overview of legal issues arising from this new reality. The editors draw on their personal experience to explain how NSAs contribute to the development of international humanitarian law (IHL) and to suggest that in order to promote respect for IHL by all parties involved in an armed conflict, this new role should be given due consideration from a legal standpoint. The review aims to confront critically the position taken in the volume, assessing the pros and cons of an increased recognition (and potential legitimisation) of NSAs, with a particular focus on non-state armed groups. It discusses, in particular, the implications of this process for the exercise of sovereign rights and respect for fundamental guarantees, especially in relation to the powers to detain and to adjudicate.
{"title":"International Humanitarian Law and Non-State Actors: A Contradiction of Terms?","authors":"R. Arnold","doi":"10.1017/S0021223720000163","DOIUrl":"https://doi.org/10.1017/S0021223720000163","url":null,"abstract":"There seems to have been a shift in the state-centric vision of international relations, following the increasing role of non-state actors (NSAs) on the international scene, particularly in the context of armed conflicts. Ezequiel Heffes, Marcos Kotlik and Manuel Ventura, editors of International Humanitarian Law and Non-State Actors, present through this collection of contributions an overview of legal issues arising from this new reality. The editors draw on their personal experience to explain how NSAs contribute to the development of international humanitarian law (IHL) and to suggest that in order to promote respect for IHL by all parties involved in an armed conflict, this new role should be given due consideration from a legal standpoint. The review aims to confront critically the position taken in the volume, assessing the pros and cons of an increased recognition (and potential legitimisation) of NSAs, with a particular focus on non-state armed groups. It discusses, in particular, the implications of this process for the exercise of sovereign rights and respect for fundamental guarantees, especially in relation to the powers to detain and to adjudicate.","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S0021223720000163","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44824837","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-01DOI: 10.1017/s0021223720000199
{"title":"ISR volume 53 issue 3 Cover and Front matter","authors":"","doi":"10.1017/s0021223720000199","DOIUrl":"https://doi.org/10.1017/s0021223720000199","url":null,"abstract":"","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/s0021223720000199","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47783026","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-01DOI: 10.1017/s0021223720000187
{"title":"ISR volume 53 issue 3 Cover and Back matter","authors":"","doi":"10.1017/s0021223720000187","DOIUrl":"https://doi.org/10.1017/s0021223720000187","url":null,"abstract":"","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/s0021223720000187","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49371519","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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