Yearbook of International Humanitarian Law最新文献

{"title":"CONTROLLING THE RECOURSE TO WAR BY MODIFYING JUS IN BELLO","authors":"Ryan Goodman","doi":"10.1017/S1389135909000038","DOIUrl":"https://doi.org/10.1017/S1389135909000038","url":null,"abstract":"According to a bedrock principle of international law, the rules regulating the recourse to war and the rules regulating conduct during war must be kept conceptually and legally distinct. The purported independence of the two domains – the ‘separation principle’ – remains unstable despite its historic pedigree. This essay explores recent developments that threaten to erode the separation. The author analyzes, in particular, doctrinal innovations that result in the regulation of the recourse to war through alterations of jus in bello. International and national institutions have incentivized states to pursue particular paths to war by tailoring the rules that regulate conduct in armed conflict. Some warpaths are accordingly rewarded, and others are penalized. The article then explores potential consequences, first, on state behavior involving the use of force and, second, on state behavior involving the conduct of warfare. One significant conclusion is that these recent developments channel state behavior and justifications for using force toward security-based and strategic rationales. These efforts – whether intended or not – risk suppressing ‘desirable wars’ and inspiring ‘undesirable wars.’ These recent developments also undercut humanitarian protections by undermining the mechanisms for compliance with legal norms on the battlefield.","PeriodicalId":163810,"journal":{"name":"Yearbook of International Humanitarian Law","volume":"144 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122909310","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":"SOME COMMENTS AND OBSERVATIONS ON THE MONTREUX DOCUMENT","authors":"Marie-Louise Tougas","doi":"10.1017/S1389135909000129","DOIUrl":"https://doi.org/10.1017/S1389135909000129","url":null,"abstract":"Growing concerns that PMSCs were operating in a legal vacuum led to increasing calls for further clarification on the role of such entities in conflict zones and to mounting pressure to develop a regulative framework under international law. In September 2008, 17 States endorsed the Montreux Document, an initiative sponsored by the Swiss government and the ICRC. The Montreux Document is a non-binding document aimed at identifying and reasserting the most relevant international legal obligations that govern the conduct of PMSCs during armed conflicts. It also provides for a set of guidelines on ‘good practices’ for States in regard to the operation of PMSCs in armed conflicts. Although it does not create any legal obligations, and only recalls existing ones, it is the first intergovernmental document to address international obligations in respect to the activities of PMSCs. It can thus be seen as a first step toward the establishment of a better regulative framework of PMSCs' activities in conflict zones. This article provides an overview of the process that led to the endorsement of this document and an analysis of its content. It also addresses some of the questions left unanswered by the Montreux Document.","PeriodicalId":163810,"journal":{"name":"Yearbook of International Humanitarian Law","volume":"83 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116621954","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":"ICRC GUIDANCE ON DIRECT PARTICIPATION IN HOSTILITIES","authors":"W. Fenrick","doi":"10.1017/S1389135909000105","DOIUrl":"https://doi.org/10.1017/S1389135909000105","url":null,"abstract":"The ICRC, following extended discussions with a large group of experts, has adopted and issued a non-legally binding document entitled ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’ consisting of ten recommendations and about fifty pages of related commentary. The discussion process which preceded production of the Interpretive Guidance was contentious and no consensus was reached on the issue of Direct Participation in Hostilities. As the result, the ICRC, as it was entitled to do, issued its own interpretation of the applicable law. The author of this article, who was involved in all of the expert meetings, reviews and comments on the Interpretive Guidance and attempts to make an assessment of its general viability and of its acceptability to the wider IHL community.","PeriodicalId":163810,"journal":{"name":"Yearbook of International Humanitarian Law","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121864889","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":"THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW: CONFERENCE REPORT","authors":"C. Droege, Louise Arimatsu","doi":"10.1017/S1389135909000154","DOIUrl":"https://doi.org/10.1017/S1389135909000154","url":null,"abstract":"On 24–25 September 2009, the Faculty of Laws, University College London and the International Humanitarian Law Project, London School of Economics held a conference in cooperation with the International Committee of the Red Cross entitled ‘The European Convention on Human Rights and International Humanitarian Law’. Armed conflict situations (including belligerent occupations) have increasingly become the subject of litigation before national courts and the European Court of Human Rights (ECtHR). As a result, there is now a substantial body of case-law on the application of the European Convention on Human Rights (ECHR) in armed conflict situations. The ECtHR has had to engage with questions involving situations of armed conflict and occupation since the Turkish intervention in Northern Cyprus in the 1970s. The increasing resort to the ECHR by claimants whose rights have allegedly been violated in contemporary armed conflicts and occupations, raise new and complex questions of law. To what extent does the ECHR, as a human rights legal regime, apply in such situations, especially when alleged violations have been perpetrated abroad? How does the ECHR interact with international humanitarian law (IHL)?","PeriodicalId":163810,"journal":{"name":"Yearbook of International Humanitarian Law","volume":"81 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127277996","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":"THE RENDULIC ‘RULE’: MILITARY NECESSITY, COMMANDER'S KNOWLEDGE, AND METHODS OF WARFARE","authors":"Brian J. Bill","doi":"10.1017/S1389135909000051","DOIUrl":"https://doi.org/10.1017/S1389135909000051","url":null,"abstract":"Unlike most other areas of international law which address only State responsibilities, the law of war assigns to individuals the responsibility to observe positive rules. The threat of being charged with a war crime, with all the attached opprobrium, is the chief means by which observance of the law of war is ensured. No one could rightly argue that war crimes prosecutions, even if they were always effectively prosecuted – and they are not – ensure perfect compliance with the law, but they are the best mechanism devised to date. Although war crimes trials has earlier antecedents, the prosecutions following World War II marked the beginning of the modern war crimes model. World War II prosecutions were notable for the scale of atrocities alleged in the various indictments. Once the crimes were defined, and the architecture put in place to establish the various tribunals, proof of wrongdoing was rarely in doubt. There were expected legal issues to be sure: claims of ex post facto crimes, immunities for acts of state, and the defense of superior orders, among many others; but in general prosecutors fully expected convictions across the board. And many convictions did result, though there were several exceptions that resulted in full or partial acquittals.","PeriodicalId":163810,"journal":{"name":"Yearbook of International Humanitarian Law","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126780799","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":"Targeting Narcoinsurgents in Afghanistan: The Limits of International Humanitarian Law","authors":"M. Schmitt","doi":"10.1017/S1389135909000117","DOIUrl":"https://doi.org/10.1017/S1389135909000117","url":null,"abstract":"This paper examines the legality of proposals to for ISAF and the United States to target drug facilities and those involved in drug activities in Afghanistan.","PeriodicalId":163810,"journal":{"name":"Yearbook of International Humanitarian Law","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125238082","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":"The Application of IHL in the Goldstone Report: A Critical Commentary","authors":"Laurie R. Blank","doi":"10.1017/S1389135909000130","DOIUrl":"https://doi.org/10.1017/S1389135909000130","url":null,"abstract":"Operation Cast Lead, the Israeli military operation in Gaza that began on December 27, 2008, demonstrated anew the challenges international humanitarian law – otherwise known as the law of armed conflict or the law or war – faces in contemporary conflict. The Goldstone Report presented an opportunity to examine critically how the law applies in complicated modern warfare and how the law might be used to solve difficult problems such conflict poses.This article analyzes the Goldstone Report’s application of the law to the conduct of both parties in the conflict so as to examine whether the report applies the correct legal standards and interprets them appropriately within the framework of the Gaza conflict. In particular, the article focuses on two main shortcomings in the Goldstone Report’s application of IHL: areas in which the report could have benefitted from a greater sensitivity to the complexities of modern warfare, and areas in which its approach is questionable as a matter of law.First, I highlight the report’s flawed examination of the challenges posed by contemporary conflicts in two fundamental areas of IHL: distinction and military objectives. Both require that military commanders and soldiers understand who is a civilian and who is a fighter or combatant, and which targets are military targets and which are civilian objects. Without a thorough and sophisticated understanding of how to make these determinations, military commanders, soldiers and policy makers will face grave difficulty in planning and carrying out military operations within the bounds of the law. The challenges presented in Operation Cast Lead are emblematic of some of the most difficult dilemmas modern warfare poses.Second, the article highlights several areas in which the Goldstone Report’s application of IHL is questionable, either because it uses the incorrect legal standard or because it applies the wrong law when more than one body of law applies. The report errs twice in its treatment of the principle of proportionality, first by approaching jus in bello proportionality retrospectively rather than prospectively, and second by conflating jus ad bellum proportionality with jus in bello proportionality. Additional problems arise in its analysis of the law governing precautions in attack and the treatment of prisoners of war, and its assessment of responsibility for specific crimes, including attacks on civilians, destruction of property and hostage taking.","PeriodicalId":163810,"journal":{"name":"Yearbook of International Humanitarian Law","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129845768","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":"CHANGING THE LANDSCAPE: ISRAEL'S GROSS VIOLATIONS OF INTERNATIONAL LAW IN THE OCCUPIED SYRIAN GOLAN","authors":"R. Murphy, D. Gannon","doi":"10.1017/S1389135908001396","DOIUrl":"https://doi.org/10.1017/S1389135908001396","url":null,"abstract":"Successive Israeli governments have adopted a number of policies to control and contain the Syrian population since Israel began its occupation. Numerous villages have been destroyed, thousands driven from their homes, private and public property expropriated, the remaining Arab villages have been prevented from expanding and the free movement of people curtailed. In 1981, Israel enacted legislation that purported to annex the territory. This move was widely condemned by the international community and from the perspective of international law, the Syrian Golan remains an occupied territory to which the laws of occupation apply. The northern hemisphere summer of 2008 marked the 41st anniversary of Israel's occupation. This report outlines the background to the occupation and the consequences for the local population. It then examines the action of the Israeli authorities and argues that certain practices by the Israeli Defence Forces constitute war crimes, which in some cases may also amount to grave breaches of the Fourth Geneva Convention governing the protection of civilians.","PeriodicalId":163810,"journal":{"name":"Yearbook of International Humanitarian Law","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129957342","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":"THE CLUSTER MUNITIONS CONVENTION: AROUND THE WORLD IN ONE YEAR","authors":"N. V. Woudenberg, Wouter Wormgoor","doi":"10.1017/S1389135908003917","DOIUrl":"https://doi.org/10.1017/S1389135908003917","url":null,"abstract":"","PeriodicalId":163810,"journal":{"name":"Yearbook of International Humanitarian Law","volume":"89 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127042331","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":"MORAL AMBIGUITIES UNDERLYING THE LAWS OF ARMED CONFLICT: A PERSPECTIVE FROM MILITARY ETHICS","authors":"T. Baarda","doi":"10.1017/S1389135908000032","DOIUrl":"https://doi.org/10.1017/S1389135908000032","url":null,"abstract":"The law of armed conflict suffers from an internal ambiguity. The Declaration of St Petersburg (1868) made the ambiguity explicit when it stated that ‘the necessities of war ought to yield to the requirements of humanity’. The Lieber Code (1863) was less explicit, though it suffered from the same ambiguity. The Code received a lengthy critique from the Confederate Secretary of War who stated bluntly: ‘A military commander under this code may pursue a line of conduct in accordance with the principles of justice, faith and honour, or he may justify conduct correspondent with warfare of the barbarous hordes who overran the Roman Empire, or who, in the Middle Ages, devastated the continent of and menaced the civilisation of Europe’. Which of the two considerations, the Confederate Secretary demanded to know, should prevail: humanity or necessity?","PeriodicalId":163810,"journal":{"name":"Yearbook of International Humanitarian Law","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134359007","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}