Law Applicable to Armed Conflict最新文献

Towards a Moral Division of Labour between IHL and IHRL during the Conduct of Hostilities 在敌对行动期间国际人道法与国际人道法之间的道德分工

Law Applicable to Armed Conflict Pub Date : 2020-02-29 DOI: 10.1017/9781108674416.004

Ziv Bohrer, Janina Dill, H. Duffy

{"title":"Towards a Moral Division of Labour between IHL and IHRL during the Conduct of Hostilities","authors":"Ziv Bohrer, Janina Dill, H. Duffy","doi":"10.1017/9781108674416.004","DOIUrl":"https://doi.org/10.1017/9781108674416.004","url":null,"abstract":"When should International Humanitarian Law (IHL) prevail over, when give way to International Human Rights Law (IHRL)? IHL and IHRL give diverging answers to the crucial question of when it is permissible to kill during an armed confrontation. This paper contends that when two bodies of law make diverging substantive demands – as IHRL and IHL do – that which better discharges the law’s moral tasks should displace the other. The law’s two moral tasks, the paper argues, are to guide its subjects’ conduct, as often as possible, towards the course of action that conforms to their moral obligations (task one) and to secure the fullest feasible protection of rights in the outcome of conduct (task two). \u0000 \u0000IHL permits conduct that further diverges from our fundamental moral obligations of non-interference with the individual right to life. Yet, the law that more faithfully reflects underlying moral principles is not always the law that better discharges its moral tasks. Epistemic barriers to identifying the morally right course of action account for why a law that further diverges from moral principles might better guide the individual towards what is typically the morally right course of action (task one). Volitional defects may mean that a law that asks for a course of action other than the morally right one, generates better aggregate moral consequences (task two). Whether IHRL or IHL should prevail, depends on the epistemic and volitional context of decision-making during the conduct of hostilities. \u0000 \u0000The paper raises the question of whether IHL or IHRL should govern the conduct of hostilities for six types of non-international and international armed conflicts (NIACs and IACs). One of two characteristics distinguishes them from confrontations that do not count as armed conflicts: either the intensity of hostilities or a state’s (non-authorised) use of armed force outside its own territory. The paper analyses how the intensity and territorial scope of hostilities affect the epistemic and volitional context of decision-making on the battlefield and thereby IHRL’s and IHL’s respective ability to discharge the law’s two moral tasks. \u0000 \u0000This analysis leads to the following proposal for a moral division of labour between IHRL and IHL: As the morally prima facie better law IHRL should govern the conduct of hostilities in law enforcement operations. In non-protracted IACs, ‘symmetrical IHRL’ – applied as if both parties had a lawful aim - should govern the permissibility of killing. Above the threshold of intensity at which hostilities count as protracted, hence during NIACs and protracted IACs, we face a choice between affording individuals a guide towards what is typically the course of action that conforms to their moral obligations (task one) and reducing individual rights violations in the outcome of warfare (task two). ‘Symmetrical IHRL’ better discharges task one; IHL better discharges task two. It depends on the relative moral costs of prioritizin","PeriodicalId":301110,"journal":{"name":"Law Applicable to Armed Conflict","volume":"84 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122760979","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}

引用次数: 0

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Law Applicable to Armed Conflict Pub Date : 2020-02-29 DOI: 10.1017/9781108674416.006

引用次数: 0

Divisions over Distinctions in Wartime International Law 战时国际法的分歧

Law Applicable to Armed Conflict Pub Date : 2020-02-29 DOI: 10.1017/9781108674416.003

Ziv Bohrer, Janina Dill, H. Duffy

{"title":"Divisions over Distinctions in Wartime International Law","authors":"Ziv Bohrer, Janina Dill, H. Duffy","doi":"10.1017/9781108674416.003","DOIUrl":"https://doi.org/10.1017/9781108674416.003","url":null,"abstract":"Under what conditions International Human Rights Law (IHRL) applies in wartime? Who is a combatant, and who is a non-combatant, given that International Humanitarian Law (IHL) sets very different rules for each? When do armed conflicts begin and end, and what are their spatial boundaries, given that IHL only applies to armed conflict? What conditions distinguish international from non-international armed conflict (\"IAC\" from \"NIAC\"), given that distinct IHL corpus governs each? What law applies to cross-border fights between non-State and State forces (\"transnational wars\"): peacetime international law, IAC-law, NIAC-law, or a new IHL altogether? Since the early-2000s, such war-related legal classifications have been evermore, un-resolvability debated. This chapter addresses that classification crisis. \u0000 \u0000It aims to enrich the discourse with the following five provocative thoughts: First, it refutes the received historical account that the current crisis results from the rise of a new kind of war. The attributes of current conflicts are much less novel than assumed. Second, it refutes the accepted (overly) Statist history of IHL, showing that IHL application to NIAC, and even to transnational wars, is much older than widely thought. Third, it shows that current uncertainty is, in part, not a crisis, rather a chronic fact of life, stemming from the inevitable nature of ‘law’ and of ‘war’. Moreover, the chapter presents a recently neglected IHL norm–The Adaptation Approach–that has long aided IHL in addressing such uncertainty. Four, it reveals the main cause for the current actual legal crisis: for two decades, a struggle has been waging in IHL, driven by the competing attempts of hardline-Statists and hardline-IHRL-advocates to take sole control over its shaping. Current escalating uncertainty primarily stems from these attempts and from the clash between them. Five, the chapter responds by rebutting the fundamental premise of each hardline faction: (a) It shows that the Hardline-Statist drive to loosen wartime legal constraints gravely underrates existing IHL. (b) It argues that IHRL-advocates over-estimate the benefits of extensive wartime application of IHRL; counter-intuitively, the co-application of IHRL and IHL diminishes (rather than increases) civilian protection. The chapter, thus, invites us to radically question the role IHRL should play in armed conflict.","PeriodicalId":301110,"journal":{"name":"Law Applicable to Armed Conflict","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129716130","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}

引用次数: 3

Books in the Series 本系列书籍

Law Applicable to Armed Conflict Pub Date : 2020-01-02 DOI: 10.1017/9781108674416.007

Ziv Bohrer, Janina Dill, H. Duffy

引用次数: 0