JOURNAL OF CONFLICT & SECURITY LAW最新文献_第8页

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

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JOURNAL OF CONFLICT & SECURITY LAW Pub Date : 2020-10-10 DOI: 10.1093/jcsl/kraa010

S. Bradley

{"title":"Protection of Detainees from Sexual Violence under International Humanitarian Law","authors":"S. Bradley","doi":"10.1093/jcsl/kraa010","DOIUrl":"https://doi.org/10.1093/jcsl/kraa010","url":null,"abstract":"\u0000 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.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2020-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48807833","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

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

JOURNAL OF CONFLICT & SECURITY LAW Pub Date : 2020-10-07 DOI: 10.1093/jcsl/kraa019

A. Margalit

{"title":"Accounting for Those in the Hands of the Belligerent: Security Detainees, the Missing and the Dead in the Israeli–Hamas Conflict","authors":"A. Margalit","doi":"10.1093/jcsl/kraa019","DOIUrl":"https://doi.org/10.1093/jcsl/kraa019","url":null,"abstract":"\u0000 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.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2020-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa019","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49232913","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: 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

JOURNAL OF CONFLICT & SECURITY LAW Pub Date : 2020-07-31 DOI: 10.1093/jcsl/kraa011

Thibault Moulin

{"title":"Reviving the Principle of Non-Intervention in Cyberspace: The Path Forward","authors":"Thibault Moulin","doi":"10.1093/jcsl/kraa011","DOIUrl":"https://doi.org/10.1093/jcsl/kraa011","url":null,"abstract":"\u0000 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.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2020-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa011","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42445569","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: 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

JOURNAL OF CONFLICT & SECURITY LAW Pub Date : 2020-07-01 DOI: 10.1093/jcsl/kraa008

Peter Vedel Kessing

{"title":"Liability in Joint Military Operations—The Green Desert Case","authors":"Peter Vedel Kessing","doi":"10.1093/jcsl/kraa008","DOIUrl":"https://doi.org/10.1093/jcsl/kraa008","url":null,"abstract":"\u0000 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?","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":"25 1","pages":"343-366"},"PeriodicalIF":0.8,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47056528","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: 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

JOURNAL OF CONFLICT & SECURITY LAW Pub Date : 2020-07-01 DOI: 10.1093/jcsl/kraa005

J. Mawdsley

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

JOURNAL OF CONFLICT & SECURITY LAW Pub Date : 2020-07-01 DOI: 10.1093/jcsl/krz034

Conrad Nyamutata

{"title":"Young Terrorists or Child Soldiers? ISIS Children, International Law and Victimhood","authors":"Conrad Nyamutata","doi":"10.1093/jcsl/krz034","DOIUrl":"https://doi.org/10.1093/jcsl/krz034","url":null,"abstract":"\u0000 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.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":"25 1","pages":"237-261"},"PeriodicalIF":0.8,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/krz034","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45948593","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: 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

JOURNAL OF CONFLICT & SECURITY LAW Pub Date : 2020-07-01 DOI: 10.1093/jcsl/kraa006

Elizabeth Stubbins Bates

{"title":"The British Army’s Training in International Humanitarian Law","authors":"Elizabeth Stubbins Bates","doi":"10.1093/jcsl/kraa006","DOIUrl":"https://doi.org/10.1093/jcsl/kraa006","url":null,"abstract":"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.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":"25 1","pages":"291-315"},"PeriodicalIF":0.8,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa006","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44052912","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

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？

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JOURNAL OF CONFLICT & SECURITY LAW Pub Date : 2020-07-01 DOI: 10.1093/jcsl/krz031

M. Qafisheh

{"title":"Human Rights at the Time of Transition: How Security Forces Can be Held Accountable in a Divided Community?","authors":"M. Qafisheh","doi":"10.1093/jcsl/krz031","DOIUrl":"https://doi.org/10.1093/jcsl/krz031","url":null,"abstract":"\u0000 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.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":"25 1","pages":"171-207"},"PeriodicalIF":0.8,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/krz031","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48466564","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: 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

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JOURNAL OF CONFLICT & SECURITY LAW Pub Date : 2020-07-01 DOI: 10.1093/JCSL/KRZ019

K. Chan

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

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JOURNAL OF CONFLICT & SECURITY LAW Pub Date : 2020-07-01 DOI: 10.1093/JCSL/KRZ015

J. Odermatt

引用次数: 0