Obligations of States Contributing to UN Peacekeeping Missions under Common Article 1 of the Geneva Conventions

in Krieger, Heike (Ed.) Enforcing International. Humanitarian Law in Contemporary African Conflicts (2014)

International Humanitarian Law and Human Rights Law

in Henderson, Christian; White, Nigel (Eds.) Research Handbook on International Conflict and Security Law (2013)

International Humanitarian Law and Human Rights Law

in Research Handbook on International Conflict and Security Law (2012)

The nature of the relationship between international humanitarian law and international human rights law remains a vexed one. In recent years, human rights lawyers and activists have sought to apply human ... [more ▼]

The nature of the relationship between international humanitarian law and international human rights law remains a vexed one. In recent years, human rights lawyers and activists have sought to apply human rights norms to military conduct in international and internal conflicts, and during belligerent occupations. With varying degrees of success, complainants have brought their cases before international tribunals, and to national courts able to apply international human rights standards. This development has occurred largely because forums exist to hear human rights claims, whereas they do not for persons claiming individual redress for violations of international humanitarian law. However, human rights norms have also been seen as more restrictive: as placing greater constraints on States' freedom to conduct hostilities, preventively detain, and administer occupied territories. It is for this reason that some States have resisted attempts to extend the reach of international human rights law into areas traditionally seen as governed by international humanitarian law. This chapter argues that principles have now developed to govern the relationship between the two bodies of law. However, their application to different situations remains a work-in-progress and controversies remain. In particular, despite valient efforts, it remains unclear what what happens in situations where the two bodies of law cannot be read together? There are only few rules of norm-conflict resolution in international law, all of which have limited application in the context of the relationship between international humanitarian law and human rights law. Most inconsistencies between the rules of the two bodies of law are not true conflicts at all, as they do not require States to conduct themselves in different ways. It is simply that international humanitarian law is the more permissive system. In such situations, to argue that the two bodies of law are ‘complementary and mutually reinforcing’ is to do little more than issue a policy prescription. In reality, in such cases States have to make a choice as regards which rules they wish to comply (a choice which is likely to be a political one) and take the consequences. There are fundamental incompatibilities between international humanitarian law and human rights law, not only as regards discrete rules but in their theoretical bases. Attempts can be made to reconcile them, to avoid conflicts, but they can only be provisional and on a case-by-case basis. The legal tools available cannot always provide an answer. Absent legislation, conflicts will remain. And in a world of States with differing interests and values, the adoption of new rules governing armed conflict and belligerent occupation will be difficult, if not impossible. One difference between the two bodies of rules, in particular, remains fundamental. Despite developments over past decades which are said to indicate a ‘humanization of humanitarian law’, international humanitarian law, in contrast to human rights law, is not based on an individual rights paradigm. It is this difference, even excluding the differences in the substantive protections accorded individuals under the two bodies of law, which will ensure that individuals continue to bring complaints regarding their treatment in situations of armed conflict before human rights bodies. And even if human rights bodies take the view that States’ human rights obligations in situations of armed conflict are to be interpreted using the yardstick of international humanitarian law, their interpretations of humanitarian law are likely to differ from lawyers advising States’ defence ministries and armed forces, who are likely to continue to be unhappy with such trespasses into what they see as their chasse gardée. [less ▲]

The “Injured State” in Case of Breach of a Non-Proliferation Treaty and the Legal Consequences of Such a Breach

in Joyner, Daniel; Roscini, Marco (Eds.) Non-Proliferation Law as a Special Regime (2012)

Settlement of Investment Disputes under the Energy Charter Treaty

Book published by Cambridge University Press (2011)

Reviewing the Security Council: The Role of Other International Organisations

in University of Luxembourg Law Working Paper No. 2011-04 (2011)

The recent activities of the Security Council of the United Nations with regards to Libya have highlighted once again how extensive its powers are. Acting under Chapter VII of the Charter of the United ... [more ▼]

The recent activities of the Security Council of the United Nations with regards to Libya have highlighted once again how extensive its powers are. Acting under Chapter VII of the Charter of the United Nations, the Council has imposed an arms embargo, frozen Libyan assets, referred the situation to the International Criminal Court, ordered a ‘no-fly zone’ and authorized the use of force short of occupying the territory to enforce it and to protect the civilian population. But, of course, ‘For unto whomsoever much is given, of him shall be much required’ or, to put it in contemporary idiom, ‘With great power comes great responsibility.’ Although we might agree that the Security Council is justified in acting to prevent a humanitarian catastrophe, the powers it disposes can be used for both good and ill. So what happens if and when the Council’s great powers are exercised irresponsibly? This paper examines two issues. The first is whether the Security Council is legibus solutus: that is, unbound by law. This examination, however, is only be preliminary to the second inquiry, which will consider which bodies are entitled to review the Security Council’s decisions to determine their vires and what, if they conclude that the Council has exceed its powers, they can do about it. Given that today all but one or two provocateurs consider that the Council is not legally unbound, one might consider that absent some body external to the Security Council willing and able to act to scrutinize its actions to review their conformity with the Council’s legal powers, whether the Council will step outside of the limits of legality depends solely on the Council itself; a situation would render any legal limits to its powers illusory. Debate, in this context, has tended to focus on judicial review; on whether the Council’s actions can be reviewed by some court or tribunal. At first, it was the role of the International Court of Justice that was scrutinised. More recently attention has shifted to look at other courts and tribunals, both national and international. However, as will be shown, judicial review of the Security Council’s actions cannot serve as a means to control the Council. The International Court of Justice will not, and other courts and tribunals cannot, effectively undertake such a task. However, another option does exist: review by the United Nations member States themselves. It will be argued that the practice of States shows that there are limits to the power of the Security Council, and that States frame those limits in legal terms. States have asserted a ‘right of last resort’ to review the legality of Council decisions and to act accordingly. In particular, they have done so acting collectively through the political organs of international organisations. [less ▲]

Child Prisoners in War

in Scheipers, Sibylle (Ed.) Prisoners in War (2010)

The issue of prisoners in war is a highly timely topic that has received much attention from both scholars and practitioners since the start of the military operations in Afghanistan and Iraq and the ... [more ▼]

The issue of prisoners in war is a highly timely topic that has received much attention from both scholars and practitioners since the start of the military operations in Afghanistan and Iraq and the ensuing legal and political problems concerning detainees in those conflicts. This book analyzes these contemporary problems and challenges against the background of their historical development. It provides a multidisciplinary yet highly coherent perspective on the historical trajectory of legal and ethical norms in this field by integrating the historical analysis of war with a study of the emergence of the modern legal regime of prisoners in war. In doing so, it provides the first comprehensive study of prisoners, detainees and internees in war, covering a broad range of both regular and irregular wars from the crusades to contemporary counterinsurgency campaigns. The book revolves around two major developments: First, there has been a continuous increase in the political relevance of prisoners in war, in particular since the emergence of POW camps in the nineteenth century. Secondly, and related, the growth in the legal regime pertaining to prisoners had contradictory consequences. Whilst it enhanced the protection of prisoners in regular conflicts, its state-centric bias tends to exclude combatants who do not fit the template of regular inter-state war. Detainees in the 'war on terror' embody both tendencies, the development of which, however, is by no means a novel phenomenon. This book is a project of the Oxford Leverhulme Programme on the Changing Character of War. [less ▲]

Symposium: The Relationship between International Humanitarian Law and International Human Rights Law

in Journal of Conflict and Security Law (2009), (14), 441-447

Introduction: Symposium on the Relationship between International Humanitarian Law and International Human Rights Law

in Journal of Conflict and Security Law (2009), 14

Child Prisoners in War

in SSRN (2008)

In recent years children's recruitment and use to participate in hostilities has become a matter of increasing international concern. Yet the rules specifically governing their participation, including ... [more ▼]

In recent years children's recruitment and use to participate in hostilities has become a matter of increasing international concern. Yet the rules specifically governing their participation, including those regulating their treatment when captured by an adverse party to a conflict, are sparse. A disinclination to face the fact that, despite the increasingly stringent legal prohibitions governing their recruitment into armed forces and groups, children continue to take part in hostilities may lie behind the paucity of legal rules governing their participation. Moreover, the fact that most use of child soldiers takes place in non-traditional armed conflicts and is by non-State actors can give rise to difficulties regarding the rules applicable to such conflicts and the legal status of child combatants within them. This paper analyses the current legal regulation of the treatment of child prisoners in war, before examining how child soldiers have in practice been treated in the ongoing global "war on terror". [less ▲]