International Humanitarian Law

The Vietnamization of the Long War on Terror: An Ongoing Lesson in International Humanitarian Law Noncompliance

by Lesley Wexler

Boston University International Law Journal, Forthcoming

This essay rejects the conventional wisdom that post Vietnam military reforms adequately addressed the problem of U.S.... more This essay rejects the conventional wisdom that post Vietnam military reforms adequately addressed the problem of U.S. noncompliance with international humanitarian law. Just as My Lai and Son Thang defines the nadir of America’s counterinsurgency in Vietnam, and the trio of Haditha, Abu Ghraib, and Operation Iron Triangle evoke our worst behavior in Iraq, the recent events of the 5th Stryker “kill team” brigade may come to symbolize our greatest failings in Afghanistan. The premeditated and deliberate killing of Afghani civilians reveals an indifference to human life that is utterly inconsistent with the premises of International Humanitarian Law and the deeply held values of the American military. In this short piece, I examine the Stryker kill team’s behavior to help build the knowledge and insight necessary to develop further reforms for military practices during the long war on terror.

The essay situates the 5th Stryker brigade’s troubling behavior within the military’s recent shift to counterinsurgency and highlights the suboptimal compliance conditions likely to bedevil the U.S. military during the long war on terror. Though the U.S. military successfully restructured its goals and reformed its behavior after Vietnam, at least three notable similarities remain. In particular, the military still: (a) abandons effective sorting strategies to exclude high risk soldiers when the demand for troops rises; (b) lacks adequate safeguards against leadership failures that allow a culture of disrespect for human life to fester; and lastly (c) faces only weak checks on its behavior as the result of domestic pressure. In identifying these factors, this essay seeks to help the military and other actors better target efforts to improve international humanitarian law compliance.

Report of the Conference "New Conflicts and the Challenge of the Protection of the Civilian Population"

by Marina Mancini

Documenti IAI 11/03, Istituto Affari Internazionali February 2011

Private Military and Security Company Employees: Are They the Mercenaries of the Twenty-first Century?

by Marina Mancini

EUI Working Paper AEL 2010/5, European University Institute, San Domenico di Fiesole, 2010, 1-16

Fighting Terror Through Justice: Implementing the IGAD Framework for Legal Cooperation Against Terrorism

by Matthew Schwartz

Co-authored with the Task Force on Legal Cooperation against Terrorism in the IGAD Subregion.

East Africa and the Horn face a number of transnational security threats, including terrorism, transnational crime,... more East Africa and the Horn face a number of transnational security threats, including terrorism, transnational crime, and piracy. In recent years, particularly following the July 2010 attacks in Kampala, al-Shabaab has been increasingly viewed as a threat not only to Somalia, but to the greater subregion. Tourism has declined and shipping costs have risen due to the threat of piracy from Somalia. Lawless pockets where government reach is weak, together with rampant corruption, have turned the region into a major transit point for black market financial flows and various forms of illicit trafficking.

Terrorism and transnational crime increasingly threaten security in the subregion of the Intergovernmental Authority on Development [IGAD]. Because of their transnational nature, no individual IGAD member state will single-handedly be able to deal effectively with these threats. As the IGAD Security Strategy adopted in December 2010 makes clear, effective cooperation will be crucial to winning the struggle against terrorism and to ensuring that other forms of transnational crime do not similarly jeopardize the IGAD subregion’s growth, prosperity, and stability.

Advancing International Criminal Law. The Special Court for Sierra Leone Recognizes Forced Marriage as a ‘New’ Crime against Humanity

by Micaela Frulli

published in Journal of International Criminal Justice 6 (2008), 1033-1042

The Appeals Chamber of the Special Court for Sierra Leone (SCSL) in Brima, Kamara and Kanu recognized that forced... more The Appeals Chamber of the Special Court for Sierra Leone (SCSL) in Brima, Kamara and Kanu recognized that forced marriages may amount to crimes against humanity, falling under the sub-heading of ‘other inhumane acts’. This decision is to
be welcomed because the practice of forced marriage is not adequately described by existing categories of sexual crimes. As forced conjugality results in particular psychological and moral suffering for the victims, it is argued that this heinous
practice may be more appropriately pursued as a separate crime, under a definition that describes the entirety and complexity of the criminal conduct. The SCSL decision
may also be important for its impact on the activities of the International Criminal Court (ICC). The widespread practice of forced marriage presently features in all the situations being investigated by the ICC and the inclusion in the ICC
Statute of the offence of forced marriage as a separate crime against humanity could be discussed during the Review Conference in 2009.

Urban Irregular Warfare and Violence Against Civilians: Evidence From a Colombian City

by Gonzalo Vargas

Voluntary Human Shields, Direct Participation in Hostilities and the International Humanitarian Law Obligations of States

by Rewi Lyall

Children without a voice- Report on children with symptoms of severe depressivedevitalisation who have been refused asylum and protection in Sweden

by Karin Johansson Blight

Co-authors: Anita Dorazio, Eva Wilks and Elisabeth Hultcrantz

Published by: Etikkommissionen i Sverige- A Network for Human Rights in the Asylum Process

Year: 2012

The report is available in Swedish and English
ISBN 978-91-87163-01-2 (Printed version in Swedish)
ISBN 978-91-87163-02-9 (PDF in Swedish)
ISBN 978-91-87163-04-3 (PDF in English)

In brief the report concerns children who are suffering from depressive devitalisation (most often developed during... more In brief the report concerns children who are suffering from depressive devitalisation (most often developed during the period in Sweden)- a severe disabling condition including in severe stages complete loss of function, and who are increasingly being rejected on permission to stay, firstly on asylum and protection but since the summer 2011 also increasingly on impediments to enforcements at the last stages of appeal and thus face deportation. The report contains extracts from these decisions of refusal and it also shows that the children mostly belong to ethnic minorities known to be prosecuted in the countries the families have fled.

The preface presents a summary overview of historical policy and practice developments leading up to the report and is written by the ‘grand old man’ of knowledge about children with symptoms of severe depressive devitalisation Göran Bodegård, specialist in Child and Adolescent Medicine and Psychiatry.

An Enchanted Tool? Humanitarian Assistance and the ILC Draft Articles on the Protection of Persons in the Event of Disasters

by Dug Cubie

Published in the Irish Yearbook of International Law, Vols IV - V (Hart: Oxford), forthcoming

Despite previous attempts at codification of international law regarding international responses to natural and... more Despite previous attempts at codification of international law regarding international responses to natural and human-made disasters, there is currently no binding international legal framework to regulate the provision of humanitarian assistance outside armed conflicts. Nevertheless, since the International Law Commission (ILC) included the protection of persons in the event of disasters on its programme of work in 2006, it has provisionally adopted eleven draft articles that have the potential to create binding obligations on states and humanitarian actors in disaster settings. However, the final form of the draft articles has not yet been agreed, although the Codification Division of the UN Office of Legal Affairs has proposed a framework convention format which has seen support in the ILC and the UN General Assembly Sixth Committee.

The overall aim of this article is to provide an analysis of the potential forms of international regulation open to the ILC and states in the context of humanitarian responses to disasters. However to avoid enchanting the ILC draft articles with unwarranted power, any examination of form requires an understanding of the substantive subject matter of the planned international regulation. The article therefore provides an overview of the international legal regulation of humanitarian assistance following natural and human-made disasters, and the ILC’s work to date on the topic. It then examines two key issues that remain to be addressed by the ILC and representatives of states in the UN General Assembly Sixth Committee: the development and implications of binding and non-binding international texts, and the suggested framework convention approach identified by the Special Rapporteur as a potential outcome of the ILC work.

The Effect of Leaked Information on the Rules of International Law

by William Worster

International law, and international lawyers generally, tend to take a somewhat conservative approach to the formation... more International law, and international lawyers generally, tend to take a somewhat conservative approach to the formation of rules, so when confronted with the growing availability of leaked information naturally we might be cautious in considering how the leaks are affecting international law. This paper will assess the growing influence of leaked information on the rules of international law and argue in favor of their use. This paper is not especially focused on WikiLeaks, though it is representative of the phenomenon and is the source used primarily for this paper. Due to the presence of it and similar actors, the availability of leaked information is growing and leaked information is now becoming significant in international affairs.

This paper will walk through the various sources of law, generally following the structure of article 38(1) of the Statute of the International Court of Justice, although with some additions as may be relevant, and examine each source to see whether and how leaked information might contribute. As threshold matters, ex turpi causa non oritur actio, “the fruit of the poisonous tree”, and similar principles are examined, however, those principles can be dismissed for a number of reasons.

The first source of law to be discussed is treaties for two purposes. Firstly, the paper assesses the definition of a treaty and considers whether leaked information might amount to a secret treaty, and secondly, it assesses the evidentiary function of leaked information in interpreting treaties.

After treaties, the paper considers the ways in which leaked information might contribute to the formation of customary international law, primarily the ways in which leaked information might evidence practice and opinio juris.

Lastly, the author also considers the potential for leaked information to contain binding unilateral statements and the role that leaked information might play in the law-making function of international organizations.

Following the examination of the sources of law, the paper takes a brief detour to examine the ways in which leaked information might impact the international legal personality some entities enjoy. Leaked information might have a bearing on both the law to be applied and the facts to be established. In particular, the Holy See and Kosovo will be discussed.

We appear to be moving into an era of increased access and transparency of information, and inability to prevent the viral spread of leaks. Law, and international law in particular, must take cognizance of this change and absorb it. It is possible, although the growth in leaked information might have a greater effect in the future. It might even inspire changes in some of the more fundamental notions that underpin the law.

Protection of Military Medical Personnel in Armed Conflict

by John Tarrant

(authored with Peter de Waard) (2010) 35 UWA Law Review 157-183.

In the Shadow of the ICC: Colombia and International Criminal Justice

by Par Engstrom

HRC Policy Report, 2011 (with David Cantor and Eadaoin O’Brien)

Report of the expert conference (May 2011) examining the nature and dynamics of the role of the International Criminal... more Report of the expert conference (May 2011) examining the nature and dynamics of the role of the International Criminal Court in the ongoing investigation and prosecution of atrocious crimes committed in Colombia.

Civil-Military Relations in Natural Disasters: Case Study on Pakistan

by Kudrat Virk

Co-authored with Ajay Madiwale. Forthcoming in 'International Review of the Red Cross', (2012).

Are the Teachings of Jesus Relevant for Today?

by Daniel Keeran MSW

by Daniel Keeran, MSW

In this brief review of the Sermon on the Mount and Sermon on the Plain, the teachings of Jesus are categorized as... more In this brief review of the Sermon on the Mount and Sermon on the Plain, the teachings of Jesus are categorized as Peace and Nonviolence, Psychological Well-Being, and Social Teachings.

On the Purposes of Legality and its Applicability to International Law

by William Worster

Book Review: Kenneth S. Gallant, The Principle of Legality in International and Comparative Criminal Law (Cambridge:... more Book Review: Kenneth S. Gallant, The Principle of Legality in International and Comparative Criminal Law (Cambridge: Cambridge University Press, 2009), 632 pp. £64.00 (Hardback) ISBN 978-0-52-188648-2

The UN’s “Responsibility to Protect” and the Muslim World's Need for Regulated Democracies.

by Abdulmalik M Altamimi

This essay has endeavoured to develop a deeper reading of the Muslim World so that our analysis of the United Nations... more This essay has endeavoured to develop a deeper reading of the Muslim World so that our analysis of the United Nations (UN)’s role can be better related to that fast changing nature of the current Middle East. There are three issues of critical importance for the stability of the Muslim World that the UN should be fully of aware of when authorising states to military intervene on humanitarian grounds under the “Responsibility to Protect” (RtoP) principle in an Islamic failed state. They are namely; the Muslim communities’ ideological and sectarian crises; the UN credibility after the Iraq and Afghanistan invasions, and the crisis of authority. Therefore, these issues shall be discussed in this essay from both historical as well as legal perspectives about the often-misunderstood Muslim World so as to measure the effectiveness of the UN applying the RtoP norm to future Islamic conflicts, and enhance the role that the NGOs could play in facilitating the process of democratisation; especially, in the Middle East. Finally, the conclusion concerning the operationalising of the RtoP shall be divided into three parts: the responsibility to protect before a crisis breaks out; the responsibility to protect during a crisis; and the responsibility to rebuild after a crisis in a Muslim-majority country.

The Other Side of COIN: The Combatant/civilian Distinction, Terrorism and the Structure of War Law

by Heidi Matthews

Immunities of United Nations Peacekeepers in the Absence of a Status of Forces Agreement

by William Worster

Whether due to a need to act quickly or a lack of a functioning government with whom to negotiate, the UN often needs... more Whether due to a need to act quickly or a lack of a functioning government with whom to negotiate, the UN often needs to authorize the deployment of peacekeepers and other peace support personnel without the benefit of a Status-of-Forces Agreement (“SOFA”). Unless or until this initial failure to have a SOFA is later cured by the conclusion of a SOFA, the problem arises what immunities UN-mandated peacekeeping forces may enjoy in the absence of a SOFA. UN-mandated peacekeeping operations have traditionally been present in host States with the consent of the State involved. However, the UN Security Council has taken the dramatic step of authorizing the constitution of peacekeeping forces without the consent of the host State. If there is no consent, then State immunity does not apply and we must look to other sources of immunity or comparable protection. These sources can include international humanitarian law, the UN Charter, the UN Immunities Convention, the UN Safety Convention, and customary international law. This paper attempts to assess all of these potential sources of immunities and determine the protections available for UN peacekeepers in the absence of a SOFA.

The Exercise of Jurisdiction by the International Criminal Court Over Palestine

by William Worster

The Palestinian National Authority has recently accepted the jurisdiction of the International Criminal Court and... more The Palestinian National Authority has recently accepted the jurisdiction of the International Criminal Court and requested an investigation into the situation in Gaza. The ICC has replied that it must consider whether Palestine has the capacity to accept the jurisdiction of the Court before the ICC may begin any investigation. This paper will argue that the ICC may assert jurisdiction to investigate allegations of international criminal law violations in the territory based on this communication.

The Rome Statute provides that it is open for ratification by any of the original States Parties to its negotiation and is also “open to accession by all States.” Throughout the Rome Statute reference is made to “States” or “States Parties.” In the alternative to joining the ICC, the Rome Statute also provides that non-members of the ICC may accept the jurisdiction of the Court on a case-by-case basis. In such a situation, the Rome Statute also appears to require that the entity be a “State.” At this point we might quickly conclude that Palestine, not being a state, can neither become a member nor accept the jurisdiction of the Court; however, the conclusion is not so easy.

In terms of statehood, the effective triumvirate of the PNA, PLO and people of Palestine do not appear to fully and conclusively satisfy the objective requirements for statehood, and certainly have not garnered subjective recognition from an overwhelming majority of the states in the world. In no true sense could we argue that the territory and its international relations are fully independent or that it has full capacity to enter into international relations. It acts internationally in many ways and in many situations, but it does not enjoy the degree of freedom in international relations that other states do. We cannot honestly conclude that Palestine is a state for all purposes, though it appears to be incrementally exerting increasing independence. That being said, it would appear that it has been regarded as a state at certain times by certain actors in certain contexts. Indeed, Palestine is a quasi-state.

The quasi-statehood that Palestine has is sufficient for it to accede to the Rome Statute or otherwise accept the jurisdiction of the ICC. International law does not require an international organization to interpret the word “state” in its constitutive document in a restrictive fashion. Given that the Vienna Convention permits interpretation of language with consideration for the object and purpose of the treaty, and the object and purpose of the Rome Statute is to end impunity, we can conclude that international law does not require a narrow interpretation of the word “state” for purposes of Palestinian accession or an Article 12(3) acceptance of jurisdiction.

Humanitarian engagement under counterterrorism: a conflict of norms and the emerging policy landscape

by Dustin A. Lewis

Co-authors: Naz K. Modirzadeh, Dustin A. Lewis, and Claude Bruderlein, International Review of the Red Cross, Volume 93, Number 883, September 2011

This article identifies two countervailing sets of norms — one promoting humanitarian engagement with non-state armed... more This article identifies two countervailing sets of norms — one promoting humanitarian engagement with non-state armed groups (NSAGs) in armed conflict in order to protect populations in need, and the other prohibiting such engagement with listed ‘terrorist’ groups in order to protect security — and discusses how this conflict of norms might affect the capacity of humanitarian organizations to deliver life-saving assistance in areas under the control of one of these groups. Rooted in international humanitarian law (IHL), the first set of norms provides a basis for humanitarian engagement with NSAGs in non-international armed conflict for the purpose of assisting populations under their control and promoting compliance with the rules of IHL. The second set of rules attempts to curtail financial and other forms of material support, including technical training and co-ordination, to listed ‘terrorist’ organizations, some of which may qualify as NSAGs under IHL. The article highlights counterterrorism regulations developed by the United States and the United Nations Security Council, though other states and multilateral bodies have similar regulations. The article concludes by sketching ways in which humanitarian organizations might respond to the identified tensions.