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Demonstrates that the United Nations has been at the centre of key field operations and policy debates relating to humanitarian intervention since the end of the Cold War. However, the issue of humanitarian intervention also poses a challenge to the UN and its member states, and could even undermine the organization. At the heart of the UN’s difficulty is a delicate balance between the rights of individuals and the rights of states. For its first 45 years, the body was associated with the principle of non-intervention and the non-use of force, yet, since 1990, it has endorsed a series of interventions for humanitarian purposes. After considering the history and causes of this shift, the author discusses nine cases of intervention between 1990 and 2001. These cases reveal a number of issues and controversies, including reliance on the UN Security Council for authorization, the stance of the UN Secretary General, and the impact of the 2002 National Security Strategy of the United States.

This chapter analyses the decision to establish the International Criminal Tribunal for the Former Yugoslavia from the legal, political, and diplomatic context in which it was taken. The tribunal was a product of interconnected pressures: concern among domestic public opinion, the failure of the international community to stop the fighting, and changes in international political systems in the early 1990s. It represented the convergence of UN Security Council powers and responsibility for international peace and security, with enforcement of international humanitarian law. Although it was a tool of politics, it is a judicial, not a political tool.

The political mandate of the International Criminal Tribunal for the Former Yugoslavia impacted jurisdiction in three ways. It influenced the drafting of the Statute of the Tribunal in such a way that it became a very conservative document, due to a perceived need to ensure that the law applied by the Tribunal had a sound legal basis. It defined the territorial and temporal jurisdiction of the Tribunal in as much as it was tied to the situation that was deemed a threat to international peace and security. Finally, it impacted the interpretation of jurisdiction by the court because prosecutors and judges tended to view decisions handed down by the court as relevant not only to the case at hand, but to the development of international humanitarian law.

This chapter looks at the ‘human rights method’ of ascertaining customary international law, with its emphasis on opinio juris over state practice, with a favourable eye. It argues that while it is primarily a doctrinal construct, it actually draws support from the International Court of Justice's 1986 Nicaragua judgment. Section 2, drawing in particular on a study by the International Committee of the Red Cross, shows how this method works in practice in the field of international humanitarian law. Section 3 attempts to conceptualize the specific character of human rights and humanitarian customary law formation as opposed to classical positivist customary law formation. The final section focuses on the applicability of modern positivism beyond the strict human rights and humanitarian law fields. It argues that the more important the common interests of states or humanity are, the greater the weight that may be attached to opinio juris as opposed to state practice. If the stakes are high, inconsistent state practice may be glossed over, and a high premium may be put on states' statements and declarations, inter alia in multilateral fora, in identifying customary law combined with general principles of law.

This chapter defends the moral importance of an intervener's fidelity to the principles to jus in bello (principles of just conduct in war). It begins by outlining the particular principles of ‘external jus in bello’ that an intervener should follow (focusing largely on discrimination and proportionality). It draws on Jeff McMahan's work and the nature of humanitarian intervention to claim that these principles should be highly restrictive. The chapter then asserts two principles of ‘internal jus in bello’. The second section considers more broadly the moral underpinnings of the principles of jus in bello. It claims that consequentialist justifications of these principles cannot fully grasp their moral significance and particularly the difference between doing and allowing. The final section considers the ‘Absolutist Challenge’—that the principles of jus in bello defended are too important and consequently render humanitarian intervention impermissible. After rejecting the doctrine of double effect as a solution to this challenge, the chapter invokes the scalar account of legitimacy to respond to this objection.

This chapter considers the ways in which human rights and humanitarian law have been argued to impose post-conflict accountability. It argues that the attempt to use human rights and humanitarian law standards to impose accountability has had similar dynamics across both cases. In both cases a lack of fit between regime and post-conflict political landscape has involved an interpretative revision of what the regimes require, that has moved them towards a loose common denominator implemented by ad hoc institutional innovation. Any account of the implications for the relationship of human rights and humanitarian law in post-conflict settings should take account of both sets of developments. To this end, the chapter sets out both processes of interpretive revision and ad hoc institutional innovation, discussing the consequences for each regime and the relationship between them. The chapter proceeds as follows. Part 2 discusses, in general terms, the peculiarities of the post-conflict political environments with reference to human rights and humanitarian law. Parts 3 and 4 examine how the accountability standards of human rights and humanitarian law have been argued to apply post-conflict. Part 5 considers the implications of regime-merge and institutional innovation for the existing regimes of human rights and humanitarian law. Finally, Part 6 suggests the possibility of drawing on all three conceptualizations as reflecting different underlying meta-level understandings of the current ‘situating’ of international law itself.

This chapter explores how international humanitarian law and international human rights law initially developed independently, but have converged and are now deeply interwoven. Since ancient times, some who take part in armed combat have recognized that placing certain limits on the way in which they conduct hostilities can be advantageous. It can be a sign of civilized behavior, enhancing their own prestige; it may be a way to encourage their opponents to behave in a similar manner; and it may contribute to the reestablishment of peaceful relations in which the rule of law prevails. Whether or not these limits confer advantages, they do most often have the effect of asserting a commitment to humane principles.

This chapter focuses on the interaction of particular norms of international humanitarian law (IHL) and international human rights law (IHRL) that regulate specific situations and on the adequacy of existing mechanisms for resolving norm conflicts. It expands the interest in the ‘war on terror’ to additional types of new conflicts (asymmetric conflicts, conflicts in failed states, and UN peace operations). Noting that from the perspective of the application of either IHL or IHRL, the novelty of the conflicts is overstated, the chapter compares them to the archetypes of conflicts for which IHL was originally designed; determines the threshold questions relative to the applicability of both regimes ratione materiae, ratione personae, and ratione loci; and proceeds to focus on their co-application. The latter is explored in the light of the lex specialis principle on both a general level and in relation to the pertinent questions of the targeting and preventive detention of members of an armed group. The chapter concludes that existing law, properly interpreted, contains realistic, albeit controversial and situation-dependent, solutions for the legal problems arising in these types of conflicts.

This chapter focuses on the legal issues of the Security Council's actions in favour of human rights. In particular, it addresses the problem of the qualification of human rights violations as a threat to international peace within the meaning of Chapter VII of the UN Charter: Was the Council competent to broaden the notion of a threat to the peace to include human rights violations? Is the Council authorized to act in internal matters of a state? Can the Council hold responsible for human rights violations not only states but also de facto governments and non-state entities? Who can legally review such qualifications made by the Security Council? The chapter distinguishes five major categories of measures applied by the Council in order to enforce fundamental norms of international human rights and humanitarian law: the sanction of nullity and non-recognition, non-military measures, in particular economic sanctions, military force, measures in the context of criminal law, and monitoring and fact-finding.

This chapter examines issues associated with the formulation and interpretation of the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia (ICTY). The main contribution of the jurisprudence of the Tribunal was ironing out some of the complex issues of procedure, which will be useful in cases before the International Criminal Court, national court, and other ad hoc tribunals. The example of the ICTY shows that there are a series of trade-offs that must be managed. Finding the correct balance means understanding the relationship between the internal and external mandate of the Tribunal - justice must be done, and seen to be done.

This chapter presents a synthesis of the discussions in this volume. The establishment of the International Criminal Tribunal for the Former Yugoslavia was part of a wider trend towards accountability and enforcement of international humanitarian law. The external political function did not undermine the Tribunal’s status as an impartial judicial body. Instead, it enhanced its effectiveness.

This chapter discusses the protection of cultural heritage by humanitarian law (IHL), international human rights law (IHRL), and international criminal law (ICL). First, it outlines the exceptional treatment of cultural heritage in general international humanitarian law instruments including those covering non-international armed conflicts, and its overlap with international human rights law. Then, it details how this protection has been built upon by the specialist regime for the protection of cultural heritage during armed conflict and belligerent occupation developed under the auspices of UNESCO. Next, the chapter analyzes ICL jurisprudence from the International Military Tribunal, Nuremberg to the International Criminal Court for the former Yugoslavia, to show how efforts to prosecute violations of the laws and customs of war relating to cultural heritage have been intrinsic to the articulation and prosecution of crimes against humanity and genocide. Finally, it considers the evolving and potential future normative trends in this field in the light of recent developments with reference to obligations erga omnes, intentional destruction and the content of the obligation, and intangible heritage and cultural diversity.

This chapter reviews the way that the ‘global war on terror’ destabilizes legal categories regulating the scope of legitimate violence in international human rights (IHR) law and international humanitarian law (IHL), through the prism of the targeted killings of terrorist suspects who are outside the territory of the state using force. It considers the proposition that IHL applies as lex specialis to IHR during armed conflict and asks how we might understand this. It argues that while lex specialis is theoretically appealing because of its apparent conceptual neatness, it provides no concrete guidance as to the determinate content of the rules governing the targeted killing of terrorist suspects, and attempts at application problematize the notion of a lex specialis relation between IHL and IHR. There are no clear conceptual-logical bases to decide which of these frameworks is properly applied to the targeted killing of terrorist suspects, and thus that transparent political and policy choices must be made.

This chapter first sets out the sources of the right to equality and non-discrimination in international, regional, and national law. It then analyses the different tests used by international human rights bodies and national courts to distinguish between permissible and impermissible differential treatment and develops, based on this jurisprudence, a common standard of non-discrimination that can be applied throughout the study to assess specific anti-terrorism measures. According to this standard, differential treatment on the basis of citizenship status, nationality, ‘race’, national or ethnic origin, or religion is only permissible if there are objective and reasonable grounds for it. The existence of a terrorist threat does not, as such, alter this obligation. Therefore, anti-terrorism measures that make distinctions on the basis of any of these criteria will only be compatible with the human right to non-discrimination if they are a proportionate means of achieving the (legitimate) aim of countering terrorism.