Jason Ralph
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780199214310
- eISBN:
- 9780191706615
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199214310.001.0001
- Subject:
- Political Science, International Relations and Politics
This book is among the first to address the issues raised by the International Criminal Court from an International Relations perspective. By clearly outlining a theoretical framework to interpret ...
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This book is among the first to address the issues raised by the International Criminal Court from an International Relations perspective. By clearly outlining a theoretical framework to interpret these issues, it makes a significant contribution to the English School's study of international society. More specifically, it offers a concise definition of ‘world society’ and thus helps to resolve a longstanding problem in international theory. This groundbreaking conceptual work is supported by an indepth empirical analysis of American opposition to the ICC. The book goes beyond the familiar arguments related to national interests and argues that the Court has exposed the extent to which American notions of accountability are tied to the nation‐state. Where other democracies are willing to renegotiate their social contract because they see themselves as part of world society, the US protects its particular contract with ‘the American people’ because it offers a means of distinguishing that nation and its democracy from the rest of the world. In opposing the ICC, therefore, the US seeks to defend a society of states because this kind of society can accommodate American exceptionalism and advance particular US interests. This ‘sovereigntist’, or more accurately ‘Americanist’, influence is further illustrated in chapters on the customary international law, universal jurisdiction, transatlantic relations and US policy on international humanitarian law in the war on terror. The book concludes by evoking E.H. Carr's criticism of those great powers who claim that a harmony exists between their particular interests and those of wider society. It also recalls his argument that great powers sometimes need to compromise and in this context it argues that support for the ICC is a more effective means of fulfilling America's purpose and a less costly sacrifice for the US to make than that demanded by the ‘Americanist’ policy of nation‐building.Less
This book is among the first to address the issues raised by the International Criminal Court from an International Relations perspective. By clearly outlining a theoretical framework to interpret these issues, it makes a significant contribution to the English School's study of international society. More specifically, it offers a concise definition of ‘world society’ and thus helps to resolve a longstanding problem in international theory. This groundbreaking conceptual work is supported by an indepth empirical analysis of American opposition to the ICC. The book goes beyond the familiar arguments related to national interests and argues that the Court has exposed the extent to which American notions of accountability are tied to the nation‐state. Where other democracies are willing to renegotiate their social contract because they see themselves as part of world society, the US protects its particular contract with ‘the American people’ because it offers a means of distinguishing that nation and its democracy from the rest of the world. In opposing the ICC, therefore, the US seeks to defend a society of states because this kind of society can accommodate American exceptionalism and advance particular US interests. This ‘sovereigntist’, or more accurately ‘Americanist’, influence is further illustrated in chapters on the customary international law, universal jurisdiction, transatlantic relations and US policy on international humanitarian law in the war on terror. The book concludes by evoking E.H. Carr's criticism of those great powers who claim that a harmony exists between their particular interests and those of wider society. It also recalls his argument that great powers sometimes need to compromise and in this context it argues that support for the ICC is a more effective means of fulfilling America's purpose and a less costly sacrifice for the US to make than that demanded by the ‘Americanist’ policy of nation‐building.
Sir Adam Roberts
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780199267217
- eISBN:
- 9780191601118
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199267219.003.0005
- Subject:
- Political Science, International Relations and Politics
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 ...
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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.Less
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.
Rachel Kerr
- Published in print:
- 2004
- Published Online:
- August 2004
- ISBN:
- 9780199263059
- eISBN:
- 9780191601422
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199263051.003.0002
- Subject:
- Political Science, International Relations and Politics
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 ...
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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.Less
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.
Rachel Kerr
- Published in print:
- 2004
- Published Online:
- August 2004
- ISBN:
- 9780199263059
- eISBN:
- 9780191601422
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199263051.003.0004
- Subject:
- Political Science, International Relations and Politics
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 ...
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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.Less
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.
James Pattison
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199561049
- eISBN:
- 9780191722318
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199561049.003.0004
- Subject:
- Political Science, Comparative Politics, International Relations and Politics
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 ...
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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.Less
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.
Jan Wouters and Cedric Ryngaert
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199565221
- eISBN:
- 9780191705281
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199565221.003.0006
- Subject:
- Law, Human Rights and Immigration, Public International 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 ...
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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.Less
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.
Menno T. Kamminga and Martin Scheinin (eds)
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199565221
- eISBN:
- 9780191705281
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199565221.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
Traditional international law aims to protect the values and interests of states. The rapidly increasing corpus of international human rights law (including international humanitarian law and ...
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Traditional international law aims to protect the values and interests of states. The rapidly increasing corpus of international human rights law (including international humanitarian law and international criminal law) increasingly challenges the basic tenets of general international law. In order to become accepted as the law of the world community, general international law needs to reflect better the values and interests of a wider range of actors, including the individual. This book examines the impact of international human rights law on general international law. It considers areas including the structure of international obligations, the formation of customary international law, treaty law, immunities, state responsibility, and diplomatic protection. The book traces the extent to which concepts emanating from international human rights law are being incorporated by the guardians of traditional international law: the International Court of Justice and the International Law Commission.Less
Traditional international law aims to protect the values and interests of states. The rapidly increasing corpus of international human rights law (including international humanitarian law and international criminal law) increasingly challenges the basic tenets of general international law. In order to become accepted as the law of the world community, general international law needs to reflect better the values and interests of a wider range of actors, including the individual. This book examines the impact of international human rights law on general international law. It considers areas including the structure of international obligations, the formation of customary international law, treaty law, immunities, state responsibility, and diplomatic protection. The book traces the extent to which concepts emanating from international human rights law are being incorporated by the guardians of traditional international law: the International Court of Justice and the International Law Commission.
Emily Crawford
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199578962
- eISBN:
- 9780191722608
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578962.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
Currently, International Humanitarian Law (IHL) also known as the law of armed conflict, makes the distinction between international and non-international armed conflicts. International armed ...
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Currently, International Humanitarian Law (IHL) also known as the law of armed conflict, makes the distinction between international and non-international armed conflicts. International armed conflicts are regulated by more treaties than their non-international counterparts. Furthermore, the regulation of international armed conflicts is also considerably more comprehensive than that offered for participants in and victims of non-international armed conflicts. This book asks whether the legal distinction between international and non-international armed conflicts remains viable or whether international law should move to maintain its consonance with the situations it seeks to regulate by developing a unified legal regime applicable in all armed conflicts. There is considerable precedent to support moves towards the elimination of the legal distinction between international and non-international armed conflicts. This book argues that IHL, a law which has, as one of its primary aims, the protection of the person in times of armed conflict, should not distinguish between types of armed conflict, specifically in how the law treats the vulnerable in times of armed conflict – those hors de combat due to illness and injury, and those deprived of their liberty through capture or surrenderLess
Currently, International Humanitarian Law (IHL) also known as the law of armed conflict, makes the distinction between international and non-international armed conflicts. International armed conflicts are regulated by more treaties than their non-international counterparts. Furthermore, the regulation of international armed conflicts is also considerably more comprehensive than that offered for participants in and victims of non-international armed conflicts. This book asks whether the legal distinction between international and non-international armed conflicts remains viable or whether international law should move to maintain its consonance with the situations it seeks to regulate by developing a unified legal regime applicable in all armed conflicts. There is considerable precedent to support moves towards the elimination of the legal distinction between international and non-international armed conflicts. This book argues that IHL, a law which has, as one of its primary aims, the protection of the person in times of armed conflict, should not distinguish between types of armed conflict, specifically in how the law treats the vulnerable in times of armed conflict – those hors de combat due to illness and injury, and those deprived of their liberty through capture or surrender
Aryeh Neier
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691135151
- eISBN:
- 9781400841875
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691135151.003.0005
- Subject:
- Sociology, Migration Studies (including Refugee Studies)
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, ...
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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.Less
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.
Christine Bell
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780191001604
- eISBN:
- 9780191729447
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780191001604.003.0009
- Subject:
- Law, Human Rights and Immigration, Public International Law
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 ...
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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.Less
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.
Marco Sassòli
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780191001604
- eISBN:
- 9780191729447
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780191001604.003.0003
- Subject:
- Law, Human Rights and Immigration, Public International Law
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 ...
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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.Less
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.
Vera Gowlland-Debbas
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199641499
- eISBN:
- 9780191732218
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199641499.003.0003
- Subject:
- Law, Public International Law, Human Rights and Immigration
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 ...
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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.Less
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.
Rachel Kerr
- Published in print:
- 2004
- Published Online:
- August 2004
- ISBN:
- 9780199263059
- eISBN:
- 9780191601422
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199263051.003.0005
- Subject:
- Political Science, International Relations and Politics
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 ...
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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.Less
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.
Orna Ben-Naftali (ed.)
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780191001604
- eISBN:
- 9780191729447
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780191001604.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
The idea that international humanitarian law (IHL) and international human rights law (IHRL) are complementary, rather than mutually exclusive regimes generated a paradigmatic shift in the ...
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The idea that international humanitarian law (IHL) and international human rights law (IHRL) are complementary, rather than mutually exclusive regimes generated a paradigmatic shift in the international legal discourse. The reconciliation was driven by a humanistic ethos and its purpose was to offer greater protection of the rights to life, liberty, and dignity of all individuals under all circumstances. The complementarity of both regimes currently enjoys the status of the new orthodoxy and simultaneously invites critical reflection. The chapters in this book accept the invitation, offering diverse assessments of the merits of taking human rights to the battlefields of the 21st century. The book comprises three parts: Part I focuses on the paradigmatic (security based ‘armed conflict’ vs. human rights centered ‘law enforcement’ paradigms) and the normative complexities of the interaction between both regimes in the ‘fight against terror’ and in other, allegedly new, types of wars. Part II discusses the interplay between IHRL and IHL in the context of three specific regimes: belligerent occupation, the European Court of Human Rights, and the protection of cultural heritage. Part III explores the potential fusion of IHL and IHRL into a new paradigm in two areas: post-bellum accountability and compensation to victims of war crimes. The range of issues, multitude of competing norms and narratives, and shifting paradigms explored in this collection, converse with each other. This conversation mirrors the process through which international law — paying deference to political realities while simultaneously seeking to transcend them — charts new pathways to advance its humanizing project.Less
The idea that international humanitarian law (IHL) and international human rights law (IHRL) are complementary, rather than mutually exclusive regimes generated a paradigmatic shift in the international legal discourse. The reconciliation was driven by a humanistic ethos and its purpose was to offer greater protection of the rights to life, liberty, and dignity of all individuals under all circumstances. The complementarity of both regimes currently enjoys the status of the new orthodoxy and simultaneously invites critical reflection. The chapters in this book accept the invitation, offering diverse assessments of the merits of taking human rights to the battlefields of the 21st century. The book comprises three parts: Part I focuses on the paradigmatic (security based ‘armed conflict’ vs. human rights centered ‘law enforcement’ paradigms) and the normative complexities of the interaction between both regimes in the ‘fight against terror’ and in other, allegedly new, types of wars. Part II discusses the interplay between IHRL and IHL in the context of three specific regimes: belligerent occupation, the European Court of Human Rights, and the protection of cultural heritage. Part III explores the potential fusion of IHL and IHRL into a new paradigm in two areas: post-bellum accountability and compensation to victims of war crimes. The range of issues, multitude of competing norms and narratives, and shifting paradigms explored in this collection, converse with each other. This conversation mirrors the process through which international law — paying deference to political realities while simultaneously seeking to transcend them — charts new pathways to advance its humanizing project.
Rachel Kerr
- Published in print:
- 2004
- Published Online:
- August 2004
- ISBN:
- 9780199263059
- eISBN:
- 9780191601422
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199263051.003.0009
- Subject:
- Political Science, International Relations and Politics
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 ...
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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.Less
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.
Ana Filipa Vrdoljak
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780191001604
- eISBN:
- 9780191729447
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780191001604.003.0007
- Subject:
- Law, Human Rights and Immigration, Public International Law
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 ...
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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.Less
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.
Nehal Bhuta
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199552719
- eISBN:
- 9780191721090
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199552719.003.0007
- Subject:
- Law, Human Rights and Immigration, Public International Law
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 ...
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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.Less
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.
Siobhán Wills
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199533879
- eISBN:
- 9780191714801
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533879.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
This book examines the obligations of peacekeepers and other multi-national forces to prevent serious abuses of human rights towards civilians under international humanitarian law and international ...
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This book examines the obligations of peacekeepers and other multi-national forces to prevent serious abuses of human rights towards civilians under international humanitarian law and international human rights law. It does so by analysing the meaning and practical consequences for troops of the Article 1 duty to respect and ensure respect for the Geneva Conventions, of the duty to secure human rights found in most international human rights treaties, and of the duty to restore law and order in an occupation. There are more troops engaged in peacekeeping activities now than in any other time in history. Increasingly peacekeepers are in theory deployed to protect civilians from harm, but in practice the situations they find themselves in are often less than clear-cut. There are many instances in recent memory where troops failed to save the very civilians they were meant to protect. Peacekeepers may lack the mandate or resources to protect civilians from human rights abuses, or they may even themselves violate civilians' rights. This book analyses the duty to intervene to stop the commission of serious abuses of human rights. It examines the extent of troops' obligations to provide protection in light of various different operational and legal contexts. It also explores the ‘grey areas’ not adequately covered by international law. It discusses whether new approaches are needed, for example where operations are undertaken explicitly to protect people from serious violations of their human rights, and concludes by offering some guidelines for troops faced with such violations.Less
This book examines the obligations of peacekeepers and other multi-national forces to prevent serious abuses of human rights towards civilians under international humanitarian law and international human rights law. It does so by analysing the meaning and practical consequences for troops of the Article 1 duty to respect and ensure respect for the Geneva Conventions, of the duty to secure human rights found in most international human rights treaties, and of the duty to restore law and order in an occupation. There are more troops engaged in peacekeeping activities now than in any other time in history. Increasingly peacekeepers are in theory deployed to protect civilians from harm, but in practice the situations they find themselves in are often less than clear-cut. There are many instances in recent memory where troops failed to save the very civilians they were meant to protect. Peacekeepers may lack the mandate or resources to protect civilians from human rights abuses, or they may even themselves violate civilians' rights. This book analyses the duty to intervene to stop the commission of serious abuses of human rights. It examines the extent of troops' obligations to provide protection in light of various different operational and legal contexts. It also explores the ‘grey areas’ not adequately covered by international law. It discusses whether new approaches are needed, for example where operations are undertaken explicitly to protect people from serious violations of their human rights, and concludes by offering some guidelines for troops faced with such violations.
Moeckli Daniel
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199239801
- eISBN:
- 9780191716829
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199239801.003.0003
- Subject:
- Law, Human Rights and Immigration, Public International Law
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 ...
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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.Less
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.
William Schabas
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199653072
- eISBN:
- 9780191739361
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199653072.003.0009
- Subject:
- Law, Public International Law
There is, to be sure, no suggestion that human rights law is in some sense opposed to peace. Yet the growth in two fields that are closely related to human rights law, namely international ...
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There is, to be sure, no suggestion that human rights law is in some sense opposed to peace. Yet the growth in two fields that are closely related to human rights law, namely international humanitarian law and international criminal law, may have helped push the issue of peace to the periphery. The right to peace, whether presented as a peoples' right or a human right, has a legitimate position within the overall framework, even if its role today is best described as underdeveloped or latent. The notion of a right to peace provides a unifying principle that assists in bringing human rights law, international criminal law, and international humanitarian law closer together. The right to peace very usefully puts other rights into perspective. Similarly, it rounds off the corners of international humanitarian law, so that a body of norms that sometimes looks like rules to govern killing and destruction takes on a more antiwar dimension.Less
There is, to be sure, no suggestion that human rights law is in some sense opposed to peace. Yet the growth in two fields that are closely related to human rights law, namely international humanitarian law and international criminal law, may have helped push the issue of peace to the periphery. The right to peace, whether presented as a peoples' right or a human right, has a legitimate position within the overall framework, even if its role today is best described as underdeveloped or latent. The notion of a right to peace provides a unifying principle that assists in bringing human rights law, international criminal law, and international humanitarian law closer together. The right to peace very usefully puts other rights into perspective. Similarly, it rounds off the corners of international humanitarian law, so that a body of norms that sometimes looks like rules to govern killing and destruction takes on a more antiwar dimension.
