Crawford Emily
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199578962
- eISBN:
- 9780191722608
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578962.003.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
The first chapter of this book examines how the traditional legal distinction between international and non-international armed conflict has become, in practice, increasingly blurred through the last ...
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The first chapter of this book examines how the traditional legal distinction between international and non-international armed conflict has become, in practice, increasingly blurred through the last century, to the point where it seems specious to continue to assert the primacy of the distinction. A number of factors, both legal and practical, have contributed to this change in the status quo. The first chapter of this book establishes that the law of armed conflict has converged to the point where there is a substantial body of law equally applicable in both international and non-international armed conflicts.Less
The first chapter of this book examines how the traditional legal distinction between international and non-international armed conflict has become, in practice, increasingly blurred through the last century, to the point where it seems specious to continue to assert the primacy of the distinction. A number of factors, both legal and practical, have contributed to this change in the status quo. The first chapter of this book establishes that the law of armed conflict has converged to the point where there is a substantial body of law equally applicable in both international and non-international armed conflicts.
Alexander Zahar
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199573417
- eISBN:
- 9780191728822
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199573417.003.0017
- Subject:
- Law, Public International Law, Criminal Law and Criminology
International law governing international armed conflict has grown since 1945 to include many crimes for which individuals may be held criminally liable. The ICTY and its supporters claim that much ...
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International law governing international armed conflict has grown since 1945 to include many crimes for which individuals may be held criminally liable. The ICTY and its supporters claim that much of this law has been extended to non-international armed conflict. This chapter argues that the rapid growth of internal-armed-conflict law at the ICTY has been accomplished by an ICTY moral philosophy masquerading as method. The tribunal's judges were well aware that the majority of states were, as late as 1977, opposed to, or had doubts about, such expansionism. Under a veneer of legality, a humanitarian sentiment that had been blocked by states at the diplomatic conferences convened by the ICRC found an opening with the establishment of the ICTY. Can the ICTY's law survive in the long term against the power of sovereign interest? The chapter considers this question in the light of the United States' critique of the ICRC's 2005 customary-law study.Less
International law governing international armed conflict has grown since 1945 to include many crimes for which individuals may be held criminally liable. The ICTY and its supporters claim that much of this law has been extended to non-international armed conflict. This chapter argues that the rapid growth of internal-armed-conflict law at the ICTY has been accomplished by an ICTY moral philosophy masquerading as method. The tribunal's judges were well aware that the majority of states were, as late as 1977, opposed to, or had doubts about, such expansionism. Under a veneer of legality, a humanitarian sentiment that had been blocked by states at the diplomatic conferences convened by the ICRC found an opening with the establishment of the ICTY. Can the ICTY's law survive in the long term against the power of sovereign interest? The chapter considers this question in the light of the United States' critique of the ICRC's 2005 customary-law study.
Rogier Bartels
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199685899
- eISBN:
- 9780191765841
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199685899.003.0017
- Subject:
- Law, Public International Law, Human Rights and Immigration
This chapter discusses how to identify the moment when the law dealing with situations of armed conflict (jus in bello or international humanitarian law) ceases to apply and makes way for the law ...
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This chapter discusses how to identify the moment when the law dealing with situations of armed conflict (jus in bello or international humanitarian law) ceases to apply and makes way for the law governing the period after the conflict ends. Neither the end of non-international armed conflicts nor the end of the temporal scope of international humanitarian law is defined in treaty law. This chapter proposes using the criteria and identifying factors for the lower threshold at the start of non-international armed conflicts to determine when such conflicts end and when international humanitarian law no longer applies. The chapter describes the challenges in using these criteria and factors, and sets out a modified framework that can serve to identify when the fighting between the parties to the conflict drops below the threshold of intensity and organization and when it thus ceases to be a non-international armed conflict.Less
This chapter discusses how to identify the moment when the law dealing with situations of armed conflict (jus in bello or international humanitarian law) ceases to apply and makes way for the law governing the period after the conflict ends. Neither the end of non-international armed conflicts nor the end of the temporal scope of international humanitarian law is defined in treaty law. This chapter proposes using the criteria and identifying factors for the lower threshold at the start of non-international armed conflicts to determine when such conflicts end and when international humanitarian law no longer applies. The chapter describes the challenges in using these criteria and factors, and sets out a modified framework that can serve to identify when the fighting between the parties to the conflict drops below the threshold of intensity and organization and when it thus ceases to be a non-international armed conflict.
Kubo Mačák
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780198819868
- eISBN:
- 9780191860126
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198819868.003.0001
- Subject:
- Law, Public International Law
This chapter introduces the central aim of this book: to provide a comprehensive examination of the notion, process, and effects of internationalization of armed conflicts in international law. It ...
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This chapter introduces the central aim of this book: to provide a comprehensive examination of the notion, process, and effects of internationalization of armed conflicts in international law. It presents a brief research overview, outlining the scope of the enquiry, the research methodology, and the structure of the book. It then lays out the conceptual and normative framework for the rest of the book. To that end, it first justifies the need for the present study by confirming the continuing distinction between international and non-international armed conflicts in international law. Then, it puts forward a conception of internationalization that expresses the legal transformation from a non-international to an international armed conflict.Less
This chapter introduces the central aim of this book: to provide a comprehensive examination of the notion, process, and effects of internationalization of armed conflicts in international law. It presents a brief research overview, outlining the scope of the enquiry, the research methodology, and the structure of the book. It then lays out the conceptual and normative framework for the rest of the book. To that end, it first justifies the need for the present study by confirming the continuing distinction between international and non-international armed conflicts in international law. Then, it puts forward a conception of internationalization that expresses the legal transformation from a non-international to an international armed conflict.
Dieter Fleck
- Published in print:
- 2017
- Published Online:
- November 2017
- ISBN:
- 9780198784630
- eISBN:
- 9780191827051
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198784630.003.0010
- Subject:
- Law, Public International Law, Environmental and Energy Law
This chapter examines principles and rules on environmental protection in two critical situations: non-international armed conflicts and post-conflict peacebuilding. What kind of environmental ...
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This chapter examines principles and rules on environmental protection in two critical situations: non-international armed conflicts and post-conflict peacebuilding. What kind of environmental obligations apply in bello between a government and rebels? In what sense are parties to the conflict accountable for environmental devastation? May states be liable also for injurious consequences of acts not explicitly prohibited under international law? How can their obligations be enforced? Furthermore, issues of post-conflict peacebuilding are discussed to explore whether specific principles and rules of jus post bellum are relevant for the protection of the natural environment. While certain aspects of the protection of the environment in relation to armed conflicts appear to be still unclear, some recommendations are developed in support of efforts currently undertaken in the International Law Commission.Less
This chapter examines principles and rules on environmental protection in two critical situations: non-international armed conflicts and post-conflict peacebuilding. What kind of environmental obligations apply in bello between a government and rebels? In what sense are parties to the conflict accountable for environmental devastation? May states be liable also for injurious consequences of acts not explicitly prohibited under international law? How can their obligations be enforced? Furthermore, issues of post-conflict peacebuilding are discussed to explore whether specific principles and rules of jus post bellum are relevant for the protection of the natural environment. While certain aspects of the protection of the environment in relation to armed conflicts appear to be still unclear, some recommendations are developed in support of efforts currently undertaken in the International Law Commission.
Matthew Gillett
- Published in print:
- 2017
- Published Online:
- November 2017
- ISBN:
- 9780198784630
- eISBN:
- 9780191827051
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198784630.003.0011
- Subject:
- Law, Public International Law, Environmental and Energy Law
This chapter examines the provisions of international criminal law applicable to serious environmental harm, particularly during non-international armed conflicts ('NIAC'). After describing incidents ...
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This chapter examines the provisions of international criminal law applicable to serious environmental harm, particularly during non-international armed conflicts ('NIAC'). After describing incidents of serious environmental harm arising in armed conflicts, the analysis surveys the provisions of international criminal law applicable to environmental harm during NIACs, including war crimes, crimes against humanity, genocide, and aggression. It then examines the basis for extending to NIACs the protection against military attacks causing excessive environmental harm (set out in Art. 8(2)(b)(iv) of the Rome Statute), which is currently only applicable in IACs. The examination of this possible amendment of the Rome Statute covers a broad range of instruments and laws forming part of international and national legal codes, all addressing grave environmental harm. Finally, the analysis turns to accountability for environmental harm as a facet of jus post bellum, emphasizing the interconnected nature of environmental harm and cycles of violence and atrocities.Less
This chapter examines the provisions of international criminal law applicable to serious environmental harm, particularly during non-international armed conflicts ('NIAC'). After describing incidents of serious environmental harm arising in armed conflicts, the analysis surveys the provisions of international criminal law applicable to environmental harm during NIACs, including war crimes, crimes against humanity, genocide, and aggression. It then examines the basis for extending to NIACs the protection against military attacks causing excessive environmental harm (set out in Art. 8(2)(b)(iv) of the Rome Statute), which is currently only applicable in IACs. The examination of this possible amendment of the Rome Statute covers a broad range of instruments and laws forming part of international and national legal codes, all addressing grave environmental harm. Finally, the analysis turns to accountability for environmental harm as a facet of jus post bellum, emphasizing the interconnected nature of environmental harm and cycles of violence and atrocities.
Jeffrey Kahn
- Published in print:
- 2019
- Published Online:
- December 2018
- ISBN:
- 9780190915360
- eISBN:
- 9780190915391
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190915360.003.0007
- Subject:
- Law, Public International Law
The conflicts in eastern Ukraine and Crimea are not the first time sovereign States have clashed under murky and confused circumstances. The law governing international armed conflict, i.e. the law ...
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The conflicts in eastern Ukraine and Crimea are not the first time sovereign States have clashed under murky and confused circumstances. The law governing international armed conflict, i.e. the law regulating war between States, has long recognized this fact; the threshold to trigger it is a very low one, and it applies “even if the state of war is not recognized by one of them.” Nevertheless, some perceive Ukraine as a case of “hybrid war” for which the old rules are ill-fitting at best, and no longer capable of regulation or restraint. What happens to international humanitarian law (IHL) when, according to Russian General Valériy Gerasimov, the hybrid nature of recent conflicts produces a “tendency to erase differences between the states of war and peace?” This chapter argues that there are in fact two distinct armed conflicts ongoing in eastern Ukraine. First, there is an ongoing but unacknowledged international armed conflict (IAC) in eastern Ukraine between Ukraine and Russia. Second, there is also fighting sufficiently intense and involving sufficiently organized non-State actors to be considered a non-international armed conflict (NIAC) between the Ukrainian State and rebel forces in Donetsk and Luhansk. Adding another layer of complexity, at certain times and places, it may be that this NIAC might have transformed into an IAC because of Russia’s overall control of these non-State actors.Less
The conflicts in eastern Ukraine and Crimea are not the first time sovereign States have clashed under murky and confused circumstances. The law governing international armed conflict, i.e. the law regulating war between States, has long recognized this fact; the threshold to trigger it is a very low one, and it applies “even if the state of war is not recognized by one of them.” Nevertheless, some perceive Ukraine as a case of “hybrid war” for which the old rules are ill-fitting at best, and no longer capable of regulation or restraint. What happens to international humanitarian law (IHL) when, according to Russian General Valériy Gerasimov, the hybrid nature of recent conflicts produces a “tendency to erase differences between the states of war and peace?” This chapter argues that there are in fact two distinct armed conflicts ongoing in eastern Ukraine. First, there is an ongoing but unacknowledged international armed conflict (IAC) in eastern Ukraine between Ukraine and Russia. Second, there is also fighting sufficiently intense and involving sufficiently organized non-State actors to be considered a non-international armed conflict (NIAC) between the Ukrainian State and rebel forces in Donetsk and Luhansk. Adding another layer of complexity, at certain times and places, it may be that this NIAC might have transformed into an IAC because of Russia’s overall control of these non-State actors.
Astrid Kjeldgaard-Pedersen
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780198820376
- eISBN:
- 9780191860294
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198820376.003.0005
- Subject:
- Law, Public International Law
Chapter 5 first assesses the extent to which the law of international armed conflict engages individuals directly and the impact of the different conceptions of international legal personality on the ...
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Chapter 5 first assesses the extent to which the law of international armed conflict engages individuals directly and the impact of the different conceptions of international legal personality on the formation and application of the relevant treaty norms. Sections 5.1 and 5.2 study both provisions that do regulate the conduct of individuals directly, and provisions where such direct regulation was discussed but ultimately discarded in favour of an inter-State model. Turning to non-international armed conflict, Section 5.3 outlines the development of the doctrine of ‘recognition of belligerency’ between the late eighteenth century and the Second World War. Subsequently, Section 5.4 examines the role of the concept of international legal personality in the post-Second World War formation of treaty norms governing non-international armed conflicts. The chapter ends with a discussion of the diverging jurisprudential explanations in the current academic debate for the bindingness of international law on armed opposition groups.Less
Chapter 5 first assesses the extent to which the law of international armed conflict engages individuals directly and the impact of the different conceptions of international legal personality on the formation and application of the relevant treaty norms. Sections 5.1 and 5.2 study both provisions that do regulate the conduct of individuals directly, and provisions where such direct regulation was discussed but ultimately discarded in favour of an inter-State model. Turning to non-international armed conflict, Section 5.3 outlines the development of the doctrine of ‘recognition of belligerency’ between the late eighteenth century and the Second World War. Subsequently, Section 5.4 examines the role of the concept of international legal personality in the post-Second World War formation of treaty norms governing non-international armed conflicts. The chapter ends with a discussion of the diverging jurisprudential explanations in the current academic debate for the bindingness of international law on armed opposition groups.
Inger Österdahl
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199685899
- eISBN:
- 9780191765841
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199685899.003.0012
- Subject:
- Law, Public International Law, Human Rights and Immigration
This chapter argues that jus post bellum is necessary in order to cope constructively with the consequences of armed conflict. At the same time, the introduction of a systematic and comprehensive jus ...
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This chapter argues that jus post bellum is necessary in order to cope constructively with the consequences of armed conflict. At the same time, the introduction of a systematic and comprehensive jus post bellum will challenge the traditional conceptual categories relating to the law on the use of force. The purpose of jus post bellum is presumed to be the achievement of a just and stable peace based on democracy, human rights, and the rule of law. The introduction of jus post bellum will move the focus away from the beginning towards the middle and end of armed conflict. It will have an impact on jus ad bellum and jus in bello. Its introduction will also move the focus away from military necessity toward humanitarian values. It will further make armed conflict law less state-centered and more people-centered.Less
This chapter argues that jus post bellum is necessary in order to cope constructively with the consequences of armed conflict. At the same time, the introduction of a systematic and comprehensive jus post bellum will challenge the traditional conceptual categories relating to the law on the use of force. The purpose of jus post bellum is presumed to be the achievement of a just and stable peace based on democracy, human rights, and the rule of law. The introduction of jus post bellum will move the focus away from the beginning towards the middle and end of armed conflict. It will have an impact on jus ad bellum and jus in bello. Its introduction will also move the focus away from military necessity toward humanitarian values. It will further make armed conflict law less state-centered and more people-centered.
Geoffrey Corn
- Published in print:
- 2013
- Published Online:
- April 2015
- ISBN:
- 9780199941445
- eISBN:
- 9780190260170
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:osobl/9780199941445.003.0004
- Subject:
- Law, Public International Law
This chapter examines who may be targeted in non-international armed conflicts (NIAC) in the context of contemporary counterinsurgency operations against non-state belligerents. It analyzes the ...
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This chapter examines who may be targeted in non-international armed conflicts (NIAC) in the context of contemporary counterinsurgency operations against non-state belligerents. It analyzes the International Committee of the Red Cross's (ICRC) study called Interpretative Guidance on the Meaning of Direct Participation in Hostilities (DPH Study), which endorses the concept of “continuous combat function” (CCF) as a means of establishing direct participation in hostilities. The chapter first considers the law of armed conflict's categorization of civilians and belligerents before turning to a discussion of organizational membership and the implications of subordination to command and control for belligerents and civilians in any armed conflict. It then explains the difference between status- and conduct-based targeting and why the use of conduct undermines the extension of the DPH rule to define enemy belligerent forces. It presents a proposal of how to reconcile the DPH Study with status-based targeting presumptions to maintain the distinction between civilians and belligerents.Less
This chapter examines who may be targeted in non-international armed conflicts (NIAC) in the context of contemporary counterinsurgency operations against non-state belligerents. It analyzes the International Committee of the Red Cross's (ICRC) study called Interpretative Guidance on the Meaning of Direct Participation in Hostilities (DPH Study), which endorses the concept of “continuous combat function” (CCF) as a means of establishing direct participation in hostilities. The chapter first considers the law of armed conflict's categorization of civilians and belligerents before turning to a discussion of organizational membership and the implications of subordination to command and control for belligerents and civilians in any armed conflict. It then explains the difference between status- and conduct-based targeting and why the use of conduct undermines the extension of the DPH rule to define enemy belligerent forces. It presents a proposal of how to reconcile the DPH Study with status-based targeting presumptions to maintain the distinction between civilians and belligerents.
Kubo Mačák
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780198819868
- eISBN:
- 9780191860126
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198819868.003.0004
- Subject:
- Law, Public International Law
wThis chapter contrasts the mechanism of internationalization of armed conflicts with the reverse process of de-internationalization. It argues that de-internationalization is not simply a matter of ...
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wThis chapter contrasts the mechanism of internationalization of armed conflicts with the reverse process of de-internationalization. It argues that de-internationalization is not simply a matter of the conflict ‘losing’ its international character. Instead, for a conflict to be de-internationalized, it must fulfil the independent criteria for the existence of a non-international armed conflict, while maintaining the identity of the conflict parties and the continuity of the hostilities in question. The chapter highlights that not all modalities of internationalization have a corresponding modality of de-internationalization available in law. However, it interprets this as a strength rather than as a flaw of the existing legal framework.Less
wThis chapter contrasts the mechanism of internationalization of armed conflicts with the reverse process of de-internationalization. It argues that de-internationalization is not simply a matter of the conflict ‘losing’ its international character. Instead, for a conflict to be de-internationalized, it must fulfil the independent criteria for the existence of a non-international armed conflict, while maintaining the identity of the conflict parties and the continuity of the hostilities in question. The chapter highlights that not all modalities of internationalization have a corresponding modality of de-internationalization available in law. However, it interprets this as a strength rather than as a flaw of the existing legal framework.
Eric Talbot Jensen
- Published in print:
- 2013
- Published Online:
- April 2015
- ISBN:
- 9780199941445
- eISBN:
- 9780190260170
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:osobl/9780199941445.003.0003
- Subject:
- Law, Public International Law
This chapter proposes a sovereign agency theory for reunifying the law of armed conflict (LOAC) in counterinsurgency operations. It begins with an overview of the current paradigm of LOAC ...
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This chapter proposes a sovereign agency theory for reunifying the law of armed conflict (LOAC) in counterinsurgency operations. It begins with an overview of the current paradigm of LOAC applicability based on conflict characterization, including a historical background on the bifurcation of the LOAC into provisions regulating international armed conflicts (IAC) and non-international armed conflicts (NIAC). More specifically, it considers whether such bifurcation has been effective in curbing either the violence against victims of armed conflict or in promoting LOAC compliance by participants in armed conflict. It argues that states should apply the LOAC to their use of armed forces to apply sovereign force and outlines some benefits of the sovereign agency theory, including historical examples. Finally, the chapter suggests that the traditional international humanitarian law (IHL) dichotomy between IAC and NIAC causes confusion and, at times, a failure to apply core IHL protections to armed conflict.Less
This chapter proposes a sovereign agency theory for reunifying the law of armed conflict (LOAC) in counterinsurgency operations. It begins with an overview of the current paradigm of LOAC applicability based on conflict characterization, including a historical background on the bifurcation of the LOAC into provisions regulating international armed conflicts (IAC) and non-international armed conflicts (NIAC). More specifically, it considers whether such bifurcation has been effective in curbing either the violence against victims of armed conflict or in promoting LOAC compliance by participants in armed conflict. It argues that states should apply the LOAC to their use of armed forces to apply sovereign force and outlines some benefits of the sovereign agency theory, including historical examples. Finally, the chapter suggests that the traditional international humanitarian law (IHL) dichotomy between IAC and NIAC causes confusion and, at times, a failure to apply core IHL protections to armed conflict.
Kubo Mačák
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780198819868
- eISBN:
- 9780191860126
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198819868.003.0003
- Subject:
- Law, Public International Law
This chapter analyses the legal qualification of complex conflict situations that feature more than two conflict parties. It examines whether such situations qualify as a single internationalized ...
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This chapter analyses the legal qualification of complex conflict situations that feature more than two conflict parties. It examines whether such situations qualify as a single internationalized armed conflict or a number of independent international and non-international armed conflicts. With this in mind, this chapter puts forward a model based on the retention of autonomy of the allied conflict parties. It argues that once the autonomy is foregone and replaced with a single use of force by the parties, the law of international armed conflict applies ‘globally’ to the situation at hand. However, until that moment, the situation should be seen as ‘mixed’; in other words, as a set of mutually independent conflict pairs.Less
This chapter analyses the legal qualification of complex conflict situations that feature more than two conflict parties. It examines whether such situations qualify as a single internationalized armed conflict or a number of independent international and non-international armed conflicts. With this in mind, this chapter puts forward a model based on the retention of autonomy of the allied conflict parties. It argues that once the autonomy is foregone and replaced with a single use of force by the parties, the law of international armed conflict applies ‘globally’ to the situation at hand. However, until that moment, the situation should be seen as ‘mixed’; in other words, as a set of mutually independent conflict pairs.
Noam Lubell
- Published in print:
- 2019
- Published Online:
- December 2018
- ISBN:
- 9780190915360
- eISBN:
- 9780190915391
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190915360.003.0001
- Subject:
- Law, Public International Law
The use of force against armed groups located in other States is not new, but began receiving heightened attention as a result of U.S. operations in Afghanistan following the attacks of September 11, ...
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The use of force against armed groups located in other States is not new, but began receiving heightened attention as a result of U.S. operations in Afghanistan following the attacks of September 11, 2001. The high-profile nature of these events, the resoluteness with which the United States asserted its right to self-defense against an armed group, and the international support that it received all led to increased attention to the surrounding legal matters. Much of the debate centered upon the basic question of whether a State has a right to self-defense in response to attacks perpetrated by a non-State actor located in the territory of another State, absent attribution of the attack to the other State. Other important issues included the classification of hostilities between the State and such a group, and rules governing the conduct of the parties. This chapter sets out to draw together the threads of these debates from the last fifteen years, to analyze new questions that have emerged, examine how they impact upon each other, and suggest a way forward for overcoming legal challenges.Less
The use of force against armed groups located in other States is not new, but began receiving heightened attention as a result of U.S. operations in Afghanistan following the attacks of September 11, 2001. The high-profile nature of these events, the resoluteness with which the United States asserted its right to self-defense against an armed group, and the international support that it received all led to increased attention to the surrounding legal matters. Much of the debate centered upon the basic question of whether a State has a right to self-defense in response to attacks perpetrated by a non-State actor located in the territory of another State, absent attribution of the attack to the other State. Other important issues included the classification of hostilities between the State and such a group, and rules governing the conduct of the parties. This chapter sets out to draw together the threads of these debates from the last fifteen years, to analyze new questions that have emerged, examine how they impact upon each other, and suggest a way forward for overcoming legal challenges.
Marko Milanovic
- Published in print:
- 2019
- Published Online:
- December 2018
- ISBN:
- 9780190915360
- eISBN:
- 9780190915391
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190915360.003.0002
- Subject:
- Law, Public International Law
It is almost trivial to observe that the law applying to modern armed conflicts is full of complexities. Such complexities are, after all, the bread and butter of legal academics, who have produced ...
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It is almost trivial to observe that the law applying to modern armed conflicts is full of complexities. Such complexities are, after all, the bread and butter of legal academics, who have produced mountains of books and articles on the various relevant topics, but the extent of these complexities can be overstated. While legal academics debate the finer points of the interaction between international humanitarian law (IHL) and international human rights law (IHRL), in the majority of today’s armed conflicts the law is reasonably practical and clear. It might not be complied with, but that is not because of its supposed complexity or lack of clarity. If, for example, the parties to armed conflicts with the highest cost in human lives and property (e.g., in Syria or Yemen) observed only the bare fundamentals of the principle of distinction, the world would be spared much suffering. Noncompliance has little to do with the law’s complexity. But complexity is nonetheless a major feature of a subset of modern armed conflicts, especially those involving foreign intervention by Western powers. The purpose of this chapter is to clarify our understanding of how complexity works, where it comes from, and how it is managed. To do so, this chapter first develops two themes: the multiple causes of complexity and the decentralized system for managing this complexity. These themes are then explored in more detail in the context of the law on the use of force, or jus ad bellum, IHL, and IHRL.Less
It is almost trivial to observe that the law applying to modern armed conflicts is full of complexities. Such complexities are, after all, the bread and butter of legal academics, who have produced mountains of books and articles on the various relevant topics, but the extent of these complexities can be overstated. While legal academics debate the finer points of the interaction between international humanitarian law (IHL) and international human rights law (IHRL), in the majority of today’s armed conflicts the law is reasonably practical and clear. It might not be complied with, but that is not because of its supposed complexity or lack of clarity. If, for example, the parties to armed conflicts with the highest cost in human lives and property (e.g., in Syria or Yemen) observed only the bare fundamentals of the principle of distinction, the world would be spared much suffering. Noncompliance has little to do with the law’s complexity. But complexity is nonetheless a major feature of a subset of modern armed conflicts, especially those involving foreign intervention by Western powers. The purpose of this chapter is to clarify our understanding of how complexity works, where it comes from, and how it is managed. To do so, this chapter first develops two themes: the multiple causes of complexity and the decentralized system for managing this complexity. These themes are then explored in more detail in the context of the law on the use of force, or jus ad bellum, IHL, and IHRL.
Kubo Macak
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780198819868
- eISBN:
- 9780191860126
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198819868.001.0001
- Subject:
- Law, Public International Law
This book examines and analyses the concept, the process, and the consequences of conflict internationalization from the perspective of international law. In a world defined by the twin forces of ...
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This book examines and analyses the concept, the process, and the consequences of conflict internationalization from the perspective of international law. In a world defined by the twin forces of globalization and fragmentation, very few armed conflicts remain isolated from foreign involvement and confined to the territory of one state. Instead, many begin as internal conflicts that gradually acquire international characteristics of varying degree and nature. This holds true for nearly all major conflicts that have shaped the post-Cold War era: ex-Yugoslavia, Rwanda, Afghanistan, Iraq, Libya, Ukraine, Syria, Yemen, and so on. Accordingly, this book searches for the tipping points that convert non-international armed conflicts into international armed conflicts. On that basis, it argues for a specific conceptualization of ‘internationalized armed conflict’ in international law, understood to comprise prima facie non-international armed conflicts, whose legal nature has transformed, thus triggering the applicability of the law of international armed conflict to them. The book then puts forward a comprehensive catalogue of modalities of the process of internationalization that includes outside intervention, state dissolution, and recognition of belligerency. Turning to the consequences of internationalization, the book highlights that the intra-state origin of internationalized conflicts provides for an uneasy match with many of the precepts of the law of international armed conflict, which has historically evolved as a regulatory framework for inter-state wars. Of those, the regulation of combatancy and the law of belligerent occupation are where the principal legal questions lie and which are examined in depth in this book.Less
This book examines and analyses the concept, the process, and the consequences of conflict internationalization from the perspective of international law. In a world defined by the twin forces of globalization and fragmentation, very few armed conflicts remain isolated from foreign involvement and confined to the territory of one state. Instead, many begin as internal conflicts that gradually acquire international characteristics of varying degree and nature. This holds true for nearly all major conflicts that have shaped the post-Cold War era: ex-Yugoslavia, Rwanda, Afghanistan, Iraq, Libya, Ukraine, Syria, Yemen, and so on. Accordingly, this book searches for the tipping points that convert non-international armed conflicts into international armed conflicts. On that basis, it argues for a specific conceptualization of ‘internationalized armed conflict’ in international law, understood to comprise prima facie non-international armed conflicts, whose legal nature has transformed, thus triggering the applicability of the law of international armed conflict to them. The book then puts forward a comprehensive catalogue of modalities of the process of internationalization that includes outside intervention, state dissolution, and recognition of belligerency. Turning to the consequences of internationalization, the book highlights that the intra-state origin of internationalized conflicts provides for an uneasy match with many of the precepts of the law of international armed conflict, which has historically evolved as a regulatory framework for inter-state wars. Of those, the regulation of combatancy and the law of belligerent occupation are where the principal legal questions lie and which are examined in depth in this book.
Zoli Corri
- Published in print:
- 2013
- Published Online:
- April 2015
- ISBN:
- 9780199941445
- eISBN:
- 9780190260170
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:osobl/9780199941445.003.0010
- Subject:
- Law, Public International Law
This chapter examines the ramifications of asymmetric warfare for traditional international humanitarian law by focusing on the “Gaza Freedom Flotilla” incident. On May 31, 2010, Israel launched a ...
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This chapter examines the ramifications of asymmetric warfare for traditional international humanitarian law by focusing on the “Gaza Freedom Flotilla” incident. On May 31, 2010, Israel launched a military operation against six civilian ships of the “Gaza Freedom Flotilla” in international waters off the Mediterranean Sea, resulting in the death of nine passengers aboard MV Mavi Marmara—the only vessel that did not practice passive resistance. The chapter analyzes the politicization of the incident and highlights how the legal and policy shortcomings of postmodern warfare are especially attenuated when conflicts take place in a maritime environment. It also discusses the limits of the law of naval warfare, counterinsurgency and non-international armed conflicts, and the San Remo Manual on International Law Applicable to Armed Conflict at Sea.Less
This chapter examines the ramifications of asymmetric warfare for traditional international humanitarian law by focusing on the “Gaza Freedom Flotilla” incident. On May 31, 2010, Israel launched a military operation against six civilian ships of the “Gaza Freedom Flotilla” in international waters off the Mediterranean Sea, resulting in the death of nine passengers aboard MV Mavi Marmara—the only vessel that did not practice passive resistance. The chapter analyzes the politicization of the incident and highlights how the legal and policy shortcomings of postmodern warfare are especially attenuated when conflicts take place in a maritime environment. It also discusses the limits of the law of naval warfare, counterinsurgency and non-international armed conflicts, and the San Remo Manual on International Law Applicable to Armed Conflict at Sea.
Christopher Borgen
- Published in print:
- 2019
- Published Online:
- December 2018
- ISBN:
- 9780190915360
- eISBN:
- 9780190915391
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190915360.003.0005
- Subject:
- Law, Public International Law
States increasingly find themselves in competition and conflict with non-State actors, including terrorist networks, insurgencies, separatist regimes, criminal cartels, and other groups. The effects ...
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States increasingly find themselves in competition and conflict with non-State actors, including terrorist networks, insurgencies, separatist regimes, criminal cartels, and other groups. The effects of the law and practice of recognition—including the recognition of States, of governments, and of belligerencies—on conflicts with such illicit non-State actors has been underappreciated. The rules of recognition are not external to these conflicts; they interact with the strategy and the tactics of the parties to the conflict and of third-party States. While States have access to global markets, judicial protections, and the privileges and immunities of sovereignty, unrecognized entities use illegal strategies to find necessary resources to continue their fight. This chapter describes the range of actors that are both involved in violent conflict and also operate on the fringes of recognition. It will review the various aspects of law of recognition and consider practices old and new in order to understand the effects of recognition decisions, including how recognition interacts with the laws of armed conflict. It will also discuss how nonrecognition affects access to resources, such as financing and skilled labor, and the variety of responses by unrecognized entities. To understand the strategy of the illicit non-State actors in conflict with States, one must not only appreciate their motivations and goals, but perceive their constraints. The political economy of conflict is not separate and apart from the public international law of recognition; they are intertwined.Less
States increasingly find themselves in competition and conflict with non-State actors, including terrorist networks, insurgencies, separatist regimes, criminal cartels, and other groups. The effects of the law and practice of recognition—including the recognition of States, of governments, and of belligerencies—on conflicts with such illicit non-State actors has been underappreciated. The rules of recognition are not external to these conflicts; they interact with the strategy and the tactics of the parties to the conflict and of third-party States. While States have access to global markets, judicial protections, and the privileges and immunities of sovereignty, unrecognized entities use illegal strategies to find necessary resources to continue their fight. This chapter describes the range of actors that are both involved in violent conflict and also operate on the fringes of recognition. It will review the various aspects of law of recognition and consider practices old and new in order to understand the effects of recognition decisions, including how recognition interacts with the laws of armed conflict. It will also discuss how nonrecognition affects access to resources, such as financing and skilled labor, and the variety of responses by unrecognized entities. To understand the strategy of the illicit non-State actors in conflict with States, one must not only appreciate their motivations and goals, but perceive their constraints. The political economy of conflict is not separate and apart from the public international law of recognition; they are intertwined.
Tilman Rodenhäuser
- Published in print:
- 2018
- Published Online:
- May 2018
- ISBN:
- 9780198821946
- eISBN:
- 9780191861109
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198821946.001.0001
- Subject:
- Law, Public International Law
This book identifies the degree of organization required from non-state armed groups (i) to become party to an armed conflict and thereby bound by applicable international humanitarian law; (ii) to ...
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This book identifies the degree of organization required from non-state armed groups (i) to become party to an armed conflict and thereby bound by applicable international humanitarian law; (ii) to have possible human rights obligations; and (iii) to create a context in which international crimes can be committed. Part I identifies three principal criteria that any party to a non-international armed conflict—including decentrally organized armed groups, transnational groups, or cyber groups—must meet: it must be a collective entity with sufficient capabilities to engage in hostilities and the ability to ensure respect for basic humanitarian norms. Part II conceptualizes contemporary debate and international practice on the question of whether armed groups have human rights obligations. It suggests that the sources and scope of potential human rights obligations of armed groups are understood best on a spectrum, with consideration given to three categories: groups exercising quasi-governmental authority; groups exercising de facto control over territory and population; and groups exercising no territorial control. Part III examines the requisite degree of organization of armed groups to create contexts in which crimes against humanity or genocide can be committed. It argues that the degree of power and organization of groups behind these crimes depends on whether the group instigates or actually commits the crimes. In sum, this book shows that the requisite degree of organization of armed groups to have obligations under different fields of international law cannot be determined in the abstract. It depends on the specificities of each field of law and the circumstances of each case.Less
This book identifies the degree of organization required from non-state armed groups (i) to become party to an armed conflict and thereby bound by applicable international humanitarian law; (ii) to have possible human rights obligations; and (iii) to create a context in which international crimes can be committed. Part I identifies three principal criteria that any party to a non-international armed conflict—including decentrally organized armed groups, transnational groups, or cyber groups—must meet: it must be a collective entity with sufficient capabilities to engage in hostilities and the ability to ensure respect for basic humanitarian norms. Part II conceptualizes contemporary debate and international practice on the question of whether armed groups have human rights obligations. It suggests that the sources and scope of potential human rights obligations of armed groups are understood best on a spectrum, with consideration given to three categories: groups exercising quasi-governmental authority; groups exercising de facto control over territory and population; and groups exercising no territorial control. Part III examines the requisite degree of organization of armed groups to create contexts in which crimes against humanity or genocide can be committed. It argues that the degree of power and organization of groups behind these crimes depends on whether the group instigates or actually commits the crimes. In sum, this book shows that the requisite degree of organization of armed groups to have obligations under different fields of international law cannot be determined in the abstract. It depends on the specificities of each field of law and the circumstances of each case.
Winston S. Williams and Christopher M. Ford (eds)
- Published in print:
- 2019
- Published Online:
- December 2018
- ISBN:
- 9780190915360
- eISBN:
- 9780190915391
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190915360.001.0001
- Subject:
- Law, Public International Law
The conduct of warfare is constantly shaped by forces beyond the battlefield. These forces create complexities in the battlespace for military operations. The ever-changing nature of how and where ...
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The conduct of warfare is constantly shaped by forces beyond the battlefield. These forces create complexities in the battlespace for military operations. The ever-changing nature of how and where wars are fought creates challenges for the application of the unchanging body of international law that regulates armed conflicts. The term “complex” is often used to describe modern warfare, but what makes modern warfare complex? Is it the increasingly urbanized battlefield where wars are fought, which is cluttered with civilians and civilian objects? Is it the rise of State-like organized armed groups that leverage the governance vacuum created by failed or failing States? Is it the introduction of new technologies to military operations like autonomous weapons, cyber capabilities, and unmanned aerial systems? Or is it the application of multiple legal regimes to a single conflict? Collectively, these questions formed the basis for the Complex Battlespaces Workshop in which legal scholars and experts from the field of practice came together to discuss these complexities. During the workshop, there was a general consensus that the existing law was sufficient to regulate modern warfare. The challenge, however, arises in application of the law to new technologies, military operations in urban environments, and other issues related to applying international human rights law and international humanitarian law to non-international armed conflicts. This inaugural volume of the Lieber Book Series seeks to address many of the complexities that arise during the application of international law to modern warfare.Less
The conduct of warfare is constantly shaped by forces beyond the battlefield. These forces create complexities in the battlespace for military operations. The ever-changing nature of how and where wars are fought creates challenges for the application of the unchanging body of international law that regulates armed conflicts. The term “complex” is often used to describe modern warfare, but what makes modern warfare complex? Is it the increasingly urbanized battlefield where wars are fought, which is cluttered with civilians and civilian objects? Is it the rise of State-like organized armed groups that leverage the governance vacuum created by failed or failing States? Is it the introduction of new technologies to military operations like autonomous weapons, cyber capabilities, and unmanned aerial systems? Or is it the application of multiple legal regimes to a single conflict? Collectively, these questions formed the basis for the Complex Battlespaces Workshop in which legal scholars and experts from the field of practice came together to discuss these complexities. During the workshop, there was a general consensus that the existing law was sufficient to regulate modern warfare. The challenge, however, arises in application of the law to new technologies, military operations in urban environments, and other issues related to applying international human rights law and international humanitarian law to non-international armed conflicts. This inaugural volume of the Lieber Book Series seeks to address many of the complexities that arise during the application of international law to modern warfare.
