Contestation before Compliance: History, Politics, and Power in International Humanitarian Law

2020 ◽  
Vol 64 (3) ◽  
pp. 649-656
Author(s):  
Helen M Kinsella ◽  
Giovanni Mantilla
Keyword(s):  
International Relations ◽  
Historical Development ◽  
International Politics ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Common Reference ◽  
Military Necessity ◽  
The Common ◽  
Legal Concepts ◽  
Strategic Effects

Abstract Despite the common reference to international humanitarian law (IHL) in the discourse and practice of international politics, international relations (IR) scholarship has yet to consistently engage in an analysis of IHL that extends beyond the relatively narrow specifications of its regulative and strategic effects. In this theory note, we argue that this prevailing focus leaves the discipline with an impoverished understanding of IHL and its operation in international politics. We propose that the study of IHL should be expanded through a deeper engagement with the law's historical development, the politics informing its codification and interpretation, and its multiple potential effects beyond compliance. This accomplishes three things. First, it corrects for IR's predominantly ahistorical approach to evaluating both IHL and compliance, revealing the complicated, contested, and productive construction of some of IHL's core legal concepts and rules. Second, our approach illuminates how IR's privileging of civilian targeting requires analytical connection to other rules such as proportionality and military necessity, none of which can be individually assessed and each of which remain open to debate. Third, we provide new resources for analyzing and understanding IHL and its contribution to “world making and world ordering.”

4 Domains of Warfare

2020 ◽  
Author(s):  
McCosker Sarah
Keyword(s):  
Armed Conflict ◽  
Historical Development ◽  
Outer Space ◽  
Legal Regulation ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Military Necessity ◽  
Rules And Principles ◽  
Over Time

This chapter examines ‘domains’ of warfare, which are generally understood as the operational environments in which armed conflict occurs, and to which international humanitarian law (IHL) therefore applies. Until recent decades, domains of armed conflict have been largely predicated on geospatial conceptions, denoting the physical places where armed conflict has customarily occurred: land, sea, and air. General IHL applies across all these areas—including the fundamental principles of humanity, military necessity, and proportionality; restrictions or prohibitions of certain means and methods of warfare; and basic rules requiring humane treatment of persons and respect for civilians and civilian property. Over time, however, the particular exigencies of land, sea, and air warfare have led to the development of some specific IHL rules and principles tailored to each of those environments. Discussing domains of armed conflict therefore offers a window into the historical development of IHL. It shows how the emergence of new operational environments and new means and methods of armed conflict catalyses efforts at legal regulation, which can lead to the development of new domains or sub-sets of IHL. The chapter then considers how the idea of a domain might apply to armed conflict in outer space, and armed conflict involving cyber operations and other emerging capabilities.

scholarly journals RELAÇÕES INTERNACIONAIS NO ORIENTE MÉDIO: O DIREITO INTERNACIONAL HUMANITÁRIO NO CONFLITO DA FAIXA DE GAZA/ INTERNATIONAL RELATIONS IN THE MIDDLE EAST: INTERNATIONAL HUMANITARIAN LAW IN THE CONFLICT IN THE GAZA STRIP

2020 ◽  
Vol 6 (11) ◽  
pp. 84610-84623
Author(s):  
Eduardo Freitas Gorga ◽  
Elisa Pinheiro de Freitas ◽  
Renata Cardoso Doyle Maia ◽  
Silvana do Valle Leone ◽  
Larissa Bacelar Marques ◽  
...  
Keyword(s):  
Middle East ◽  
International Relations ◽  
Gaza Strip ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
The Gaza Strip

Laws of War, Morality, and International Politics: Compliance, Stringency, and Limits

2013 ◽  
Vol 26 (2) ◽  
pp. 271-292 ◽  
Author(s):  
HENRY SHUE
Keyword(s):  
International Politics ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Laws Of War ◽  
Political Arena

AbstractA person with moral commitments can respect International Humanitarian Law (IHL) only if the permissions granted by it do not depart radically from their basic morality, but the features of contemporary war require considerable departures from morality in the content of any rules applicable to war. The features of the contemporary international political arena, in turn, and especially the dominant interpretation of sovereignty, require that IHL be the same for all parties. But, contrary to the arguments of some influential analytic philosophers, such ‘symmetry’ in the laws need not involve their content's departing excessively from basic morality. Insisting on the same rules for all, however, leads to the problem that, other things equal, the more stringent the content of a set of rules, the greater the temptation on the part of self-interested parties to flout the rules. However, a hard-headed view of IHL requires no concessions to terrorists or anti-terrorists.

scholarly journals Do attackers have a legal duty of care? Limits to the ‘individualization of war’

2019 ◽  
Vol 11 (1) ◽  
pp. 1-25 ◽  
Author(s):  
Janina Dill
Keyword(s):  
International Relations ◽  
The State ◽  
Point Of View ◽  
International Humanitarian Law ◽  
Duty Of Care ◽  
Humanitarian Law ◽  
Moral Value ◽  
Legal Situation ◽  
Legal Duty ◽  
The Individual

AbstractDoes International Humanitarian Law (IHL) impose a duty of care on the attacker? From a moral point of view, should it? This article argues that the legal situation is contestable, and the moral value of a legal duty of care in attack is ambivalent. This is because a duty of care is both a condition for and an obstacle to the ‘individualization of war’. The individualization of war denotes an observable multi-dimensional norm shift in international relations. Norms for the regulation of war that focus on the interests, rights, and duties of the individual have gained in importance compared to those that focus on the interests, rights, and duties of the state. As the individual, not the state, is the ultimate locus of moral value, this norm shift in international relations, and the corresponding developments in international law, are morally desirable. When it comes to IHL, the goal of protecting the interests of the individual creates strong reasons both for and against imposing a legal duty of care on the attacker. The enquiry into whether IHL does and should impose a legal duty of care therefore reveals that the extent to which war can be individualized is limited.

Typology of armed conflicts in international humanitarian law: legal concepts and actual situations

2009 ◽  
Vol 91 (873) ◽  
pp. 69-94 ◽  
Author(s):  
Sylvain Vité
Keyword(s):  
Armed Conflict ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Practice ◽  
Legal Regime ◽  
Recent Developments ◽  
Definition Of ◽  
Legal Concepts

AbstractAlthough international humanitarian law has as its aim the limitation of the effects of armed conflict, it does not include a full definition of those situations which fall within its material field of application. While it is true that the relevant conventions refer to various types of armed conflict and therefore afford a glimpse of the legal outlines of this multifaceted concept, these instruments do not propose criteria that are precise enough to determine the content of those categories unequivocally. A certain amount of clarity is nonetheless needed. In fact, depending on how the situations are legally defined, the rules that apply vary from one case to the next. By proposing a typology of armed conflicts from the perspective of international humanitarian law, this article seeks to show how the different categories of armed conflict anticipated by that legal regime can be interpreted in the light of recent developments in international legal practice. It also reviews some actual situations whose categorization under existing legal concepts has been debated.

scholarly journals The Rule of Surrender in International Humanitarian Law

2018 ◽  
Vol 51 (1) ◽  
pp. 3-27 ◽  
Author(s):  
Russell Buchan
Keyword(s):  
Armed Conflict ◽  
Careful Examination ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Law Of War ◽  
Legal Development ◽  
Military Necessity ◽  
Opposing Force ◽  
State Practice

Under international humanitarian law it is prohibited to make the object of attack a person who has surrendered. This article explores the circumstances in which the act of surrender is effective under international humanitarian law and examines, in particular, how surrender can be achieved in practical terms during land warfare in the context of international and non-international armed conflict. First, the article situates surrender within its broader historical and theoretical setting, tracing its legal development as a rule of conventional and customary international humanitarian law and arguing that its crystallisation as a law of war derives from the lack of military necessity to directly target persons who have placed themselves outside the theatre of armed conflict, and that such conduct is unacceptable from a humanitarian perspective. Second, after a careful examination of state practice, the article proposes a three-stage test for determining whether persons have surrendered under international humanitarian law: (1) Have persons attempting to surrender engaged in a positive act which clearly reveals that they no longer intend to participate in hostilities? (2) Is it reasonable in the circumstances prevailing at the time for the opposing force to discern the offer of surrender? and (3) Have surrendered persons unconditionally submitted to the authority of their captor?

scholarly journals Human Shields: Complementary Duties under IHL

AJIL Unbound ◽  
2016 ◽  
Vol 110 ◽  
pp. 317-322
Author(s):  
Beth Van Schaack
Keyword(s):  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Rules ◽  
Military Necessity ◽  
Armed Actors

The phenomenon of human shields challenges core tenets of international humanitarian law (IHL), including its careful dialectic between the imperatives of humanity and military necessity. Although the principles of distinction, precaution, and proportionality are well established in the abstract, consensus remains elusive when these concepts are applied to situations involving human shields, who blur the boundary between civilians and combatants. And while the prohibition against using human shields is absolute, it is too often honored in its breach in today's asymmetrical conflicts. Indeed, resort to human shields has become attractive precisely because it exploits protective legal rules to the detriment of those principled armed actors who value—and thus strive for—IHL compliance. These parties, in turn, are struggling to adapt their operations to a practice that has become “endemic” in the modern battlefield.

Reflections on Proportionality, Military Necessity and the Clausewitzian War

2012 ◽  
Vol 45 (2) ◽  
pp. 323-340 ◽  
Author(s):  
Rotem M Giladi
Keyword(s):  
Political Legitimacy ◽  
The Political ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Operational Strategy ◽  
Military Necessity ◽  
The Law ◽  
Conceptual Foundations

This article explores the significance of the reference, in proportionality analyses, to proper purpose and legitimate ends, given the traditional aversion of international humanitarian law (IHL) to questions of (political) legitimacy. It demonstrates the centrality of that aversion in doctrinal assertions concerning the goals, characteristics and operational strategy of IHL yet argues that, at its historical and conceptual foundations, the law draws on a construction of war that presupposes legitimacy of the political type. That construction remains embedded, though implicit, in contemporary proportionality analyses.Thus, the instrumental understanding of war by Carl von Clausewitz poses several challenges to entrenched contemporary doctrinal claims about the law, how it operates and the effects it produces. This provides an impetus for critical reassessment of the aversion to politics and the interaction between the humanitarian, military and political spheres in the operation of IHL norms. Such critique helps to identify novel strategies of humanitarian protection in war outside the confines demarcated by orthodox doctrine.

Rethinking the Permissive Function of Military Necessity in Internal Non-International Armed Conflict

2018 ◽  
Vol 51 (2) ◽  
pp. 235-259 ◽  
Author(s):  
Kosuke Onishi
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Right To Life ◽  
Jus Ad Bellum ◽  
Military Necessity ◽  
The Right

This article advocates limiting the permissive impact of military necessity on the right to life. It has been argued that military necessity justifies deviations from international human rights law (IHRL) because this body of law is inadequate to deal with the necessities arising out of armed conflict. The article argues that while this rationale is convincing, it should not mean that conduct that is lawful under humanitarian law is necessarily also lawful under human rights law. The degree of force that may be used under international humanitarian law (IHL) is often superfluous. In some instances such violence is tempered by thejus ad bellum, but this body of law does not apply in internal non-international armed conflict (NIAC). The article concludes by exploring the potential for IHRL to play a role in tempering superfluous violence in NIAC that is similar to that whichjus ad bellumplays in international conflict.

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