An internationally-renowned scholar in the fields of international and transitional justice, Diane Orentlicher provides an unparalleled account of an international tribunal's impact in societies that have the greatest stake in its work. In Some Kind of Justice: The ICTY's Impact in Bosnia and Serbia, Orentlicher explores the evolving domestic impact of the International Criminal Tribunal for the former Yugoslavia (ICTY), which operated longer than any other international war crimes court. Drawing on hundreds of research interviews and a rich body of inter-disciplinary scholarship, Orentlicher provides a path-breaking account of how the Tribunal influenced domestic political developments, victims' experience of justice, acknowledgement of wartime atrocities, and domestic war crimes prosecutions, as well as the dynamic factors behind its evolving influence in each of these spheres. Highlighting the perspectives of Bosnians and Serbians, Some Kind of Justice offers important and practical lessons about how international criminal courts can improve the delivery of justice.

This is the second volume of a projected five-volume series charting the causes of war from 3000 BCE to the present day, written by a leading international lawyer, and using as its principal materials the documentary history of international law, largely in the form of treaties and the negotiations which led up to them. These volumes seek to show why millions of people, over thousands of years, slew each other. In departing from the various theories put forward by historians, anthropologists and psychologists, Gillespie offers a different taxonomy of the causes of war, focusing on the broader settings of politics, religion, migrations and empire-building. These four contexts were dominant and often overlapping justifications during the first four thousand years of human civilisation, for which written records exist.

International Refugee Law and the Protection of Stateless Persons examines the extent to which the 1951 Convention relating to the Status of Refugees protectsde jure stateless persons. While de jure stateless persons are clearly protected by the 1954 Convention relating to the Status of Stateless Persons, this book seeks to explore the extent to which such persons are also entitled to refugee status. The questions addressed include the following: When is a person 'without a nationality' for the purpose of the 1951 Refugee Convention? What constitutes one's country of former habitual residence as a proxy to one's country of nationality? When does being stateless give rise to a well-founded fear of persecution for reasons specified in the 1951 Refugee Convention and/or UNHCR mandate? What are the circumstances under which statelessness constitutes persecution or inhuman or degrading treatment? How are courts assessing individual risk or threat to stateless persons? The book draws on historical and contemporary interpretation of international law based on the travaux preparatoires to the 1951 Refugee Convention and its antecedents, academic writing, UNHCR policy and legal documents, UN Human Rights Council resolutions, UN Human Rights Committee general comments, UN Secretary General reports, and UN General Assembly resolutions. It is also based on original comparative analysis of existing jurisprudence worldwide relating to claims to refugee status based on or around statelessness. By examining statelessness through the prism of international refugee law, this book fills a critical gap in existing scholarship.

When faced with those who act with impunity, we seek the protection of law. We rely upon the legal system for justice, from international human rights law that establishes common standards of protection, to international criminal law that spearheads efforts to end impunity for the most heinous atrocities. While legal processes are perceived to combat impunity, and despite the ready availability of the law, accountability often remains elusive. What if the law itself enables impunity? Law's Impunity asks this question in the context of the modern Private Military Company (PMC), examining the relationship between law and the concepts of responsibility and impunity. This book proposes that ordinary legal processes do not neutralise, but rather legalise impunity. This radical idea is applied to the abysmal record of human rights violations perpetrated by the modern PMC and the shocking absence of accountability. This book demonstrates how the law organises, rather than overcomes, impunity by detailing how the modern PMC exploits ordinary legal processes to systematically exclude itself from legal responsibility. Thus, Law's Impunity offers an alternative to conventional thinking about the law, providing an innovative approach to assess and refine the rigour of legal processes in the ongoing quest to end impunity.

This book analyses the legal framework for refugee protection in Africa, including both refugee and human rights law as well as treaty and institutional elements. The regime is addressed in two parts. Part One analyses the relevant treaties: the 1951 Convention relating to the Status of Refugees, the 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa and the 1981 African Charter on Human and Peoples Rights. The latter two regional instruments are examined in depth. This includes the first fulsome account of the African Refugee Conventions drafting, an interpretation of its unique refugee definition and original analysis of the relationships between the three treaties. Significant attention is devoted to the systemic relationship between the international and the regional refugee treaties and to the discrete relationships of conflict and complementary relationships between the two refugee instruments, as well as to the relationships between the African Refugee Convention and African Charter. Part Two focuses on the institutional architecture supporting the treaty framework. The Organization of African Unity is addressed in a historical sense, and the contemporary roles of the African Union, the African Commission on Human and Peoples Rights and the current and contemplated African human rights courts are examined. This book is the first devoted to the legal framework for refugee protection in Africa.

This book provides the first comprehensive analysis of factors that transform a prima facie non-international armed conflict (NIAC) into an international armed conflict (IAC) and the consequences that follow from this process of internationalization. It examines in detail the historical development as well as the current state of the relevant rules of international humanitarian law. The discussion is grounded in general international law, complemented with abundant references to case law, and illustrated by examples from twentieth and twenty-first century armed conflicts. In Part I, the book puts forward a thorough catalogue of modalities of conflict internationalization that includes outside intervention, State dissolution, and recognition of belligerency. It then specifically considers the legal qualification of complex situations that feature more than two conflict parties and contrasts the mechanism of internationalization of armed conflicts with the reverse process of de-internationalization. Part II of the book challenges the conventional wisdom that members of non-State armed groups do not normally benefit from combatant status. It argues that the majority of fighters belonging to non-State armed groups in most types of internationalized armed conflicts are in fact eligible for combatant status. Finally, Part III turns to belligerent occupation, traditionally understood as a leading example of a notion that cannot be transposed to armed conflicts occurring in the territory of a single State. By contrast, the book argues in favour of the applicability of the law of belligerent occupation to internationalized armed conflicts.

Ten new essays critique the practice armed humanitarian intervention, and the 'Responsibility to Protect' doctrine that advocates its use under certain circumstances. The contributors investigate the causes and consequences, as well as the uses and abuses, of armed humanitarian intervention. One enduring concern is that such interventions are liable to be employed as a foreign policy instrument by powerful states pursuing geo-political interests. Some of the chapters interrogate how the presence of ulterior motives impact on the moral credentials of armed humanitarian intervention. Others shine a light on the potential adverse effects of such interventions, even where they are motivated primarily by humanitarian concern. The volume also tracks the evolution of the R2P norm, and draws attention to how it has evolved, for better or for worse, since UN member states unanimously accepted it over a decade ago. In some respects the norm has been distorted to yield prescriptions, and to impose constraints, fundamentally at odds with the spirit of the R2P idea. This gives us all the more reason to be cautious of unwarranted optimism about humanitarian intervention and the Responsibility to Protect.

In July 2016, the Supreme Court of India held that the use of excessive or retaliatory force by the security forces is not permissible in the course of the discharge of their duty under the Armed Forces (Special Powers) Act (AFSPA), and that the Act does not allow blanket immunity to perpetrators of unjustified deaths. Recently, the Supreme Court directed that FIRs be lodged against security personnel engaged in encounter killings. This ruling has serious ramifications for the forces deployed in counter-insurgency operations. The AFSPA has become one of the most controversial laws, both in India and the world. The loud and continuous clamour against the Act has drawn the attention of various international organizations. In May 2017, the UN Human Rights Council, during the Universal Periodic Review of India's human rights record called for bringing the provisions of the AFSPA in line with the international human rights treaties. The armed forces, however, maintain that the AFSPA is a functional requirement for tackling the growing menace of insurgency and protecting their men from the unnecessary harassment caused by litigation. On the other hand, the Delhi High Court has recently directed the Government of India to pay a compensation of Rs 55 lakh to an air force pilot who was injured while flying a poorly maintained MiG 21 aircraft. This case highlights the other side of the issue of human rights in the context of members of the armed and security forces. This book will help to enhance the understanding of the legal position of the armed forces, which is of paramount importance today due to the blurring of the lines between national security, anti-insurgency operations and law enforcement. It will also create an awareness of the difficulties being faced by the armed forces during domestic deployment and of the need to protect the rights of military and security personnel. The book provides an insight into the legislative efforts of other democracies to meet the challenges of growing terrorism. It delves into cases of human rights violations in which members of the armed forces have been implicated. It concludes by identifying current deficiencies in the legal system and makes a few recommendations for the consideration of the government and armed forces.

This book explores the large and controversial subject of the use of force in international law. It examines not only the use of force by states but also the role of the UN in peacekeeping and enforcement action, and the increasing role of regional organizations in the maintenance of international peace and security. The UN Charter framework is under challenge. Russia's invasion of Georgia and intervention in Ukraine, the USA's military operations in Syria, and Saudi Arabia's campaign to restore the government of Yemen by force all raise questions about the law on intervention. The 'war on terror' that began after the 9/11 terrorist attacks on the USA has not been won. It has spread far beyond Afghanistan: it has led to targeted killings in Pakistan, Somalia, and Yemen, and to intervention against ISIS in Iraq and Syria. Is there an expanding right of self-defence against non-state actors? Is the use of force effective? The development of nuclear weapons by North Korea has reignited discussion about the legality of pre-emptive self-defence. The NATO-led operation in Libya increased hopes for the implementation of 'responsibility to protect', but it also provoked criticism for exceeding the Security Council's authorization of force because its outcome was regime change. UN peacekeeping faces new challenges, especially with regard to the protection of civilians, and UN forces have been given revolutionary mandates in several African states. But the 2015 report Uniting Our Strengths reaffirmed that UN peacekeeping is not suited to counter-terrorism or enforcement operations; the UN should turn to regional organizations such as the African Union as first responders in situations of ongoing armed conflict.

Article 2 of the European Convention on Human Rights (ECHR) in its current form is incomplete and outdated. Due to significant development at a legislative and judicial level, the right to life spans beyond what is enumerated within Article 2. With the belief that Article 2 is still relevant, this book investigates how the right to life can be better protected within Europe. It advocates for the modernisation of Article 2 through codifying legislative and judicial developments relevant to this provision in the form of guidelines. It also considers the improvements that can be made by the Council of Europe (CoE) bodies - the European Court of Human Rights (ECtHR), the Committee of Ministers (CoM), the Parliamentary Assembly of the Council of Europe (PACE) and the CoE Commissioner for Human Rights - to encourage adherence to Article 2 and promote effective remedies to prevent future violations. It uses the experience from four internal European conflicts - the Basque conflict, the Chechen conflict, the Northern Ireland Troubles and the Turkish-Kurdish conflict - to illustrate its points.

When foreign powers attack civilians, other countries face an impossible dilemma. Two courses of action emerge: either to retaliate against an abusive government on behalf of its victims, or to remain spectators. Either course offers its own perils: the former, lost lives and resources without certainty of restoring peace or preventing worse problems from proliferating; the latter, cold spectatorship that leaves a country at the mercy of corrupt rulers or to revolution. Philosophers Fernando Teson and Bas van der Vossen offer contrasting views of humanitarian intervention, defining it as either war aimed at ending tyranny, or as violence. The authors employ the tools of impartial modern analytic philosophy, particularly just war theory, to substantiate their claims. According to Teson, a humanitarian intervention has the same just cause as a justified revolution: ending tyranny. He analyzes the different kinds of just cause and whether or not an intervener may pursue other justified causes. For Teson, the permissibility of humanitarian intervention is almost exclusively determined by the rules of proportionality. Bas van der Vossen, by contrast, holds that military intervention is morally impermissible in almost all cases. Justified interventions, Van der Vossen argues, must have high ex ante chance of success. Analyzing the history and prospects of intervention shows that they almost never do. Teson and van der Vossen refer to concrete cases, and weigh the consequences of continued or future intervention in Syria, Somalia, Rwanda, Bosnia, Iraq, Lybia and Egypt. By placing two philosophers in dialogue, Debating Humanitarian Intervention is not constrained by a single, unifying solution to the exclusion of all others. Rather, it considers many conceivable actions as judged by analytic philosophy, leaving the reader equipped to make her own, informed judgments.

This is an open access title available under the terms of a CC BY-NC-ND 4.0 International licence. It is free to read at Oxford Scholarship Online and offered as a free PDF download from OUP and selected open access locations. Environmental protection is fundamental for the establishment of sustainable peace. Applying traditional legal approaches to protection raises particular challenges during the transition from conflict to peace. In the jus post bellum context, protection of the environment and natural resources needs to be considered in tandem with a broad range of simultaneously applicable normative frameworks, such as human rights, transitional justice, arms control/disarmament, UN law and practice, development, and domestic law. While certain multilateral environment agreements, such as the Convention Concerning the Protection of the World Cultural and Natural Heritage protect the environment; international humanitarian law and international criminal law continue to treat environmental protection largely from an anthropocentric perspective. This book is the first targeted work in the legal literature that investigates environmental challenges in the aftermath of conflict. Addressing these challenges, it brings together academics, policy-makers, and practitioners from different disciplines to clarify policies and practices of environmental protection and key normative frameworks. It draws on experiences and practices in post-conflict settings to specify substantive principles and techniques to remedy and prevent harm.

The chief means to limit and calculate the costs of war are the philosophical and legal concepts of proportionality and necessity. Both categories are meant to restrain the most horrific potential of war. The volume explores the moral and legal issues in the modern law of war in three major categories. In so doing, the contributions will look for new and innovative approaches to understanding the process of weighing lives implicit in all theories of jus in bello: who counts in war, understanding proportionality, and weighing lives in asymmetric conflicts. These questions arise on multiple levels and require interdisciplinary consideration of both philosophical and legal themes.

How relevant is the concept of war today? This book examines how notions about war continue to influence how we conceive rights and obligations in national and international law. It also considers the role international law plays in limiting what is forbidden and legitimated in times of war or armed conflict. The book highlights how, even though war has been outlawed and should be finished as an institution, states nevertheless continue to claim that they can wage necessary wars of self-defence, engage in lawful killings in war, imprison law-of-war detainees, and attack objects which are said to be part of a war-sustaining economy. The book includes an overall account of the contemporary laws of war and delves into whether states should be able to continue to claim so-called 'belligerent rights' over their enemies and those accused of breaching expectations of neutrality. A central claim in the book is as follows: while there is general agreement that war has been abolished as a legal institution for settling disputes, the time has come to admit that the belligerent rights that once accompanied states at war are no longer available. The conclusion is that claiming to be in a war or an armed conflict does not grant anyone a licence to kill people, destroy things, and acquire other people's property or territory.

The laws are not silent in war, but what should they say? What is the moral function of the law of armed conflict? Should the law protect civilians who do not fight but help those who do? Should the law protect soldiers who perform non-combat functions or who may be safely captured? How certain should a soldier be that an individual is a combatant rather than a civilian before using lethal force? What risks should soldiers take on themselves to avoid harming civilians? When do inaccurate weapons become unlawfully indiscriminate? When does 'collateral damage' to civilians become unlawfully disproportionate? Should civilians lose their legal rights by serving, voluntarily or involuntarily, as human shields? Finally, when should killing civilians constitute a war crime? These are the questions that Law and Morality at War answers, contributing to a cutting-edge international debate. Drawing on the concepts and methods of contemporary moral and legal philosophy, the book develops a normative framework within which the laws of war and international criminal law can be evaluated, criticized, and reformed. While several philosophical works critically examine the moral status of civilians and combatants, this book fills a gap, offering both an account of the laws of war and war crimes, and proposing how the law could be improved from a moral point of view.

This book commences with an analysis of the current state of child soldiering internationally. Thereafter the proscriptive content of contemporary norms on the prohibition of the use and recruitment of child soldiers is evaluated, so as to determine whether these norms are capable of better enforcement. An 'issues-based' approach is adopted, in terms of which no specific regime of law, such as international humanitarian law (IHL), is deemed dominant. Instead, universal and regional human rights law, international criminal law and IHL are assessed cumulatively, so as to create a mutually reinforcing web of protection. Ultimately, it is argued that the effective implementation of child soldier prohibitive norms does not require major changes to any entity or functionary engaged in such prevention; rather, it requires the constant reassessment and refinement of all such entities and functionaries, and here, some changes are suggested. International judicial, quasi-judicial and non-judicial entities and functionaries most relevant to child soldier prevention are critically assessed. Ultimately the conclusions reached are assessed in light of a case study on the use and recruitment of child soldiers in the Democratic Republic of the Congo.

This volume brings together articles on the law of armed conflict and the use of force from the Max Planck Encyclopedia of Public International Law, the definitive reference work on international law. It provides an invaluable resources for scholars, students, and practitioners of international humanitarian law, giving an accessible, thorough overview of all aspects of the field. Each article contains cross-references to related articles, and includes a carefully selected bibliography of the most important writings and primary materials as a guide to further reading. The Encyclopedia can be used by a wide range of readers. Experienced scholars and practitioners will find a wealth of information on areas that they do not already know well as well as in-depth treatments on every aspect of their specialist topics. Articles can also be set as readings for students on taught courses.

Increasingly, European states are using policy on the reception of asylum seekers as an instrument of immigration control, eg by deterring the lodging of asylum applications, preventing integration into their societies and exercising a large degree of control over asylum seekers in order to facilitate expulsion. The European Union is currently engaged in a process of developing minimum conditions for the reception of asylum seekers, as part of a Common European Asylum System. This book critically examines the outcomes of the negotiation process on these minimum standards - Directive 2003/9/EC and Directive 2013/33/EU - in relation to international refugee law, international social security law and international human rights law. It presents a comprehensive analysis of state obligations that stem from these different fields of law with regard to asylum seekers' access to the labour market and social security benefits and compares them to the minimum standards developed in the European Union. To this end, it offers an in-depth study into the notion of non-discrimination on the basis of nationality in the field of social security and a detailed analysis of recent developments in the case law of the European Court on Human Rights on positive obligations in the socioeconomic sphere. It takes into account both the special characteristics of international legal obligations for states in the socioeconomic sphere and the legal consequences of the tentative legal status of asylum seekers. In addition, this book particularly examines how the instrumental use of social policy relates to international law.

The international law governing armed conflict is at a crossroads, as the formal framework of laws designed to control the exercise of self-defense and conduct of inter-state conflict finds itself confronted with violent 21st Century disputes of a very different character. Military practitioners who seek to stay within the bounds of international law often find themselves applying bodies of law-IHRL, IHL, ICL-in an exclusionary fashion, and adherence to those boundaries can lead to a formal and often rigid application of the law that does not adequately address contemporary security challenges. Fighting at the Legal Boundaries offers a holistic approach towards the application of the various constitutive parts of international law. The author focuses on the interaction between the applicable bodies of law by exploring whether their boundaries are improperly drawn, or are being interpreted in too rigid a fashion. Emphasis is placed on the disconnect that can occur between theory and practice regarding how these legal regimes are applied and interact with one another. Through a number of case studies, Fighting at the Legal Boundaries explores how the threat posed by insurgents, terrorists, and transnational criminal gangs often occurs not only at the point where these bodies of law interact, but also in situations where there is significant overlap. In this regard, the exercise of the longstanding right of States to defend nationals, including the conduct of operations such as hostage rescue, can involve the application of human rights based law enforcement norms to counter threats transcending the conflict spectrum. This book has five parts: Part I sets out the security, legal, and operational challenges of contemporary conflict. Part II focuses on the interaction between the jus ad bellum, humanitarian law and human rights, including an analysis of the historical influences that shaped their application as separate bodies of law. Emphasis is placed on the influence the proper authority principle has had in the human rights based approach being favored when dealing with "criminal" non-State actors during both international and non-international armed conflict. Part III analyzes the threats of insurgency and terrorism, and the state response. This includes exploring their link to criminal activity and the phenomenon of transnational criminal organizations. Part IV addresses the conduct of operations against non-State actors that span the conflict spectrum from inter-state warfare to international law enforcement. Lastly, Part V looks at the way ahead and discusses the approaches that can be applied to address the evolving, diverse and unique security threats facing the international community.

Although sexual violence directed at both females and males is a reality in many on-going conflicts throughout the world today, accountability for the perpetrators of such violence remains the exception rather than the rule. While awareness of the problem is growing, more effective approaches are urgently needed for the investigation and prosecution of conflict-related sexual violence crimes. Upon its establishment in 1993, the Office of the Prosecutor (OTP) of the International Criminal Tribunal for the Former Yugoslavia (ICTY) began the challenging task of prosecuting the perpetrators of conflict-related sexual violence crimes, alongside the many other atrocities committed during the conflicts in the former Yugoslavia. This book documents the experiences, achievements, challenges, and fundamental insights of the OTP in prosecuting conflict-related sexual violence crimes at the ICTY over the past two decades. It draws on an extensive dossier of OTP documentation, court filings, trial exhibits, testimony, ICTY judgements, and other materials, as well as interviews with current and former OTP staff members. The authors provide a unique analytical perspective on the obstacles faced in prioritizing, investigating, and prosecuting conflict-related sexual violence crimes. While ICTY has made great stridesin developing international criminal law in this area, this volumeexposes the pressing need for determined and increasingly sophisticated strategies in order to overcome the ongoing obstacles in prosecuting conflict-related sexual violence crimes. The book presents concrete recommendations to inform future work being done at the national and international levels, including that of the International Criminal Court, international investigation commissions, and countries developing transitional justice processes. It provides an essential resource for investigators and criminal lawyers, human rights fact-finders, policy makers, rule of law experts, and academics.

Bringing together the law of armed conflict governing the use of weapons into a single volume, the fully updated Second Edition of Weapons and the Law of Armed Conflict interprets these rules and discusses the factors influencing future developments in weapons law. After relating the historical evolution of weapons law, the book discusses the important customary principles that are the foundation of the subject, and provides a condensed account of the law that exists on the use of weapons. The treaties and customary rules applying to particular categories of weapon are thereafter listed and explained article by article and rule by rule in a series of chapters. Having stated the law as it is, the book then explores the way in which this dynamic field of international law develops in the light of various influences. The legal review of weapons is discussed, both from the perspective of how such reviews should be undertaken and how such a system should be established. Having stated the law as it is, the book then investigates the way in which this dynamic field of international law develops in the light of various influences. In the final chapter, the prospects for future rule change are considered. This Second Edition includes a discussion of new treaty law on expanding bullets, the arms trade, and norms in relation to biological and chemical weapons. It also analyses the International Manuals on air and missile warfare law and on cyber warfare law, the challenges posed by 'lethal autonomous weapon systems', and developments in the field of information and telecommunications otherwise known as cyber activities.

In this book, self-defence against non-state actors is examined by three scholars whose geographical, professional, theoretical, and methodological backgrounds and outlooks differ greatly. Their trialogue is framed by an introduction and a conclusion by the series editors. The novel scholarly format accommodates the pluralism and value changes of the current era, a shifting world order and the rise in nationalism and populism. It brings to light the cultural, professional and political pluralism which characterises international legal scholarship and exploits this pluralism as a heuristic device. This multiperspectivism exposes how political factors and intellectual styles influence the scholarly approaches and legal answers and the trialogical structure encourages its participants to decentre their perspectives. By explicitly focussing on the authors' divergence and disagreement, a richer understanding of self-defence against non-state actors is achieved, and the legal challenges and possible ways ahead identified.