Emanuele Sommario

Derogation from Human Rights Treaties in Situations of Natural or Man-Made Disasters

Certain natural or technological disasters may have exceptionally severe consequences that call for the adoption of extraordinary measures. Some of these may restrict individual rights and freedoms to an extent which is not compatible with the affected State’s international obligations under human rights law. Yet, the existence of a public emergency of significant magnitude may temporarily exonerate States from the duty to fully respect their human rights commitments, either through the operation of specific clauses that are included in the relevant treaties (so-called “derogation clauses”), or—where no such provision is present—by invoking certain justifications recognized in international law as valid excuses for the non-performance of legal obligations. This chapter intends to look at the practice of States and treaty monitoring bodies in order to ascertain what substantial and procedural requirements States must fulfill if they deem it necessary to suspend individual rights while coping with a public emergency prompted by a natural or man-made disaster. The purpose is to ascertain what features a disaster must present in order to trigger the right to derogate, to what extent human rights may be suspended, what formal steps must be undertaken by authorities which choose to derogate from human rights treaties, and which are the legal parameters under general international law with regard to the suspension of treaties which do not explicitly provide for a right to derogate.

The Status of Foreign Fighters under International Humanitarian Law

Although the phenomenon of ‘foreign fighters’ is not a new one, a reported recent increase in their numbers and in the range of countries from which they originate, the groups they join, their motivations and subsequent paths have highlighted the complicated nature of this issue and raised concerns across the world. Yet the legal obligations as well as the exact level of legal protection these individuals enjoy once they join an ongoing conflict is not entirely clear. In particular, International Humanitarian Law (IHL), which aims to protect the basic rights of individuals and groups affected by armed conflicts, does not provide specific guidance on what status they might be entitled to and, consequently, on how they should be treated. The present chapter seeks to shed some light on this matter by reviewing the main IHL treaties, their commentaries, judicial decisions rendered by international tribunals and relevant scientific contributions. It will do so by looking at IHL applicable in International Armed Conflicts (IACs) and in Non-International Armed Conflicts (NIACs), as the status these two branches of IHL confer to captured fighters is rather different. Lastly, ‘foreign fighters’ will be distinguished from ‘mercenaries’, on the basis of the legal definition currently in force under the law of armed conflict.

Law and Disorder? The War on Terror and the International Legal System

Sfida all’ordine mondiale is a well-timed book. Released only a few months after the events of 11 September, the authors describe the conduct of states and other international actors in the immediate aftermath of that tragic occurrence through the lens of international law. Pools of scholarly ink have been spilled in the last months over the various legal implications – both in domestic and international terms – of the attacks on the World Trade Center (WTC). Their legal qualification under public international and international criminal law, the legitimacy and legality of the US response in the light of the relevant provisions of jus ad bellum and jus in bello and its impact on the UN collective security system, the atypical institutional architecture of the International Security Assistance Force have all been the object of numerous and well-articulated contributions to a literature which, due to the unprecedented nature of the situation, was rather scant. These issues find adequate space in the authors’ analyses. In addition, specific parts of the book are devoted to the United Nation’s attitude towards Afghanistan in the Taliban era and the political and institutional debate leading to Italy’s participation in the operation Enduring Freedom. Andrea de Guttry and Fabrizio Pagani are well placed to deal with the somewhat bewildering legal scenario that emerged after 11 September. In addition to their command of the relevant branches of the international legal system, they both have a profound knowledge of the political, institutional and operational aspects of peacekeeping operations. As specified in the preamble, this work does not claim to be scientific strictu sensu. The wide span of subject matter Book Reviews and Notes