Marco Sassoli

The relationship between international humanitarian and human rights law where it matters : admissible killing and internment of fighters in non-international armed conflicts

This article explores the relationship between international humanitarian and human rights law during non-international armed conflict. It seeks to answer two questions which are crucial in practice, but where the relationship between the two branches and the answers of humanitarian law alone are unclear. First, according to which branch of law may a member of an armed group be attacked and killed ? Second, may a captured member of an armed force or group be detained similarly to a prisoner of war in international armed conflicts or as prescribed by human rights ? Through application of the lex specialis principle, this article discusses possible answers to these questions.

Taking Armed Groups Seriously: Ways to Improve Their Compliance with International Humanitarian Law

Most contemporary armed conflicts are not of an international character. International Humanitarian Law (IHL) applicable to these conflicts is equally binding on non-State armed groups as it is on States. The legal mechanisms for its implementation are, however, still mainly geared toward States. The author considers that the perspective of such groups and the difficulties for them in applying IHL should be taken into account in order to make the law more realistic and more often respected. It is submitted that the law is currently often developed and interpreted without taking into account the realities of armed groups. This contribution explores how armed groups could be involved in the development, interpretation and operationalization of the law. It argues that armed groups should be allowed to accept IHL formally, to create – amongst other things – a certain sense of ownership. Their respect of the law should also be rewarded. Possible methods to encourage, monitor and control respect of IHL by armed groups are described. The author suggests in particular that armed groups should be allowed and encouraged to report on their implementation of IHL to an existing or newly created institution. Finally, in case of violations, this contribution proposes ways to apply criminal, civil and international responsibility, including sanctions, to non-State armed groups.

State Responsibility for Violations of International Humanitarian Law

P ublic international law can be described as being composed of two layers: the first is the traditional layer consisting of the law regulating coexistence and cooperation between the members of the international society — essentially the States; and the second is a new layer consisting of the law of the community of six billion human beings. Although international humanitarian law came into being as part of the traditional layer, i.e. as a law regulating belligerent inter-State relations, it has today become nearly irrelevant unless understood within the second layer, namely as a law protecting war victims against States and all others who wage war. The implementation of international humanitarian law may therefore be understood from the viewpoint of both layers. For a branch of law that applies in a fundamentally anarchic, illegal and often lawless situation such as armed conflicts, the focus of implementing mechanisms is and must always be on prevention. The International Committee of the Red Cross (ICRC), the traditional implementing mechanism of international humanitarian law, acts as a neutral intermediary between States and as an institutionalized representative of

THE IMPLEMENTATION OF INTERNATIONAL HUMANITARIAN LAW: CURRENT AND INHERENT CHALLENGES

The implementation of humanitarian law (IHL) is confronted to many challenges. Some of them are inherent, because IHL applies to armed conflicts. A situation must be classified before IHL can be applied. Existing implementation mechanisms either do not function. Those which function, such as the ICRC and criminal prosecution, have their limits. In certain conflicts, such as asymmetric conflicts, and with regard to certain players, such as armed groups, it is particularly difficult to obtain respect of IHL. Beyond that, there is a perhaps even more dangerous challenge in perception. The gap between the ever-growing promises of protection by the law made by doctrine, jurisprudence and sometimes even by States, and the systematic non-respect of that law, which (in the authors view wrongly) transpires from the media and NGO reports, undermines the credibility of the law and the willingness to respect it. The author advocates ways to reduce this gap.

Debate: Should the obligations of states and armed groups under international humanitarian law really be equal?

In a debate with Prof. Yuval Shany, the author argues that the equality of belligerents in international humanitarian law of non-international armed conflicts should be abandoned, because it either subjects many armed groups to unrealistic requirements they cannot comply with or it limits the obligations of governmental forces to minimal obligations. The author provides examples of fields in which IHL of non-international armed conflicts, which becomes increasingly similar to IHL of international armed conflicts, is unrealistic for most armed groups. The author suggest rather a sliding-scale of obligations for armed groups, that will increase according to the intensity of violence and the degree of organization of the group.

The ICRC and the missing

This article describes the humanitarian issues and dilemmas faced by the ICRC in dealing with missing persons. It is argued that full respect of the rules of international humanitarian law is the best way of preventing disappearances and alleviating the concerns of families of relatives unaccounted for. Examples of past ICRC practice are analysed with a view to advocating development and systematisation of ICRC activities in respect of missing persons.

Is the law of occupation applicable to the invasion phase

The ‘debate’ section of the Review aims at contributing to the reflection on current ethical, legal, or practical controversies around humanitarian issues. The definition of occupation under international humanitarian law (IHL) is rather vague, and IHL instruments provide no clear standard for determining the beginning of occupation. Derived from the wording of Article 42 of the 1907 Hague Regulations, occupation may be defined as the effective control of a foreign territory by hostile armed forces. It is not always easy to determine when an invasion has become an occupation. This raises the question whether or not the law of occupation could already be applied during the invasion phase. In this regard, two main positions are usually put forward in legal literature. Generally it is held that the provisions of occupation law only apply once the elements underpinning the definition set out in Article 42 of the 1907 Hague Regulations are met. However, the so-called ‘Pictet theory’, as formulated by Jean S. Pictet in the ICRC’s Commentary on the Geneva Conventions, proposes that no intermediate phase between invasion and occupation exists and that certain provisions of occupation law already apply during an invasion. The collapse of essential public facilities such as hospitals and water-supply installations, partly due to the large-scale looting and violence that came along with the progress of the coalition forces, in Iraq in 2003 demonstrates that this discussion is not simply a theoretical one. Invading armed forces need clarity as to what rules they need to apply. Three experts in the field of occupation law –Marten Zwanenburg, Michael Bothe, and Marco Sassoli – have agreed to participate in this debate and to defend three approaches. Marten Zwanenburg maintains that for determining when an invasion turns into an occupation the only test is the one set out in Article 42 of the DEBATE Volume 94 Number 885 Spring 2012

Human Rights and Humanitarian Norms as Customary Law

Lets read! We will often find out this sentence everywhere. When still being a kid, mom used to order us to always read, so did the teacher. Some books are fully read in a week and we need the obligation to support reading. What about now? Do you still love reading? Is reading only for you who have obligation? Absolutely not! We here offer you a new book enPDFd human rights and humanitarian norms as customary law to read.

The National Information Bureau in Aid of the Victims of Armed Conflicts

War separates families; it separates prisoners of war from the Power on which they depend and civilians from their country of origin or residence. Uncertainty about what has happened to a loved one who is missing on the battlefield or in enemy-controlled territory is much more difficult to bear than the news that he has been captured and interned by the enemy, or sometimes even that he is dead. Moreover, registering a captured person helps to protect him. The provisions for obtaining, collating and transmitting this type of information are a major step forward in international humanitarian law. The National Information Bureau (hereinafter NIB) plays a key role in the system laid down for this purpose by the 1949 Geneva Conventions. The NIB has the important but difficult task of obtaining and transmitting information on protected persons of the adverse party who are in the hands of the party to the conflict to which the NIB belongs.