Journal articles: 'Customary international humanitarian law'

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JIA, Bing Bing. "Customary International Humanitarian Law." Chinese Journal of International Law 4, no. 2 (January 1, 2005): 739–41. http://dx.doi.org/10.1093/chinesejil/jmi034.

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Fleck, Dieter. "CUSTOMARY INTERNATIONAL HUMANITARIAN LAW." Military Law and the Law of War Review 44, no. 1-2 (December 2005): 244–52. http://dx.doi.org/10.4337/mllwr.2005.1-2.11.

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Henckaerts, J. "International humanitarian law as customary international law." Refugee Survey Quarterly 21, no. 3 (October 1, 2002): 186–93. http://dx.doi.org/10.1093/rsq/21.3.186.

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Meron, Theodor. "Revival of Customary Humanitarian Law." American Journal of International Law 99, no. 4 (October 2005): 817–34. http://dx.doi.org/10.2307/3396670.

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Szpak, Agnieszka. "The Eritrea-Ethiopia Claims Commission and Customary International Humanitarian Law." Journal of International Humanitarian Legal Studies 4, no. 2 (September 24, 2013): 296–314. http://dx.doi.org/10.1163/18781527-00402004.

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The aim of the article is to highlight several issues concerning the customary international law status of a number of international humanitarian law (IHL) treaty provisions that arose during the proceedings of the Eritrea-Ethiopia Claims Commission. Specifically, two key issues will be analyzed, namely the Commission's findings that the Geneva Conventions and some provisions of Additional Protocol I reflected customary international law and that international landmine conventions create only treaty obligations and do not yet reflect customary international law. Also, some more detailed conclusions relating to particular problems, such as the issue of the customary nature of the ICRC’s right to visit prisoners of war and its binding character for non-parties to the Geneva Conventions, will be discussed. The 2005 ICRC Study on Customary International Humanitarian Law and the International Criminal Tribunal for the former Yugoslavia’s jurisprudence will also be included as a point of reference to identify the customary character of certain provisions. The main conclusion is that the Commission has significantly contributed to the emerging consensus regarding the status of certain norms of international humanitarian law as customary norms. Furthermore, it has identified lacunae in the existing standards of humanitarian law and suggested the development of new norms to fill those gaps.

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Elisabeth, Elisabeth. "Rejecting Customary Regression: Unilateral Humanitarian Intervention & the Evolution of Customary International Law." Michigan Journal of International Law, no. 43.1 (2022): 241. http://dx.doi.org/10.36642/mjil.43.1.rejecting.

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Humanitarian intervention is perhaps one of the most important topics in international affairs. It raises questions of morality and militarism, becoming a platform for sharp debate in international law. This note discusses both the moral and legal questions presented by unilateral humanitarian intervention (“UHI”). It argues that UHI is antithetical to the progression of customary international law due to customary international law’s evolutive nature and the ongoing importance of decolonization. UHI is not only normatively undesirable, but the particular normative criticisms of the doctrine – that it is regressively imperialist and neo-colonial – render it fundamentally incompatible with customary international law.

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Barber, Rebecca. "Facilitating humanitarian assistance in international humanitarian and human rights law." International Review of the Red Cross 91, no. 874 (June 2009): 371–97. http://dx.doi.org/10.1017/s1816383109990154.

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AbstractIn 2008, 260 humanitarian aid workers were killed or injured in violent attacks. Such attacks and other restrictions substantially limit the ability of humanitarian aid agencies to provide assistance to those in need, meaning that millions of people around the world are denied the basic food, water, shelter and sanitation necessary for survival. Using the humanitarian crises in Darfur and Somalia as examples, this paper considers the legal obligation of state and non-state actors to consent to and facilitate humanitarian assistance. It is shown that the Geneva Conventions and their Additional Protocols, as well as customary international law, require that states consent to and facilitate humanitarian assistance which is impartial in character and conducted without adverse distinction, where failure to do so may lead to starvation or otherwise threaten the survival of a civilian population. This paper considers whether this obligation has been further expanded by the development of customary international law in recent years, as well as by international human rights law, to the point that states now have an obligation to accept and to facilitate humanitarian assistance in both international and non-international armed conflicts, even where the denial of such assistance does not necessarily threaten the survival of a civilian population.

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Henckaerts, Jean-Marie. "Customary International Humanitarian Law: Taking Stock of the ICRC Study." Nordic Journal of International Law 78, no. 4 (2009): 435–68. http://dx.doi.org/10.1163/090273509x12506922106795.

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AbstractAlthough the 1949 Geneva Conventions have now been universally ratified, the same is not the case for other treaties of international humanitarian law. As a result, customary international humanitarian law continues to be relevant today. This was clearly recognized in 1995 when States party to the Geneva Conventions mandated the ICRC to carry out a study on customary rules of international humanitarian law applicable in international and non-international armed conflicts. This study was published in 2005 after widespread research and consultations. This article takes stock of the impact of the study and discusses some of the salient features of the methodology of assessing custom. It also briefly describes the current effort to update the practice underlying the Study.

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Orakhelashvili, A. "Perspectives on the ICRC Study on Customary International Humanitarian Law and The Handbook of International Humanitarian Law." British Yearbook of International Law 79, no. 1 (January 1, 2009): 371–78. http://dx.doi.org/10.1093/bybil/79.1.371.

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MacLaren, Malcolm, and Felix Schwendimann. "An Exercise in the Development of International Law: The New ICRC Study on Customary International Humanitarian Law." German Law Journal 6, no. 9 (September 1, 2005): 1217–42. http://dx.doi.org/10.1017/s2071832200014267.

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On 17 March 2005, the President of the International Committee of the Red Cross (ICRC), Jakob Kellenberger, presented a study (hereinafter “the Study”) of customary international humanitarian law (IHL). A decade earlier, the International Conference of the Red Cross and Red Crescent had mandated the ICRC to “prepare […] a report on customary rules of IHL applicable in international [IAC] and non-international armed conflicts [NIAC], and to circulate the report to States and competent international bodies.” The Study's objective was to capture a “photograph” of the existing, hitherto unwritten rules that make up customary IHL. Comprehensive, high-level research into customary IHL followed; the end result of which is undeniably a remarkable feat and a significant contribution to scholarship and debate in this area of international law.

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Henckaerts, Jean-Marie. "Customary International Humanitarian Law: a response to US comments." International Review of the Red Cross 89, no. 866 (June 2007): 473–88. http://dx.doi.org/10.1017/s1816383107001129.

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Henckaerts, J. M. "Customary International Humanitarian Law--A Rejoinder to Judge Aldrich." British Yearbook of International Law 76, no. 1 (January 1, 2006): 525–32. http://dx.doi.org/10.1093/bybil/76.1.525.

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Nejbir, Deniz Arbet. "Applying Humanitarian Law: A Review of the Legal Status of the Turkey–Kurdistan Workers’ Party (pkk) Conflict." Journal of International Humanitarian Legal Studies 12, no. 1 (March 25, 2021): 37–70. http://dx.doi.org/10.1163/18781527-bja10026.

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Abstract This article assesses the applicability of the criteria for non-international armed conflict to the situation in South-Eastern Turkey. It demonstrates that the Kurdistan Workers’ Party (also known as the pkk), as a party to the conflict, fulfils the three main criteria laid down in conventional international humanitarian law and developed by indicative factors in international jurisprudence for assessing the existence of a non-international armed conflict in the context of Common Article 3 to the 1949 Geneva Conventions: being an organised armed group, having the ability to engage in ‘protracted violence’, and complying with law of armed conflict. It establishes that the pkk qualifies as an organised armed group under responsible command and has the operational ability, structure and capacity to carry out ‘protracted violence’, to respect fundamental humanitarian norms of international humanitarian law and to control territory. The article also ascertains that Turkey is clearly bound by the provisions of the four Geneva Conventions of 1949, including Common Article 3, and customary international humanitarian law. Accordingly, it concludes that the conflict between the pkk and the Turkish security forces qualifies as a non-international armed conflict within the meaning of both Common Article 3 and customary international humanitarian law.

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Guldahl, Camilla. "The Role of Persistent Objection in International Humanitarian Law." Nordic Journal of International Law 77, no. 1-2 (2008): 51–86. http://dx.doi.org/10.1163/090273508x290690.

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AbstractThe publication of the ICRC Customary International Humanitarian Law encouraged a debate on the role of the doctrine of persistent objection in international humanitarian law. After setting out the background and meaning of this doctrine, this article will use the examples of belligerent reprisals against civilians and the protection of the environment in light of the use of nuclear weapons to show that although persistent objection is relied upon in international humanitarian law, the dictates of the principles of humanity and public conscience mean that it is less accepted and respected than in other areas of international law. This despite the fact that there are no express limitations on the application of this doctrine to international humanitarian law.

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Emanuelli, Claude C. "Comments on the ICRC Study on Customary International Humanitarian Law." Canadian Yearbook of international Law/Annuaire canadien de droit international 44 (2007): 437–49. http://dx.doi.org/10.1017/s0069005800009085.

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SummaryThis comment takes a critical look at the method used by the International Committee of the Red Cross (ICRC) in its study of customary humanitarian law. It argues that the ICRC study reduces the concept of international custom to its definition under Article 38 of the Statute of the International Court of Justice. It also argues that the study overlooks some of the problems raised by the application of Article 38. It contends that the positions taken by the ICRC to identify customary rules of humanitarian law are somewhat ambiguous and even slanted. Finally, this comment suggests that, beyond questioning the ICRC study, it is the role of custom as a source of international law that is in question.

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Reydams, Luc. "A la guerre comme à la guerre: patterns of armed conflict, humanitarian law responses and new challenges." International Review of the Red Cross 88, no. 864 (December 2006): 729–56. http://dx.doi.org/10.1017/s181638310700080x.

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AbstractContinuous transformation of armed conflict since the adoption in 1864 of the first international humanitarian law treaty compels international humanitarian law to adapt accordingly. These adaptations, through either customary law or new multilateral treaties, always have been towards greater protection, greater reach. As for treaty practice, international humanitarian law historically has been substantially revised every twenty-five to thirty years. This article links those revisions to specific conflicts which laid bare deficiencies in the existing law. What follows is thus a chronicle of conflicts with their most critical humanitarian issues. From this emerges a picture of the changing face of armed conflict since the middle of the nineteenth century. The article also considers recent challenges to international humanitarian law and speculates on possible responses.

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Arevalo-Ramírez, Walter. "The International Court of Justice and the international humanitarian law rules for armed conflicts." Revista Científica General José María Córdova 20, no. 38 (April 1, 2022): 425–42. http://dx.doi.org/10.21830/19006586.912.

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This article analyzes the undermined importance of the International Court of Justice’s (ICJ) case law in interpreting international humanitarian law (IHL) and its relationship with public international law. It examines how the ICJ has elevated IHL to customary law, declaring it “intransgressible” and equating it with jus cogens, and identified particular obligations for the parties in conflict. The article studies how the Court has clarified the relationships between customary IHL with the law of treaties and has declared which elements of IHL constitute the most basic principles of humanity, applicable whether it is an international or non-international armed conflict. Finally, the text analyzes how the Court, has discouraged counterproductive separations between the application of IHL and international human rights law.

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Bothe, Michael. "CUSTOMARY INTERNATIONAL HUMANITARIAN LAW: SOME REFLECTIONS ON THE ICRC STUDY." Yearbook of International Humanitarian Law 8 (December 2005): 143–78. http://dx.doi.org/10.1017/s1389135905001431.

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Turns, D. "Weapons in the ICRC Study on Customary International Humanitarian Law." Journal of Conflict and Security Law 11, no. 2 (July 12, 2006): 201–37. http://dx.doi.org/10.1093/jcsl/krl010.

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Bollmann, Janina. "Perspectives on the ICRC Study on Customary International Humanitarian Law." Military Law and the Law of War Review 47, no. 2 (December 2008): 501–3. http://dx.doi.org/10.4337/mllwr.2008.02.17.

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Rowe, P. "The Effect on National Law of the Customary International Humanitarian Law Study." Journal of Conflict and Security Law 11, no. 2 (July 12, 2006): 165–77. http://dx.doi.org/10.1093/jcsl/krl009.

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Schweigman, David. "Humanitarian Intervention under International Law: the Strife for Humanity." Leiden Journal of International Law 6, no. 1 (April 1993): 91–110. http://dx.doi.org/10.1017/s0922156500001655.

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Is the concept of humanitarian intervention part and parcel of customary law? In order to answer this question the or gins of the concept, (alleged) pre- and post-Charter state practice and the relation with the principles of non-interference in the domestic jurisdiction and the non-use of force will be considered. It will be concluded that the aforementioned question must be answered in the negative, notwithstanding the fact that genuine humanitarian interventions tend to be tolerated by the international community.

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Dutli, María Teresa. "Implementation of international humanitarian law — Activities of qualified personnel in peacetime." International Review of the Red Cross 33, no. 292 (February 1993): 5–11. http://dx.doi.org/10.1017/s0020860400071369.

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Ever since international humanitarian law (IHL) was first codified the States, as contracting parties, have undertaken to adopt every measure necessary to implement their obligations under the relevant treaties. The duty to ensure implementation derives from the customary rule whereby the parties to a treaty must carry out its provisions in good faith. In addition, the Geneva Conventions of 1949 and their Additional Protocols of 1977 set forth special means of implementation which strengthen and specify this customary rule and apply from the moment a treaty enters into force. One such provision is Art. 6 of Protocol I, entitled “Qualified persons”.

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Sivakumaran, Sandesh. "Binding Armed Opposition Groups." International and Comparative Law Quarterly 55, no. 2 (April 2006): 369–94. http://dx.doi.org/10.1093/iclq/lei085.

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AbstractThis article considers how armed opposition groups fighting in an internal armed conflict are bound by the rules of international humanitarian law despite not being party to the relevant treaties. It assesses a number of explanations—customary international law, general principles of international humanitarian law, rules governing treaties and third parties and claims to succession—and argues that each has limited value. The ability of the state to legislate on behalf of all its individuals is considered the best explanation. This principle is explored and objections to it are countered. This article also examines the expressed commitment of armed opposition groups to the rules of international humanitarian law.

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Pomson, Ori, and Yonatan Horowitz. "Humanitarian Intervention and the Clean Hands Doctrine in International Law." Israel Law Review 48, no. 2 (June 11, 2015): 219–51. http://dx.doi.org/10.1017/s0021223715000096.

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A serious issue that has confronted the international community is the legality of humanitarian intervention. Although the majority of scholars reject the existence of a doctrine of humanitarian intervention, could the attacked state invoke the responsibility of an intervening state before an international tribunal? This article attempts to answer this question in light of the often misunderstood clean hands doctrine in international law. It first concludes that under thelex lata, humanitarian intervention is prohibited under international law. This raises the question whether the clean hands doctrine may nevertheless preclude a court or tribunal from adjudicating in favour of a state that has been subject to humanitarian intervention. Although the clean hands doctrine exists under international law in various manifestations, its applicability in cases concerning humanitarian intervention is lacking. The article finally considers whether thejus cogensstatus of the prohibition of the use of force would prevent the applicability of the clean hands doctrine to humanitarian intervention cases were the clean hands doctrine to evolve into a customary international legal norm.

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Kleczkowska, Agata. "Searching for Armed Non-state Actors’ Role in the Process of Formation of Customary Law." International and Comparative Law Review 19, no. 2 (December 1, 2019): 97–115. http://dx.doi.org/10.2478/iclr-2019-0016.

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Summary The paper explores the problem of the formation of the ‘(quasi-) customary law’, as a source of law created by, or contributed to by armed non-state actors (ANSAs). It argues that, despite some views presented in the doctrine of international law, claims of a quasi-customary international law are without foundation in the current state of international law. The paper is divided into three parts. The first part presents the views of legal doctrine concerning the customary law as contributed/created by non-state actors. The second section argues that ANSAs do not form practice and opinio juris which would allow them to create their ‘own’ customary law. The final part presents the possible challenges and consequences of including ANSAs in the process of formation of customary international law as created by States. In summary the conclusions posit that it could be potentially very harmful for international humanitarian law and the protection of human rights.

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Warbrick, Colin. "Human rights and humanitarian norms as customary law." International Affairs 67, no. 1 (January 1991): 153–54. http://dx.doi.org/10.2307/2621244.

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Díaz Galán, Elena C., and Harold Bertot Triana. "La protección de los derechos humanos en la justicia penal internacional: el caso particular del Tribunal Penal Internacional para la ex-Yugoslavia en relación con el derecho consuetudinario y el principio de legalidad = The protection of human rights in international Criminal Justice: the particular case of the international criminal tribunal for the Former Yugoslavia in relation to customary law and the principle of legality." UNIVERSITAS. Revista de Filosofía, Derecho y Política, no. 29 (December 13, 2018): 70. http://dx.doi.org/10.20318/universitas.2019.4510.

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RESUMEN: La labor del Tribunal Penal Internacional para la Ex-Yugoslavia tuvo un momento importante en la compresión del principio de legalidad, como principio básico en la garantía de los derechos humanos, al enfrentar no sólo el derecho consuetudinario como fuente de derecho sino también diferentes modos o enfoques en la identificación de este derecho consuetudinario. Esta relación debe ser analizada a la luz de las limitaciones que tiene el derecho internacional y, sobre todo, de los procedimientos de creación de normas. No resulta fácil exigir responsabilidad en el cumplimiento del derecho internacional humanitario y de los derechos humanos. La práctica de este Tribunal abre una vía para la reflexión con la finalidad de asegurar el respeto de los derechos humanos en cualquier circunstancia, incluso de aquellos que llevaron a cabo la comisión de graves crímenes contra la comunidad internacional.ABSTRACT: The work of the International Criminal Tribunal for the former Yugoslavia was important for understanding the principle of legality as a key principle on the guarantee of Human Rights. The former was due to the Tribunal’s work on having faced the customary law as a source of law using different perspectives for its identification. The link between customary law, principle of legality and human rights has to be analyzed taking in account the limits of International law and the procedures for creating legal norms. It is not easy to invoke responsibility in the fulfillment of international humanitarian law and international law of human rights. The practice developed by this Tribunal provides an avenue for thinking about ensuring the respect of the human rights in any case including the commission of grave crimes against international community. PALABRAS CLAVE: derecho internacional de los derechos humanos, principio de legalidad, derecho internacional humanitario, costumbre internacionalKEYWORDS: international law of human rights, principle of legality, international humanitarian law, international custom

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Buchan, Russell. "The Rule of Surrender in International Humanitarian Law." Israel Law Review 51, no. 1 (February 21, 2018): 3–27. http://dx.doi.org/10.1017/s0021223717000279.

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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?

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Bazov, Viktor. "Issues of the theory of international humanitarian law in the context of integration and globalization." Legal Ukraine, no. 11 (December 23, 2020): 36–43. http://dx.doi.org/10.37749/2308-9636-2020-11(215)-5.

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The article discusses topical issues of the formation and further development of the theory of international humanitarian law. Explored the basic concepts of this area of humanitarian public law. For the first time, international humanitarian law is defined as a set of conventional and customary international legal norms that govern the law of armed conflict and human rights law. The processes of globalization of modern international relations, characterized by increasing influence of leading international organizations and crises in individual states, objectively affect the renewal and further development of the theory of international humanitarian law as one of the rapidly developing branches of public international law. New conceptual approaches to the modern definition of international humanitarian law, its philosophy and legal nature require a rethinking of scientific views as classics of international law, including the founder of the theory of natural law and modern science of international law Hugo Grotius, researcher of state interests in «just war» Thomas Hobbes and the founder of the «social contract», the sentimentalist Jean-Jacques Rousseau, and the views of such prominent scholars as Immanuel Kant, Fedor Martens and Jean Pictet. Given the normative definition, «the law of armed conflict» and «the law of human rights» are two independent legal systems within the framework of international humanitarian law, which operate mainly in different periods: during armed conflicts or in peacetime, respectively. These legal systems, although closely interlinked within the framework of international humanitarian law, are still independent and relatively independent of each other, as they have features in the sources and mechanisms of implementation and control over compliance with their norms and principles. Key words: theory of international humanitarian law, international relations, state, international organization, international court.

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Benoit, James P. "MISTREATMENT OF THE WOUNDED, SICK AND SHIPWRECKED BY THE ICRC STUDY ON CUSTOMARY INTERNATIONAL HUMANITARIAN LAW." Yearbook of International Humanitarian Law 11 (December 2008): 175–219. http://dx.doi.org/10.1017/s138913590800175x.

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AbstractIn 2005, the International Committee of the Red Cross (ICRC) completed a ten-year study on customary international humanitarian law, based on an assessment of the State practice of over 150 nations over the preceding thirty years. Somewhat surprisingly, but perhaps owing to the sheer size of theICRC Study, only two states have officially responded to the ICRC: the United States and Israel. Although an analysis of the US response is beyond the scope of this paper, it generally criticizes theICRC Study'sunorthodox methodology, including both the State practice it considered, and its lack of proof ofopinio juris.The ICRC is a venerable organization, traditionally viewed as the guardian of international humanitarian law. Its study is a monumental work compiling a surfeit of State practice. Nevertheless, theICRC Studyarticulates ‘rules’ that are not sustainable under the traditional theory of customary international law formation, as may be seen by the examination in Section 3 of the three seemingly uncontroversial rules proposed for handling the wounded, sick and shipwrecked.

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Casalin, Deborah. "Taking prisoners: reviewing the international humanitarian law grounds for deprivation of liberty by armed opposition groups." International Review of the Red Cross 93, no. 883 (September 2011): 743–57. http://dx.doi.org/10.1017/s181638311200015x.

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AbstractWhile detention by armed opposition groups in non-international armed conflict is a reality that is foreseen and not prohibited by international humanitarian law, the grounds upon which it may take place are not defined. This article looks more closely at the customary international humanitarian law prohibition on arbitrary deprivation of liberty, and how it can apply to armed opposition groups in a manner that makes compliance realistic. It focuses on the legal bases upon which armed opposition groups may detain persons who are taken into custody in order to remove them from hostilities or for security purposes. An approach to detention by armed opposition groups based on the principles of international humanitarian law applicable to international armed conflicts is explored and its limitations defined.

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Henckaerts, Jean-Marie. "Study on customary rules of international humanitarian law: Purpose, coverage and methodology." International Review of the Red Cross 81, no. 835 (September 1999): 660–68. http://dx.doi.org/10.1017/s156077550005985x.

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In December 1995 the 26th International Conference of the Red Cross and Red Crescent endorsed the recommendations drawn up by the Intergovernmental Group of Experts for the Protection for War Victims which had met, at the invitation of the Swiss government, on 23–27 January 1995 in Geneva. Recommendation II of this Group proposed that: “the ICRC be invited to prepare, with the assistance of experts in IHL [international humanitarian law] representing various geographical regions and different legal systems, and in consultation with experts from governments and international organisations, a report on customary rules of IHL applicable in international and non-international armed conflicts, and to circulate the report to States and competent international bodies.”

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Alvarez-Jiménez, Alberto. "METHODS FOR THE IDENTIFICATION OF CUSTOMARY INTERNATIONAL LAW IN THE INTERNATIONAL COURT OF JUSTICE'S JURISPRUDENCE: 2000–2009." International and Comparative Law Quarterly 60, no. 3 (July 2011): 681–712. http://dx.doi.org/10.1017/s0020589311000273.

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‘Sometimes the most important historical events are the non-events: the things that did not occur,’ says the British historian Niall Ferguson.1Such a statement may well describe in large measure the International Court of Justice's case-law regarding the methods for the identification of rules of customary international law during the period 2000–2009. The previous two decades had been marked by two milestones in this domain: the eighties by the judgment on the merits inNicaragua,2and the nineties by the Court's advisory opinion inNuclear Weapons.3There was, though, no single decision by the Court of comparative significance regarding methods of customary international law during the first decade of the new millennium. Further, some of the most important determinations in this domain were those in which the Court did not declare the existence of a customary international rule. However, this is not to say that the above-mentioned conclusion applies to all of the Court's jurisprudence related to customary international law. The conclusion is limited to the Court's decisions regarding the methods for the recognition of norms of this character. In fact, the Court made very important pronouncements as to the content of customary international law in many domains, such as the use of force, territorial occupation, diplomatic protection, and international humanitarian law.

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Roscini, Marco. "The United Nations Security Council and the Enforcement of International Humanitarian Law." Israel Law Review 43, no. 2 (2010): 330–59. http://dx.doi.org/10.1017/s0021223700000790.

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This Article discusses the competences and powers of the UN Security Council in securing compliance with international humanitarian law, in particular through the adoption of the measures provided in Chapter VII of the Charter: The competence of the Council in this field can be founded on several legal grounds: on a broad interpretation of the notion of “threat to the peace” (Article 39 of the Charter), on Article 94(2) with regard to the International Court of Justice's judgments establishing violations of the jus in bello and also on the customary duty to ensure respect for international humanitarian law as reflected in Article 1 Common to the 1949 Geneva Conventions on the Protection of the Victims of War. In particular, such customary provision empowers the Security Council to react to any violation of international humanitarian law regardless of a nexus with concerns of international stability. Although the Council has adopted a variety of measures in relation to violations of the laws of war, the most incisive ones are those provided in Articles 41 and 42 of Chapter VII, which however are not without problems. The role the Security Council has played in the enforcement of international humanitarian law has been criticized because of its selective and opportunistic approach, which is due to the political nature of the organ. Also, in several instances the Council, far from securing compliance with the jus in bello, has instead interfered with its application. However selective and imperfect the Council's approach might be, though, its power to adopt decisions binding on UN members and its competence to take or authorize coercive measures involving the use of force make it potentially a formidable instrument against serious violations of international humanitarian law, partly remedying the lack of enforcing mechanisms in the treaties on the laws of war.

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BRANNAGAN, CRAIG, and CHRISTOPHER WATERS. "ICRC Privilege in Canada." Canadian Yearbook of international Law/Annuaire canadien de droit international 53 (August 10, 2016): 144–71. http://dx.doi.org/10.1017/cyl.2016.1.

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AbstractThis article explores whether the International Committee of the Red Cross (ICRC) enjoys testimonial privilege before Canadian courts. The authors argue that there is strong evidence to suggest that customary international law requires that the ICRC be granted a privilege not to testify or disclose confidential information in domestic court proceedings. Such a privilege, they argue, is entailed by the ICRC’s mandate to engage in international humanitarian law protection activities using confidential means. Given that customary international law forms part of the common law in Canada, the authors argue that this privilege should be recognized by Canadian courts despite its potentially uneasy fit with traditional Canadian evidence law.

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Fomba, Diakaridia, Muhammad Misbahul Mujib, and Ahmed Hedieloum Kodio. "Amnesty Limits in International Criminal Law." Journal of Politics and Law 13, no. 2 (May 20, 2020): 69. http://dx.doi.org/10.5539/jpl.v13n2p69.

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This article examine the problems raised by amnesty in the domestic and international legal order in the context of national reconciliation. It examines the scope and limits of the amnesty law, justifying it by the exceptions made for international crimes and violations as far as international humanitarian law is concerned. Indeed, this paper deals with the domestic and international legal aspects of non-amnesty crimes that are recognized under conventional and customary international law as imprescriptible, through the experience of specialized international courts on the subject such as those of Rwanda, Sierra Leone, and the ICC.

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de Vries, Barry. "An Equivalent to Article 8(2)(b)(xx) icc Statute for Non-International Armed Conflicts? Is it Warranted on the Basis of International Customary Law?" International Criminal Law Review 21, no. 3 (June 28, 2021): 561–87. http://dx.doi.org/10.1163/15718123-bja10071.

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Abstract The Rome Statute has often been criticized for not following international customary law, with calls to more closely resemble this being relatively frequent. This is especially the case in the distinction made between international and non-international armed conflicts and the significant fewer war crimes applicable to non-international armed conflicts. One of the most apparent differences is in the lack of a provision criminalizing the employment of weapons that go against the general principles of weapons law in humanitarian law. This article seeks to address this critique by determining whether the lack of this criminalization in non-international armed conflicts is contrary to customary international law and if this divergence should be amended.

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Posse, Hortensia D. T. Gutierrez. "The relationship between international humanitarian law and the international criminal tribunals." International Review of the Red Cross 88, no. 861 (March 2006): 65–86. http://dx.doi.org/10.1017/s1816383106000051.

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International humanitarian law is the branch of customary and treaty-based international positive law whose purposes are to limit the methods and means of warfare and to protect the victims of armed conflicts. Grave breaches of its rules constitute war crimes for which individuals may be held directly accountable and which it is up to sovereign states to prosecute. However, should a state not wish to, or not be in a position to, prosecute, the crimes can be tried by international criminal tribunals instituted by treaty or by binding decision of the United Nations Security Council. This brief description of the current legal and political situation reflects the state of the law at the dawn of the twenty-first century. It does not, however, describe the work of a single day or the fruit of a single endeavour. Quite the contrary, it is the outcome of the international community's growing awareness, in the face of the horrors of war and the indescribable suffering inflicted on humanity throughout the ages, that there must be limits to violence and that those limits must be established by the law and those responsible punished so as to discourage future perpetrators from exceeding them.

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Henckaerts, Jean-Marie. "Study on customary international humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict." International Review of the Red Cross 87, no. 857 (March 2005): 175–212. http://dx.doi.org/10.1017/s181638310018124x.

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AbstractThis article explains the rationale behind a study on customary international humanitarian law recently undertaken by the ICRC at the request of the International Conference of the Red Cross and Red Crescent. It describes the methodology used and how the study was organized and summarizes some major findings. It does not, however, purport to provide a complete overview or analysis of these findings.

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Abi-Saab, Rosemary. "The “General Principles” of humanitarian law according to the International Court of Justice." International Review of the Red Cross 27, no. 259 (August 1987): 367–75. http://dx.doi.org/10.1017/s0020860400025833.

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In its Judgment of 27 June 1986 in the case concerning “Military and Paramilitary Activities in and against Nicaragua”, the International Court of Justice dealt at length with some of the most vexed questions in humanitarian law. Although the Court had previously touched upon certain problems in this legal field, for example in the Corfu Channel case and that of the Pakistani Prisoners, this was the first time it expressed itself in detail on more general issues, notably on the customary nature of the “general principles” of humanitarian law.

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Svaček, Ondřej. "Humanitarian Intervention: Fairy Tale about One Swallow Which Made Summer?" International and Comparative Law Review 19, no. 2 (December 1, 2019): 131–54. http://dx.doi.org/10.2478/iclr-2019-0018.

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Summary In its final report on aggression and the use of force, the International Law Association opined that the only way in which unilateral humanitarian intervention could possibly be seen as a legal exception to the prohibition of the use of force is if State practice and opinio juris were to be found establishing its status as an additional exception in customary international law. After the airstrikes conducted by the US, the UK, and France against Syria in April 2018, which took place in reaction to unprecedented usage of chemical weapons against civilian population by regime of Bashar Asad, some States and part of scholars argued that this permissive rule (exception) has already crystalized and humanitarian intervention became part of international law. The aim of this article is to assess whether these opinions are relevant or whether they are simply premature. The text is divided into three parts. Firstly, legality of humanitarian intervention is considered in the framework of the UN Charter and customary international law on the use of force based on evaluation of scholarly debates and the most prominent examples of State practice before 2018. Then, the article describes methodology that is employed in relation to the creation (modification) of customary international law in general and peremptory norm concerning the prohibition on the use of force in particular. This part analyzes how possible normative changes of jus ad bellum should be assessed. The third part evaluates justifications and reactions of States with respect to the use of force against Syria in April 2018 that were presented by the international community of States. The article concludes that the concept of humanitarian intervention remains still illegal even after the airstrikes against Syria from 2018, what conforms to the prevailing opinion presented in contemporary scholarly literature. Even though the positive echoes identified in State practice (and doctrine) are yet premature, they indicate that process of gradual normative change has already been triggered. At the same time, the expectations concerning crystallization of a new possible exception to the general prohibition on the use of force should not be too exaggerated.

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Dutli, María Teresa, and Cristina Pellandini. "The International Committee of the Red Cross and the implementation of a system to repress breaches of international humanitarian law." International Review of the Red Cross 34, no. 300 (June 1994): 240–54. http://dx.doi.org/10.1017/s0020860400078116.

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The fundamental instruments of international humanitarian law are well known. They are principally the four Geneva Conventions of 1949 and their Additional Protocols of 1977, as well as an extensive framework of customary law. These instruments deal with issues of vital importance in times of armed conflict including protection of the wounded, sick and shipwrecked, prisoners of war and civilian internees, as well as the protection of the civilian population as a whole.

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Kleffner, Jann K. "The applicability of international humanitarian law to organized armed groups." International Review of the Red Cross 93, no. 882 (June 2011): 443–61. http://dx.doi.org/10.1017/s181638311200001x.

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AbstractWhile it is generally accepted today that international humanitarian law (IHL) is binding on organized armed groups, it is less clear why that is so and how the binding force of IHL on organized armed groups is to be construed. A number of explanations for that binding force have been offered. The present contribution critically examines five such explanations, namely that organized armed groups are bound via the state on whose territory they operate; that organized armed groups are bound because their members are bound by IHL as individuals; that norms of IHL are binding on organized armed groups by virtue of the fact that they exercise de facto governmental functions; that customary IHL is applicable to organized armed groups because of the (limited) international legal personality that they possess; and that organized armed groups are bound by IHL because they have consented thereto.

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GALAND, ALEXANDRE SKANDER. "Approaching Custom Identification as a Conflict Avoidance Technique:TadićandKupreškićRevisited." Leiden Journal of International Law 31, no. 2 (February 26, 2018): 403–29. http://dx.doi.org/10.1017/s0922156518000055.

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AbstractInternational human rights law (IHRL), international humanitarian law (IHL) and international criminal law (ICL) have trouble staying faithful to the two pillars of customary international law – state practice andopinio juris. In ICL, theTadićInterlocutory Appeal on Jurisdiction and theKupreškićTrial Judgement have even gone as far as enunciating new models to identify customs. In this article, I show that the approaches to customs’ identification postulated in these two cases were conflict-avoidance techniques used by the International Criminal Tribunal for the Former Yugoslavia (ICTY) to bring together IHRL and IHL. The crux of the matter in theTadićandKupreškićcases was that the human rights of the victims of war crimes committed in internal conflicts required that a new approach to customary international law be adopted. Thus, the criminal aspect of IHL (i.e., ICL) was updated, and conceptual conflicts between IHL and IHRL were avoided.

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Currie, John. "NATO’s Humanitarian Intervention in Kosovo: Making or Breaking International Law?" Canadian Yearbook of international Law/Annuaire canadien de droit international 36 (1999): 303–33. http://dx.doi.org/10.1017/s0069005800006949.

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SummaryNATO’s seventy-nine-day campaign of air strikes against the Federal Republic of Yugoslavia has sparked a wide-ranging debate as to the legality of such military action. NATO has consistently justified its intervention on humanitarian grounds, thus clearly resorting to the controversial doctrine of “humanitarian intervention.” The author argues that while a conventional analysis of the purported right of unilateral humanitarian intervention under international law and of NATO’s acts on the Kosovo issue might lead some individuals to the conclusion that such acts were illegal (or, at best, of dubious legality), this conclusion fails to take into account the fact that state actors, particularly when acting in concert, tend to influence the content of international law itself. The author suggests that the true significance of NATO’s forcible intervention in the Kosovo crisis is that it sets a clear precedent that may well crystallize an emergent norm of customary international law permitting forcible intervention by one or more states against another on humanitarian grounds, even without prior UN Security Council authorization. While such a norm may acquire universal status, it is also possible, in light of the regional concentration of the primary actors involved as well as of important objections from some quarters as to its legality, that it will acquire (at least in the first instance) a local or regional character, perhaps confined to the Euro-Atlantic area.

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Fortin, Katharine. "How to Cope with Diversity While Preserving Unity in Customary International Law? Some Insights from International Humanitarian Law." Journal of Conflict and Security Law 23, no. 3 (2018): 337–58. http://dx.doi.org/10.1093/jcsl/kry023.

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Dumberry, Patrick. "INCOHERENT AND INEFFECTIVE: THE CONCEPT OF PERSISTENT OBJECTOR REVISITED." International and Comparative Law Quarterly 59, no. 3 (July 2010): 779–802. http://dx.doi.org/10.1017/s0020589310000308.

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A rule of customary international law is binding upon all States. One controversial question is whether a State should be permitted not to be bound by such a rule in the event that it objected to it in the early stage of its formation and did so constantly thereafter. This is the theory of the ‘persistent objector’. Articles recently published about the theory focus on its specific application in different areas of international law, including international investment law,1 international humanitarian law2 and human rights law.3 The present article intends to examine the concept of persistent objector in general international law.4

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Rutkowska, Patrycja. "Ochrona dóbr kultury w niemiędzynarodowych konfliktach zbrojnych." Świat Idei i Polityki 17, no. 1 (December 31, 2018): 137–57. http://dx.doi.org/10.15804/siip201807.

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In her article, the author points out that contemporary armed conflicts are often of a non-international nature. She provides the example of the ongoing conflict in Syria and Iraq as one in which cultural property of universal importance has been at risk of destruction. Based on the definition of non-international armed conflict, she notes that only a limited number of treaties belonging to the field of international humanitarian law include provisions aimed at protecting cultural property during an armed conflict. She praises the inclusion of rules concerning the safeguarding of cultural property to the general body of international customary law. She also notes that the introduction of the concept of individual responsibility for violations of international humanitarian law may pave the way for a more efficient exercise of rules concerning the safeguarding of cultural property in armed conflicts.

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Savu, Ana. "INTRODUCTORY STUDY ON THE INTERNATIONAL HUMANITARIAN LAW APPLICABLE TO ARMED CONFLICTS AT SEA." STRATEGIES XXI - Security and Defense Faculty 17, no. 1 (November 9, 2021): 179–86. http://dx.doi.org/10.53477/2668-2001-21-21.

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The purpose of the international humanitarian law applicable to armed conflicts at sea is the same as the International Humanitarian Law relevant to land conflicts: to reduce the destructive consequences of the armed conflict to a minimum, to protect the civilians and other non-combatants, as well as the civilian and cultural objects, to ensure a minimal consideration of some fundamental human rights and to limit the means and methods of warfare in accordance with the four customary cardinal principles, as considered by the International Court of Justice in its advisory opinion on the Legality of the Use of Nuclear Weapons: the principles of humanity, distinction, proportionality and military necessity. Without any pretense of being an exhaustive study on the subject, the purpose of this article is to offer introductory insight into the international law of naval warfare.

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Journal articles on the topic 'Customary international humanitarian law'

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