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1
Kazemi, Abadi Alireza. "Reaffirmation and development of customary international humanitarian law by international criminal tribunals." Thesis, King's College London (University of London), 2017. https://kclpure.kcl.ac.uk/portal/en/theses/reaffirmation-and-development-of-customary-international-humanitarian-law-by-international-criminal-tribunals(df866a57-9959-4706-888e-737e75e68d2b).html.
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The codifying of international humanitarian law (IHL) that began in the mid-nineteenth century has not diminished the importance of customary international humanitarian law (CIHL), at least, in filling the gaps between the needs of the victims of armed conflicts and the inadequacies of conventional law. This is fully reflected in the case-law of international criminal tribunals (ICTs) where customary law has been extensively applied in areas that are not sufficiently regulated by treaty provisions or where the parties to armed conflicts were not parties to similar treaties. This study mainly focuses on the contributions of the judicial decisions of the ICTs to the current state of CIHL. It examines how the decisions have reaffirmed certain rules of CIHL or, when applicable, how they have influenced the subsequent development of CIHL. It also seeks to analytically study the rules of IHL identified as customary in the decisions of ICTs. In the course of research, the customary definition of non-international armed conflicts (NIACs), tests for determining internationalized armed conflicts, customary content of war crimes, and their application to NIACs are discussed in greater details. It is argued that the ICTs contribute to customary rules by way of reaffirmation and development. They develop CIHL through judicial interpretation or practical application of existing laws to new cases. CIHL has the advantages of flexibility in formation and universality in application. The case-law of ICTs, however, clearly reveals that the prime advantage of CIHL is its constituent elements and the prerogative that the ICTs can exercise in identifying customary rules. The ICTs deliberately choose combinations of the elements of opinio juris and State practice to draw the rules that they consider to be suitable for protecting the victims of armed conflicts. The methodology has been occasionally criticized to be ultra vires law-making. This research shows that the methodology is still definable in the positivist views to international law-making, though they have managed to develop CIHL beyond its traditional boundaries to cover areas of IHL, such as NIACs where States have been traditionally reluctant to develop.
2
Benoit, James P. "Mistreatment of the wounded, sick and shipwrecked by the International Committee of the Red Cross study on customary International Humanitarian Law." Thesis, George Washington University Law School, 2008. http://hdl.handle.net/10945/3689.
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CIVINS<br>In 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 forty-seven nations over the preceding thirty years. Somewhat surprisingly, but perhaps owing to the sheer size of the ICRC Study, there have been relatively few scholarly articles written about it, and only one State has officially responded to the ICRC: the United States, in a letter co-signed by the Department of State Legal Adviser, and the Department of Defense General Counsel.
3
Kadimanche, Kadima Kalala André. "La mise en oeuvre du droit international humanitaire en République démocratique du Congo." Electronic Thesis or Diss., Université Côte d'Azur, 2022. http://www.theses.fr/2022COAZ0035.
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Malgré l'engagement de la République démocratique du Congo en matière de droit international humanitaire, engagement favorisé par son appartenance au système moniste et sa participation institutionnelle aux instances de mise en œuvre prévues par les traités humanitaires, les règles du droit international humanitaire sont constamment violées en République démocratique du Congo. Cette réalité a amené à analyser les facteurs de l'ineffectivité de sa mise en mise en œuvre. Parmi ceux-ci, les principaux semblent être les insuffisances institutionnelles favorisant l'impunité en matière de crimes internationaux et l'inopérabilité de certains mécanismes de mise en œuvre prévus par les traités humanitaires. Afin de pallier ces défaillances, la thèse fait des propositions concrètes pour une mise en œuvre effective et efficiente du droit international humanitaire en République démocratique du Congo, notamment la création des Chambres spéciales au sein du système judiciaire congolais pour juger les internationaux<br>Despite the commitment of the Democratic of the to international humanitarian law - a commitment favored by its membership in the monist systèm - and its institutional participation in the implementation bodies provided for in humanitarian treaties, the rules of IHL are constantly violated in the Democratic Republic of the Congo. This reality has led to an analysis of the factors behind the ineffectiveness of the implementation. Among thse, the man ones seem to be institutional shortcomings that encourage impunity for international crimes and the inoperability of certain implementation mechanisms provided for in humanitarian treaties. In order to overcome these shortcomings, the thesis makes concrete proposals for the effective and efficient implementation of international humanitarian law in the Democratic Republic of the Congo, including the creation of Special Panels within the Congolese judicial system to try international crimes
4
Beham, Markus. "Doctrinal Illusion and State Interest : an Analysis of 'Non-Treaty' Law for 'Moral Concepts'." Thesis, Paris 10, 2016. http://www.theses.fr/2016PA100078.
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La question principale de la présente thèse est celle de l’existence de « concepts moraux » – concepts poursuivant des fins altruistes plutôt qu’intéressées – en tant que droit non conventionnel, c’est à dire en tant que droit international coutumier ou principes généraux du droit. La question sera examinée en particulier dans le contexte du discours doctrinal afin de questionner le phénomène du constat trop rapide de leur existence.Le raisonnement se décline en trois étapes. Une série de questions préliminaires relatives à la Charte de l’ONU seront tout d’abord énoncées, elles serviront de cadre à la discussion. Ensuite suivront les sources du droit international non conventionnelles. Et enfin sera discuté l’élément essentiel des relations internationales qui sous-tend la question principale de cette thèse : l’intérêt de l’État. Cette dernière discussion sera illustrée par les exemples des droits de l’homme et de l’usage de la force pour raisons humanitaires<br>The main question of the thesis is whether ‘non-treaty’ law – that is customary international law and general principles of law – may exist for ‘moral concepts’ – ideas that follow an altruistic as opposed to a self-interested motivation. In particular, this possibility is discussed against the background of doctrinal discourse on the issue, in order to confront the casual assessment that this is the case. The argument is advanced in three steps. First, a row of preliminary questions under the UN-CHARTER is set out for further discussion. Second follow the ‘non-treaty’ sources of international law. Third stands the essential element of international relations underlying the main question of this thesis: state interest. The latter discussion is complemented by two case studies, one on human rights and one on humanitarian use of force<br>Die Forschungsfrage bezieht sich auf die Existenz von „moralischen Konzepten“ – also solchen, die einer altruistischen anstelle einer eigennützigen Motivation folgen – als Völkergewohnheitsrecht oder allgemeine Rechtsgrundsätze. Dabei wird die Frage insbesondere vor dem Hintergrund des Diskurses betrachtet, um der beiläufigen Feststellung deren Existenz entgegenzutreten.Die Argumentation folgt drei Schritten. Zu Beginn steht eine Reihe von Vorfragen in Bezug auf die Satzung der Vereinten Nationen als Rahmen für die weitere Diskussion. Zweitens werden das Völkergewohnheitsrecht und die allgemeinen Rechtsgrundsätze erläutert. Drittens wird das Staatsinteresse als essentielles Element der internationalen Beziehungen, das der Forschungsfrage zugrunde liegt, diskutiert. Abgerundet wird die Analyse durch zwei Fallstudien, eine zu Menschenrechten und eine zu humanitären Ausnahmen zum Gewaltverbot
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Sanger, Andrew Gareth. "Corporate liability for violations of customary international law." Thesis, University of Cambridge, 2015. https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.709310.
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Elias, Olufemi Adekunle. "The consent of states and customary international law." Thesis, University College London (University of London), 1994. http://discovery.ucl.ac.uk/10061838/.
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This dissertation is an examination of the role of consent in the process by which rights and obligations are created under customary international law. Two related issues are examined. One is the role of consent in the creation of customary law generally, and the other is the question whether the consent of a State or a group of States to a stipulation of customary international law is a condition of the applicability of that law to those States. Part One examines the relationship between the notions of consent, state practice and opinio juris. Chapter I examines the nature of the law governing the creation of customary law. Chapter II compares opinio juris with consent. In Part Two, Chapter III sets up a framework for the enquiry, namely, a spectrum of views expressed about the role of consent. Chapters IV and V then examine the decisions of tribunals and the practice of States to see which of the points on the spectrum corresponds most closely to those decisions and practice. Chapter VI compares general and nongeneral custom as far it relates to the role of consent. Chapter VII examines the position of newly independent States in relation to customary law established before they achieve statehood, and is concerned more with evidence than with general considerations. Part Three deals with the main objections to, and the possible advantages of, the requirement of consent in the contemporary customary law process. It will be suggested that consent does, and should, play an essential part in the customary law process.
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Rana, Naomi. "Humanitarian intervention and the use of force." Thesis, Hong Kong : University of Hong Kong, 1996. http://sunzi.lib.hku.hk/hkuto/record.jsp?B17546205.
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Supaat, Dina Imam. "Refugee children in Malaysia and the customary international law." Thesis, University of Birmingham, 2015. http://etheses.bham.ac.uk//id/eprint/5937/.
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The interest in embarking on this study is prompted by the predicament of refugee children under Malaysian jurisdiction and the dire need to improve their situation. This thesis is aimed at investigating the applicability of two rules relating to refugee protection: the principle of non-refoulement and the best interests of the child, which are believed to have become customary international law (CIL) which binds all states without their consent. The focus of this thesis is the prolonged problem of refugee children’s protection and the possibility of improving their conditions using international law while acknowledging that Malaysia is not a party to the 1951 Convention Relating to the Status of Refugees. The thesis begins by discussing the international refugee protection regime and the position of the CIL mechanism; this will be followed by a discussion of the Malaysian legal framework to show the gap between international law and domestic law relating to refugees. The next focus of attention is the general condition of refugee children in Malaysia and the treatment accorded to them by the authorities. Their unpleasant condition explains the link between the absence of law and their protracted situation. The next task is to examine whether or not the two principles have attained CIL status; the thesis also considers the duties of the state under the two rules, the persistent objector rule, and the application of the principles and the obligation that accompanies them as CIL in the domestic courts. Lastly, the conclusion and recommendation are presented at the end of this thesis. Noting that local resources and literature on this subject are limited, this thesis will contribute to the existing body of knowledge on this matter and provide an interesting argument to advocate legal reform to improve refugee protection in the country.
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Loos, Clemens. "The convergence and divergence of International Humanitarian Law and International Human Rights Law." Thesis, University of the Western Cape, 2005. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_6236_1182745813.
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<p>In this minithesis, I demonstrate that International Humanitarian Law and International Human Rights Law are two distinct but related fields of law. First, the examination deals with the instance that the aim of both branches of law, the protection of human rights, is common, but the approach to reach this aim is different. In this regard, I show numerous points of divergence of both branches of law which have their origin in the fundamentally different historical developments of International Humanitarian Law and International Human Rights Law. I give the main attention to the application of both sets of law, whereby the contractions and legal gaps of the protection of human rights become apparent. The proposals dealing with the solution of these issues are discussed. I argue that a new legal instrument for a comprehensive and compatible protection of human rights is necessary, especially in times of internal strife. Regarding the question as to whether International Humanitarian Law or International Human Rights Law should apply if both branches are applicable, I take the view to apply the roman principle of law lex specialis derogat legi generali in such a way that the more specific rule whenever they have a specific justification for dealing with specific problems is applicable. Both branches of law do not merge to one, but they converge to a harmonious relationship, where they complement each other and provide the highest protection of human rights.</p>
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Byers, Michael. "Custom, power and the power of rules international relations and customary international law /." Cambridge : Cambridge University Press, 1999. http://www.ebrary.com/.
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Beneke, Méchelle. "The validity of humanitarian intervention under international law." Thesis, University of Port Elizabeth, 2003. http://hdl.handle.net/10948/305.
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The study which follows considers the current approach to State sovereignty, use of force, and human rights, in order to determine the balance which exists between these concepts. A shift in this balance determines the direction of development of the concept of ‘humanitarian intervention.’ The investigation establishes that State sovereignty and certain human rights are at a point where they are viewed as equal and competing interests in the international arena. This leads to the question of whether or not the concept of humanitarian intervention has found any acceptance in international law. It is determined that the right to intervention rests exclusively with the United Nations Security Council. There are, however, obstacles to United Nations action, which necessitate either taking action to remove the obstacles, or finding an alternative to United Nations authorized action. The alternatives provided are unilateral interventions by regional organizations, groups of States or individual States, with interventions by regional organizations being favoured. The study further discusses the requirements which would make unilateral action more acceptable. These same requirements provide a standard against which the United Nations can measure its duty to intervene. Such an investigation was done by the International Commission on Intervention and State Sovereignty, and a synopsis of its Report and Recommendations are included. Finally, the question of responsibility is addressed. State and individual responsibility for two separate types of action are considered. The responsibility of States and individuals for initiating an intervention is considered under the topic of the crime of aggression. The responsibility of States and individual for exceeding the mandate of a legitimate intervention is considered under the heading of war crimes.
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Aksar, Yusuf. "The 'ad hoc' tribunals and international humanitarian law." Thesis, University of Bristol, 2000. http://hdl.handle.net/1983/405a48d5-52b6-4cea-894e-30c7a402faed.
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Igiehon, Mark Osayomwanbo. "Abandonment : revisiting customary international law and moving the frontiers of public choice law." Thesis, Southampton Solent University, 2004. http://ssudl.solent.ac.uk/595/.
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In recent years there has been a likely increase in the incidence of decommissioning of offshore oil and gas installations and considerable dissension has arisen over the legal aspects of decomissioning. There is controversy as to the applicable rules of international law. There is also dissension as to adequacy of both international and state laws and practices in providing for the various interests identified by international law itself as vital to any consideration of the manner in which disused installations ought to be disposed of. The thesis therefore examines the international legal regime of the continental shelf, on which most offshore oil and gas installations are located. There is also a review of relevant principles of the law of the sea as well as other maritime zones known to international law. A comparative study is undertaken of law and practice on abandonment in six jurisdictions, selected as fairly representative of oil-producing regions of the world. Those jusrisdictions are Australia, Kuwait, Nigeria, Norway, the United Kingdom and the United States. From the analysis, it hoped to ascertain representative state practice on abandonment. In view of the issue within the abandonment controversy as to whether or not Article 60(3) UNCLOS and the IMO Guidelines 1989 had become customary international law rules there is analysys of the concept of customary international law. Following that analysis, a model or paradigm is developed for use in assessing the emergence of new norms of customary international law. The objective is that the emergence of the new model will in the future enable the objective, expeditious and forthright assessment of contended rules of customary international law. The work goes further to consider whether the IMO Guidelines achieved a strategic balancing of the contending interests set out in Article 60 (3) and tries to postulate the reasons why those rules and Guidelines failed following the Brent Spar incident. Aspects of the legal-economic theory of regulatory capture are considered as apposite. The work concludes by identifying new and emerging trends in relation to abandonment practices and concludes with a postulation and as well as proposals as to how abandonment is expected to develop into the future.
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Godoy, Wilson Magdalena Sofia. "Sexual violence in armed conflict under international law: The interplay between international humanitarian law human rights law and international criminal law." Diss., University of Pretoria, 2016. http://hdl.handle.net/2263/56998.
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Orakhelashvili, Alexander. "Peremptory norms in international law /." Oxford [u.a.] : Oxford Univ. Press, 2006. http://www.gbv.de/dms/spk/sbb/recht/toc/508437466.pdf.
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Thomas, Kathryn Michelle. "United Nations forcible humanitarian intervention, international law and politics /." Title page, contents and abtract only, 1998. http://web4.library.adelaide.edu.au/theses/09AR/09art4584.pdf.
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Cho, Sihyun. "Applicability of international humanitarian law to internal armed conflicts." Thesis, University of Cambridge, 1996. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.245162.
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Provost, Rene. "International human rights and humanitarian law : fusion or confusion?" Thesis, University of Oxford, 1998. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.285439.
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Svensén, Fanny Martika. "Humanitarian visas and extraterritorial non-refoulement obligations at embassies." Thesis, Stockholms universitet, Juridiska institutionen, 2016. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-137186.
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Ewing, Michelle. "Justifying humanitarian intervention." Thesis, McGill University, 1993. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=26196.
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The time is ripe for a re-examination of the doctrine of humanitarian intervention, and in particular, of its legal basis in international law. This thesis attempts to draw attention to the significance of the decision to justify humanitarian intervention in a certain way, and to some of the implications of that decision.<br>The thesis compares the two justificatory options which seem to be most appropriate to the multilateralism of the post-Cold War era: collective humanitarian intervention under Chapter VII of the UN Charter and mulitilateral humanitarian intervention under customary international law. It reviews recent state practice, arguing that a mulitilateral right to intervene for the protection of human rights is emerging at custom.<br>After critically analysing humanitarian intervention's justification under the Charter, the thesis concludes that the better way to justify the doctrine, both in principle and in practice, is under customary law.
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Gale, J. L. H. "Nature's secret art : the evolution of conventions, cooperation and customary international law." Thesis, University of Cambridge, 2011. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.599274.
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This central aim of this thesis is to provide sound foundations for understanding two persistent and closely related questions within international relations and international legal theory. First, can genuine cooperation arise in a world of self-interested states that recognise no political superior? And second, can we defend the reality of international law as a force for shaping state behaviour in a decentralised world? Most pertinently, building on international relations scholarship regarding the problem of cooperation, a profound redirection in our thinking about international law has gained momentum in recent years. This approach, based on game theory, emphasises the centrally of state interest and rationality as the basis concepts of international affairs; so far as state behaviour can be understood as the product of the rational pursuit of self-interest, it is argued that law and genuine cooperation have no explanatory parts to play. Game-theoretic scepticism regarding the reality of law and cooperation requires a robust game-theoretic defence, and this is what this thesis attempts to provide. It is first argued that customary international law is the logical basis of international law. This is not a defect of international law, for any system of law is ultimately based on custom. Conventions, defined as stable regularities of cooperative behaviour ultimately founded on self-interest, are taken to provide the theoretic foundations of social customs. The central theoretic difficulty is then to explain how self-regarding agents, unrestrained by a prior social order, may form conventions that give rise to social customs. Kant hypothesises that ‘Nature’ may play her hand and extricate us from the antagonism that characterises our relations before social norms have evolved. Identifying Nature with the forces of evolutionary selection, the tools of evolutionary game theory are used to demonstrate how self-interested egoists may establish stable norms of international behaviour. International interaction is modelled by the repeated Prisoner’s Dilemma, and how a state behaves in any interaction is determined by its strategy. So long as states occasionally imitate the strategies of other better-performing states, and so long as states occasionally switch spontaneously to other strategies, the evolutionary game theory may be used to understand how conventions arise and persist: importantly, rationality need not be presumed. Three mechanisms for the genesis of social conventions are presented. These are reciprocity, punishment based on multi-level selection, and reputation. Each mechanism provides a basis for an idealised understanding of the genesis and persistence of social conventions, and consequently international cooperation and customary law. It is hoped that this preliminary attempt to introduce evolutionary thinking to international affairs will broaden our understanding of, and help to direct future research into, the perennial controversies over the potential for cooperation and effectiveness of legal norms in international affairs.
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Beckett, Jason A. "The end of customary international law? : a purposive analysis of structural indeterminacy." Thesis, University of Glasgow, 2005. http://theses.gla.ac.uk/2754/.
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Where CLS, and other critical discourses, seek to “uncover” and “explode” the ideologies and biases of law, to demonstrate its inability to fulfil its promises, the present work is intended to initiate the task of demanding that law, and especially CIL, live up to those very promises. But first, the nature of these promises, and the structure and purpose of law must be examined, analysed, and where necessary contested and decided, or rather, defined. In this regard, the hidden assumptions of legal theory must be uncovered and problematised; the debates over law must be disaggregated, before law itself can be properly determined. Only after these tasks have been completed can the nihilist challenges of NAIL be met. This thesis argues that CIL is best understood as an independent system of rules, against which state conduct may be assessed; rather than as a necessarily authoritative institutional reality. This highlights the distinction between law-creative, and merely legally evaluable, state actions. The theory presented in the final chapter - which is developed from the methodology outlined in the preceding four chapters - acts as a lens through which those actions of states which alter or develop CIL may be distinguished from those actions which ought, merely, to be judged in the light of CIL. This allows us to distinguish legal from illegal state conduct, regardless of the absence or presence of enforcement. This distinction between the legal and the illegal is distinct from, analytically prior to, and more important than, the enforcement of legal commands.
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Kawai, Toshinobu. "1977 protocol II additional to the 1949 Geneva Conventions and customary international law." Thesis, University of Hull, 2001. http://hydra.hull.ac.uk/resources/hull:5450.
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Traditionally the laws of war, or widely known as international humanitarian law today, in principle did not cover civil wars but only wars between States. The Geneva Conventions were adopted in 1949 to increase the protection of victims in armed conflicts, but the protection of the victims in internal conflict by the Conventions was limited. Thus, Protocol II additional to the Geneva Conventions of 1949 was introduced in 1977 to be specifically applicable to non-international armed conflicts in order to ameliorate the conditions of those who suffer in such conflict. A State confronting a conflict in its own territory is almost always unwilling to apply an international treaty to the situation, and therefore the pace of the ratification of Protocol II has been slow. The State is not bound by the treaty unless she ratifies it, and an internal war tends to become severe and cruel with few regulations. Despite such inadequate protection, however, customary international law based on State practice and opinio furls applies to such circumstances. The purpose of this thesis is therefore to ascertain the customary status of Protocol II. This thesis first examines whether customary rules had existed before the introduction of the 1949 Geneva Conventions, and proceeds to study what is customary international law applicable to non-international armed conflict. Then this author determines whether each article of Protocol II has become customary by investigating into State practice and opinio juris, and he finds through the investigation that only a little part of the Protocol has become customary. Notwithstanding such insufficient protection for the victims in civil conflict, however, the general principles of the laws of war are always applicable to internal conflict. In addition this writer emphasises the importance of the domestic "implementation" of the humanitarian rules and recommends the introduction of a unified and simplified treaty in the future revision of the Geneva Conventions and their Protocols.
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Chesterman, Simon. "Just war or just peace? : humanitarian intervention and international law." Thesis, University of Oxford, 2000. https://ora.ox.ac.uk/objects/uuid:a2f9085b-4ca9-4244-bff0-837ea5d4d74b.
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The question of the legality of humanitarian intervention is, at first blush, a simple one. The Charter of the United Nations clearly prohibits the use of force, with the only exceptions being self-defence and enforcement actions authorized by the Security Council. There are, however, long-standing arguments that a right of unilateral intervention pre-existed the Charter. The thesis begins with an examination of the genealogy of this right, and arguments that it may have survived the passage of the Charter, either through a loophole in Article 2(4) or as part of customary international law. It has also been argued that certain 'illegitimate' regimes lose the attributes of sovereignty and thereby the protection given by the prohibition of the use of force. None of these arguments is found to have merit, either in principle or in the practice of states. A common justification for a right of unilateral humanitarian intervention concerns the failure of the collective security mechanism created after the Second World War. The thesis therefore examines Security Council activism in the 1990s, notable for the plasticity of the circumstances in which the Council was prepared to assert its primary responsibility for international peace and security, and the contingency of its actions on the willingness of states to carry them out. This reduction of the Council's role from substantive to formal partly explains the recourse to unilateralism in that decade, most spectacularly in relation to the situation in Kosovo. Crucially, the thesis argues that such unilateral enforcement is not a substitute for but the opposite of collective action. Though often presented as the only alternative to inaction, incorporating a 'right' of intervention would lead to more such interventions being undertaken in bad faith, it would be incoherent as a principle, and it would be inimical to the emergence of an international rule of law.
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Al-Suwaidi, Saif Ghanim Saif Obaid. "Humanitarian intervention under the UN Charter and contemporary international law." Thesis, Aberystwyth University, 2004. https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.675679.
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Although contemporary international law demands the full respect of human rights, recent history continues to furnish frequent examples of man's inhumanity to his fellow man. While international law obliges respect for state sovereignty, the principle of nonintervention and non-use of force; states and the international community have sometimes responded to serious violations of human rights with the use of force, invoking the doctrine of humanitarian intervention. It is the purpose of this thesis, therefore, to examine the legality of 'humanitarian intervention', which is defined here as 'the threat or use oj armed Jorce by a state or group oj states, or an international organization without the consent oj the target state, primarily to end gross violations oj internationally recognized human rights '. To establish that there exists a right of humanitarian intervention under the UN Charter and contemporary international law it is necessary to demonstrate the validity of certain assumptions. Firstly, that such a right does not run foul of Article 2 (4) of the Charter (which establishes a broad prohibition of the use of force, subject to two exceptions: Art. 51, self defence and Art 42, actions authorized by UN Security Council), but is compatible with the clear provisions of the Article. Secondly, Article 2 (4) does not preclude unilateral actions when the collective security regime adopted by the UN seems ineffective. Thirdly, the right of humanitarian intervention can be covered by the provisions of Chapter VII of the UN Charter, particularly through an expansive interpretation of Article 39. And finally, according to state practice, especially postCharter state practice, humanitarian intervention emerges as a new and separate right under customary international law. In fact, all these assumptions can be brought altogether under one general assumption: that the prohibition of the use of force as embodied in the UN Charter is not absolute, but allows for exceptions in addition to those explicitly mentioned in its Articles 51 and 42, and that 'humanitarian intervention' constitutes one of such assumed exceptions. This study, in its first five chapters, seeks to verify whether any of these four assumptions is correct. Concluding Chapter six then attempts to sketch out some of the major implications of the analysis undertaken in the preceding five chapters and asks mainly what is to be made of the fact that certain incidents characterized as humanitarian intervention have been tolerated by the international community? Although it is tempting to argue that such tolerance is evidence that the international community has recognized the legality of 'humanitarian intervention', there are considerable arguments to the contrary. The question continues to arise therefore: what is to be made of this apparent tolerance? The chapter then focuses on whether a compromise solution to the problem of humanitarian intervention can be reached. In particular, it inquires whether it is possible and/or desirable to attempt to reconcile the conflicting norms of non-use of force (order) and protection of human rights Gustice)?
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Breau, Susan Caroline. "An examination of the doctrine of humanitarian intervention in customary law and under the United Nations Charter." Thesis, London School of Economics and Political Science (University of London), 2003. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.406306.
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Lin, James Chun. "Humanitarianism and military force : humanitarian intervention and international society." Thesis, University of Oxford, 1995. http://ora.ox.ac.uk/objects/uuid:3ce0813e-b33d-4d02-8049-7851859cc801.
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This thesis examines the theory and practice of humanitarian intervention in the modern states system. Humanitarian intervention is defined as the use of military force across state boundaries, against the wishes of the target government, to protect the people from intolerable misrule and grave abuses of human rights. The aim of this thesis is to examine the problem of humanitarian intervention from the perspective of international society. This thesis is divided into two parts. Part One defines the concept, considers the historical and intellectual milieu in which the idea emerged and evolved, and examines the different grounds upon which states have justified a right of intervention. Part Two considers the implications for international society. International society exists when states have shared rules, values, and a mutual concern for order. Three primary arguments are made in Part Two: (1) Humanitarian intervention can co-exist with the rules of state sovereignty, non-intervention, and limitations on the use of force; (2) Humanitarian intervention has performed the historic function of expanding the values of international society; (3) Practised under the right circumstances, it can help promote international order rather than subvert it. As this thesis demonstrates, a more in-depth understanding of how past theorists and practitioners of humanitarian intervention have approached the problem can enrich the current discussion.
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Sonczyk, Barbara. "The anatomy of the war crime of attacking peacekeepers under international humanitarian law and international criminal law." Thesis, University of Westminster, 2014. https://westminsterresearch.westminster.ac.uk/item/964w0/the-anatomy-of-the-war-crimeof-attacking-peacekeepersunder-internationalhumanitarian-law-andinternational-criminal-law.
Texte intégralRésumé :
This thesis is concerned with the analysis of the war crime of attacking peacekeeping missions under international humanitarian law and international criminal law. The Rome Statute of the International Criminal Court criminalises “(…) intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict”. However, the exact scope of application of this war crime is unclear and controversial due to the overlap of three different fields of international law: international criminal law, international humanitarian law and United Nations law. These distinct bodies of law have their own principles, objectives and logic and might not necessarily be in perfect harmony with each other at this particular point. Major complexities linked to it include the definition of a peacekeeping mission in accordance with the Charter of the United Nations, the status of peacekeeping personnel and objects under international humanitarian law, and the scope of peacekeepers’ right to self-defence. The central research question that this thesis addresses is about the compatibility of this war crime with the system of international law. This is answered in the affirmative. The contribution to knowledge that this thesis offers relates to critical studies on international criminal law, international humanitarian law and the United Nations system. The thesis clarifies the scope of application of the war crime of attacking personnel and objects involved in a peacekeeping mission in accordance with the United Nations Charter. This is the first comprehensive analysis of the overlap of legal regimes with respect to this war crime, which can assist courts in application of the rules relating to the protection of peacekeeping missions.
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Chaulia, Sreeram. "Civilian protection and humanitarian organisations rationality or culture? /." Related electronic resource: Current Research at SU : database of SU dissertations, recent titles available full text, 2009. http://wwwlib.umi.com/cr/syr/main.
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Nelson, Eisha Amanda. "Changes and solutions to improve humanitarian aid." Thesis, Webster University, 2015. http://pqdtopen.proquest.com/#viewpdf?dispub=1526651.
Texte intégralRésumé :
<p> The 1990s saw a rise in the participation of NGOs answering the demands of affected populations caught in between armed conflicts, bouts of natural disasters and diseases. Though their intentions were good, it was from this point onwards NGOs have gained their notoriety, despite the work they do to address the needs of man. With a consistent rise of the number of actively participating NGOs, these humanitarian actors have since gone under scrutiny by the general population, which range from ineffective operations, scandals surrounding aid money, ethics within humanitarianism as well as many aid organizations that still remain independent from each other.</p><p> This paper will seek to answer how to improve the role of humanitarian aid in emergency situations, and address its issues and shortcomings. This will be done by analyzing the different criticisms faced by these humanitarian actors, as well as analyzing the different solutions that have since been proposed in order to answer these criticisms and find a new way for these organizations to operate and define themselves. Finally, these analyses will be evaluated and compared among one another.</p><p> Interviews have been held with aid workers and members of humanitarian organizations, in order to get a more intimate perspective of the inside workings of an NGO. Recent literature, studies and findings have also been utilized in order to get a clearer picture of the current state of humanitarian aid, notably from writers such as Thomas Weiss, Hugo Slim, David Rieff and Linda Polman.</p><p> Humanitarian aid cannot be cured with a simple solution; instead, it is an ongoing, gradual process that requires cooperation from governments and organizations in order to move forward. The non-protit sector can stand to learn a lot from the for-profit sector, especially in terms of professionalism and collaborating amongst one another. This change will not come easily, but humanitarian aid also cannot remain stagnant if they hope to reach out to populations in need with quality aid.</p>
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Vasiliauskienė, Violeta. "The fight against terrorism in the context of international humanitarian law." Doctoral thesis, Lithuanian Academic Libraries Network (LABT), 2014. http://vddb.library.lt/obj/LT-eLABa-0001:E.02~2014~D_20140303_135329-20805.
Texte intégralRésumé :
In the last decade the fight against terrorism was carried out not only by measures indicated in national criminal procedure laws or international treaties outlining measures in the fight against terrorism, but also using military forces and carrying out military measures. Thus the dissertation aims to establish when and to what extent is the international humanitarian law (hereinafter – IHL) applied in the fight against terrorism, that is, to analyze in what cases the fight against terrorism amounts to armed conflict, what is the status of terrorists taking part in the armed conflict according to IHL, and to evaluate in the light of IHL principles and rules the specific measures taken against terrorists. Firstly the dissertation analyses the question of the definition of terrorism and proposes a possible definition of this phenomenon. Further on the dissertation analyzes the instances when the IHL rules are applied in the fight against terrorism, that is, when such situation amounts to an armed conflict, and evaluates the main criteria of armed conflict – intensity and organization – and their application in the fight against terrorism. The dissertation also explores the questions of the status of terrorists taking part in an armed conflict, distinguishing those taking part in international and non-international armed conflicts, and exploring the criteria for the direct participation in hostilities for such persons. Finally, the dissertation analyzes the specific measure of... [to full text]<br>Pastaraisiais dešimtmečiais kovą su terorizmu pradėta vykdyti ne tik pasitelkiant nacionaliniuose baudžiamojo proceso įstatymuose ar tarptautinėse sutartyse, skirtose kovai su terorizmu, numatytas priemones, tačiau ir naudojant karines pajėgas bei atliekant karinius veiksmus. Taigi disertacijoje iškeliamas tikslas nustatyti, kada ir kokiu mastu taikoma tarptautinė humanitarinė teisė (toliau – THT) kovoje su terorizmu, tai yra, ištirti, kokiais atvejais kova su terorizmu laikytina ginkluotu konfliktu, koks yra teroristų, dalyvaujančių ginkluotame konflikte, statusas pagal THT ir atsižvelgiant į THT normas įvertinti specifines kovos priemones, naudojamas kovojant su teroristais. Pirmiausiai disertacijoje analizuojamas terorizmo apibrėžimo klausimas ir pateikiamas galimas terorizmo apibrėžimas. Toliau disertacijoje vertinama, kuriais atvejais kovojant su terorizmu bus taikomos THT normos, tai yra, kada kova su terorizmu prilygsta ginkluotam konfliktui, tiriami ginkluoto konflikto intensyvumo ir organizuotumo kriterijai ir jų taikymas kovos su terorizmu situacijose. Disertacijoje taip pat tiriama, koks yra teroristų, dalyvaujančių ginkluotame konflikte, statusas pagal THT, išskiriant tarptautiniuose ir netarptautiniuose ginkluotuose konfliktuose dalyvaujančius asmenis, taip pat išsamiai išanalizuojant asmenų tiesioginio dalyvavimo ginkluotame konflikte kriterijus. Galiausiai disertacijoje tiriama specifinė kovos su terorizmu priemonė – tikslinių nužudymų, ypač naudojant... [toliau žr. visą tekstą]
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Crawford, Emily Jessica Teresa Law Faculty of Law UNSW. "Unequal before the law: Questioning the distinction between types of armed conflict in international law." Publisher:University of New South Wales. Law, 2008. http://handle.unsw.edu.au/1959.4/41260.
Texte intégralRésumé :
This thesis makes the case for eliminating the distinction between types of armed conflict under international humanitarian law (IHL). Currently, IHL makes the distinction between international and non-international armed conflicts. International armed conflicts are regulated by more treaties than their non-international counterparts. Furthermore, the regulation of international armed conflicts is also considerably more comprehensive than that offered for participants in and victims of non-international armed conflicts. This bifurcation of the law was logical at the time the Geneva Conventions of 1949 were drafted and adopted, as the majority of armed conflicts prior to that point had been international in character. However, in the years following the adoption of the Conventions, there has been a proliferation of non-international armed conflicts, which presents challenges to a body of law that has few tools to adequately address such occurrences. The adoption of the Additional Protocols in 1977 went some way to addressing the legal lacunae that existed, but significant gaps still remain. Mindful this history, this thesis tracks the growth and evolution of the laws of armed conflict in the modern era, since the first document of the laws of war produced for the American Civil War. In doing so, this thesis demonstrates how the law of armed conflict has become increasingly harmonised in its application, with more rules of IHL being generally applicable in all instances of armed conflict, regardless of characterisation. This thesis then makes the argument that the time has come for the final step to be taken, the elimination of the distinction between types of armed conflict, and the complete harmonisation of the laws of war. Focusing specifically on the issue of combatants and POWs in armed conflicts, this thesis draws on considerable legal precedent, legal theory, and policy arguments to make the case that it is time for the law relating to the regulation of armed conflicts to be more uniformly applied.
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Samara, Angeliki. "The responsibility to protect and the notion of irresponsibility in international law." Thesis, University of Sussex, 2018. http://sro.sussex.ac.uk/id/eprint/80439/.
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Da, Rosa William Torres Laureano. "The dialectic of emancipation and repression in international human rights law." Thesis, University of Sussex, 2016. http://sro.sussex.ac.uk/id/eprint/64069/.
Texte intégralRésumé :
The main objective of this thesis is to investigate, using the dialectical method, why human rights are not only just emancipatory in the international context but are also often used for the legitimation of repressive policies. The argument in this thesis accepts that human rights have an important role in the general development of international law, and that their historical development has had a transformational effect on international politics. My thesis is that political groups have sought to mould political and social interactions by questioning and reshaping both the definitions and the system of human rights. In doing so, those actions – defined as political power – are used to legitimise new social and political constellations by changing the legal definitions of rights and by erecting new forms of protection. In the development of my argument, I analyse first the different historical moments in which significant transformations and redefinitions of human rights occurred. For that, I will identify two processes: the formalisation of rights (emancipatory) and their de-formalisation (repressive). Secondly, I will seek to show that these processes are politically constituted in a dialectic that operates in the implementation of such rights by the State in both domestic and international spheres. I shall then provide an interpretation that tries to explain how this dialectic has helped legitimise the system of international human rights. As a result, it can be observed that while in the West there was, domestically, an emancipatory movement able to formalise rights that progressively reached larger social groups, the same cannot be said for those who lived in the colonial world. Internationally, there have been different interpretations that prevented the expansion and implementation of human rights on the same basis as in the domestic sphere. The dialectic of emancipation and repression, therefore, can be visualised by looking, historically, at political struggles between formalising and de-formalising forces.
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Klingsbo, Dina. "Palestinians’ Right to Property in the Occupied Territory Under International Humanitarian Law." Thesis, Örebro universitet, Institutionen för juridik, psykologi och socialt arbete, 2019. http://urn.kb.se/resolve?urn=urn:nbn:se:oru:diva-76596.
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Du, Plessis Madri. "Evaluation of the international law regarding humanitarian intervention in human rights abuses not breaching international peace and security." Thesis, Stellenbosch : Stellenbosch University, 2004. http://hdl.handle.net/10019.1/53742.
Texte intégralRésumé :
Thesis (LLM)--Stellenbosch University,2004.<br>ENGLISH ABSTRACT: This study exammes, m stages of development, the existing law regarding
humanitarian intervention, problems in respect of this law and cases of intervention.
More specifically, intervention in human rights abuses not breaching international
peace and security but rather posing a so-called threat to peace is examined. This
information is used to consider whether more adequate provision can be made
regarding circumstances of intervention to stop situations of grave human rights
abuses sooner. From the law regarding humanitarian intervention, it is evident that
the institution of intervention is illegal under the present UN legal system. Yet, in a
time when the human rights culture has become so important that it forms part of
the basis of international law, effective intervention is not being authorised by the
Security Council. As a result, other actors have been intervening in cases of grave
human rights abuses. These interventions need to be appropriate and well managed.
Since the protection of human rights is as valid in non-democracies, as in any
democratic state form, the study finds that human rights will benefit from
dependence on legitimate authority. Attributing more importance to the Uniting for
Peace Resolution could expand the role of the General Assembly. Humanitarian
intervention also needs to be coupled with a commitment to address the causes of
human rights abuses through conflict resolution and social reconstruction. The
study concludes with some criteria/guidelines for the establishment of the
legitimacy of intervention.<br>AFRIKAANSE OPSOMMING: Hierdie studie is - binne 'n raamwerk van ontwikkelingstydperke - 'n ondersoek na
die bestaande reg aangaande humanitêre ingryping, probleme tenopsigte daarvan en
gevalle van ingryping. Veral ingrypings in menseregte-skendings wat nie
internasionale vrede en sekuriteit skend nie, maar eerder 'n sogenaamde bedreiging
vir vrede is, word ondersoek. Die inligting wat so bekom is, word gebruik om te
oordeel of meer gepaste voorsiening gemaak kan word waarvolgens situasies van
growwe menseregte-skendings deur ingryping gouer beëindig kan word. Die reg
aangaande humanitêre ingryping toon dat ingryping onwettig is in die bestaande
regsisteem van die Verenigde Nasies. In 'n tyd waarin menseregte so belangrik
geword het dat dit ten grondslag lê van internasionale reg, word effektiewe
ingrypings nogtans nie gemagtig deur die Veiligheidsraad nie. Gevolglik gryp
ander partye in om teen situasies van growwe menseregte-skendings op te tree.
Hierdie ingrypings moet daarom gepas wees en goed bestuur word.
Aangesien die beskerming van menseregte net so geldig is in ander staatsvorms as
in demokrasieë, bevind die studie dat menseregte sal baat daarby indien dit
afhanklik is van legitieme gesag. Voorts kan die rol van die Algemene Vergadering
aangaande die beskerming van menseregte uitgebrei word deur groter waarde te
heg aan die "Uniting for Peace"-resolusie. Dit is verder nodig dat humanitêre
ingryping gekoppel word aan 'n verbintenis om die oorsake van menseregteskendings
aan te pak deur konflik-resolusie en sosiale heropbou. Ter afsluiting
word riglyne neergelê om te help met die bepaling van die legitimiteit van
. . mgrypmg.
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Kontou, Nancy. "The termination and revision of treaties in the light of new customary international law /." Oxford : Clarendon Press, 1994. http://www.gbv.de/dms/spk/sbb/recht/toc/278845193.pdf.
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Sutton, Rebecca. "The international humanitarian actor as 'civilian plus' : the circulation of the idea of distinction in international law." Thesis, London School of Economics and Political Science (University of London), 2018. http://etheses.lse.ac.uk/3803/.
Texte intégralRésumé :
This socio-legal study reconceptualizes the principle of distinction in international humanitarian law (IHL). Moving away from the dominant vision of fixed civilian and combatant entities separated by a bright line, it introduces an alternative vision of how distinction works in different places and at different times, or what we might think of as ‘a new law of distinction’. This account is grounded in the practices of international actors across a number of global sites: from Geneva and The Hague to civil–military training programmes in Europe and the operational context of South Sudan. The main character of interest is the international humanitarian actor, who is situated alongside other international actors, such as NATO soldiers, UN peacekeepers and UN civilian actors. As is shown, the everyday interactions of these actors are shaped by contests over distinction. In the law of distinction that is distilled from these practices, qualities of ‘civilianness’ and ‘combatantness’ float around in the air, able to attach to any individual at any given moment, depending upon their self-presentation, behaviour and context. Three new figures emerge around these qualities: the ‘civilian plus’, the ‘mere civilian’ and the ‘civilian minus’. The ‘civilian plus’, this study proposes, represents a special status that international humanitarian actors disseminate on a daily basis. This special status relies upon a concept of civilianness that is relative, contingent and aligned with an alreadyfragmented civilian category in IHL. The distinction practices of humanitarian actors also have an important performance component, designed to influence the perceptions of an omnipresent observer – the ‘phantom local’. The overarching aim of this inquiry is to uncover and contend with distinction’s perpetually disrupted nature. The study dismantles the idea of distinction as we know it, enabling us to recognize distinction in strange and unfamiliar forms.
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Chigara, Benedict Tendayi. "The process of custom and the legitimacy of norms of customary international law : a deconstructionist perspective." Thesis, University of Nottingham, 1998. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.267675.
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Moir, Lindsay. "The protection of civilians during non-international armed conflict." Thesis, University of Cambridge, 1997. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.284993.
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Steiner, Hrafn. "Cyber operations, legal rules and state practice : authority and control in international humanitarian law." Thesis, Stockholms universitet, Juridiska institutionen, 2017. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-142944.
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Mavridis, Iakovos. "The practice of humanitarian intervention after the end of the Cold War : emerging norm or just practice? : humanitarian intervention and international law." Thesis, University of Hull, 2006. http://hydra.hull.ac.uk/resources/hull:5858.
Texte intégralRésumé :
This thesis examines the practice of humanitarian intervention after the end of the Cold War. In the 90s there was an evident willingness of the world community to promote and protect human rights. The Security Council got involved in matters traditionally regarded internal affairs of states and imposed economic and diplomatic sanctions. What is more, the UN authorised military interventions in cases where massive abuses of human rights have taken place and this is the most significant normative change regarding humanitarian intervention. Thus, from "unilateral" humanitarian intervention we move to "collective" humanitarian intervention. Accordingly, the UN Security Council authorised military action in Somalia, Rwanda and Haiti. Yet, although the Council granted authorisation of the use of force, states had been reluctant to recognise a "unilateral" right of humanitarian intervention. Kosovo is the most challenging case that caused a wide debate regarding the legality of humanitarian intervention. Yet, Kosovo has set a very bad precedent for humanitarian intervention. NATO's violations of humanitarian laws, the bombing against civilian infrastructures, as well as the significant loss of civilian lives proved that the means used were against the proclaimed humanitarian ends. Furthermore, NATO intervention did not bring peace to Kosovo, but the situation remains tense. Thus, it could be argued that the 1999 intervention did not bring a positive and long-term outcome. This is a good case that can illustrate how political and moral omissions can create bad precedents for the emergence of a new norm. Finally, this thesis concludes that after the attacks of 9/11, the prospects of humanitarian intervention in the future are questionable. War against terrorism became the new form of interventionism in the new millennium. Thus, omissions and failures of the past, along with the new challenges of the world community have curtailed the future of humanitarian intervention.
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Kolb, Andreas Stephan. "The responsibility to protect : legal rights and obligations to save humans from mass murder and ethnic cleansing." Thesis, University of British Columbia, 2008. http://hdl.handle.net/2429/4160.
Texte intégralRésumé :
The context for this work is set by the proliferation of intrastate conflicts and the international
legal debate of humanitarian intervention. The thesis specifically addresses the concept of the
“Responsibility to Protect” (R2P) as formulated by the International Commission on Intervention
and State Sovereignty (ICISS). The objective is to assess the present quality of R2P as a concept
of international law.
Five components of the R2P framework are discussed: the primary responsibility of every state
to protect its population from large-scale killings and large-scale ethnic cleansing; the right of
other states to collective humanitarian intervention through the United Nations; a right of
unilateral humanitarian intervention without prior Security Council authorization; the
responsibility of the international community to take military action; and the criteria for external
military involvement.
Methodologically, the analysis is grounded in the dominant theory of legal positivism and its
doctrine of sources, which requires notably an analysis of treaties and customary international
law. An ethical theory is devised and applied, however, to remedy inadequacies of a strictly
positivist method that sets out to determine international law solely on the basis of hard facts.
These ethical considerations serve as a background theory to provide guidance in difficult cases
of treaty or customary law analysis, and they fill gaps in positive international law as legally
binding “principles of ethical law”.
In conclusion, the individual components of R2P differ in terms of their legal status and the
degree to which it can be explained by the traditional posivist approach to international law. The
primary responsibility of every state has become accepted as a hard norm of international
customary law; the right of collective humanitarian intervention is provided for in Chapter VII of
the UN Charter; a right of unilateral humanitarian intervention has become part of the
international legal system as a “principle of ethical law”; the residual responsibility of the
international community is a principle of “legal soft law”; finally, positive international law
defines no criteria delineating the permissible and required use of force for the protection of
foreign populations.
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Östberg, Jenny. "Prisoner of War or Unlawful Combatant : An Evolution of International Humanitarian Law." Thesis, Linköping University, Department of Management and Economics, 2006. http://urn.kb.se/resolve?urn=urn:nbn:se:liu:diva-5603.
Texte intégralRésumé :
<p>The construction of International Humanitarian Law and the norms regarding protection of prisoners of war have evolved as a reaction to the horrors of war. After September 11 and the following war on terrorism the notion of POWs has been widely debated. The USA holds prisoners at the navy base at Guantánamo Bay, Cuba without granting them status as POWs; this thesis is placing the treatment of these detainees within a historical context. The norm concerning rights of POWs is today both internationalized and institutionalized, but that has not always been the case. This thesis illuminates how the norms have evolved during World War I, World War II and Vietnam War; finally the war against terrorism and the treatment of the prisoners at Guantánamo Bay is analyzed. The intention of the thesis is to use a historical overview of the evolution of IHL, and the rights of POWs in particular, to formulate a wider assumption about the implication of IHL in the war against terrorism and the future.</p><p>The thesis adopts a theory which combines constructivism and John Rawls´ theory of justice and uses constructivist ideas about the nature of the international system applied to Rawls´ notion of justice. The constructivist theory and ontology are the basis of the theoretical framework of this thesis and Rawls´ definition of justice as the base of social institutions are viewed from a constructivist perspective. IHL and the norms regarding protection of POWs are thus considered as social facts, constructed and upheld through social interaction between states.</p>
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Dinniss, Heather Harrison. "The status and use of computer network attacks in international humanitarian law." Thesis, London School of Economics and Political Science (University of London), 2008. http://etheses.lse.ac.uk/2527/.
Texte intégralRésumé :
The information revolution has transformed both modern societies and the way in which they conduct warfare. This thesis analyses the status of computer network attacks in international law and examines their treatment under the laws of armed conflict. A computer network attack is any operation designed to disrupt, deny, degrade or destroy information resident in computers and computer networks, or the computers and networks themselves. The first part of the thesis deals with a States right to resort to force and uses the U.N. Charter system to analyse whether and at what point a computer network attack will amount to a use of force or an armed attack, and examines the permitted responses against such an attack. The second part of the thesis addresses the applicability of international humanitarian law to computer network attacks by determining under what circumstances these attacks will constitute an armed conflict. It concludes that the jus in bello will apply where the perceived intention of the attacking party is to cause deliberate harm and the foreseeable consequence of the acts includes injury, death damage or destruction. In examining the regulation of these attacks under the Jus in bello the author addresses the legal issues associated with this method of attack in terms of the current law and examines the underlying debates which are shaping the modern laws applicable in armed conflict. Participants in conflicts are examined as increased civilianisation of the armed forces is moving in lock-step with advances in technology. Computer network attacks also present new issues for the law relating to targeting and precautions in attack which are addressed; objects subject to special protections, and their digital counterparts are also examined. Finally the thesis addresses computer network attacks against the laws relating to means and methods of warfare, including the law of weaponry, perfidy and the particular issues relating to digital property.
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Hardie, Kathleen. "Humanitarian Intervention, Human Rights and the use of force in International Law." Thesis, Hardie, Kathleen (2009) Humanitarian Intervention, Human Rights and the use of force in International Law. Masters by Research thesis, Murdoch University, 2009. https://researchrepository.murdoch.edu.au/id/eprint/2446/.
Texte intégralRésumé :
This thesis will critically examine the status of humanitarian intervention in international law. This will involve an examination of constraints on the use of force both prior to and after the introduction of the Charter of the United Nations, along with the concept of state sovereignty and the prohibition of intervention in the domestic affairs of states.
It will be argued that the failure of the collective security system envisaged by the Charter, along with changing perceptions of state sovereignty and the increased prominence of human rights have focused attention on the need to develop appropriate international responses to egregious abuse such as genocide, war crimes and crimes against humanity. Humanitarian intervention has been promoted by various authors, non-government organisations, human rights activists and at times by states, as a potential solution.
The concept of humanitarian intervention excites considerable controversy not only about its legality, but also about the desirability and efficacy of the use of force to prevent or constrain grave violations of fundamental human rights. It also raises questions about the continuing relevance of international law relating to the use of force and its corollary, non-intervention in the domestic affairs of states. The question of whether an asserted customary international law right of humanitarian intervention survived the introduction of the Charter will be addressed along with the evolution of customary international law and the legal implications of the classification of norms jus cogens and obligations erga omnes.
The legal limits and some of the practical difficulties with humanitarian intervention will be reviewed. Essentially it will be argued that rather than focusing on an asserted or emerging ‘right’ of humanitarian intervention that does not appear to have strong state support, it might be more fruitful to focus on the need to reform the United Nations and strengthen its capacity and commitment to the development of more effective approaches to the promotion of human rights, conflict prevention and conflict resolution. Ideally this would also help to resolve critical questions relating to the legitimacy of international law.
47
Olulowo, Kunle Adebamiji. "Unmanned Aerial Vehicles in Counterterrorism Efforts and Implications for International Humanitarian Law." ScholarWorks, 2018. https://scholarworks.waldenu.edu/dissertations/5766.
Texte intégralRésumé :
The United States increasingly has resorted to the use of Unmanned Aerial Vehicles (UAVs) for targeted killings of terrorists as a counterterrorism strategy. More states and terrorist organizations also are acquiring UAVs and this development can lead to indiscriminate and unregulated use of UAVs. Previous researchers have indicated the surveillance ability and precise weapon delivery capacity of UAVs make them a weapon of choice for U.S. counterterrorism efforts. Although the U.S. government estimated the collateral damage involved in the use of UAVs at 3-5%, nongovernmental sources put it at 25-40%. A gap exists in the current literature regarding public perception of the use of UAVs as a counterterrorism measure and how international humanitarian law (IHL) may interpret employment of UAVs. The purpose of this quantitative, cross-sectional study is to determine if a relationship exists among public support of the use of UAVs for targeted killing, attitudes towards counterterrorism, and public perceptions of IHL. An online survey was used to collect data from 104 adult participants using the convenience sampling method. Logistic regression, ANOVA, and correlational analyses helped to determine the relationships. The outcomes contributed to the existing literature by providing important data related to public perception of the use of UAVs with the potential to enhance global peace and security. The results contributed to social change initiatives through the potential to facilitate the establishment of international and domestic legal frameworks to regulate the future employment of UAVs for targeted killing.
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Tenhunen, Salehi Vida. "A role for individuals in the formation of customary international law : should they affect opinio juris in the field of human rights?" Thesis, Stockholms universitet, Juridiska institutionen, 2017. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-150085.
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Dakessian, Rodney. "Les effets juridiques des massacres commis contre les Armeniens en 1915 et leurs modes de resolutions judiciaires et extrajudiciaires possibles." Thesis, Lyon 3, 2012. http://www.theses.fr/2012LYO30096/document.
Texte intégralRésumé :
Ma thèse vise en premier ressort à étudier toutes les questions juridiques concernant la ‘question arménienne’.D’abord, le sujet de l’existence des éléments du crime de génocide en 1915 au niveau du droit international conventionnel a été notre première question à étudier. Ensuite, il était indispensable d’étudier la nature du crime commis envers les Arméniens ottomans en 1915.En plus, est-ce que l’Etat Turc actuel peut-il être responsable d’un crime commis par l’Empire ottoman, selon le principe de la succession d’Etats en droit international, surtout que l’Etat Turc n’était créé qu’en 1923 ? Et en cas de l’existence de cette responsabilité, est-ce que l’Arménie a droit à l’action en responsabilité, surtout qu’au moment de la perpétration du crime, il n’y avait pas un Etat Arménien ? Les victimes étaient des ressortissants de l’Empire ottoman mais d’origine arménienne. Donc il faudra étudier la qualité de l’Arménie pour agir en justice, par des moyens judiciaires ou extrajudiciaires, vis-à-vis surtout du principe de la non-rétroactivité des traités, surtout que dans notre cas, le crime a été perpétré en 1915, alors que la Convention sur le génocide n’a été promulguée qu’en 1948.En fait, notre thèse vise en dernier ressort à rapprocher les deux pays et mettre fin réellement au conflit entre eux, à percevoir ce qui les rassemblent et non ce qui les divisent, et trouver une solution équitable et objective pour les deux pays afin de contribuer à mettre fin à leur litige historique, et cela à travers une étude réaliste, impartiale et basée sur la logique et la nature des choses et des circonstances du fait existantes<br>The main purpose of my thesis is to study all the legal issues concerning the 'Armenian question'.First, the existence of the elements of the crime of genocide in 1915 at the conventional international law, made our first question to consider. Then, it was necessary to study the nature of the crime committed against the Ottoman Armenians in 1915.In addition, can Turkey be responsible for a crime committed by the Ottoman Empire, according to the principle of succession of States in international law, especially that the Turkish state was created in 1923?And in case of such responsibility, has Armenia the right to maintain a lawsuit against Turkey, especially at the time of the crime, there was no Armenian state?The victims were citizens of the Ottoman Empire but of Armenian descent.Also, the quality of Armenia to take legal action, by judicial or extrajudicial processes, must be studied, regarding especially to the principle of non-retroactivity of treaties, especially that in our case, the crime was committed in 1915, while the Genocide Convention was enacted in 1948.In fact, our thesis aims ultimately to bring the two countries closer and actually try to help reach the end of the conflict between them, perceive what gather them and not what divides them, and find a fair and objective solution for both countries, in order to help put an end to their historic dispute, and that through a realistic and impartial study, based on logic and the nature of things and the circumstances of the existing
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Macak, Jakub (Kubo). "Internationalized armed conflicts in international law." Thesis, University of Oxford, 2014. http://ora.ox.ac.uk/objects/uuid:793d605d-dea3-403c-95df-c88bfe0cf19f.
Texte intégralRésumé :
In a world shaped by the simultaneous forces of globalization and fragmentation, very few armed conflicts remain isolated from any foreign involvement and confined to the territory of one State. On the contrary, many begin as internal conflicts that gradually acquire international characteristics of varying degree and nature. Yet, the law of armed conflict forces each such conflict into one of two legal categories: it must either be a non-international, or an international armed conflict. Accordingly, the prevailing approach in the literature is to examine what type of conflict, if any, corresponds to a certain situation in reality at a given time. In contrast, this thesis opts for a dynamic approach, focussing on the combination of factors that transform a prima facie non-international armed conflict into an international armed conflict. It argues that four such modalities of internationalization have emerged thus far: (1) outside intervention; (2) State dissolution; (3) wars of national liberation; and (4) relative internationalization by way of recognition of belligerency, unilateral declarations, or special agreements. Since some situations feature more than two conflict parties, the thesis puts forward an autonomy-based interpretive model, which enables to determine whether such situations should be seen as a single internationalized armed conflict or a number of independent international and non-international armed conflicts. On the basis of this comprehensive map of conflict internationalization, the thesis turns to the effects brought about by this process. It analyses two areas of the law of armed conflict considered to be regulated differently in the two respective types of conflict, namely matters of combatant status and belligerent occupation. It argues that fighters belonging to non-State armed groups participating in internationalized armed conflicts are in principle eligible for combatant status and it proposes an interpretive model for the determination whether they in fact meet the relevant criteria in practice. Finally, the thesis argues in favour of the applicability of the law of belligerent occupation to internationalized armed conflicts. To substantiate this claim, it delineates the temporal, geographical, and personal scope of the law of occupation in such conflicts. In its totality, the thesis analyses the meaning, process, and effects of conflict internationalization and on this basis argues for a particular interpretation of the concept of internationalized armed conflict in international law.