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14 - The application of human rights in armed conflict and the international criminalisation process

Ilias Bantekas
Affiliation:
Brunel University
Lutz Oette
Affiliation:
School of Oriental and African Studies, University of London
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Summary

Introduction

This chapter discusses the development and application of two bodies of international law; namely international humanitarian law (IHL) and international criminal law and their interrelationship with human rights law. The killing of a civilian by a soldier during an armed conflict, for example, may constitute an IHL violation and a violation of the (human) right to life. This chapter examines this relationship, which is of particular importance for the protection of civilians, especially where the applicability of IHL is contested or where IHL constitutes an exception to certain rights, such as the right to life, or fails to prevent and/or provide effective remedies for violations. It seeks to identify the scope of application of the two bodies of law and demonstrate the degree to which the two can be reconciled. Moreover, a special case is made for the law applicable in situations of military occupation whereby human rights are subordinate to IHL. Despite this subordination, in practice because international human rights tribunals are not mandated to apply humanitarian law they necessarily interpret and enforce the rights of the victims on the basis of those human rights norms found in their respective statutes. As a result, the jurisprudence of human rights tribunals is not always consistent with IHL. Yet, such tribunals are hard pressed to accept jurisdiction over situations which would otherwise be resolved on the basis of IHL. This chapter therefore goes on to discuss the exercise of extraterritorial jurisdiction by human rights tribunals. This is particularly significant because European states involved in the occupation of Iraq or other territories generally argue that the ECHR is inapplicable. The ECtHR has taken a different approach. The parameters and consequences of this approach will be highlighted.

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Publisher: Cambridge University Press
Print publication year: 2013

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References

Dennis, M. J., ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’, AJIL 99 (2005), 119.Google Scholar
Doswald-Beck, L., ‘The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers’? IRRC 88 (2006), 881.Google Scholar
Drumbl, M. A., Atrocity, Punishment and International Law (Cambridge University Press, 2007).
Green, L. C., The Contemporary Law of Armed Conflict (Manchester, New York: Manchester University Press, 2008).
Hampson, F. J., ‘The Relationship between International Humanitarian Law and Human Rights Law from the Perspective of a Human Rights Treaty Body’, IRRC 90 (2008), 549.Google Scholar
Kress, C., ‘Universal Jurisdiction over International Crimes and the Institut de Droit International’, JICJ 4 (2006), 561.Google Scholar
Provost, R., International Human Rights and Humanitarian Law (Cambridge University Press, 2002).
Reydams, L., ‘The rise and fall of universal jurisdiction’ (2010), available at: .
Reydams, L., Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford University Press, 2003).
Sassòli, M. and Olson, L. M., ‘The Relationship between International Humanitarian Law and Human Rights Law where it Matters: Admissible Killings and Internment of Fighters in Non-international Armed Conflicts’, IRRC 90 (2008), 599.Google Scholar
Solis, G. D., The Law of Armed Conflict: International Humanitarian Law in War (Cambridge University Press, 2010).
Watkin, K., ‘Controlling the Use of Force: a Role for Human Rights Norms in Armed Conflict’, AJIL 98 (2004), 1.Google Scholar
Dinstein, Y., The Conduct of Hostilities and the Law of International Armed Conflict (Cambridge University Press, 2004), 87
Dörmann, K., ‘The Legal Situation of Unlawful/Unprivileged Combatants’, IRRC 85 (2003), 45 Google Scholar
Callen, J., ‘Unlawful combatants and the Geneva Conventions’, Virginia Journal of International Law (Virginia JIL) 44 (2004), 1026 Google Scholar
Aldrich, G. H., ‘The Taliban, Al-Qaeda and the Determination of Illegal Combatants’, AJIL 96 (2002), 893 Google Scholar
Fleck, D., The Handbook of Humanitarian Law in Armed Conflicts (Oxford University Press, 1999), 163
ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities (Geneva: ICRC, 2009), 46ff
Droege, C., ‘Elective Affinities? Human Rights and Humanitarian Law’, IRRC 9 (2008), 501 Google Scholar
Sassóli, M. and Bouvier, A. A., How Does Law Protect in War? (Geneva: ICRC, 1999), pp. 265–7
Legality of the Threat or Use of Nuclear Weapons (1996)
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Wall case), (2004)
Prud’homme, N., ‘Lex Specialis: Oversimplifying a More Complex and Multifaceted Relationship?’ Israel L. Rev. 40 (2007), 536 Google Scholar
Medvedyev and Others v. France, (2010)
Isayeva, Yusupova and Bazayeva v. Russia, (2005)
case concerning Armed Activities on the Territory of the Congo (DRC v. Uganda),
Naftali, O. B. and Shany, Y., ‘Living in Denial: the Application of Human Rights in the Occupied Territories’, Israel L. Rev. 37 (2003–4), 17 Google Scholar
Roberts, A., ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’, AJIL 100 (2006), 589 Google Scholar
Loizidou v. Turkey (1997)
Cyprus v. Turkey (2002)
Sassòli, M., ‘Legislation and maintenance of public order and civil life by occupying powers’, EJIL 16 (2005), 661 Google Scholar
Meltzer, N., Targeted Killings (Oxford University Press, 2007), pp. 224–30
Shany, Y., ‘Binary Law meets Complex Reality: The Occupation of Gaza Debate’, Israel L. Rev. 41 (2008), 68 Google Scholar
R (on the application of Al-Saadoon and Mufdhi) v. Secretary of State for Defence [2009]
R (On the Application of Smith) v. Secretary of State for Defence et al. [2010]
Bankovi´c and Others v. Belgium and Others, (2001)
Jaber Al-Bassiouni v. The Prime Minister of Israel, HCJ 9132/07 judgment (30 January 2008)
Ilas¸cu and Others v. Moldova and Russia (2005)
Application of the Convention on the Prevention and Punishment of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, 43, para. 392.
Siddle, B. K., Sharpening the Warrior’s Edge: The Psychology and Science of Training (Belleville, IL: PPCT Research Publications, 1995)
Grossman, D. and Christensen, L., On Combat: The Psychology and Physiology of Deadly Conflict in War and in Peace (Belleville, IL: PPCT Research Publications, 2008), 30–1
Marshall, S. L. A., The Soldier’s Load and the Mobility of a Nation (Arlington, VA: Marine Corps Association, 1980)
Bourke, J., An Intimate History of Killing: Face to Face Killing in Twentieth Century Warfare (London, New York: Basic Books, 2000), pp. 13
Jones, E., ‘The Psychology of Killing: the Combat Experience of British Soldiers during the First World War’, Journal of Contemporary History 41 (2006), 229 Google Scholar
Swank, R. L. and Marchand, W. E., ‘Combat Neuroses, Development of Combat Exhaustion’, Archives of Neurology and Psychiatry 55 (1946), 236 Google Scholar
Roach, J. A., ‘Rules of Engagement’, Naval War College Review 36, (1983), 46 Google Scholar
Rowe, P., ‘The Rules of Engagement in Occupied Territory: Should they be Published?’ Melb. J. Int’l. L. 8 (2007), 327 Google Scholar
The San Remo Manual on Rules of Engagement (San Remo: IHLI, 2008), 22
Martins, M., ‘Rules of Engagement for Land Forces: a Matter of Training, not Lawyering’, Mil. L. Rev. 143 (1994), 27 Google Scholar
Massacre de Mapiripán v. Colombia, Judgment (7 March 2005)
Bumiller, E., ‘Petraeus Pledges Look at Strikes in Afghanistan’, The New York Times (29 June 2010)
Kontorovich, E., ‘The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation’, Harv. Int’l L. J. 45 (2004), 183 Google Scholar
Bassiouni, C. M., Crimes Against Humanity in International Criminal Law (Leiden, Boston: Martinus Nijhoff, 1992), 175–6
Douglas, L., The Memory of Judgment: Making Law and History in the Trials of the Holocaust (New Haven: Yale University Press, 2001)
Duff, R. A., Trials and Punishments (Cambridge University Press, 1986), 235ff
Koskenniemi, M., ‘Between Impunity and Show Trials’, MPYBUNL 6 (2002), 1, at 3Google Scholar
Public Prosecutor v. Djajic, AJIL 92 (1998), 528
Shany, Y., The Competing Jurisdiction of International Courts and Tribunals (Oxford University Press, 2003), 261
Re Pinochet, AJIL 93 (1999), 700
R v. Bow Street Metropolitan Stipendiary Magistrate and Others ex p Pinochet Ugarte (No. 3) [1999]
Propend Finance Pty Ltd and Others v. Sing and Others (1998)
Hanman, N., ‘DPP may Get Veto Power over Arrest Warrants for War Crimes Suspects’, Guardian (22 July 2010)
Akande, D., ‘The Legal Nature of Security Council Referrals to the ICC and its Impact on Al-Bashir’s Immunities’, JICJ 7 (2009), 333 Google Scholar
Natsios, A., ‘Beyond Darfur: Sudan’s Slide toward Civil War’, Foreign Affairs 87 (2008), 77 Google Scholar
Oette, L., ‘Peace and Justice, or Neither? The Repercussions of the Al-Bashir Case for International Criminal Justice in Africa and Beyond’, JICJ 8 (2010), 345 Google Scholar

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