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The International Criminal Courts Round-Up reports on the most interesting judgements and decisions rendered by international(ized) criminal courts and tribunals during the reporting period. In addition, important developments within the various organs of the courts are highlighted, such as the appointment of new judges and significant amendments to the procedural rules of the courts. The Round-Up presently covers issues concerning the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone.
Volume 7 (2004) of the YIHL will be the last to feature a documentation section. During this transitional period, there will be an abbreviated section; henceforth, persons wishing to access documents in the field of IHL are referred to the Website of International Humanitarian Law (www.wihl.nl). The website, managed by the staff of the Section of International Humanitarian Law and International Criminal Law of the TMC Asser Institute of International Law, includes a database of freely available full text documents covering international humanitarian law, international criminal law and related disciplines. The large and growing number of materials focuses on national legal materials in these fields, such as legislation and case law. Over time, the aim will be to make the database as comprehensive as possible.
The Year in Review highlights the issues of principal legal and political importance concerning international humanitarian law during the reporting period. In volume 7 (2004), it focuses on the prisoner abuse scandal at Abu Ghraib prison in Iraq and the mistreatment of other prisoners and detainees by the US and its allies in the context of the so-called ‘war on terror’, and explores the roots of that misbehaviour. The Year in Review covering 2004 also reports on IHL-related developments at the UN and other international organisations, in the area of arms control and implementation, inter alia.
This article explores the compatibilities and tensions between the human right to education and occupation law. In 2004, the International Court of Justice (ICJ) issued an advisory opinion stating that Occupying Powers must extend their international human rights treaty obligations to the people in the territories they occupy. This finding reaffirmed what many human rights and occupation law scholars and judicial and quasi-judicial bodies have long claimed. While occupation law and human rights law are largely compatible tensions between the two can arise however. This is not surprising given the basic premises that each body of law is based upon. While occupation law largely works to restrict the occupant from tampering with the laws and institutions of the occupied territory, there are significant portions of human rights law that work hard to press states to amend or change laws and develop infrastructure to accommodate the welfare of their populations. This tension is not merely theoretical. It has been the case since at least World War I that occupants have taken an interest in making changes to the education of youth and educational institutions in the territory they control. Relying primarily on the core obligations of the right to education, this study looks at the extraterritorial and positive human rights obligations that occupants have with regard to the primary education of children inside an occupied territory. It also sets out an approach that helps mediate the areas where the two are less than compatible.
The prohibition of attacks directed against civilians and civilian objects is a logical implication of the principle of distinction and an essential part of International Humanitarian Law. There is a dearth of war crimes cases focusing on unlawful attacks, perhaps because such cases have been regarded as simply too difficult to prosecute. Recently, such cases have been prosecuted before the International Criminal Tribunal for the former Yugoslavia. The article reviews these cases and the experience of the prosecutors to provide guidance for those involved in such prosecutions in future and for those involved in advising military forces or evaluating military operational conduct.
Depleted Uranium (DU) munitions were first used operationally by US and British coalition forces during Operation Desert Storm in 1991 to eject Iraqi forces from Kuwait. Since that time, concerns have been raised in various quarters regarding the possible adverse effects DU may have on human health and the environment. In particular, it has been suggested that the reported ‘explosion of childhood cancer in southern Iraq’ and so-called Gulf War and Balkans Syndromes may be attributable to combat uses of DU in the Middle East and, more recently, in Bosnia in the mid 1990s. Such concerns, however, appear not to have impeded either the proliferation or continued use of DU munitions, such as in Kosovo and Serbia in 1999, in Afghanistan in 2001 and in Operation Iraqi Freedom in 2003. It is thought that, in addition to the US and the UK, a growing number of other countries have DU munitions in their arsenals.
The issuance by the International Court of Justice (ICJ) of its Advisory Opinion on the consequences of Israel's construction of the separation barrier in the Occupied Palestinian Territories (OPT) raises myriad legal questions worth addressing. This paper focuses on one of the key claims made by Israel and a number of other states since the request for an Advisory Opinion was brought before the Court: whether the involvement of the Court in the issue of the construction of the barrier constituted an obstacle to Israeli-Palestinian peace.
Grisly images of dead or injured civilians vie with ‘morbidly spectacular film of PGM (precision guided munition) strikes’. These phenomena, like this article, focus attention on the two most basic law of targeting components, that of military objective and that of incidental civilian losses. The latter component, being incidental civilian loss, injury and damage, also known as collateral damage, is one side of the proportionality ‘equation’. Expected incidental civilian losses (which term will be used interchangeably with collateral damage) are balanced against the anticipated military value of the strike. This balancing, i.e., proportionality, is one of the major factors in the law of targeting. The concepts examined are two of the most dramatic aspects of targeting. Is there any relationship between military objective and incidental civilian losses? If so, what is the linkage? If one concept expands or contracts what happens to the other? This relationship may have important implications for the type of expertise required to make legal targeting decisions. The type of expertise required would indicate who is best placed to make such targeting decisions and what sorts of errors such decision makers are prone to make and thus must particularly strive to avoid.
Every year, the YIHL features a comprehensive bibliography covering the most recently published books and articles focusing on international humanitarian law, international criminal law and related fields. While the focus is on literature in the English language, notable publications in French, German, Spanish, Italian and other languages are also noted.
Genocide was unleashed in Rwanda in April 1994. Within the first few hours, ten Belgian peacekeepers had been kidnapped and murdered and the leading moderate political leaders summarily and brutally executed. Approximately 100 days later, an estimated 800,000 people had been killed. Militias, armed forces, police officers and the ordinary man and woman on the street took part in the massacres.
In the decade that has elapsed since the genocide, Rwanda has put transitional justice at the centre of its post-conflict reconstruction process. In September 1994 the United Nations Security Council, at the behest of the Rwandan government, passed a resolution creating the International Criminal Tribunal for Rwanda (ICTR), to adjudicate the crimes of genocide, war crimes and crimes against humanity committed in that country. Subsequently, in September 1996 Rwanda's legislative body passed the Organic Law on the Organisation of Prosecutions for Offences Constituting the Crime of Genocide or Crimes Against Humanity (Organic Law).
After regaining independence following the 1991 collapse of the Soviet Union, Lithuania, Latvia and Estonia vowed to prosecute those who took part in the Soviet repressions that followed the annexation of these countries in 1940. Over a dozen ex-agents have since been tried. Officials in the Baltic States insist they are seeking long overdue justice and shedding light on some of the worst human rights abuses of the 20th century. This paper is principally concerned with genocide as a legal norm. It examines whether the indictments of the courts of the three Baltic republics for the crime of genocide, as it is described in their national statutes, correspond with the definition provided by international law. The paper avoids qualifying the Soviet occupation regime; instead, the emphasis is on the progress made by legislators of the Baltic countries in defining the crime of genocide and the application of those definitions by national courts.
In a concise order, issued on 19 August 2004, the Supreme Court of Israel (HCJ) ordered the Israeli government to respond to a new petition brought by a number of Palestinians and the Association for Civil Rights in Israel (ACRI) against the route of the West Bank separation barrier (or separation wall) near the West Bank villages of Boudrous and Shukba. Specifically, the order invited the government to refer to the recent advisory opinion of the International Court of Justice (ICJ) on the legality of the same barrier. On 23 February 2005 the Office of the Attorney General at the Ministry of Justice filed with the Court the state's response to the petition. More than half of the comprehensive 142-page memorandum submitted by the state addresses the implications of the ICJ advisory opinion on the Wall upon the case at hand. After an exhaustive review of the opinion, the written response concludes that the ‘advisory opinion has no bearing upon the claims at hand, and the claims should be adjudicated in accordance with the factual and normative framework designed by the Supreme Court, as manifested in the Beit Sourik case’. Since the state's response represents the first comprehensive statement of the position of the state of Israel with relation to the ICJ advisory opinion, it is indicative of the degree of influence that the advisory opinion is likely to have upon Israel's future conduct in the Occupied Territories.
A unique feature of the YIHL, Correspondents' Reports is a digest of state practice in the field of international humanitarian law and related fields. It features succient, highly readable, reports compiled and reported by the yearbook's roster of expert rapporteurs which provide a global review of IHL covering the reporting period. Areas covered by the national reports include legislative and judicial developments at the national level. The section is essential reading for those wishing to keep abreast of developments in this dynamic field.
Generally speaking, armed opposition groups are not able to win a direct confrontation with the regular armed forces because they lack firepower but they can win small, local engagements, keep large numbers of regular forces tied up and, perhaps, prevent control by the armed forces of the whole territory. Such operations place a severe strain on the rule of law. In this article, it is their impact on the law of war that is examined, but it will be done from the perspective of the regular armed forces. In this respect, it should be noted that the law has been laid down by just those powerful states and it may be that insufficient provision is made in the law for that type of combat. If it is to stand any hope of being complied with, the law must be realistic. That applies with greater force to unequal combat.
In the future, it is likely that many battles will be fought in an urban environment. In such battles, the risk to both the civilian population and to attacking soldiers will be drastically increased. As a result, commanders will certainly face the very difficult dilemma of determining the amount of danger to which they will expose their forces in order to limit civilian casualties. Additionally, both strategic and tactical considerations will continue to play an influential role in determining their course of conduct on the battlefield.
This article seeks to explore these two issues, from the perspective of the rule of proportionality. It concludes that the current law of armed conflict does not explicitly require a commander to risk her soldiers' lives in order to reduce civilian casualties. However, there are moral reasons to accept such an obligation in certain situation, and this obligation might be embedded in the law of armed conflict through interpretation of current provisions or through the Martens Clause. Additionally the article concludes that while conducting the proportionality balancing test, a commander may consider the cumulative impact of both the tactical aspects of the operation and the strategic aspects of the overall operational plan or war strategy.
This article looks at the history of military manuals and their role in the dissemination of the law of armed conflict. It divides manuals into three categories, international, national, and internal, examining each in turn in relation to its role. The author concludes that there is a tension between the role of a manual as evidence of ‘state practice’ in the development of customary international law and the need to provide service personnel with clear understandable instructions for use in military operations. He counsels against excessive reliance on manuals as evidence of state practice as this could have the effect of making states reluctant to openly publish such documents with a detrimental effect in the operational field.
The relentless modernisation of weaponry, the transformation of military strategy, and recent conflicts incorporating both these trends, especially in response to the War on Terror (WOT), raise two questions with regard to jus in bello: does the almost exponential increase in the use of modern weaponry and commensurate changes in military strategies foster compliance with jus in bello or, alternatively, does it make its observance less likely. Second, is jus in bello in danger of becoming increasingly irrelevant in the era of post-modern asymmetrical warfare. If so, can jus in bello be adapted to meet these new challenges? Answering these two questions, this article describes jus in bello, reviews how advances in weapon technology and force structure have been reflected in recent military operations, and identifies key jus in bello issues that have arisen in these recent conflicts. The article also surveys how technology and jus in bello impacted changes in US military strategy and future weapon modernisation efforts, and concludes by noting that weapon modernisation and new military strategies have proceeded within jus in bello and have fostered its observance ensuring that jus in bello will survive the unique challenges posed by non-conforming terrorists and belligerent states.