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The right to reparation for victims of armed conflict continues to be controversial. Above all there is not one single consolidated legal regime. Rather, provisions on reparation for victims of armed conflict are, inter alia, to be found in international human rights law, international criminal law as well as international humanitarian law. This introduction provides an overview on the relevant legal regimes as well as on the development of the law and introduces the main arguments developed by the authors of this volume.
Wars are emergency situations, but in contrast to the saying according to which necessity knows no law, they are not lawless situations at all. Quite to the contrary, an extensive body of international treaties and customary international law provides detailed regulations. However, which rules do and should apply to what kinds of situation is a hotly debated issue and the subject of this book. Different regulatory paradigms are competing for how wartime situations shall be regulated – with significant legal, practical and institutional implications. This book approaches the legal issue in a Trialogue. The characteristic feature of a Trialogue is to approach questions of international law from three perspectives, which differ in terms of their regional background, technical method, professional specialisation and worldview of the co-authors. The three authors (who are embedded in their particular social and cultural context) approach the law from their particular perspective, which invariably influences what they identify as the relevant rules and how they interpret and apply those. The core method of the ‘Max Planck Trialogues on the Law of Peace and War’ is to positively acknowledge the diversity of perspectives, and to make constructive use of them (multi-perspectivism).
Which law applies to armed conflict situations? The contributions to this Trialogue have tackled and answered this question from different angles. Helen Duffy provided a study of the current practice of co-application of IHL and IHRL with a particular focus on litigation before international human rights courts and developed a framework for the co-applicability of both regimes. Ziv Bohrer espoused a historical perspective to challenge recent crisis narratives which assert that IHL is unfit to respond to recent developments in warfare. He made the case that IHL is the better suited system to regulate armed conflict situations. Janina Dill approached the interplay between IHL and IHRL as a moral question and proposed a moral division of work between both regimes which caters for the moral goals of guiding soldiers’ behaviour and protecting victims. Which overall conclusions can we draw? Where do the chapters converge in substance, where do they disagree? Our concluding reflections aim to pull the strings of the Trialogue together and seek to identify common positions and fault lines.
Self-defence against non-State actors, such as pirates and ships carrying letters of marque with deliberately ambiguous links to sovereign States, was the cardinal issue that framed and propelled the rise of modern international law. After the adoption of the UN Charter, the concept of self-defence has been sharpened to mean first of all the situation that one State defends itself against an ongoing armed attack by another State. However, the concept has remained controversial at the margins.
This Trialogue has discussed whether and – if yes – under which conditions international law as it stands allows for self-defence against non-State actors on the territory of a non-consenting State. Unsurprisingly, it has not come up with one clear answer. Rather, it has come up with three distinct answers – the contrast and interplay of which illuminate the facets and intricate details of one of the most pressing problems of international peace and security law. Dire Tladi advocates an inter-State reading of self-defence based on a thorough investigation of the UN Charter framework and recent State practice and thus concludes that self-defence against an ‘innocent’ State is unlawful. Christian Tams arrives at the opposite result. Employing – as Tladi does – a principally positivist method, his finding is that the better interpretation of the law is open for self-defence against non-State actors.
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