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The chapter traces the origins of human dignity, showing how it was originally used to denote titles of honor but is now seen as a universal human right or as undergirding universal human rights. In the context of discussing dignity rights, the chapter highlights international human rights treaties and national constitutions making refeerence to the concept of human dignity, which, in modern usage, has to do with the inherent worth of a life. The chapter discusses how human dignity is the foundation for many human rights, including the right to life, the right to be free from torture and other forms of cruelty, and the right to be free of discrimination. The chapter describes existing jus cogens norms prohibiting various acts that violate fundamental human rights, concluding that the death penalty must be abolished because it makes use of credible death threats, inflicts psychological torture, and violates an array of basic human rights. The chapter details how non-lethal corporal punmishments have already been abandoned and how the death penalty has been abolished or curtailed in many countries, with international criminal law tribunals precluding the death penalty's use.
The adoption of the Convention on the Rights of Persons with Disabilities (CRPD) represents an important and (potentially) progressive development in the protection framework under international humanitarian law (IHL). Article 11 of the CRPD specifically obliges States to protect persons with disabilities from harm in situations of risk, including armed conflict, consistent with IHL and human rights law. The CRPD framework signals the need to address the traditional framing of disability under IHL and to draw from human rights concepts in the CRPD in order to inform the protection accorded to persons with disabilities in armed conflict.
This article is divided into four main parts: the first three address three main lines of inquiry, while the fourth is forward-looking. The first part analyzes the framing and construction of disability in IHL and the implications of such framing for the protection of persons with disabilities. The second part analyzes fundamental IHL rules in an effort to demonstrate how the framing of disability and the protection framework of the CRPD can be used in the application of IHL. The third part identifies some specific problem areas ripe for further disability scoping and harmonization of the CRPD and IHL. Looking forward, the fourth part identifies entry points for focused action and research aimed at bringing about the kind of dynamic treaty practice envisioned by Article 11 of the CRPD.
Academics rarely raise the need to consider persons with disabilities when preventing, investigating and prosecuting international humanitarian law (IHL) violations. Worse still, no actual attempts have been made to include a disability perspective into practical guidance and monitoring mechanisms. This article addresses that void by laying out how existing yet unutilized IHL obligations can be leveraged to repress and suppress disability-based IHL violations. In doing so, the article will detail how fact-finding approaches, criminal investigative processes and reporting methods for IHL violations can be inclusive of persons with disabilities and thus more appropriately address the endemic under-representation of a disability perspective in the planning and execution of military operations during armed conflict and the specific crimes they thereby suffer. Additionally, this article will articulate concrete changes that should be made to international criminal law procedures for prosecuting war crimes to provide recognition and accountability for disability-based IHL violations, as has been done for violations against women and children. Finally, this article will diagnose the state of the law to address any legal challenges or hurdles that may hamper the inclusion of a disability perspective in fulfilling the IHL obligation to reduce and address violations of humanitarian law.
In this chapter, political philosopher Alex Leveringhaus asks whether Lethal Autonomous Weapons (AWS) are morally repugnant and whether this entails that they should be prohibited by international law. To this end, Leveringhaus critically surveys three prominent ethical arguments against AWS: firstly, AWS create ‘responsibility gaps’; secondly, that their use is incompatible with human dignity; and ,thirdly, that AWS replace human agency with artificial agency. He argues that some of these arguments fail to show that AWS are morally different from more established weapons. However, the author concludes that AWS are currently problematic due to their lack of predictability.
The law scholar Dustin Lewis explores the requirements of international law with regard to the employments of AI-related tools and techniques in armed conflict. The scope of this chapter is not limited to Lethal Autonomous Weapons (AWS) but also encompasses other AI-related tools and techniques related to warfighting, detention, and humanitarian services. After providing an overview of international law applicable to armed conflict, the author outlines some preconditions necessary to respect international law. According to Lewis, current international law essentially presupposes humans – and not artificial, non-humans – as legal agents. From that premise, the author argues that any employment of AI-related tools or techniques in an armed conflict needs to be susceptible to being administered, discerned, attributed, understood, and assessed by human agents.
This contribution analyses Article 12 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (the Protocol). It examines the purpose, scope and contribution of this Article to the legal protection of persons with disabilities in armed conflict and its implementation. The analysis is divided into four parts. The first part will start by identifying and analysing the background to this provision, which provides specific protection to persons with disabilities in armed conflict. The second part will examine Article 12 in the light of other similar regional instruments and of the protection challenges that persons with disabilities face during conflict. This will highlight the specific nature of the Article's provisions, together with its shortcomings and its progressive aspects. Part three will look at the interaction between Article 12 and equivalent rules of international humanitarian law, and how Article 12 contributes to the development of legal protection for persons with disabilities in armed conflict. Finally, the fourth part will examine the challenges to the implementation of Article 12. It will also propose ways of overcoming those challenges and hence of enabling Article 12 to have its intended effect.
In armed conflicts and crises, children with disabilities face serious threats to their lives and safety, including those related to their inability to flee attacks, risk of abandonment, lack of access to assistive devices, lack of access to basic services and denial of education as well as experiences of stigma, abuse, psychological harm and poverty. Children with disabilities experience multiple and intersecting forms of human rights violations based on their disability and age. Since 2015, Human Rights Watch has documented the impact of armed conflict on children with disabilities in Afghanistan, Cameroon, the Central African Republic, the Gaza Strip in the Occupied Palestinian Territory, South Sudan, Syria and Yemen. While international human rights specifically call for the protection of children with disabilities in situations of armed conflict, the United Nations, governments, parties to the conflict and humanitarian actors have long neglected their specific rights and needs. There is an urgent need for the United Nations and governments to increase efforts to protect children with disabilities as part of their international commitments to protect all children impacted by hostilities. Their attention and investment in those most at risk of violence during armed conflicts will in turn enhance protection measures for everyone.
Both in its advisory and contentious jurisdiction, the International Court of Justice has made considerable contributions to the evolution and interpretation of international humanitarian law (IHL). The judgments and advisory opinions of the Court in various cases have also developed the regulation of armed conflicts by showing the interplay of other bodies of international law and have shaped the development of non-binding IHL norms. The purpose of this short article is to consider the role of the International Court of Justice in the development of IHL.
Peter Maurer served as President of the International Committee of the Red Cross (ICRC) from 2012 to 2022. During his time as President, Maurer prioritized strengthening humanitarian diplomacy, engaging States and other actors for the respect of international humanitarian law, and improving the humanitarian response through innovation and new partnerships. Meanwhile, he oversaw an historic budget increase and organizational expansion. Prior to his role at the ICRC, Mr Maurer served as Secretary of State for Foreign Affairs in Switzerland and headed the Swiss Department of Foreign Affairs. Earlier, Mr Maurer held various positions representing Switzerland at the United Nations (UN) in New York, including Ambassador and Permanent Representative of Switzerland to the UN, Chairman of the UN's Fifth Committee, and member of the UN Peacebuilding Commission. Mr Maurer had first joined the Swiss diplomatic service in 1987, through which he held various positions in Bern, Pretoria and New York. Maurer was born in Thun, Switzerland in 1956. He studied history and international law in Bern, where he also earned a doctorate.
This article takes a critical look at the development of international humanitarian law (IHL), from its early codification in the Hague and Geneva Conventions to the present day. It examines why and how IHL develops – through treaty, custom, interpretation and soft-law instruments, as well as the influence of jurisprudence and other branches of law. In doing so, it highlights some of the distinctive elements of IHL that set it apart from other bodies of law and explains how these elements influence IHL development. Turning to the present, it addresses some of the key arguments commonly heard against attempting any further development of IHL, by answering the following three key questions: Does IHL need to develop further? If so, how can this be achieved? And what are the prospects for such development in the near future? In answering these questions, the article argues that IHL will continue to develop in many ways, and that while the current environment does not appear propitious for new legally binding norms of IHL, they continue to be both necessary and possible.
This article examines the authority of the 2005 International Committee of the Red Cross Study on Customary international humanitarian law within the international legal system by collecting and analysing citations to the Study in documents containing expressions of State positions, in the judgments of international and domestic courts and tribunals and in the outputs of other influential actors. Our analysis establishes that the Study is increasingly seen as a highly authoritative instrument, such that a particular proposition will be found to reflect customary international law simply on the basis that the Study says so. We argue that the Study's authority will likely only increase over time.
Gerard Quinn is the United Nations (UN) Special Rapporteur on the rights of persons with disabilities. A graduate of Harvard Law School, he founded and directed the Centre for Disability Law & Policy at the National University of Ireland for many years. He sat as a member of the Council of Europe's treaty body on social rights and served as a civil servant in the European Commission, where he drafted European Union disability policies. He has conducted many large studies for the UN, including a 2002 Study that helped launch the drafting of the UN Convention on the Rights of Persons with Disabilities. He led the delegation of Rehabilitation International during the drafting of the treaty. He has received many lifetime awards for his work on international disability law from the US International Council on Disability, the European Association of Service Providers for Persons with Disabilities and Rehabilitation International. He was conferred with an honorary doctorate for his worldwide disability law work by Lund University in 2022. He has held honorary positions at the National Academy of Legal Studies and Research (NALSAR; Hyderabad, India), Wuhan University (China), Fudan University (Shanghai), University of New South Wales (Sydney), Deakin University (Melbourne), Harvard Law School and Haifa University (Israel). He served on the Council of State in Ireland where he advised the President on constitutional law matters. His hobbies include folk music and storytelling.
A window into the history of international humanitarian law scholarship, the ICRC Library's collections capture over 150 years of debates and developments related to the branch of international law that protects those who do not, or no longer, take part in hostilities. Yet, among the 41,000 references in the Library's collections, only a handful of recent publications focus on how this protection applies to persons with disabilities. In this article, two ICRC reference librarians take stock of this gap in their collections and consider its implications.
Emily Crawford is an Associate Professor at the University of Sydney Law School, where she teaches and researches in international law, international humanitarian law and international criminal law. She has published widely in the field of international humanitarian law, including three monographs (The Treatment of Combatants and Insurgents under the Law of Armed Conflict (Oxford University Press, 2010), Identifying the Enemy: Civilian Participation in Hostilities (Oxford University Press, 2015) and Non-Binding Norms in International Humanitarian Law (Oxford University Press, 2021)), and a textbook (International Humanitarian Law (with Alison Pert, 2nd edition, Cambridge University Press, 2020)). She is an associate of the Sydney Centre for International Law, and a co-editor of the Journal of International Humanitarian Studies.
Animals are the unknown victims of armed conflicts. Wildlife populations usually decline during warfare, with disastrous repercussions on the food chain, on fragile ecosystems and precarious habitats. Belligerents take advantage of the chaos of war for poaching and trafficking of animal products. Livestock, companion, and zoo animals, highly dependent on human care, are direct victims of hostilities. The book is the first legal analysis of these issues. It maps the framework of international humanitarian law, examining which and how the concepts, principles, and rationales can be applied and adapted for a better protection of animals. The contributions inter alia discuss precautions for animal civilians, problems of animal combatants and prisoners, a specific status for veterinarian personnel, the recognition of biodiversity hotspots as specially protected zones, and the potential of enforcement mechanisms. The concluding chapter draws together novel interpretations and reform proposals.
Negotiations with organized crime groups occur more often than realized, and raise complex questions of ethics, practice and policy. Currently, law provides few incentives for States to choose the path of negotiation, and thus the political costs and moral hazards remain very high and a mano dura (“firm hand”) approach prevails. This paper examines some of the challenges faced by those who in good faith might initiate or participate in negotiations with such groups, offering an assessment of how those challenges can be mitigated and an inquiry, in particular, into how law and policy might be improved or reimagined to make such negotiation more feasible and effective in contexts of armed conflict or other situations of violence.
Legal commentaries are a type of secondary source that provides clarity about the meaning of treaty provisions so they can be appropriately interpreted and applied by practitioners. Since 1870, the International Committee of the Red Cross (ICRC) has produced such commentaries on each successive international humanitarian law (IHL) treaty or update to an existing treaty. Over time, who drafts these commentaries and the methodology behind them has evolved, from early commentaries written by a single jurist who had participated in the drafting of the treaty to multi-authored works based on extensive research and the methodology found in the Vienna Convention on the Law of Treaties. The ICRC Commentaries have always been geared towards those tasked with applying IHL, but this audience has expanded over time, giving them a more global reach, and their reception has evolved accordingly. The most recent iteration of the ICRC Commentaries on the 1949 Geneva Conventions and their 1977 Additional Protocols is currently being produced, with some changes in methodology to guarantee that they remain a practical tool for the interpretation and application of those instruments.
Military strategists have begun pivoting from a focus on counterterrorism, counter-insurgency and stability operations to potential peer and near-peer conflict. This shift has profound operational and tactical implications for how future wars will be fought, but equally, it will have a significant impact on how international humanitarian law (IHL) is understood and applied. This article considers the process by which the normative evolution of IHL will occur in response to a battlespace that looks different than it has for decades. To do so, the article introduces two concepts: “normative architecture” and “applied IHL”. It argues that only by understanding the difference between these two concepts, and their relationship to each other, can States and others concerned with how IHL is developing in the face of future conflict positively affect that process.
What does Hinduism have to say about the rules of armed conflict? How might Hinduism enrich the modern global discourse on international humanitarian law (IHL)? What convergences might be found, and what areas of divergence? This paper examines and contextualizes the rules of armed conflict advocated in classical Hindu texts, especially in the epic Mahābhārata, where important norms of Hinduism are established. It also examines the other major epic, the Rāmāyaṇa, and the Dharmaśāstras (Law Codes), as well as the Arthaśāstra, which takes an alternative (realpolitik) approach. This paper focuses on conduct during armed conflict (jus in bello), now synonymous for many with IHL, rather than considerations leading up to war (jus ad bellum). The paper seeks to illuminate both convergences and divergences with IHL and highlight particular Hindu approaches on the righteous (dharmic) application of violence. Like IHL, classical Hinduism values (1) proportionality of force during armed engagement; (2) the minimization of human suffering during combat; (3) care for survivors of war; (4) immunity towards non-combatants, especially civilians; and (5) balancing military necessity with humanity. With respect to divergences, classical Hinduism extols non-violence in ways that critique even the warrior's duty to engage in righteous war (dharma yuddha). In contrast to IHL, the Hindu epics have some different limitations; for instance, they limit the right to combat to a particular caste, the kṣatriyas, though this concept could be modernized to mean uniformed personnel of the State. The epics also disavow certain practices that are legal under IHL, such as ambushes and surprise attacks against legitimate targets. The Hindu proportionality provision goes beyond IHL by prescribing that only warriors of the same type should fight. With its many deeply ethical considerations, Hinduism enriches modern IHL through its heightened emphasis on fair and humane conduct in battle and its call towards compassion on behalf of both combatants and non-combatants.
Endless armed conflicts against terrorist groups put civilian populations at risk. Since France has been involved in the Sahel from 2013 onwards, transnational non-international armed conflicts (NIACs) of extended geographical and temporal scope against groups designated as terrorists are not a US exception anymore. NIACs against terrorist groups, conducted not only by the United States but also by France, persist and have been reconfigured around threat anticipation. How can anticipatory warfare be best constrained? This article argues that it can be best done through more constraining rules regulating target selection in NIACs and, in particular, by redefining the notion of continuous combat function (CCF). Many elements explored in this article indicate that the United States and France select targets that they pre-designate as terrorists, before these targets are engaged in hostilities. Instead of responding to the observed participation of these individuals in hostilities, strikes are based on contextual and behavioural elements ahead or outside of such moments. This paper argues that when war consists of threat anticipation, it becomes very extensive and particularly risky for civilians. Furthermore, recent State practice in the counterterrorism context reveals the pitfalls of the notions of direct participation in hostilities and CCF as defined in the 2009 International Committee of the Red Cross Interpretive Guidance. Outside this context, the interpretations proposed in the Interpretive Guidance might seem sufficient to constrain target selection processes and to protect civilian populations. However, when applied to armed conflicts that are driven by threat anticipation, the pitfalls of these interpretations emerge. I formulate a critique of these interpretations as being partly responsible for anticipatory warfare and propose an alternative theory for the CCF test.