존 롤즈(J. Rawls)의 전쟁과 핵무기에 대한 이론

International Law in Revolutionary Upheavals – on the Tension between International Investment Law and International Humanitarian Law -

The aim of this study is to conduct a comparative analysis of the protection of human dignity and the prevention of discrimination from the perspective of Islam and International Humanitarian Law (IHL). This study attempts to clarify the similarities and differences between these two systems and examine the principles of each system for the protection of human dignity and rights. This study compared the principles of Islam and IHL through an analytical and comparative method. International documents, Islamic sources (Quran and Hadith) and IHL were used. This study is based on the analysis and comparison of documents. The results of the study show that both Islam and IHL emphasize the protection of human dignity and anti-discrimination laws. Islam has strongly opposed any form of discrimination based on its principles, while IHL supports these principles through international conventions. Islam and IHL demonstrate that human dignity must be protected for all human beings and that all forms of discrimination must be eliminated. Both systems share a fundamental principle of equal rights, justice, and respect for human dignity. A comparison of these systems shows that there is broad international support for these principles. Governments and international organizations should enhance the coherence between Islam and IHL to ensure the broad protection of human rights. Awareness of human dignity and the prevention of discrimination should be raised through educational programs. There is a need to develop laws at the international level to protect human rights based on the principles of Islam.

The situation in Palestine has influenced the deployment of international human rights law and international humanitarian law. The impact of longterm Israeli occupation and the rule of the Palestinian Authority in the Occupied Territory is multifaceted. Despite the various research on Palestine, human rights, and the rule of law, few studies have been conducted on the enforcement mechanisms of human rights in Palestine. This study examines the applicability of international human rights and humanitarian laws as well as domestic laws to assess the contribution of these directives in protecting the fundamental human rights of Palestinians in the Occupied Territory. It conducts an in-depth case study of three basic rights: the right to movement, the right to property, and the right to equality and non-discrimination in the Occupied Territory. The study further examines the role of the Palestinian High Court of Justice and the Israeli Supreme Court in implementing domestic and international laws. In this regard, the study examines the major laws which are invoked, in certain circumstances, to limit the ability of Palestinians to confiscate, expropriate, and destruct their private property, and to implement discriminatory practices against them. The study further examines whether the available international and domestic mechanisms are effective, and if not, it suggests modifications upon which a functional national and international system could be built. The findings of the research demonstrate that international human rights treaties and international humanitarian law conventions are de facto and de jure applicable in the Occupied Territory. As a result of the aforementioned in-depth study cases, it can be concluded that human rights violations against Palestinians in the Occupied Territory are committed by the Palestinian Authority and the Israeli government. In addition, the Palestinian and the Israeli judiciaries have failed to grant Palestinians reasonable protection or a just remedy, and they are dysfunctional and politically driven. The study concludes with a proposal for new mechanisms for Palestinians to redress human rights violations. The further outcomes of this study argue that neither international human rights nor humanitarian law guarantee full protection for Palestinians. Hence, the implication of the findings indicates that the regulations of international human rights and humanitarian laws, which were made by the powers of the nineteenth century with their colonial provisions, might not fit to the present complications of the current challenges to international law in Palestine. The goal is to promote a re-thinking approach to the employment of human rights to serve all people in an efficient and well-organized system. The scope of this study is not meant to grant Palestinians favorable treatment in the multilateral international system, but to achieve just and successful remedies for victims of human rights violations.

Since the beginning of the nineties Germany has taken part in UN military missions. The Afghanistan mission since 2001 is the largest and most visible German engagement at present. Foreign assignments of German soldiers do not only pose questions with regard to constitutional law but might also have legal bearings on criminal law. When soldiers cause death of enemy combatants or civilians the question of individual criminal responsibility of the operating soldier and commander in charge arises. The wider context of international law in which military missions take place brings the relation between national criminal law and international law into focus.In its first part this article deals with criminal responsibility under the Völkerstrafgesetzbuch of 2006. It has been included into German law in the aftermath of issuing the Rome Statute of the International Criminal Code and comprehends the statutory offence of genocide, crimes against humanity and war crimes. War crimes may only be committed during an armed conflict, requiring an examination of the conditions under which a conflict might be qualified as an international or non-international armed conflict. In the following, the authors focus on the highly relevant war crime of disproportionally causing death of civilians. Especially with regard to the more complicated situation of a non-international armed conflict a careful determination of who falls in the category of a civilian is undertaken.The second part analyses a parallel application of the German Criminal Code and the Völkerstrafgesetzbuch. As this question is answered in the affirmative, causing loss of life of a person during a military mission fulfills the actus reus of homicide. However, the fact that the act takes place within a military mission is to be taken into account also within the German Criminal Code. While compliance with internal Bundeswehr or NATO rules may not exculpate the soldier, compliance with international humanitarian law leads to exemption from punishment. The rules of international humanitarian law apply to international and non-international armed conflicts and are congruent with regard to the basic principles. An act of a soldier may not be punishable to the extent that the soldier acted in conformity with the applicable rules of international humanitarian law. In the view of the authors this is especially important with regard to the rules of procedure as a violation thereof is not reflected as a crime in the Völkerstrafgesetzbuch.In cases in which soldiers act outside the context of an armed conflict, international humanitarian law is not applicable. It is argued that in these situations the human rights laws general prohibition to use deadly force outside the narrow boundaries of self-defense persists. A UN mandate, even in conjunction with a mandate of the German Bundestag, by itself cannot be construed as to exculpate an individual soldier as the mandate concerns the aspect of ius ad bellum and not ius in bello and has no bearing on the individual.With regard to the mens rea a soldier might act without intent, leading to a conviction for negligence.In sum, the authors illustrate that international law presents precise standards for legitimate and illegitimate operations in armed conflicts. From this it follows whether a soldier who causes the death of another person has committed a crime and is to be tried in a German Court proceeding or not.

The armed conflicts in Sudan present a prolonged and intricate humanitarian crisis marked by widespread human rights abuses and violations of international humanitarian law (IHL). This research delves into the complex interplay between human rights principles and IHL within Sudan's conflict context, aiming to offer insights into challenges, dilemmas, and potential solutions in conflict-ridden African regions. Sudan's history is marred by various conflicts such as the Darfur conflict and the Second Sudanese Civil War, resulting in significant displacement, loss of life, and systematic violations of human rights and IHL. Understanding these conflicts' dynamics and their impact on civilians is crucial for developing effective strategies to address humanitarian concerns and foster peace and stability. Challenges in addressing human rights violations and ensuring IHL compliance in Sudan include blurred lines between state and non-state actors, asymmetric warfare, and complex socio-political dynamics. Non-state armed groups often operate outside international law, leading to human rights abuses like indiscriminate attacks on civilians and recruitment of child soldiers. State actors may also violate IHL through actions like arbitrary detention and restrictions on humanitarian access. This research adopts a multi-disciplinary approach, drawing on international law, political science, sociology, and conflict studies to analyze root causes and identify avenues for conflict resolution, peacebuilding, and human rights promotion. It critically evaluates the role of regional and international actors, offering practical recommendations to enhance human rights protection and IHL compliance in Sudan and similar African conflict zones.

This article focusses on the issue of fundamental standards of humanity, a set of principles to reflect both international human rights and humanitarian law, as a means to address the insufficient protection of persons in situations of internal violence. Such fundamental standards of humanity, applicable at all times, in all circumstances and to all parties, are necessary to address four areas: 1) States are not party to international instruments; 2) human rights obligations are derogated from; 3) international humanitarian law is not applicable or is so but is not applied; and 4) non-state actors may not be bound by obligations under international law. The article provides an overview of the steps taken by the international community to address the issue, discusses the sources of international human rights law, humanitarian law and refugee law from which fundamental standards of humanity could be drawn, and suggests further steps to be taken. The authors are convinced that fundamental standards of humanity would serve as an educational tool to enhance effective implementation of relevant international law.

International Law: Text, Cases and Materials provides not only an essential introduction to the core concepts and foundational principles of international law, but also a detailed overview of each established area in which international law operates. Featuring cases, materials, and illustrative figures throughout to enhance the level of context and detail provided, the book covers everything a student of international law requires. Topics include the law of treaties, international organisations, the international protection of human rights, responsibility in international law, jurisdiction, diplomatic and consular law, territory in international law, the law of the sea, international air and space law, international economic law, international environmental law, and international humanitarian law. This comprehensive textbook will be essential reading not only for any course on international law, but also as a starting point for those wishing to grasp the context of a particular area of international law before exploring further.

Recenze: Lucie Cviklová: Advancement of Human Rights of LGBT Minority: Advancement of human rights standards for LGBT people through the perspective of international human rights law. Lambert Academic Publishing, 2013, 104 s.

In 1996, the International Court of Justice issued an opinion that the use of nuclear weapons is “scarcely reconcilable” with international humanitarian law and concluded that nations have an obligation to pursue good-faith negotiations leading to disarmament. The 2010 Nuclear Non-Proliferation Treaty Review Conference reaffirmed the need for all states to comply with international humanitarian law, which governs the use of nuclear as well as conventional weapons. When the rules of war are applied to nuclear weapons, it becomes clear that these weapons cannot comply with international law. The effects of nuclear weapons are inherently uncontrollable and do not meet international criteria for discrimination between military and civilian targets, for proportionality, and for necessity. Arguments made by the United States as to why some uses of nuclear weapons could be lawful do not stand up to scrutiny. Nuclear weapon states should make immediate changes to any missions, deployments, and targeting policies and practices that facilitate the use of nuclear weapons. Not only does international law preclude the use of nuclear weapons, but it also precludes threats to use nuclear weapons.

The operation of military courts is clearly allowed for and, in some cases, mandated by international humanitarian law (IHL). Nevertheless, the use of military courts has been one of the most controversial and hotly debated areas of human rights. Despite the ostensibly exclusive military domain, many human rights bodies have registered significant scepticism towards this type of justice. Consequently, they have sought actively to regulate this ‘IHL space’ with scant attention to the requirements of IHL itself. The article examines comments, case law, draft rules and other measures taken by two human rights frameworks: the United Nations Human Rights Council and the African Commission on Human and People's Rights. It will analyse how, since 2000, these bodies have approached the issue of IHL when assessing the legitimacy and operation of military courts. For instance, do they consider IHL as a source of law guiding their efforts and rely on IHL instruments? How do they resolve conflicts between IHL and international human rights law? Additionally, the article will consider the validity, legality and effectiveness of these efforts. It concludes that, in reviewing military courts, there exists significant neglect of IHL in human rights frameworks. Through overlooking IHL or relegating it to a sub-specialty of international human rights law, these bodies not only ignore applicable law, they deprive themselves of the wealth of expertise found in commentary, debate, jurisprudence and practice in the IHL sphere. Instead, integrating IHL analysis and theory and affording it its appropriate respect within relevant human rights discussions will allow for greater legal and policy coherence, and human rights bodies will be better placed to fulfil their mandates.

The question of whether international humanitarian law (IHL) provides for the power of detention to Parties in a non-international armed conflict (NIAC) has been, of late, highly contentious. Whilst many have opined on this issue, most have reflected upon it purely from within the prism of IHL. This chapter takes a different approach. After identifying the interwoven nature of IHL and war crimes, it considers the issue from the perspective of international criminal law (ICL). It submits that if IHL does not provide for a power of detention in NIACs, then non-State armed groups (NSAGs) that engage in such conduct will most likely commit the war crime of unlawful confinement (imprisonment) as a violation of the laws and customs of war and simultaneously violate domestic criminal law. This has profound consequences. One of the incentives that NSAGs have to follow IHL is the possibility that, if they abide by its principles, they will not stand liable for war crimes. Further, IHL actively encourages the provision of amnesties to members of NSAGs at the end of the NIAC, but this can only extend to domestic crimes and not to war crimes. It is submitted that a situation whereby ICL liability is but a foregone conclusion for the mere act of detention – where no reprieve in the form of an amnesty is available – has a potentially negative effect on the incentive for NSAGs to abide by IHL standards when it comes to how detention is carried out. This should be kept in mind when considering the question of whether IHL provides for an authority to detain in NIACs.

Chapter 6 analyses the relationship between International human rights law (IHRL) and international humanitarian law (IHL). IHL represents the new version of a part of the old ius gentium, in particular its ius in bello. Nonetheless, IHL excludes ius ad bellum, formerly linked to ius in bello in ius gentium, in continuity with the Just War Theory. The current IHL is characterized by neutrality, impartiality, and humanity in protecting victims. The practice of IHRL – not the abstract doctrine of natural rights – aims to protect human beings in different contexts and against different forms of vulnerability. In this last sense, IHL could be seen as a part of the former in the case of vulnerability caused by war. IHL and IHRL are often indicated as lex specialis (IHL) and lex generalis (IHRL). Three criteria are used to test the relations between them: the sphere of temporal application (IHL in war or emergency; IHRL in any situation, but with possible derogation in some cases), the question of the addressee (states and other possible actors in both cases), and the sphere of subjective application (the person protected: victims for IHL; human beings in a certain context for IHRL). At the end of the day, the differences between them are less important than they appear to be and suggest an aspect of incoherence in terms of respect for the human person as a key principle of the international order.

Separation and self-contained regimes From a strictly separatist position, human rights and humanitarian law are fundamentally different and irreconcilable to the extent that there can be no meaningful debate on human rights in armed conflict. The different historic development of the two systems, the dissimilar nature of their respective norms and the different goals they pursue in law and policy keep them apart and prevents any discussion on their simultaneous applicability for theoretical as well as practical reasons. It was asserted that the law of armed conflict is so radically different from international human rights law in its origin, foundation, nature, object and content that the two are not only diametrically opposed but that neither can be derived from the other. Such a position maintains that international humanitarian law and international human rights law neither share a common history nor common goals but have a fundamentally different legal structure and “no over-reaching axiology, no value system that unifies the objectives of these fields of international law.” They are mutually exclusive. Such a complete separation of international humanitarian law and international human rights law has been suggested only rarely. Where a separation was argued for, metaphorical concepts such as presenting international humanitarian law and international human rights law as “two curtains” were introduced instead. Each of these curtains was meant to shield the individual from threats in different moments: international humanitarian law in times of war and international humanitarian law in times of peace. But even this suggestion was mitigated by the argument that during armed conflicts the curtain of international human rights law (i.e., the two UN human rights Covenants) would not be drawn back completely but only “largely.”

The continuous growth of artificial intelligence (AI) capabilities is poised to transform human lives across various sectors, including health care, agriculture, and scientific research. Nevertheless, certain applications of AI, particularly the development of AI-powered lethal autonomous weapon systems (LAWS), remain highly contentious due to concerns about whether such weapon systems would comply with international law, including international humanitarian law. LAWS, colloquially known as “killer robots,” have emerged at the forefront of contemporary weapons technology and are considered the “third revolution” in warfare, after the invention of gunpowder and nuclear weapons. In the absence of a regulatory framework, the advancement of sophisticated LAWS presents a significant threat to international peace and security. These systems, capable of independently conducting missions, selecting targets, and applying force, are susceptible to errors and miscalculations that could lead to unforeseen and potentially catastrophic consequences. Such errors might trigger dangerous escalations or unintended conflicts due to false alarms or accidents. Additionally, an AI arms race might push states to overlook ethical, legal, and security considerations in their effort to accelerate advancements and surpass their adversaries. In essence, the rapid incorporation of AI into modern military operations presents a multifaceted set of challenges for policy makers, legal experts, scientists, ethicists, military strategists, and the world at large. Against this backdrop, the article first assesses the compatibility of LAWS with international humanitarian law, then examines their impact on international peace and security, and finally analyzes the potential implications of LAWS for the future of peace and security in the Global South.

Ambivalent Enforcement: International Humanitarian Law and Human Rights Tribunals