Data Centers and International Humanitarian Law

This chapter addresses one of the most salient yet normatively unresolved issues regarding cyber operations: protecting civilian data during armed conflicts. The chapter illustrates how certain state operations target civilian data in foreign countries, including the United States. The chapter describes the international humanitarian law (IHL) governing cyber operations in armed conflicts. It points out how international law is unclear on whether data qualifies as object, which is essential for the proper application of IHL to cyber operations and describe further inadequacies of existing protections of civilian data. After highlighting current initiatives to address this issue, which do not focus on the role of industry, the chapter presents original ideas on how the industry can make a difference: (1) cooperating in developing alternative methods of achieving strategic cyber effects without harming civilian data; (2) enhancing collaborative cybersecurity efforts related to the protection of key sectors of civilian data; and (3) using economic and social influence to push toward a more protective legal regime.

Private Sector-led Urban Development Projects. Management, Partnerships and Effects in the Netherlands and the UK

This doctoral thesis, now published as a monograph, provides a thorough analysis of one of the most crucial concepts of the modern law of armed conflicts (LOAC), namely military objectives. The concept is crucial because the targeting of such objectives is directly linked to the principle of distinction, which in turn is a cardinal tenet of LOAC. It requires that the belligerents must always make the distinction between civilian objects and persons on the one hand, and military objectives (persons and objects) on the other, and attack only the latter to the exclusion of the former (Article 48 of the Additional Protocol I of 1977 (AP I)). Thus, the concept of military objectives is cast amidst the protection of civilians during the conduct of hostilities (whereas Geneva Convention IV of 1949 concerns their protection outside the context of combat action). It stands to reason that this protection is an essential part of the modern law of armed conflicts. Moreover, it is only superficially surprising that AP I was the first treaty to generally define military objectives. In the nineteenth century, the civilian hardly appeared in the LOAC. It was at that time simply taken for granted that civilians were outside the reach of military action; they would not participate in it and concomitantly would be spared from attacks. The social environment of the past was such that military action and civilian presence were reasonably distinct: the battlefield was the pitch for military action, other areas were bluntly aloof from such action. The twentieth century completely changed these parameters. Air power allowed a belligerent to wreak heavy havoc into all the lands of the adverse party. Industrialization and modernization of the army made civilian objectives relevant from a military standpoint, in particular industrial plants. Finally, the difference between civilians and military personnel was blurred, since civilians participated in a variety of forms to military operations (guerilla warfare is but one of the most emblematic forms of such participation). All these factors, among others, explain that the majority of victims in modern armed conflicts are civilians, not rarely up to a proportion of 90 per cent.1 The question of military objectives remains also highly relevant when viewed from another perspective. It is a concept often applied in modern military campaigns, where air power is of the essence. However, it gives rise to uncertainties at least on two accounts. First, the definition is open-ended and contextual; it must be operationalized in single cases and this gives rise to legal uncertainty. Indeed, Article 52, § 2, AP I, the cardinal provision in this regard, provides only for criteria which have to be applied by the belligerent to single sets of facts in order to determine if an object is a military objective. Second, there are marked differences of interpretation between the US and the continental European conceptions of military objectives, especially in certain areas of targeting such as ‘economic targets’ (i.e. targets chosen for their economic value to the war-sustaining effort). Notwithstanding the relevance of the concept of military objectives, there is hardly a wealth of monographic treatment of the subject matter. Indeed, no monograph in the English language was directly and exclusively devoted to that notion before the present publication. This new monograph is thus more than welcome.

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.

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

Customary international law 619. The importance of the environment is universally acknowledged. As the ICJ articulated the idea in its Advisory Opinion on Nuclear Weapons : the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. Attacks in wartime against military objectives (as defined supra 275) often jolt the environment. The prime example is an attack against oil facilities (on their nature as military objectives, see supra 330). An air strike against an oil refinery may give rise to toxic air pollution. When an oil storage facility is demolished, the oil may seep into the ground and poison water resources. When an oil tanker is sunk at sea, the resultant oil spill may be devastating to marine life. 620. The Advisory Opinion on Nuclear Weapons went on to say: States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality. The principle of proportionality has been discussed supra 408 et seq . It follows from the Court's dictum that, in keeping with the principle of proportionality, ‘an attack on a military objective must be desisted from if the effect on the environment outweighs the value of the military objective’. 621. The legal position under present-day customary LOIAC is that, when any attack is launched, ‘due regard’ must be given to the protection of the environment. Since, broadly speaking, the environment as such is a civilian object (see infra 641), even if an attack is planned in an area with little or no civilian population, it may have to be abandoned should the harm to the environment be expected to be ‘excessive’ in relation to the military advantage anticipated (see supra 408). Conversely, (i) it is very difficult to measure on a purely speculative basis the expected damage to the environment from a conventional attack; and, anyhow, (ii) ‘if the target is sufficiently important, a greater degree of risk to the environment may be justified’.

Although no specific treaties govern the use of air power, a significant body of rules based on general international humanitarian law (IHL) constrains the use of air power in armed conflicts. Scenes of carnage resulting from the application of air power to urban environments underscore the need to balance humanitarian concerns with operational necessity. With the principles of distinction, military necessity, proportionality, and humane behaviour as the point of departure, this chapter focuses on air-to-ground targeting – the aspect of air power that comprises the majority of IHL issues. It addresses four modern areas of debate, drawing on the principles of targeting: strategic targeting of war-sustaining objects, the issue of human shields, the use of remotely piloted aircraft, and autonomously operated aerial systems. Modern counter-insurgency operations have increased the complexity of the traditional battlespace with their greater focus on prevention of collateral damage. With robots increasingly becoming part of the Western arsenal, IHL and the moral code become essential; for Western democracies, law and ethics constitute the first line of defence. The study of IHL should assist all those involved in planning, leading, and executing air operations. The politically desirable and technologically possible must never be allowed to trump IHL.

The relationship between international environmental law and international humanitarian law, like relationships between many other subsystems of contemporary international law, has not yet been articulated. The problem of environmental damage in international armed conflict lies at the intersection of these two branches and thus provides an ideal opportunity to investigate this relationship. Rather than simply evaluating the applicable international law rules in their context, we break them into elements that we separately assess from both (international) environmental law and international humanitarian/international criminal law perspectives. By doing so, we identify how international law rules for cross-sectoral problems may appropriately combine the existing expertise and institutional strengths of simultaneously applicable branches of international law, and also discover how an evaluation of the ultimate appropriateness of the cross-sectoral rules adopted may be substantially affected by the different frames of reference that are used by those working within the different fields.

Before the 1940's, trends in international human rights, international criminal law and humanitarian law helped develop a rudimentary set of norms, particularly in Europe. These early trends sprang from populist social justice movements and evolving intellectual, religious and social mores. The 1940's saw the landmark intersection of preexisting trends in international human rights, humanitarian and criminal law and provided the bedrock intellectual, legal and historical bases that would incorporate those disparate trends into a collective and vital modern legal rights regime. These advances helped articulate and refine the substantive and procedural guidelines for subsequent international criminal bodies and help drive the revival of the principles of Nuremberg during the 1990's and into the 21st century. The modern international human rights treaty regime has affected international law in more ways than just by growing a sophisticated international jurisprudence, generating more exacting substantive definitions of human rights, and general principles of law.Keywords: International Criminal Law; international human rights; international humanitarian law; international jurisprudence

The use of cyber operations during armed conflicts and the question of how international humanitarian law (IHL) applies to such operations have developed significantly over the past two decades. In their different roles in the Legal Division of the International Committee of the Red Cross (ICRC), the authors of this article have followed these developments closely and have engaged in governmental and non-governmental expert discussions on the subject. In this article, we analyze pertinent humanitarian, legal and policy questions. We first show that the use of cyber operations during armed conflict has become a reality of armed conflicts and is likely to be more prominent in the future. This development raises a number of concerns in today's increasingly cyber-reliant societies, in which malicious cyber operations risk causing significant disruption and harm to humans. Secondly, we present a brief overview of multilateral discussions on the legal and normative framework regulating cyber operations during armed conflicts, looking in particular at various arguments around the applicability of IHL to cyber operations during armed conflict and the relationship between IHL and the UN Charter. We emphasize that in our view, there is no question that cyber operations during armed conflicts, or cyber warfare, are regulated by IHL – just as is any weapon, means or methods of warfare used by a belligerent in a conflict, whether new or old. Thirdly, we focus the main part of this article on how IHL applies to cyber operations. Analyzing the most recent legal positions of States and experts, we revisit some of the most salient debates of the past decade, such as which cyber operations amount to an “attack” as defined in IHL and whether civilian data enjoys similar protection to “civilian objects”. We also explore the IHL rules applicable to cyber operations other than attacks and the special protection regimes for certain actors and infrastructure, such as medical facilities and humanitarian organizations.

As one of the oldest substantive areas of regulation under international law, international humanitarian law (IHL) has played a prominent role in many of the key developments in international law. As public international law expanded, particularly in the latter part of the twentieth century, however, this role of IHL necessarily diminished, at least relative to other specialized regimes in international law. In addition, growing specialization has led to a certain isolation of IHL from public international law more generally. This special issue of the Journal of Conflict & Security Law examines this phenomenon and considers the relationship between IHL and general international law (understood as those rules of international law that apply across specialist regimes, such as rules on law creation, treaty interpretation and State responsibility). In considering how a range of general international law issues regarding sources, State responsibility and structural concepts such as State sovereignty arise in the specific field of IHL, a rich and complex relationship between IHL and general international law is revealed. The articles in this special issue demonstrate that this relationship varies considerably depending on the particular focus, from topics on which IHL and general international law diverge fundamentally to those in which IHL has played a key role in the development of certain general international law concepts.

Research on International humanitarian law from Islamic perspective in Scopus database was initiated in 1999. Since then, the research on that field has been increasingly used by researcher to examine further issues related to international humanitarian law from Islamic perspective. The objective of this study is to examine the published literature related to the topic of “International Humanitarian Law from Islamic Perspective”. The Scopus database was used to collect all relevant articles. Standard bibliometric analysis was used to offer full information on the increase of publications, research output, and citation analysis. According to research findings, a total of 91 documents were retrieved. It was discovered that the annual growth rate of published material on international humanitarian law from an Islamic perspective has grown since 2016. Most of the articles were published in journals, mainly in English, with the majority of the research on international humanitarian law from Islamic perspective being in the Social Sciences field. “International Humanitarian Law” and “Islamic Law” were the most popular keywords and represent the primary study areas comprised in the topic of international humanitarian law from Islamic perspective. Several research related to the study field was conducted in the United Kingdom and United States. This study shows the development of published literature on international humanitarian law from Islamic perspective, the subjects related to international humanitarian law from Islamic perspective in which researchers are currently interested in, as well as possible directions for future research on the study field.

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 conceptual, and more recently empirical, study of compliance has become a central preoccupation, and perhaps the fastest growing subfield, in international legal scholarship. The authors seek to question this trend. They argue that looking at the aspirations of international law through the lens of rule compliance leads to inadequate scrutiny and understanding of the diverse complex purposes and projects that multiple actors impose and transpose on international legality, and especially a tendency to oversimplify if not distort the relation of inter‐national law to politics. Citing a range of examples from different areas of international law – ranging widely from international trade and investment to international criminal and humanitarian law – the authors seek to show how the concept of compliance (especially viewed as rule observance) is inadequate for understanding how international law has normative effects. A fundamental flaw of compliance studies is that they abstract from the problem of interpretation: interpretation is pervasively deter‐minative of what happens to legal rules when they are out in the world, yet ‘compliance’ studies begin with the notion that there is a stable and agreed meaning to a rule, and we need merely to observe whether it is obeyed.Policy Implications Looking at the aspirations of international law through the lens of rule compliance leads to inadequate scrutiny and understanding of the diverse complex purposes and projects that multiple actors impose and transpose on international legality, and especially a tendency to oversimplify if not distort the relation of international law to politics. States, as well as other actors – corporations for example – instead of simply ‘complying’ with international legal rules may bargain in light of them, and around them. Given that there are transaction costs of negotiating, the rules will have an effect on the bargain, but one that will not be observed if what one is focused on is rule compliance. In altering the focus and agenda of states and nonstate actors in dealing with conflict and post‐conflict transitions, international law may have raised expectations too high that where politics and economics, and for that matter moral idealism, have failed to solve enduring human problems, law will succeed. International law may create benchmarks for a wide range of private decision making, and this even when in the first instance the rules in question have not been explicitly addressed, at least not traditionally to nonstate actors. Such benchmarks may affect to whom firms lend, with whom they deal as suppliers or subcontractors, design specifications for products such as ships and aircraft, the terms of such diverse transactions as the adoption of children, the transportation of hazardous products and the transfer of high technology. Private actors may simply adopt these benchmarks as common terms of commerce regardless of the extent to which they have been ‘implemented’ by states. International law (norms and/or institutions such as courts and tribunals) may shift in whole or in part decision‐making, interpretative and/or legitimating power from one set of elite actors to another (for example from diplomats, foreign policy analysts and military planners to legal professionals such as judges, lawyers and law professors).