Not so Moderate

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.

As is well known, different countries may have a different attitude toward the formal rank of international human rights law in domestic legal order. In those countries that qualify the ratified international human rights law merely as statute, the formal rank of international human rights law is often used as an argument against the binding force of international human rights law on domestic constitutional law. Through a comparative analysis between Germany and Taiwan, though, this paper shows that, despite similar determinations on the formal rank of international (human rights) law, the German and the Taiwanese Constitutional Courts have developed quite different views on the normative significance of international human rights law to their domestic constitutional orders. The different constitutional practices in Germany and Taiwan thus not only reflect Taiwan’s unique international status, but also indicate that the formal rank of international human rights law does not have much to do with its normative binding force on domestic constitutional law. Those who use formal rank as an argument against the binding force of international human rights law on constitutional law presuppose the absolute dichotomy of international and domestic law and thereby overlook the potential compatibility between international human rights law and constitutional law. From a human rights perspective, I argue that international human rights law should not be regarded as an “external” law, but rather as a framework order which delegates domestic constitutional orders to concretize international human rights law according to their own needs or interests so as to fulfill their international task of human rights protection on national level. Viewed this way, the determination on the formal rank of international human rights law in domestic legal order matters only because it has to do with the determination of a certain constitutional order on the way in which it concretizes international human rights law.

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.”

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.

Before discussing the meaning of international law, it is important to know that law is divided into two large groups, private law and public law. However, the terms these two large groups are better known as international law and international private law. The difference between the two is in the objects they regulate. International law is the law that regulates relations between countries and other legal subjects. International law can be defined as the law that regulates international scale entities. Initially, the definition of international law was only defined as law that regulates behavior and relations between countries. However, in its development, the meaning of international law has expanded to include the relationship between states and international organizations, the relationship between international organizations and other organizations, the relationship between states and individuals in special contexts, and so on. There are six subjects of international law, namely : states, international organizations, the international red cross, the vatican holy see, rebels and individuals. International Law includes a set of rules and principles established through international treaties, the practices of states, as well as legal decisions and interpretations by international institutions. Its aim is to regulate the behavior of states in maintaining peace, managing conflict, promoting cooperation, and protecting human rights. International Law covers various aspects, including the law of war (also known as international humanitarian law), refugee law, maritime law, environmental law, international trade law, international investment law, human rights law, diplomatic law.

Two doctrinal developments were necessary preconditions for the application of international human rights law (IHRL) in occupied territories to become part of international law. The first development was the growing recognition of the extraterritorial application of human rights—the idea that states are also bound by international human rights norms in actions they perform outside their borders— and the second was the determination that IHRL may apply together with international humanitarian law (IHL). The application of human rights in occupied territories is the outcome, possibly the most important, of these two developments. Given that occupation is one of the broadest manifestations of state control exercised outside sovereign borders, and one traditionally conceived as being governed by IHL rather than by IHRL, and given the length and extent of the occupying powers’ control over foreign nationals, the development that I refer to as the ‘righting’ of the law of occupation may radically transform international law on the relationships between occupier and occupied. As this Article will show, such a transformation has been underway in recent years. Advocates for applying IHRL in occupied territories in addition to IHL suggest that doing so would advance the welfare of the occupied people as well as a legal culture of compliance. They point out that enforcement mechanisms, such as UN treaty bodies and human rights courts, that are lacking in IHL would constitute an advantage, potentially filling the enforcement gap. Some argue that ‘no conceptual difference’ prevails between these two bodies of law, at least as they stand today. Since both are designed to promote human dignity and physical integrity and to minimize human suffering, they maintain that these common goals could be advanced by this development. This Article, however, argues that the application of IHRL in occupied territories may in fact lead to a radical transformation in the law of occupation because of the conceptual differences that do exist between IHL and IHRL.

Ambivalent Enforcement: International Humanitarian Law and Human Rights Tribunals

International Criminal Tribunals are not party to any human rights convention, which raises the question whether they have human rights obligations under international law at all. If so, these must stem from other sources of international law. This chapter therefore investigates whether the ICTs, as legal entities, are bound by general international human rights law. To that end, this chapter first addresses the legal status of the ICTs in international law, and the two rationales that have prevailed in international legal doctrine for considering international organizations with legal personality to be bound by international law: the so-called transfer thesis and the subject thesis. Subsequently, three concerns are identified that must accompany the conclusion that the ICTs are bound by international human rights law. First, it is difficult to establish the existence of norms contained in the unwritten sources of general international law: custom and general principles of law. Second, international human rights norms are, to a certain extent, inherently flexible and differ considerably from the procedural norms that the ICTs primarily apply in the context of their proceedings. Third, the relationship between the legal instruments of an ICT and IHRL is fundamentally different from the relationship of domestic law with IHRL, because there is no a priori hierarchy between the law of international criminal procedure and IHRL since both are branches of international law. Therefore, the fact that the ICTs are bound by IHRL does not mean that they are, from a formalist perspective, fully precluded from deviating from the norms contained in this body of law.

The internalization of international law by domestic courts is central to the effective implementation of international human rights law. This is particularly true for emerging rights rooted in soft law. In this regard, indigenous peoples’ rights have significantly expanded in international law over the past 20 years, essentially in the form of soft law. As a case study, the review of the jurisprudence of the Constitutional Court of Colombia illustrates ‘progressive’ interpretation of soft law, notably on free, prior and informed consent, which is enshrined in the United Nations Declaration on the Rights of Indigenous Peoples. Thus, domestic courts not only implement international human rights law, but they also foster its development.

The interrelationship of international human rights and humanitarian law is, in spite of the existence of a considerable level of literature on point, still somewhat uncertain. There have been claims that the two areas have increasingly converged, which have been countered with arguments to the effect that the twain never shall meet. This piece sees to investigate the relationship between these areas though an empirical analysis of the practice of the ICTY, and the way in which that Tribunal has sought to use human rights jurisprudence in a humanitarian law, and international criminal law, context. To show this, the piece analyses the relevant jurisprudence of the ICTY. Whilst giving credit where it is due, this piece attempts to show that the ICTY's practice, whilst not unimpeachable, has, in its more recent pronouncements, taken a more sophisticated approach than other international courts. With this in mind, he piece argues that in spite of its flaws, the later jurisprudence of the ICTY has helped to show that the interrelationships of international law, criminal law, human rights law, and international criminal law are not simple. As such the ICTY as made a useful contribution to the area, and one which has been somewhat more carefully thought through than the comments of other international courts, who have used the ICTY's jurisprudence without passing comment on the differentials that may exist between international criminal law and international law, and human rights law, in particular.

Fair and equitable benefit-sharing is a diffuse legal phenomenon in international law that remains perplexing with regard to its general nature, extent, content, and implications. The continued proliferation of benefit-sharing clauses in international law can in effect be explained by its intuitive appeal as an optimistic frame. In principle, it serves to recognize, encourage, and reward in innovative ways sustainable human relations with the environment, by focusing on equity issues arising from the most intractable challenges of our time (biodiversity loss, climate change, poverty, global epidemics). Empirical evidence, however, indicates that in practice benefit-sharing rarely achieves its stated fairness and equity objectives, and actually ends up entrenching or worsening inequitable relationships, with little or no benefit for the environment. Instead of focusing on fair and equitable benefit-sharing in specific areas of international law separately, this book assesses the phenomenon both from a general international law perspective and through a comparative analysis across international environmental law, international human rights law, international health law, and the law of the sea. This analysis reveals an opportunity to advance the interpretation and practice of fairness and equity in benefit-sharing through a mutually supportive interpretation of international biodiversity law and international human rights law.

What is the Specific Evil of Aggression?

This book explores the question of whether peacekeeping commanders can be held accountable for a failure to protect the civilian population in the mission area. This requires an assessment of whether peacekeeping commanders have an obligation to act against such serious crimes being committed under domestic and international law. The work uses the cases of the Dutch and Belgian peacekeeping commanders in Srebrenica and Kigali as examples, but it also places the analysis into the context of contemporary peacekeeping operations. It unfolds two main arguments. First, it provides a critical note to the contextual interpretation given to international law in relation to peacekeeping. It is argued that establishing a specific paradigm for peacekeeping operations with clear rules of interpretation and benchmark criteria would benefit peacekeeping and international law by making the contextual interpretation of international law redundant. Second, it is held that alternative options to the existing forms of criminal responsibility for military commanders should be considered, possibly focusing more clearly on failing to fulfil a norm of protection that is specific to peacekeeping and distinct from protective obligations under international human rights law and international humanitarian law.

The power of the Indonesian Constitutional Court to review laws is a constitutional adjudication process. It is a forum to resolve constitutional issues where a citizen can challenge Law that has injured his rights. The Court's reasoning provides audiences with the debates for its deliberation. Audiences may find reference to the international human rights law. It is an interesting practice. However, there is no studies yet about the information on the statistic of the Court made reference to international human rights law. As such, this study aims to identify reference to international human rights law in the Court's decision on judicial review cases from 2003 to 2016. Additionally, this study also aims to answer the question of what underlies the Court to made reference to international human rights law. As many studies show, the objective of Constitutional Court's references to the international human rights law is to strengthen constitutional rights protection. Nonetheless, the Court did not pay any interests to the global agenda of transnational constitutionalism or a convergence of rights and legal pluralism. The article is divided into 5 (five) sections, commencing with the introduction. The second part discusses the status of international human rights law in Indonesia. As the third presents information on Court's decision which cited international human rights law. Then, the fourth presents typical function of the decision that made reference to international human rights law. It concluded that the practice of referring to international law demonstrates the open attitude of Indonesian constitutional justices to the universal nature of fundamental rights.

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