The Oxford Guide to International Humanitarian Law

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.

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.

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

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 tries to examine John Rawls’ theories of war and nuclear weapons especially from the perspective of international law. Rawls's theory of war is based on the just war theory of Western tradition. It rejects realism and does not adopt pacifism. Rawls's theory of jus ad bellum is similar to the position of current international law in that it recognizes a war of self-defense and exceptionally a war of humanitarian intervention. HIs theory of jus in bello largely reflects the principles of existing International Humanitarian Law(IHL), such as the distinction between combatants and civilians, protection of human rights, and restrictions on military necessity. However, Rawls deviates from international humanitarian law in that it permits military action against civilians in the case of the so-called supreme emergency. Regarding nuclear weapons, it differs from the existing International Court of Justice (ICJ) theory of nuclear permitting by permitting nuclear weapons only to well-ordered peoples and presenting human rights standards for nuclear use. In addition, by evaluating the Hiroshima-Nagasaki atomic bombings as great wrongs, it presents a precedent in international humanitarian law for the use of nuclear weapons. The official position of the United States regarding the Hiroshima-Nagasaki atomic bombings was that it was a justifiable measure to end the war early. However, Rawls rejects the U.S. government's arguments and says that the atomic bombing was a representative case of the failure of so-called 'statesmanship'. This article attempted to support Rawls's perspective from the perspective of international humanitarian law. The claim that the Hiroshima-Nagasaki atomic bombings were intended to reduce the casualties of U.S. soldiers does not comply with the principle of military necessity under international humanitarian law. Additionally, the claim that it was an inevitable choice to reduce the damage to Japanese civilians that would result from a prolonged war is not valid in that there was room for a third option to end the war. The dropping of the Hiroshima-Nagasaki atomic bombs reflected America's political interest for the victory of unconditional surrender and ending the war before Russia (the former Soviet Union) entered the war. This did not comply with the principles of military necessity or humanitarian necessity of international humanitarian law.

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

Ambivalent Enforcement: International Humanitarian Law and Human Rights Tribunals

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.

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.

The UN Security Council has authorized Member States to adopt unprecedented measures to combat piracy in Somalia. While authorizing all necessary measures against pirates, the UN Security Council has deemed it necessary to indicate that such measures must be consistent with international humanitarian and human rights law (Res. 1851 of 16 December 2008). The contextual application of these two distinct branches of law to anti-piracy operations gives the individuals concerned, such as the hostages or the suspected pirates, major protection for their rights. However, there is a problem of coordination between international humanitarian law and human rights. Jurisprudence and the practice of non-judicial control mechanisms have tried to define the relationship between the system of human rights and humanitarian issues. This article aims to analyze the relationship between international humanitarian law and human rights, and to determine, through the interaction of both systems, the level of protection that will apply during anti-piracy operations.

This article examines the question of how a business operating in a conflict-affected area can uphold human rights. It contends that a crucial yet often overlooked element is a business’s commitment to embedding the fundamental standards of international humanitarian law (IHL) (as distinct from international human rights law) into its policies and practices. The United Nations Guiding Principles on Business and Human Rights state that companies doing business in conflict-affected areas should respect IHL—the law of armed conflict. However, businesses are often unfamiliar with IHL and its relevance to their operations; it both provides legal protections and represents potential risks and liabilities. Similarly, the scholarly discourse around business and human rights (BHR) tends to overlook the relevance of IHL. The absence of IHL from the scope of the draft BHR treaty currently being negotiated at the United Nations is indicative of this. While some businesses operate with greater conflict sensitivity than others, in most cases they do not use an IHL lens to do so. The article outlines the significance of IHL for business and provides an affirmative case for greater integration of IHL into the BHR project, including its governance instruments and practical tools, to help realise the goal of responsible business conduct in conflict-affected areas.

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.

The article analyzes the theoretical foundations of the concept of the principles of the correlation of international humanitarian and domestic law. The relevance of studying the theoretical foundations of the analysis of the concept of the principles of the correlation of international humanitarian and domestic law is due to the deep transformational processes taking place in the system of international legal regulation in conditions of armed conflicts, as well as the need to improve law enforcement practice at the national level. In particular, the war waged by the Russian Federation against Ukraine has clearly demonstrated the need to harmonize the norms of international humanitarian law with the domestic legislation of states that are in a state of armed conflict or involved in the settlement of its consequences. Dualism and monism as legal doctrines constitute the theoretical basis for assessing the legal status of the norms of international humanitarian law in the domestic legal field. In modern conditions of humanitarianization of international law and strengthening the role of imperative norms, preference is given to approaches that ensure the direct effect and priority of the norms of international humanitarian law as a means of protecting fundamental human rights in conditions of armed conflict. This, in turn, forms a doctrinal and normative basis for rethinking the traditional relationship between international and domestic law in favor of human rights, humanity and responsibility. The concept of principles of correlation is not only a doctrinal tool of interpretation, but also a category with a normative and binding nature, which ensures the systemic unity of the global and local levels of legal regulation in the field of armed conflicts. The principles of correlation of international humanitarian and domestic law represent a legal formula of integration, which ensures compliance of national legislation with the standards of international humanitarian jurisprudence, legitimization of state actions in armed conflicts and creates legal prerequisites for the effective implementation of individual and state responsibility for violations of humanitarian norms. Key words: theory of law, principles, correlation of international humanitarian and domestic law, concept of principles of correlation of international humanitarian and domestic law, dualism, monism

PRESENTATION INTRODUCTION Manuel Chaves-Gonzalez I The Legal Theory of 1. and General Principles of International Law Juan Antonio Carrillo-Salcedo 2. On the Need to Respect Democratic Principles to Combat Rafaa Ben Achour 3. The Definition of and International Law Castor Miguel Diaz-Barrado 4. The Fight Against Terrorism: Between the Reason of State and the Human Rights. Special Reference to Morocco Youssef El Bouhairi 5. Terrorist Acts as Threats to International Peace and Security Dr. Rosa Giles-Carnero II International Responsibility and 1. Politico-Legal Reflections on International and Preclusions from Wrongfulness Cesareo Gutierrez-Espada 2. Collective International Measures to Counter International Paz Andres-Saenz-de-Santa-Maria 3. at Sea. The International Law Response Jose Alberto Fernandez-Rodera 4. The International Responsibility of EU in US Extraordinary Renditions of Suspected Terrorists Nuria Arenas-Hidalgo 5. The Legislative Dynamics of International Law in Combating Terrorism, a Case-Study Daniel Garcia-San Jose III The Prevention of Terrorist Acts 1. Legal Aspects of Counter-Terrorism & Intelligence in the Prevention of Clive Walker 2. Suppressing the Financing of Terrorism: Some Cases Pending before the Court of Justice of the European Communities Juan Manuel Rodriguez-Carcamo 3. Preventive Self-Defence against International Romualdo Bermejo-Garcia 4. Police Cooperation on Nuclear, Radiological, Biological and Chemical Pedro Rios-Calvo 5. From the Achille Lauro to the Present Day: An Assessment of the International Response to Preventing and Suppressing at Sea Rosario Dominguez-Mates IV and Armed Conflicts 1. The War on Terrorism Yoram Dinstein 2. Combating Terrorism: An International Humanitarian Law Perspective Manuel Perez-Gonzalez 3. Scope of Application, Perpetrators of Terror, and International Humanitarian Law Toni Pfanner 4. Combating Through Enhancing Mutual Reinforcement Between International Humanitarian Law and Human Rights Law Ibrahim Salama V Regional Counter-terrorism 1. The European Union's Response to Pablo Antonio Fernandez-Sanchez 2. The Organisation of American States and the Fight against Enrique Lagos 3. The Arab and Islamic Conventions of the Fight against Said Ihrai 4. The European Union Anti-Terrorism Policy in Relation to other International Organizations Carmela Perez-Bernardez 5. The Fight against Terrorism: International Human Rights Monitoring and Protection Organs Ana Salado-Osuna VI The Legal Limits to the Fight against 1. and the European Court of Human Rights Jose Antonio Pastor-Ridruejo 2. Anti-Terrorist Measures in the Framework of Political Participation Monica Montero-Elena 3. Legal Limbo at Guantanamo Bay. Supreme Court v. Bush Administration: June 29th 2006 Decision Ruth Abril-Stoffels 4. Terrorism, State of Emergency, and Derogation from Judicial Guarantees Milena Costas-Trascasas EPILOGUE OR RAPPORT DE SYNTHESE The Fight against the and International Law Claudio Zanghi ANNEX. The Huelva Declaration for an Alliance of Civilizations against