International Law of Armed Conflicts

Noam Zamir provides a comprehensive and concise analysis of the issues concerning conflict classification, with particular focus on the impact of foreign state interventions in the internal affairs of states engaged in a NIAC. The presentation of the normative framework of conflict classification, supported by a well-argued contribution to the scholarly discourse of IHL, is the incontestable added value of his work. It is worth noting that his theoretical undertaking is pertinent not only to the development of the IHL doctrine but also to the practice of states.

The Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law issued by the ICRC in 2008 recommended two interpretive standards on the use of force against individuals in armed conflicts. While one standard defines ‘direct participation in hostilities’ by reference to ‘functional membership’ such that anyone with a continuous combat functions in an organised armed group will lose her/his civilian immunity and be subject to attack on a continuous basis, the other standard requires that the kind and degree of force used in the attack be graduated according to military necessity. This paper surveys the court decisions, military manuals and legal or policy documents in different domestic jurisdictions since the publication of the Interpretive Guidance to illustrate the different levels of the adoption of these standards in domestic legal orders. The paper then borrows Franck’s theory of legitimacy to identify the possible legitimating factors that gave these standards the capacity to induce their adoption by domestic actors. Lastly, the paper employs Habermas’ theory of deliberative democracy in order to examine whether and how the governance by these transnational standards of the people subjected to them may be justified by their democratic legitimacy.

RESUMO: O conflito instaurado entre Rússia e Ucrânia repercute na comunidade internacional. A anexação da Criméia à Federação Russa e a existência de conflito armado requer considerações jurídicas, políticas e econômicas. Considerando essa problemática, propõe-se uma análise sobre o Direito Internacional Público, os princípios da segurança, estabilidade e previsibilidade internacionais. Diante da situação imposta pelo conflito, alvitra-se uma crítica sobre o desrespeito aos direitos humanos, a soberania das nações, como sujeitos de direitos e ao posicionamento da comunidade internacional em relação às nações envolvidas.

Part I of this article looks at the customary law of war, modern humanitarian law
conventions, and international environmental law. Part II examines the impact of
armed conflict on the environment, the diminishing capacity of the Earth to absorb
environmental catastrophe, the resulting need for new environmental rights and legal
protections, how a new multilateral convention might serve these ends, and the Fifth
Geneva Convention proposed by Greenpeace International. Part III will then consider whether a new convention to protect the environment during armed conflict is likely in the foreseeable future. Part IV analyzes the strengths and weaknesses of existing law, focusing on the problem of weak enforcement, aspects of effective enforcement and the compelling need for preventative enforcement remedies. Finally, Part V discusses the use of armed forces as a means to deter, prevent, and punish unjustified environmental damage during armed conflict. This part examines the threshold for use of force in this context and a new “greenkeeping” role for armed forces modeled on peacekeeping.

Al conmemorarse una década desde que el ex presidente Felipe Calderón (2006-2012) declaró la Guerra contra el narcotráfico en México, este trabajo analiza la pertinencia de clasificar aquel enfrentamiento como un conflicto armado interno bajo los estándares de la legislación internacional. Se plantea como hipótesis que la confrontación desarrollada en territorio mexicano no cubre los parámetros establecidos para la existencia de un conflicto armado no internacional conforme al Derecho Internacional Humanitario, calificando más bien como ‘Otra Situación de Violencia’ conforme a la terminología propuesta por el Comité Internacional de la Cruz Roja, escenario que no se encuentra contemplado en la jurisdicción internacional.

Author briefing (English version) provided to participants in OPERATION REGIONAL COOPERATION 01. Briefing described the Rules of Engagement/Rules for the Use of Force applicable under the Laws of Armed Conflict (LOAC) in UN Peacekeeping/Peacemaking missions. Operation Regional Cooperation 2001 (also referred to as CENTRASBAT 2001), was a command post exercise held at U.S. training facilities at Ramstein Airbase, Germany with Kazakhstan, Kyrgyzstan, and Uzbekistan, and the United States participating.

This chapter explores the way in which the discourse related to the application of international human rights law (IHRL) to non-State armed groups (NSAGs) is being constructed by numerous scholars and institutions. Although it is undisputed that NSAGs have an impact on the civilian population in the various conflict settings to which they are party, the actual reasons why this discourse is being articulated and who is undertaking this task remain insufficiently explored. As international law does not exist in an intellectual vacuum, an examination of these issues may serve to better comprehend the purpose and goals of IHRL in armed conflict as understood by scholars and institutions, together with certain legal interactions that often remain unseen.

On 6 August 1945 the atomic bomb Little Boy was dropped over the Japanese city of Hiroshima. On 9 August another one, Fat Man, targeted Nagasaki. The first bomb directly and indirectly killed about 237,000 people in Hiroshima. The Nagasaki death toll was about 80,000 people. These bombardments were undertaken by the US at the same time when they took part in the creation of the first International tribunal for crimes against humanity committed by German and Japanese war criminals. At the same time, it could be said that atomic bombardments of Japanese cities looked like a big war crime. Never before had so many people, overwhelmingly civilians, been killed simultaneously. These two massacres were planned and prepared in detail by the winners of the war at the end of the war. However, these bombardments were never officially recognized as a war crime. People who planned and carried out the bombing of Japanese cities never faced trials. They were proud of their actions. Debates over the atomic bombardment of Japan never stopped. In my essay I will try to find the answer, whether those bombardments were a war crime and, if so, why they were not investigated. I will explore legal and ethical aspects of those bombardments and their effect on world history.

The topics of armed conflict and annexation have to date not attracted much attention when it comes to international investment law and investor-state arbitration. However, a series of recent events, ranging from investment claims under Soviet and Yugoslav investment treaties to claims against Russia for investments in Crimea, has drastically altered the importance of the law of state succession in investor-state arbitration. Furthermore, the Ukrainian crisis of 2014, also provides the medium for an examination of the impact of armed conflict on international investment law. As of the writing of this article, eight claims have beenfiled by Ukrainianinvestors againstRussia under the Russia-Ukraine bilateralinvestment treaty (BIT), over the alleged breach oftheir investments in Crimea. For its part, Russia has decided not to participate in the proceedings. Regardless, these claims bring about significant questions with respect to the law of state succession in general and the application of Russian investment treaties to Crimea in particular. Furthermore, it has to be examined whether armed conflicts can affect the operation of investment treaties, and in particular, whether the conflict in Crimea left the operation of Russian and Ukrainian investment treaties intact or suspended the operation of such treaties. Setting out from these questions, this article provides the foundational elements on the importance of the impact of armed conflict and the law on state succession on investor-state arbitration.

This monograph is a serious and well-researched investigation into crucial factors of contemporary warfare. Readers will learn lessons on the distinctions between the Law of Armed Conflict and criminal law, particularly on important issues like lethal force, escalation of force tactics, and security detention. Professor Paterson makes a strong argument that the stated policy of respect and promotion of human rights (HR)-that has long been a guiding principle of the U.S. military-does not translate into specific and mandatory directives at the tactical and operational levels. Indeed, he asserts that at those levels there is no formal attention to HR, only ad hoc efforts by operational units that don't receive guiding policy. This monograph will be essential reading for policymakers and those whose task is the development of granular precepts to guide implementation and execution of policy on the ground.

RESUMO: O conflito instaurado entre Rússia e Ucrânia repercute na comunidade internacional. A anexação da Criméia à Federação Russa e a existência de conflito armado requer considerações jurídicas, políticas e econômicas. Considerando essa problemática, propõe-se uma análise sobre o Direito Internacional Público, os princípios da segurança, estabilidade e previsibilidade internacionais. Diante da situação imposta pelo conflito, alvitra-se uma crítica sobre o desrespeito aos direitos humanos, a soberania das nações, como sujeitos de direitos e ao posicionamento da comunidade internacional em relação às nações envolvidas.

This report is the result of a two-day workshop for experts on international humanitarian law (IHL) and Islamic law that was held in Geneva, at the headquarters of the International Committee of the Red Cross (ICRC), on 29 and 30 October 2018. Experts from 23 countries took part in the workshop, where they discussed five subjects of contemporary concern: the conduct of hostilities; protection for health-care personnel and facilities; detention during armed conflict; special protection for children; and the proper handling of dead bodies. The overall objectives of the workshop were to strengthen cooperation between experts in IHL and Islamic law, and to give Islamic scholars an opportunity to discuss the operational and legal challenges confronting the ICRC in Muslim contexts. The report provides an account of the discussions that took place during the workshop. Participants considered the subjects mentioned above from the perspectives of IHL, Islamic law, and operational expertise. It is hoped that the report’s recommendations will go some way towards strengthening respect for IHL in Muslim contexts and helping the ICRC undertake the daunting tasks before it.

Conflict is a part of life, but when turned violent, it can be like a handshake that extends beyond the elbow which can no longer be tolerated. In a similar understanding, the internationalization of the Congo conflict is very complex due to the various involvements of states. However, in accomplishing the objective of this research, the problem that led to this conflict and made this study possible was the spillover effects from the conflict. There were issues arising from internal and external countries and actors taking sides, and also the involvement of organizations on regional continental and global levels. My findings however included the use of proxies in the DR Congo conflict, which served as part of the factors that played out mostly by external states sponsoring rebel groups to help fight in Congo, and the exploitation of the resources of DRC through transnational networks was an intricate system of political economic and socio-cultural forces. My recommendation for the issues brought out by this study was that there should be a development in the defense base of the Congo, there should be an improvement in one of the arms of government so that in the long run, it would enhance their balance of power system, and make it possible for them to check each other for more effective administration, States should provide basic amenities for the citizens, in other to avoid divided loyalty, in situations of intervention, proper agreements should be laid out in other to avoid an infringement, and the democratic system of government should be encouraged, because when the democratic peace theory is applied states would engage each other on the basis of war.

One of the several disputing points in the Turkey - PKK conflict is the different interpretation of the applicable international humanitarian law norms. This is mainly due to the different definitions (or non-definitions) of conflict that he actors involved are giving about the facts on the ground.
In the first and second part of the paper paper, I show the fallacies that are present in both PKK's and Ankara's position. In the last section, I suggest a third and more neutral legal interpretation of the conflict that could serve as a common ground for the two parties in order to overcome their legal dispute.

L’objet de ce travail de recherche aura été de s’interroger sur la capacité du droit applicable en conflits armés à appréhender et interdire les violences sexuelles dans un tel contexte, à répondre et à lutter efficacement contre ce problème majeur de la guerre.

Pour y répondre, deux axes majeurs ont été soigneusement analysés. Ces deux axes représentant chacun deux temps successifs de la lutte contre ces violences.

Toute tentative de réglementation d’un comportement dans une société, quel qu’il soit, débute par l’élaboration de règles à cette fin. Comme nous l’avons évoqué, la réglementation des comportements en conflit armé ne fait pas défaut à ce processus, même si la guerre est parfois présentée comme un espace de non-droit. Afin de mettre fin aux violences sexuelles, une première prise de conscience s’est opérée. La Communauté Internationale a progressivement compris que ces violences ne pouvaient plus être considérées comme une réalité inévitable, une fatalité de la guerre. Le DIH va donc se saisir de la question pour l’introduire dans ses textes. Plus largement, le Droit international public va s’intéresser à cette question également au travers du Droit international des droits de l’Homme et du Droit International Pénal. Ce dernier intérêt résultera alors d’une seconde prise de conscience. L’Humanité, réalisant l’ampleur de l’utilisation systématique de ces violences, va chercher à mettre sur pied leur interdiction totale en conflits armés. Cette interdiction sera renforcée par la création de juges internationaux pour sanctionner les éventuelles violations de ces règles. En d’autres termes, la réglementation des violences sexuelles durant les conflits armés va connaître une importante évolution pour aboutir à un corpus juridique complet et favorable à une stricte criminalisation de ces pratiques (Première Partie).

Cependant, comme tout corpus juridique, l’effectivité du droit applicable aux conflits armés ne peut être réduite à l’élaboration d’un ensemble textuel soigneusement rédigé. C’est en effet à la lumière de sa mise en œuvre pratique sur les théâtres d’opérations, et devant les magistrats, que cette effectivité du droit est jugée. Il ne faut toutefois pas se méprendre, ce n’est certainement pas parce qu’une règle est violée qu’elle n’est pas valable. Il sera en réalité question de s’attarder sur la capacité du corpus juridique présenté en première partie à mettre fin aux violences sexuelles dans les conflits armés. Les règles sont-elles non seulement claires et complètes, mais également applicables par les juges et les autorités compétentes? Finalement, l’efficacité des règles sera évaluée quant à leur rôle dans la lutte contre ces violences particulièrement destructrices. Ainsi, il sera question dans une seconde partie d’analyser la pertinence des règles applicables au regard de leur mise en œuvre dans les conflits armés récents et actuels (Deuxième Partie).

SİLAHLI ÇATIŞMALARDA KADINLARA YÖNELİK SOYKIRIM SAİKİYLE CİNSEL ŞİDDET KULLANIMI: RUANDA ÖRNEĞİ
İlk hayatın başladığı andan bugüne değin insanın en temel isteği “hayatta kalmak” olmuştur. Hayatta tutunmak için de yegane ihtiyaç duyduğu şey güçtür. İşte bu hayatta kalma ve güç elde etme arzusu insan davranışlarının da zemininde yatan en başat unsurdur. Bu sebeple Thomas Hobbes, insanın en temel hakkının “kendi hayatını korumak için her şeyi yapma özgürlüğü” olduğunu belirtmiştir. Bu düşünce sistemine de en çok silahlı çatışma durumlarında rastlanır. Özellikle 19. Yüzyıl, insanlık tarihinin karşılaştığı en yıkıcı savaşlara ve en geniş çaplı insan hakları ihlallerine tanık olmuştur. Silahlı çatışmalar artlarında büyük zayiat ve tahribat bırakmaktadırlar. Bu zayiattan en çok etkilenen kesimi ise kadınlar ve çocuklar oluşturmaktadır. Kadına karşı şiddet suçları uzunca bir süre silahlı çatışmanın doğasından kaynaklanan olağan bir sonuç olarak algılanmıştır. Yanlış zamanda yanlış yerde olma, talihsizlik, söz dinlemeyen askerlerin disiplinsiz davranışları olarak kabul görmesi nedeniyle de failler cezasız kalacaklarını bilerek bu eylemlerini uzunca bir süre sürdürmeye devam etmişlerdir. Ulusal, etnik, dinsel ve ırksal grupların kısmen veya tamamen yok edilmesine yönelik fiziki ve kültürel imha yöntemi olarak bilinen soykırım suçu, uluslararası literatürde “crimes of crimes” (suçların suçu) olarak bilinmektedir ve uluslararası ceza hukukunun incelediği suçlar içinde en acımasız ve en insanlık dışı suç olarak tasvir edilmektedir. Ruanda’da 1994 yılında başlayan soykırımda, üç ay içinde bir milyona yakın savunmasız insan katledilmiştir. Bu kurbanların çoğunluğunu Tutsiler veya rejim karşıtı olan Hutu’lar oluşturuyordu. Dört yıl süren bir iç savaşı izleyen bu soykırımda, kitlesel katliamlar yaşanmıştır. Bu katliamlarda da kadınlar doğurganlık özellikleri hasebiyle hedef alınan gruplardan biri olmuşlardır. Yaygın ve sistematik olarak Hutular tarafından uygulanan cinsel şiddetin, Tutsi halkını yok etme sürecinin ayrılmaz bir parçası olarak kullanılmıştır. Hatta bazı durumlarda direk yaşamına son vermek maksadıyla ırza tecavüz uygulanmıştır. Irza tecavüzün soykırım maksadıyla kullanılmasındaki bir diğer durum da salgın hasta¬lıkların kullanımıdır. Tutsi kadınlarının özellikle HIV virüsü taşıyan Hutu erkeklerinin tecavüzüne uğradığı belirtilmektedir. BM raporlarında da belirtildiği gibi Tutsi kadınlarının büyük çoğunluğuna HIV+ teşhisi koyulmuştur. Yani; toplumun yavaş yavaş yok edilmesi saikiyle yapılan bu eylemde soykırım fiilen son bulsa da ölümler devam etmiştir. Benzer şekillerde uygulanan, cinsel sakatlama, zorla kısırlaştırma, doğum kontrolüne zorlama ve evlenmenin yasaklanması da soykırım suçu oluşturmuştur.

Since the post-Cold War era began in 1991, several political leaders, government officials, high-ranking military officers, warlords and armed groups have initiated, planned, aided and abetted and, committed grave atrocities during armed conflicts, post-election violence, insurgency etc. In order to put an end to the evil culture of impunity in the new millennium, hold the perpetrators of international crimes accountable for their actions and, get justice for the victims of the crimes, The Hague-based International Criminal Court (ICC) was founded in 2002. Africa as a region presently has 33 State parties to the Rome Statute of the ICC, thus making it the largest bloc in the Court of 123 State parties. But no sooner had most African State parties supported the establishment and operations of the ICC than they stopped cooperating with it under the umbrella of the African Union (AU). The unabated hostility between the AU and the ICC centres on the indictment and prosecution of sitting African presidents which enjoy immunity based on customary international law and, the disproportionate indictment, prosecution, and conviction of Africans for war crimes and crimes against humanity. This paper critically examines the allegations by most African States parties to the Rome Statute that, the ICC has an African bias and that it pursues 'selective justice'. The research methodology adopted for this study is the historical approach with the qualitative method of secondary data collection.

Mass migration is destabilizing the European Union. The prime example is Germany where the huge influx of foreign subjects, especially Syrian, (both genuine refugees and economic migrants) has caused a divide within the EU. Europe is facing an increased insecurity due to imported terrorist movements, often of a decentralized character without a central leadership. Directly the terrorists pose an immediate threat for civilians in our society, indirectly a large number of migrants’ results in failed assimilation or integration.  As the influx of people is of major scale and at a fast rate with little control – due to failed assimilation - the cultural change can without exaggeration be described as nothing less than revolutionary. Hybrid threats pose not only security challenges but also legal ones and only time will tell how Western societies will eventually adapt within their existing legal and operational frameworks.

The status of ‘international law’ is examined critically. In the first section, the basis of (national) legislation is described. This consists of an inquiry into a credible meaning of ‘natural law’. It is focused on the question whether universal principles exist and, if so, of what kind. Section 2 deals with the issue of enforcement. National legislation invariably realizes this, but this is not obvious at the international level. Section 3 deals with human rights. It is discussed whether their presence points to the existence of ‘international law’. To this end, a possible reason for these rights to have developed is expounded.

ABSTRACT
The violence witnessed in Kenya in the aftermath of the 2007 disputed presidential elections shook
Kenyans into the realization that Kenya had remained a highly polarized nation since independence.
Brother turned against brother resulting in the loss of more than 1,300 lives and the displacement of more than
300,000 people. International agencies stepped in with the AU taking the lead in a bid to seek a
cessation to the violence. An agreement was finally sealed on February 28, 2008 through the KNDRC
process mediated by former UN Secretary General Kofi Annan. The agreement led to inter alia the
cessation of violence and formation of a coalition government. However, the mediation efforts could
have only done so much. There were long-term issues that needed specialized agencies to fully resolve.
With this understanding the KNDRC agreed on a number of commissions to be formed to handle these
issues.
The Commission of Inquiry into the Post-Election Violence (Waki Commission), the National Cohesion
and Integration Commission – the only permanent commission – and finally the TJRC were among
commissions formed to handle the long-term issues of the conflict. The Waki Commission in its report
recommended the formation of a Special Tribunal for Kenya to try the people suspected to bore criminal
responsibility for the PEV. However, the Special Tribunal of Kenya never saw the light of day.
Consequently, the ICC stepped in and took up the cases after the then ICC Prosecutor Moreno Ocampo
received the names of people suspected to bear criminal responsibility for the PEV from Kofi Annan.
The TJRC was finally established in 2009 to among others promote justice, healing and reconciliation in
Kenya. It was formed at a time when the ICC was in the process of confirming charges against six
Kenyans in relation to the 2007 / 2008 PEV. At the time many Kenyans viewed the TJRC as a ploy by
those in government to shield the merchants of impunity from criminal prosecution.
The TJRC problems were further compounded by the credibility crisis that faced its’ chairperson –
Ambassador Bethuel Kiplagat. The issues surrounding the chairperson threatened to tear the commission
apart and derail the truth seeking process. The crisis led to the resignation of the then vice-chairperson –
Ms. Betty Murungi. This left the TJRC with only seven commissioners when the chairperson finally
stepped aside. Throughout its’ work the commission was further plagued by financial challenges as well
as lack of political will in the truth seeking process.
The TJRC worked for four years and finally handed in its’ report in May 2013. The commissioners
noted that reconciliation is not an event but a process. Consequently, the TJRC interpreted its mandate
as being to initiate the process of reconciliation. The TJRC held a number of public hearings and
reconciliation forums to aid in the initiation of reconciliation between and among the different Kenyan
ethnic groups. The research concludes that despite the many challenges experienced by the TJRC, it did
actually lay the foundation for reconciliation. It is imperative that the government endeavours to
implement the commission’s recommendations if reconciliation is to be fully realized in the country. It
is equally important that the rule of law is observed so that the citizens can rest assured that justice and
fairness will prevail.

This working paper analyses the principle of distinction in virtual warfare. It focuses upon the case studies of drone warfare under non-international armed conflict and cyber warfare under international armed conflict. It argues that the increasing prevalence of virtual warfare has paradoxically led to both a clarification of the principles of distinction in warfare but also the convolution of this principle in practice. Generally, improved capabilities such as precision and accuracy and transparency of determinations of distinction indicate positive results of developments in virtual warfare. Conversely, it has illustrated the opposite truth in regards to cyber warfare wherein it proves increasingly complicated to identify or isolate the actors involved with the attacks themselves, in addition to complications arising with the principle of distinction of cyber targets.

The aim of the article is to elucidate the issue of a universally accepted
normative definition of the terms ‘jus post bellum’ and ‘armed conflict’ from the legal
historical and legal philosophical perspectives. The main concept of just war theories is
based on the human desire to control interracial aggression. It is known that the “morally
justifiable war” based on a series of criteria is split first into two, and later into three groups:
right to go to war (jus ad bellum), right conduct in war (jus in bello), and right after the
war (jus post bellum). Jus post bellum approach appeared just after the Second World
War. In the author’s opinion, jus post bellum is the most important part. The author’s
task is to find a generally acceptable working definition, or at least a generally acceptable
meaning of jus post bellum in the mirror of just war theories, and an armed conflict
from the perspective of war and aggression, as well as to describe the historical evolution
of the two classic parts of just war theories: just ad bellum and jus in bello.
Keywords: just war theories, jus post bellum, just ad bellum, jus in bello, armed
conflict, definition, war.

It is well known that during an armed conflict situation women are always victims or target by the parties to the conflict, this situation mostly happen in Africa as many armed conflict of nowadays are taking part in that continent. Women are vulnerable and they bodies are view as a battle ground in both  international armed conflict and non-international armed conflict.
Despite the fact that the international community has set rules and laws to follow during an armed conflict, rules to which every states are bind, the belligerents involved seemed never pay any attention to these rules, by rules and laws I mean the four Geneva Conventions of 1949 and its two Additional  Protocols of 1977.
This paper show that women can play an important role in war times than being the victims of war. Women can participate in peace negotiation, they can play a role of the UN Special Representatives and can also play a role during repatriation process, reintegration and rehabilitation.
Because of the role that they play in societies as mothers and caregivers, women need to be protected during an armed conflict.

This paper compares how rules of international humanitarian law and rules of Islamic law protect children in armed conflict. It examines areas of convergence and divergence, and areas where there is room for clarification between these two legal systems. This comparative exercise spotlights four key topics marking the wartime experience of children: the unlawful recruitment and use of children by armed forces and armed groups, the detention of children, their access to education, and the situation of children separated from their families.

This paper seeks to clarify the confusions regarding the relationships between international
human rights law and international humanitarian law, the principle of equality
of belligerents, and the use of the term “should” in treaties. For this purpose, it examines, as a case study, the Optional Protocol to the Convention on the Rights of the Child
on the Involvement of Children in Armed Conflict, on which doctrine is divided
whether Article 4(1) thereof is binding on armed non-State actors. First, this paper
reconceptualizes international humanitarian law as a subset of international human
rights law, which share the same purpose, mutually reinforce, and depend on each
other. Second, drawing on the customary rules of treaty interpretation under the
Vienna Convention on the Law of Treaties and through a comprehensive analysis of the authentic texts in other languages and the travaux préparatoires, it argues that the
term “should” in the operative part of treaties always creates legally binding obligations
and that the equality principle does not strictly apply to norms applicable during
peacetime. As such, despite its use of “should” and differential treatment between
States and armed non-State actors, Article 4(1) of the Protocol creates a direct human
rights obligation on armed non-State actors.

"Abstract:
The end of the so-called "Cold War" has seen a change in the nature of present threats and with it to the overall role and mission of NATO, the North Atlantic Treaty Organization. The collapse of the Soviet Union and the Warsaw Pact in 1991 also removed the original raison d’etre of the Alliance: the prospect of having to repel a Soviet led attack by the Warsaw Pact on the West.

Multimodal, low intensity, kinetic as well as non-kinetic threats to international peace and security including cyber war, low intensity asymmetric conflict scenarios, global terrorism, piracy, transnational organized crime, demographic challenges, resources security, retrenchment from globalization and the proliferation of weapons of mass destruction were identified by NATO as so called "Hybrid Threats" (cf BI-SC Input for a New NATO Capstone Concept for The Military Contribution to Countering Hybrid Enclosure 1 to 1500/CPPCAM/FCR/10-270038 and 5000 FXX/0100/TT-0651/SER: NU0040, dated 25 August 2010).

Having identified this kind of emerging threat, NATO is working on a comprehensive conceptual framework, (the Capstone Concept) which provides the framework for identifying and discussing such threats and possible multi-stakeholder responses. In essence, Hybrid Threats faced by NATO and its non-military partners require a comprehensive approach allowing a wide spectrum of responses, kinetic and non-kinetic by military and non-military actors (see "Updated List of Tasks for the Implementation of the Comprehensive Approach Action Plan and the Lisbon Summit Decisions on the Comprehensive Approach," dated 4 March 2011, p 1-10, paragraph 1).

This short article introduces the reader to a new form of global threat scenario and the possibilities of response and deterrence within their wider legal and political context."

Ratni zločin predstavlja povredu normi prava oružanih sukoba. No, kako i dalje oružani sukobi ne mogu biti potpuno eliminirani u stvarnome životu, tako postoje pravila koja reguliraju vođenje oružanih sukoba, uključujući načelo primjene humanosti. U radu se osvrćemo na pitanje dihotomije oružanih sukoba i zaštite osoba u njima. Razlika između međudržavnih i građanskih sukoba, odn. između međunarodnih i nemeđunarodnih (unutrašnjih) sukoba, gubi na vrijednosti kada su u pitanju ljudska bića i njihova zaštita. Zbog čega štititi civile od nasilja zaraćenih strana, ili zabraniti silovanje, mučenje ili bezobzirno rušenje bolnica, vjerskih, kulturno-historijskih objekata ili privatne imovine, i zabraniti oružja koja nanose nepotrebne patnje kada dvije suverene države vode rat, a uzdržati se od nametanja istih zabrana ili pružanja iste zaštite kada je do nasilja došlo „samo“ u okviru područja neke suverene države. Međunarodno se pravo, štiteći istovremeno legitimne interese država, u neko doba moralo okrenuti potpunoj zaštiti ljudskih bića, i ako ovo imamo u vidu, tada je posve prirodno da ova podjela sukoba postupno gubi na težini. Rezultat je to ekspanzije doktrina iz oblasti ljudskih prava, kada su države počele prihvaćati ideju da jednostavno nije razložno zaštiti, naprimjer, civile isključivo u međunarodnim oružanim sukobima, odn. da bi bilo nekonzistentno ostaviti civile nezaštićenima u unutrašnjim sukobima, dok, u isto vrijeme, oni imaju pravo na međunarodnopravnu zaštitu u međunarodnim sukobima. U radu polazimo od definiranja pojma ratnoga zločina uz kratki historijski prikaz razvoja međunarodnoga ratnoga i humanitarnoga prava. U studiji obuhvatamo i glavni zahtjev i ključnu obavezu za sve države odgovorne za kršenja međunarodnoga humanitarnoga prava i međunarodnoga prava ljudskih prava, a to je da se načini puna reparacija žrtvama za prouzročeni gubitak ili povredu. Zapravo, na ovome stepenu razvoja međunarodnoga prava glavno je pitanje kristalno jasno: da li zabrana činjenja ratnih zločina predstavlja opću zabranu koja nadilazi ugovorni osnov, karakter i njegove domašaje u pravu – i da li takva zabrana važi za sve subjekte prava? U radu analiziramo naslanjajuća pitanja međunarodnoga humanitarnoga prava, a to je uloga i odgovornost mirovnih misija Ujedinjenih nacija za protupravne čine u oružanome sukobu. Da li se mirovne misije ili međunarodne snage mogu smatrati stranom u sukobu? Da li uopće ima mjesta tvrdnji da osnovna načela i pravila međunarodnoga humanitarnoga prava ne mogu naći svoju primjenu na snage Ujedinjenih nacija, tj. može li se tvrditi da snage Organizacije nisu vezane međunarodnim humanitarnim pravom, naročito u vremenu kada postoje dokazi da pripadnici mirovnih misija čine međunarodna protupravna djela?

A war crime is a violation of the norms of the law of armed conflict. But just as armed conflicts still cannot be eliminated entirely in real life, there are rules govern the conduct of armed conflicts, including the principle of the application of humanity. In this paper, we address the issue of the dichotomy of armed conflicts and the protection of persons in them. The difference between international and internal conflicts loses its value in regards to the protection of human beings. Hence, why protect civilians from the violence of the warring parties, or ban the rape, torture or wanton destruction of hospitals, religious, cultural and historical buildings or private property, and ban weapons that cause unnecessary suffering when two sovereign states are at war, and refrain from imposing the same bans or providing the same protection when violence occurred “only” within the territory of a sovereign state. International law, while protecting the legitimate interests of states, must have gradually turned to the complete protection of human beings. If we keep this in mind, then it is natural that this division of conflict should gradually lose weight. This is the result of the expansion of human rights doctrines, when states began to accept the idea that it was simply not reasonable to protect, for example, civilians exclusively in
international armed conflicts, i.e. that it would be inconsistent to leave civilians
unprotected in internal conflicts while, at the same time, they have the right to
international legal protection in international armed conflicts. The paper starts
from the definition of the concept of war crime with a brief historical overview
of the development of law of armed conflicts (international humanitarian law).
The study covers both the primary requirement and the binding obligation
for all states responsible for violations of international humanitarian law and
international human rights law, which is to make full reparations to victims for
the loss or injury caused. In fact, at this stage in the development of international
law, the main question is crystal clear: is the prohibition of war crimes a general
prohibition that goes beyond the treaty basis, character and scope of the law - and
does such a prohibition apply to all subjects of law? In this paper, we analyze
the current pressing issues of international humanitarian law, which is the role
and responsibility of the United Nations peacekeeping missions for illegal acts in
armed conflict. Can peacekeeping missions or international forces be considered
a party to the conflict? Is there any claim that the basic principles and rules of
international humanitarian law cannot be applied to the United Nations forces, i.e.
can it be argued that the forces of the Organization are not bound by international
humanitarian law, particularly in times of internationally wrongful acts committed
by peacekeeping soldiers?

This paper looks at the Judgment handed down by the International Court of Justice in November 2013 on the interpretation of its 1962 Judgment in the Temple of Preah Vihear case between Cambodia and Thailand. The primary objective of this paper is to disclose the imperfect account of states’ obligations provided for by the Court. In effect, the ICJ emphasized that Cambodia and Thailand must co-operate pursuant to theWorld Heritage Convention in the protection of the Temple as a world heritage site of outstanding universal value. Accordingly, the Court obscured the fact that the regime for the protection of cultural heritage in wartimewas applicable in this case. This paper first examines the ICJ’s narrow approach and its implications. Next, it brings the focus back into a larger context by analyzing the impact of the ICJ’s jurisprudence on the development of international cultural heritage law.

The Military Legitimacy Review

http://militarylegitimacyreview.com/

(formerly The Military Legitimacy and Leadership Journal)



Informed Commentary on Might and Right

Military Legitimacy is about the balance between might and right.  It is a relative concept that differs in times of war and peace.  In wartime, national survival is paramount with defeat of the enemy by overwhelming military force the ultimate test of military legitimacy.  In peacetime the legitimacy of military operations is governed by legal and moral standards and values in both the US and the area of operations.  These standards and values are often in conflict, making the public support required for political and military legitimacy problematic.  That was a painful lesson learned first in Vietnam and confirmed more recently in Iraq and Afghanistan.

The focus of The Military Legitimacy Review (formerly The Military Legitimacy and Leadership Journal of 2009 & 2010) is on peacetime military operations—those operations other than war such as counterinsurgency, stability operations and nation-building.  Combat is often an integral part of peacetime military operations, especially in the early stages, but strategic success is more dependent upon achieving political objectives than military objectives, and superior military force is never a substitute for the lack of legitimacy.  In fact, large deployments of US combat forces and the use of excessive force in hostile cultural environments can turn a military victory into political defeat.

Military legitimacy is based on public perceptions of military operations, so that it is a reflection of civil-military relations.  Overseas religious and cultural conflicts are the most obvious threats to the legitimacy of US military forces, while in the US civil-military issues are more subtle but nevertheless real.  That is because the US military is an authoritarian regime within a democratic society, and its communal values—such as concepts of duty and loyalty to the military mission—represent a potential threat to libertarian civilian values.  And because the military controls the nation’s most coercive powers, there is the danger that an isolated military and conflicting military and civilian values could undermine civil-military relations and threaten the legitimacy of the US military.

The following topical categories will be used to organize papers, articles and commentary on the website (see sidebar):

1. Religion and culture as they shape values, law and public support as standards of military legitimacy.

2. Democracy, human rights and the rule of law in foreign policy and as standards of military legitimacy.

3. Military legitimacy and leadership and how they relate to civil-military relations

4. Civil affairs as an operational concept and a civil-military capability.

5. Lessons learned in legitimacy and how they shape the future.

The purpose of The Military Legitimacy Review is to facilitate the exchange of ideas among those interested in the interplay of might and right and the role of the military as the ultimate extension of foreign policy.  It is our hope that the ideas expressed in the articles and opinions on this website will further the cause of peace and promote democracy, human rights and the rule of law as fundamental concepts of legitimacy throughout the world.  Unfortunately, we have a long way to go, but we believe that the US military has a vital role to play in promoting a lasting peace, so long as our might is right.

Who are “we”—those who bring you The Military Legitimacy Review?  We have all been military lawyers with experience in Special Operations Forces, whose doctrine has long embraced legitimacy as a primary operational principle.  We all understand that military legitimacy involves much more than compliance with the law and we want others to understand the dynamics and central role of legitimacy in peacetime military operations.

De Oppresso Liber (Free the Oppressed)! Secure The Victory!

Kevin Govern, Editor-in-Chief

Rudy Barnes, Jr., Publisher and Managing Editor

Larry Rubini and David Gordon, Editorial Board

This article investigates a particular armed opposition groups’ behavior: detentions during hostilities. This is an important concern since these non-state actors repeatedly deprive persons of liberty during armed conflicts. Interestingly, international humanitarian law (IHL) does not explicitly address such actions, thus seemingly leaving them to be regulated by the domestic law of the State concerned which, in general, only authorizes its own agents to carry out such acts. Therefore, armed opposition groups could never detain individuals legally in a non-international armed conflict.
Nonetheless, this can be inconsistent in the application of the principle of equality of belligerents, which affirms that all parties to an internal armed conflict have the same scope of rights regardless of their cause. In the following pages, a number of arguments focusing on real-life scenarios will be presented in order to show that, despite not being explicit, armed opposition groups are logically and implicitly authorized by IHL to detain individuals who are engaged in an armed conflict against them.

The introduction of nanotechnology into our civil life and warfare is expected to influence the application and interpretation of the existing rules of international
humanitarian law. This article examines the challenges posed to international humanitarian law by the widespread use of nanotechnology in light of four basic rules of international humanitarian law: (1) the obligation to ensure the legality of weapons; (2) distinction; (3) proportionality; and (4) precaution. It concludes by identifying three areas of concern, which arise from widespread use of nanotechnology, for the application of international humanitarian law.