Volume 43 Number 2 2010
Sir Nigel Rodley and Yuval Shany
This Article considers the impact, or tremors, of paragraph 70 of the decision on interlocutory appeal on jurisdiction of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v. Tadić, which was delivered in October 1995. It establishes, and seeks to make clear, that the commitment of the Appeals Chamber in paragraph 70 of that decision was to provide definitions for both of the concepts of international and noninternational armed conflicts, even though some impressions might be that the Appeals Chamber tended to run together these different concepts in order to provide a singular and overarching definition of “armed conflict.” In separate and successive turns, the Article explores the specific components of each concept as identified by the Appeals Chamber—first, for international armed conflicts, and, then, for non-international armed conflicts—before testing them against particular facts from practice as well as hypothetical examples, but the Article also makes use of a comparative investigation as to what the Appeals Chamber said for each form of armed conflict when contrasted with each other. We examine the extent to which these components have threaded themselves through subsequent practice—specifically the relationship of the 1998 Rome Statute of the International Criminal Court with the concept of non-international armed conflict—so as to chart the full progress of the jurisprudence of the Appeals Chamber in the afterlife of Tadić: hence the designation of the “tremors” of Tadić.
This Article draws a distinction between two types of exercise of universal criminal jurisdiction with a view to demonstrating that one of them is deeply detrimental to domestic IHL enforcement mechanisms, and especially zeroes in on contemporary unilateral exercises of universal criminal jurisdiction, arguing that their unilateral character deprives domestic enforcement procedures of their legitimacy and efficacy. It begins by distinguishing between unilateral and multilateral uses of criminal universal jurisdiction. It then explains why unilateral exercises of universal jurisdiction and the absence of conventional basis do not, per se, stir any problems of legality. Its last part shows that unilateral exercises of universal jurisdiction, while not generating any problem of legality, fuel problems of legitimacy because of the discourse that generally accompanies such proceedings as well as the impossibility to relate such exercises to the consent of the State of nationality of the accused or that where the crime was committed. On this occasion, it is shown that the perceived illegitimacy of unilateral exercises of jurisdiction can prove harmful to the legitimacy and efficacy of domestic IHL enforcement procedures as a whole.
This Article discusses the competences and powers of the UN Security Council in securing compliance with international humanitarian law, in particular through the adoption of the measures provided in Chapter VII of the Charter. The competence of the Council in this field can be founded on several legal grounds: on a broad interpretation of the notion of “threat to the peace” (Article 39 of the Charter), on Article 94(2) with regard to the International Court of Justice’s judgments establishing violations of the jus in bello and also on the customary duty to ensure respect for international humanitarian law as reflected in Article 1 Common to the 1949 Geneva Conventions on the Protection of the Victims of War. In particular, such customary provision empowers the Security Council to react to any violation of international humanitarian law regardless of a nexus with concerns of international stability. Although the Council has adopted a variety of measures in relation to violations of the laws of war, the most incisive ones are those provided in Articles 41 and 42 of Chapter VII, which however are not without problems. The role the Security Council has played in the enforcement of international humanitarian law has been criticized because of its selective and opportunistic approach, which is due to the political nature of the organ. Also, in several instances the Council, far from securing compliance with the jus in bello, has instead interfered with its application. However selective and imperfect the Council’s approach might be, though, its power to adopt decisions binding on UN members and its competence to take or authorize coercive measures involving the use of force make it potentially a formidable instrument against serious violations of international humanitarian law, partly remedying the lack of enforcing mechanisms in the treaties on the laws of war.
The United Nations Security Council’s recent involvement in the protection of children in armed conflict, particularly by seeking to prevent the recruitment and use of child soldiers, has attracted little attention from international lawyers. However, the process, initiated by Council Resolution 1612, has interesting parallels with non-compliance mechanisms in international environmental law and can be seen as an innovative attempt to harness the Security Council’s “soft power” to engage both State and non-State parties to conflicts.
The European Union as a prominent regional organization is increasingly expected to contribute positively in terms of the promotion of certain values, both by European Union citizens and by the international community. These values include the promotion and development of international law, including international humanitarian law. The focus of this Article is on the influence, actual and potential, of the European Union in terms of promoting humanitarian law externally, and on ensuring respect of humanitarian law by third States. It briefly discusses the evolution of the duty to ensure respect and outlines the relevance of international humanitarian law to the external action of the European Union. The European Union Guidelines on Promoting Compliance with International Humanitarian Law are introduced and the background, content, and potential are explored. While not constituting binding law, these guidelines represent the position of the European Union in relation to promoting humanitarian law externally and reflect the responsibilities of European Union Member States with regard to ensuring respect for humanitarian law.
In the increasingly legalized landscape in which armed conflicts are now waged, international humanitarian law has become an integral and ever more central part of military strategy. States can and do use it to gain advantage over their adversaries, but must also contend with challenges that arise when it is wielded against them. In their efforts to respond to these challenges official and unofficial advocates of State powers have advanced modes of argumentation which question the fundamental structure of international humanitarian law. This Article takes issue with one such argument that mobilizes the theologico-political principle of the “lesser-evil” to conclude that acts which are absolutely prohibited under international humanitarian law should nevertheless be deemed legally permissible when their foreseen consequences are less harmful than lawful alternatives. The Article demonstrates that this argument threatens to blur IHL’s sharp boundaries and expand its zone’s of elasticity thereby undermining its structural principles. More specifically, the Article maintains that the argument in question rests on exaggerated faith in the judgment of belligerent parties, that it fails on its own utilitarian logic and that it ignores deontological reasoning fundamental to international humanitarian law. The Article contends that accepting this argument would severely compromise IHL’s capacity to limit violence and preserve human dignity and therefore advocates that it be rejected.
Ruth Lapidoth and Ofra Friesel
In 2003 Israel adopted the Nationality and Entry into Israel (Provisional Measure) Law, 5763-2003. The Provisional Measure deals generally with entry into Israel; at first it dealt only with entry into Israel of residents of the West Bank and the Gaza Strip, and later it was extended also to nationals and residents of Iran, Iraq, Lebanon and Syria. It is particularly relevant for cases of unification of families and immigration for the purpose of marriage. The following article offers a short summary of the law as it has been amended in 2005 and 2007, as well as its interpretation by the government (since 2008) and then examines its conformity with international law. The Provisional Measure involves a clash between the right of the individual to marry the person of his choice and establish a family on the one hand, and the right of the state to regulate freely immigration and entry into its territory on the other hand. Since international law has not established a right to family unification nor to immigration for the purpose of marriage, the right of the state prevails in this matter. Yet, the Provisional Measure deviates from international law in a different aspect, as it leads to a de facto discrimination, mostly of Israeli Arabs. This discrimination is not permitted by the Convention for the Elimination of all Forms of Racial Discrimination, to which Israel is a party. It is recommended that Israel amends the law in order to bring it into conformity with international law.