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Oxford Law Citator
Contents
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Preliminary Material
Preface
Contents
Table of Cases
International and Regional Cases
European Court of Human Rights
European Court of Justice
Extraordinary Chambers in the Courts of Cambodia
Inter-American Commission of Human Rights
Inter-American Court of Human Rights
International Arbitration
International Court of Justice
International Criminal Court (ICC)
International Criminal Tribunal for Rwanda (ICTR)
International Criminal Tribunal for the Former Yugoslavia (ICTY)
Permanent Court of International Justice
The Special Court for Sierra Leone
UN Human Rights Committee
UN Special Tribunal for Lebanon
Domestic Cases
Australia
Colombia
Croatia
Israel
Italy
Netherlands
Sweden
United Kingdom
United States
Table of Legislation
National Legislation
Australia
Canada
Germany
New Zealand
United Kingdom
United States
European Directive
International Instruments
List of Contributors
Main Text
1 History and Sources
1 Introduction
2 Treaties
A The General Framework: The Geneva Conventions and Their Additional Protocols
1 The Geneva Conventions
A The additional protocols
B Specialized Conventions
C IHL Mainstreaming in Human Rights Treaties
D Criminalization
E General Observations on Codification
1 Universalization
2 Regionalization
3 Institutionalization
3 Customary International Law
4 General Principles
5 Judicial Decisions
6 Teachings of the Most Qualified Publicists
7 Soft Law
8 Conclusion
2 Classification of Armed Conflicts
1 Introduction
2 History of the Distinction between IAC and NIAC
3 Consequences of the Distinction between IAC and NIAC
4 Why Does the Distinction Exist and Should it be Abolished?
5 The Scope of Application of IHL: IACs
A Inter-State Conflict
1 War
2 Armed conflict
A Threshold for IACs
B Geographical and temporal scope of IACs
C Occupation
(i) The definition of occupation
(ii) Conflicts with non-state armed groups in the context of occupation
(iii) End of occupation
B Self-Determination Conflicts of National Liberation under Article 1(4) of API
C Recognition of Belligerency
6 The Scope of Application of IHL: NIACs
A NIACs under Common Article 3
1 Criteria for the existence of NIACs
2 Geographical scope of NIACs
B NIACs under APII
7 Foreign Intervention in NIACs
A Foreign Intervention on the Side of a Non-State Armed Group against a State
B Foreign Intervention at the Invitation (or with Consent) of a State against a Non-State Group
C Mixed Conflicts
8 Intervention by Multinational Forces under UN Command or Authorized by the UN
9 Extraterritorial Conflicts with Non-State Armed Groups
A A State Consent-Based Approach
10 Conclusion
3 The Temporal and Geographic Reach of International Humanitarian Law
1 Introduction
2 The Temporal Scope of IHL
A Start of Application of IHL
1 International armed conflicts
2 Non-international armed conflicts
B End of Application of IHL
1 General rule: cessation of active hostilities
2 Sui generis rules: occupied territories and persons detained in relation to the conflict
A Occupied territories
B End of captivity and detention
3 End of application of IHL due to denunciation
3 Geographical Scope of IHL
A International Armed Conflicts
1 The principle of unity of territory
2 Air and outer space and the high seas
3 Special areas—hospital zones and neutralized zones
4 The law of neutrality and IHL
B Non-International Armed Conflicts
1 Intrastate issues—does IHL apply only where there are active hostilities in NIAC?
2 Extraterritorial applicability for trans-national actors in NIAC: does IHL ‘follow’ the participants everywhere they are found in the world?
4 Conclusion
4 Domains of Warfare
1 Introduction
2 The Evolving Concept of ‘Domain’: From Physical Battlefield to Figurative Field of IHL Application
3 Land
4 Sea
5 Air
6 Outer Space
7 New and Emerging Technologies
A Information Technology/Cyberspace
B Electromagnetic Spectrum
C The Human Mind?
D New Domains or Just New Means/Methods of Armed Conflict?
8 Armed Conflict Traversing Multiple Domains
A Moving beyond Specific Domains: Challenges for Legal Analysis
9 Conclusion
5 Persons Covered by International Humanitarian Law: Main Categories
1 Introduction
2 Combatants/POWs
A International Armed Conflicts
B Non-International Armed Conflicts
3 Civilians
A International Armed Conflicts
B Non-International Armed Conflicts
4 A Third Category?
5 Persons Entitled to Special Protections
A Wounded, Sick, and Shipwrecked
1 International armed conflicts
2 Non-international armed conflicts
B Women
1 International armed conflicts
2 Non-international armed conflicts
C Children
1 International armed conflicts
2 Non-international armed conflicts
D Elderly, Disabled, and Infirm
1 International armed conflicts
2 Non-international armed conflicts
E Refugees and Internally Displaced Persons
1 International armed conflicts
2 Non-international armed conflicts
F Journalists
1 International armed conflicts
2 Non-international armed conflicts
G The Missing and the Dead
1 International armed conflicts
2 Non-international armed conflicts
6 Mercenaries and Private Military/Security Companies
A International Armed Conflicts
B Non-International Armed Conflicts
7 Spies
A International Armed Conflicts
B Non-International Armed Conflicts
8 Concluding Remarks
6 Fundamental Guarantees
1 Introduction
2 ‘Fundamental Guarantees’ within the Broader IHL/LOAC Scheme
A What are ‘Fundamental Guarantees’?
1 Rationale
2 Rule sources
3 Scope
B Conclusion
3 The Procedural Fundamental Guarantee of Legality
4 Key Specific Fundamental Guarantees
A Humane Treatment
1 In general
2 Spectrum of proscribed conduct
3 Some current interpretive challenges
B Non-Detention-Based Restrictions on Freedom
5 Conclusion
7 International Humanitarian Law and the Conduct of Hostilities
1 Introduction
2 Foundational Principles
3 General Principles and Specific Rules
A Distinction
1 Indiscriminate attacks
A Indiscriminate tactics
B Proportionality
C Indiscriminate weapons
D Direct attacks against protected persons
E Direct attacks against protected objects
F Doubt as to status
G Special protections
H Precautions in attack
B Unnecessary Suffering
C Chivalry
4 New Technologies of Warfare
8 Specifically Protected Persons and Objects
1 Introduction
2 Historical Development
3 Categories of Persons and Objects
A Categories of Persons
1 Wounded and sick
A Definition
B Protection granted
(i) The obligation to respect and protect
(ii) Humane treatment and medical care
(iii) Search, collect, and evacuate
2 Shipwrecked
3 Medical personnel and medical activities
4 Religious personnel
5 Women
6 Children
7 Disabled persons
8 Parachutists from aircraft in distress
9 Persons hors de combat
10 Parlementaires
11 Persons displaying the distinctive emblem
12 Personnel involved in a peacekeeping mission
13 Civil defence personnel
14 Journalists
15 Displaced persons: refugees and IDPs
B Categories of Objects
1 Medical units
A Medical units on land
B Hospital ships
C Medical aircraft
2 Medical transports
3 Objects displaying the distinctive emblem
4 Objects involved in a peacekeeping mission
5 Hospital and safety zones and neutralized zones
6 Demilitarized zones
7 Open towns and non-defended localities
8 Cultural property
A Before and after 1954
B The Additional Protocols of 1977
C 1999 Second Protocol to the Hague Convention
4 Conclusion
9 Protection of the Natural Environment
1 Introduction
2 Definition of ‘environment’ in IHL
A Legal Categorization: Civilian or Military Object?
B Marine Environment and Outer Space
C Protected Areas, Sensitive Areas
3 Damage to the Environment
A Applying the Principles of Distinction, Necessity, Proportionality
1 Principle of distinction: discrimination in attacks
2 Principle of necessity
3 Principle that harm may not be disproportionate to military advantage
B Verification and Precautions
C Methods and Means: Weapons
D Remnants of War
4 Environment as Weapon
5 War Crimes
6 Protection of the Environment by Third Parties: Solidarity
7 Non-International Armed Conflict
8 Status of International Environmental Law and Domestic Law—Conflict of Laws
10 Methods of Warfare
1 Introduction
2 Defining and Regulating Methods of Warfare
A Defining Methods of Warfare
B Regulating Methods of Warfare
3 Methods of Warfare that Concern Primarily the Protection of Combatants
A Protection of Persons hors de combat
B Prohibition of Denial of Quarter
C Deception
1 The prohibition of perfidy or treachery
2 Misuse of emblems, signs, and uniforms
4 Methods of Warfare Primarily Affecting the Civilian Population and Civilian Objects
A Starvation
B Reprisals
C Destruction and Seizure of Property
5 Conclusion
11 Weapons
1 Introduction
2 General Principles and Rules Governing Use of Weapons
3 General Prohibitions on Use of Weapons
A Inherently Indiscriminate Weapons
B Weapons Causing Superfluous Injury
4 Prohibitions and Restrictions on the Use of Specific Weapons
A Conventional Weapons and Ammunition
1 Anti-personnel mines
2 Cluster munitions
3 Blinding laser weapons
4 Exploding bullets
5 Expanding bullets
6 Incendiary weapons
7 Anti-vehicle mines
B Weapons of Mass Destruction
1 Chemical weapons
2 Biological weapons
5 Disarmament-Type Prohibitions
A Review Prior to Procurement
B Transfer Prohibitions Linked to IHL
6 Conclusion: Regulation on the Horizon
12 Detention in Armed Conflict
1 Introduction
2 Treatment and Conditions of Detention
A Treatment
B Conditions of Detention
1 Dignity and respect
2 Safety
3 Food and drinking water
4 Hygiene and clothing
5 Personal belongings
6 Accommodation
7 Medical care
8 Humanitarian relief
9 Religion
10 Open air and exercise
11 Women
12 Minors
13 Work and recruitment
14 Family contact
15 Discipline and punishment
16 Records
17 Public curiosity
18 Death
19 Complaint mechanism
20 Foreigners
21 Oversight
3 Procedural Safeguards in Internment
A IAC
1 POW internment
2 Internment of civilians
B NIAC
1 Legal basis for internment
2 Grounds and process for internment
4 Transfer of Detainees
5 Fair Trial Rights
6 Conclusion
13 Occupation
1 Introduction
2 The Law of Occupation: Sources
A International Humanitarian Law
B International Human Rights Law
3 The Law of Occupation: Scope
A Definition of Occupation
1 Effective territorial control
2 Lack of consent
B Beginning and End of Occupation
1 Beginning of occupation
2 End of occupation
C Selected Issues
1 Territorial control without presence on the ground
2 Territorial control by international organizations
4 The Law of Occupation: Contents
A Overview: Fundamental Principles
1 Obligation to restore and ensure public order and civil life
2 Obligation to respect the domestic legal system
3 Obligation to respect and protect individuals and property
B Selected Issues
1 Use of force
2 Security measures: internment and assigned residence
3 Property and resources
5 Conclusion
14 Humanitarian Relief Operations
1 Introduction: Humanitarian Relief Operations in Armed Conflict
2 History of Humanitarian Relief Organizations under IHL
A The First Geneva Convention and Humanitarian Relief
B The Geneva Conventions of 1949 and Humanitarian Relief
3 Key Characteristics of Humanitarian Organizations under IHL
4 IHL Frameworks of Humanitarian Relief Operations
A Source and Scope of Responsibility
B Basic Rules: The Relief Operations of Humanitarian Organizations
C Consent
D Protections Offered by IHL to Humanitarian Relief Personnel and Objects
1 The emblems of protection
5 Challenges for Humanitarian Relief
A Maintaining Neutrality and Impartiality
B Compliance with the Law and Denial of Access by Non-State Actors
C Accountability to Beneficiaries and Social Media
6 Conclusion
15 War Crimes
1 Introduction
2 The Sources of War Crimes Law
A The Types of War Crime
3 Defining War Crimes: Substance and Jurisdiction
A The Rome Definition
4 Individual Criminal Responsibility
A Command Responsibility
B Grounds for Excluding Criminal Responsibility
5 State Responsibility for War Crimes
6 Conclusion
16 Implementation of International Humanitarian Law
1 Introduction
2 The Historical Context
3 The Contemporary Framework
A Generalities
B Belligerent Reprisals
C State Responsibility
4 The Geneva Conventions and Their Additional Protocols
A Pre-Conflict: Obligations of Prevention
1 General measures
2 Specific measures
B Compliance during Armed Conflict
C Post-Conflict Enforcement: Criminal Justice Mechanisms
D Non-Judicial Mechanisms of Implementation
1 Mechanisms mandated by IHL
5 Conclusion: Other Mechanisms
17 International Humanitarian Law and International Human Rights Law
1 Introduction
2 Traditional Differences
3 When Do Both Branches Apply Simultaneously?
A Material Scope of Application
B Possibility of Derogations
C Geographical Scope of Application
D IHL Only Applies to Conduct That Has a Nexus with an Armed Conflict
E Addressees
1 Armed non-state actors
2 Individuals
4 How to Deal with Divergences if Both Branches Apply?
A The Traditional Starting Point: the Lex Specialis Principle
B Alternatives to the Lex Specialis Principle
C Factors Blurring the Debate on What Prevails When IHL and IHRL Contradict Each Other
1 What is a contradiction?
2 Does IHL provide for authorizations?
3 Controversies concerning the meaning and applicability of the lex specialis principle
D Suggested: A Nuanced and Case-by-Case Determination of the Lex Specialis
5 Implementation of the Rules of One Branch by the Mechanisms of the Other Branch
A Human Rights Mechanisms Increasingly Refer to and Enforce IHL
B The ICRC Increasingly Refers to and Enforces IHRL
6 Concluding Observations
18 Terrorism, Counter-Terrorism, and International Humanitarian Law
1 Introduction
2 Prohibitions on and Criminal Liabilities for Terrorism in Armed Conflict
A Prohibitions on Terrorist-Type Conduct
B The War Crime of Intending to Spread Terror amongst a Civilian Population
3 Relationship between IHL and Counter-Terrorism Law
A International Counter-Terrorism Conventions and IHL
B The UN Draft Comprehensive Terrorism Convention
C Lesser Situations of Violence
D Security Council Counter-Terrorism Obligations
1 Exclusion of certain conduct in armed conflict
2 No exclusion of conduct in armed conflict
E A Customary International Crime of Terrorism?
4 Impact of Counter-Terrorism on Humanitarian Relief Operations
5 Conclusion
Further Material
Index
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Table of Legislation
Ben Saul, Dapo Akande
From:
The Oxford Guide to International Humanitarian Law
Edited By: Ben Saul, Dapo Akande
Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Published in print:
07 May 2020
ISBN:
9780198855309
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