Vito Todeschini | Independent Researcher (original) (raw)

Papers by Vito Todeschini

The Military Law and the Law of War Review, Volume 56, Issue 2, 2018

Reports concerning crimes and abuses committed by peace operations personnel deployed in situatio... more Reports concerning crimes and abuses committed by peace operations personnel deployed in situations of humanitarian crisis often hit the news. In these instances, troop-contributing States (TCSs) retain both a prerogative and a duty to undertake criminal investigations as prescribed by international law. To investigate effectively, however, a TCS will need to interact with the other actors involved in a peace operation: the host State, the leading international organization, and other TCSs. When a local is killed, for example, the investigating TCS must seek the authorization of the host State in order to perform an autopsy on the victim’s body, so not as to infringe on the latter’s sovereignty. In this sense, partial or total non-cooperation on the part of the host State may hamper a TCS’s ability to conduct an effective investigation.
The present article examines the obligation to investigate in the context of peace operations, particularly as deriving from human rights law and international humanitarian law (IHL). It further explores how the specific agreements applicable in UN and NATO operations address investigative cooperation, aiming to map relevant normative gaps. The article finally proposes an interpretation de lege ferenda of existing obligations under human rights law and IHL, according to which the duty to investigate would require TCSs (a) to regulate investigative cooperation with the other actors involved in a peace operation and (b) to ensure that such actors conduct investigations in line with the required standards of effectiveness.

Journal of Conflict and Security Law, 2018

The present article explores the impact of international humanitarian law (IHL) on the consolidat... more The present article explores the impact of international humanitarian law (IHL) on the consolidation and development of the principle of systemic integration. The analysis relies on the jurisprudence of those international judicial and quasi-judicial bodies that have used IHL for interpretive guidance when applying human rights law in armed conflict. Whereas much attention has been paid to the substantive outcome of the interplay between these two bodies of law, too little consideration has been devoted to the role of systemic integration within this context. Human rights bodies and the International Court of Justice resort to this principle in three ways, namely by means of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), through equivalent provisions included in certain human rights treaties, or implicitly. In that regard, systemic integration is employed either to reinforce the application of human rights law by way of IHL, or to avoid norm conflict between diverging norms, especially in relation to the use of force and detention. The article identifies the kinds of impact that IHL has or may have with regard to the consolidation of the principle of systemic integration within the interpretive principles codified in the VCLT and in terms of the modification of some of its constitutive elements. It also aims to demonstrate that systemic integration, rather than lex specialis, is the principle of interpretation most pertinent to the interaction between IHL and human rights law. 2

Nordic Journal of Human Rights, 2017

The present article examines the Human Rights Committee's pronouncements on the relationship betw... more The present article examines the Human Rights Committee's pronouncements on the relationship between the International Covenant on Civil and Political Rights (ICCPR) and international humanitarian law (IHL), taking into account the developments in the jurisprudence of other human rights bodies. The analysis aims to clarify the theoretical underpinnings of the relationship between the ICCPR and IHL, paying special attention to the complementarity perspective and the interpretive principle of systemic integration. The article critically examines the Human Rights Committee's understanding of how the Covenant applies in armed conflict, specifically in relation to the protection of the rights to life and liberty and the regulation of the use of force and security detention; it considers both the shortcomings and the innovative aspects of the Committee's interpretations. The analysis concludes by exploring the normative and practical implications deriving from the concurrent application of IHL and the Covenant, particularly with regard to the Committee's ability to review state action in armed conflict, the duty to investigate violations, and the right to a remedy and reparation for victims.

This article investigates the concept of international state terrorism with a view to providing a... more This article investigates the concept of international state terrorism with a view
to providing a legal definition thereof. It proposes to qualify certain uses of state armed
force in the light of the category of international terrorism. The latter is understood as the
commission of violent acts aimed at spreading terror among a population in order to
achieve political goals, and is usually identified as an activity solely perpetrated by nonstate
actors. However, in international relations states do resort to terrorism against other
states. That is to say, armed force is at times used to coerce another state’s government by
means of directly targeting its population. This use of force relies on large-scale violations
of human rights and should be tackled specifically. The overall aim of the article is to
provide a substantive definition of international state terrorism. Elements are derived, on
the one hand, from the definitions of peacetime and wartime terrorism; on the other hand,
from the legal definition of aggression and the analysis of war-like use of force

"Migration, Human Rights and Security in Europe", MRU Conference Proceedings, 2012

Since the adoption of the Tampere Programme in 1999, the European Union has pursued the aim of mo... more Since the adoption of the Tampere Programme in 1999, the European Union has pursued the aim of moving the control of migration flows from its territory to third countries.
Such a process is known as ‘externalisation’ and basically consists of the involvement of countries of origin and transit in the management of both legal and illegal flows.
The aim of the present paper is to assess whether the policy of externalising migration control mechanisms complies with human rights obligations, by which the EU is bound.
After the entry into force of the Lisbon Treaty, the EU’s human rights framework acquired a new legal value, in particular with regard to the Charter of Fundamental
Rights. Subsequently, the compliance of the EU’s acts with human rights enshrined therein can be judicially reviewed.
The first part of the paper provides an overview of the development of the EU’s
migration. This paper shows how the approach to migration has changed so far, and what the main characteristics of such a policy framework are. The second part illustrates
several concerns about the respect for migrants’ human rights related to the implementation of externalisation. The last part deals with the EU’s human rights
framework. Externalisation is analysed in light of binding human rights obligations, in order to assess whether and to what extent it violates those fundamental rights, upon
which the Union in founded.

Book Chapters by Vito Todeschini

Susan Power and Nada Kiswanson (eds), Prolonged Occupation and International Law - Israel and Palestine, 2023

The present contribution focuses on the prolonged nature of Israel’s belligerent occupation of th... more The present contribution focuses on the prolonged nature of Israel’s belligerent occupation of the West Bank, assessing whether the time factor is determinative of its legality. This examination is undertaken against the background of two legal frameworks: international humanitarian law (IHL) – the law governing armed conflicts – and the jus ad bellum – the law governing inter-State force.
Under IHL, belligerent occupation is a temporary state of affairs. This is one of the fundamental tenets of the law of occupation, which aims to preserve the occupied territory from being subject to permanent or irreversible changes intended to alter sovereignty over such territory in favour of the Occupying Power. However, IHL does not set any precise time limit, solely prescribing that belligerent occupation cannot be permanent. In the case of the West Bank, Israel has exploited such temporal indeterminacy to extend its powers of administration of the occupied territory, while its Supreme Court, sitting as the High Court of Justice, has attempted to provide a legal justification of such practice.
The present contribution will show that prolonged occupations are inherently at odds with the requirement of temporariness prescribed by the law of occupation. Accordingly, it will be concluded that, while IHL does not explicitly sanction prolonged occupations as unlawful, their illegality stems from the breach of one or more of the fundamental tenets of the law of occupation, including temporariness.
Under the jus ad bellum, the ground rule is that unilateral uses of force are illegal. A State’s occupation of another State’s territory is a textbook example of unlawful use of force, which also qualifies as an act of aggression. Occupations are permitted only in two instances: when authorized by the UN Security Council and under the law of self-defence. In the latter instance, a State may occupy foreign territory to repel an armed attack, and solely if this is necessary and proportional to that end. Absent any of these conditions, self-defence cannot be invoked to justify occupations.
The present contribution will show that also under the jus ad bellum, and the law of self-defence, an occupation must be temporary. Given the legality of an occupation is intertwined with the existence of an armed attack, the duration of the latter marks the temporal limits of an occupation undertaken in self-defence. A prolonged occupation, the duration of which exceeds the necessity to repel an armed attack, is illegal under the jus ad bellum. The analysis will show that the prolonged nature of Israel’s occupation of the West Bank does not meet the basic conditions under the law of self-defence, and is in breach of both the UN Charter and customary international law.
The ultimate goal of the present contribution is to demonstrate that time is a key factor to assess the legality of an occupation under IHL and the jus ad bellum, and that Israel’s prolonged occupation of the West Bank, by failing to respect the temporal requirement prescribed by these two bodies of law, has become per se illegal.

Mark Gibney, Gamze Erdem Türkelli, Markus Krajewski, Wouter Vandenhole (eds.), The Routledge Handbook on Extraterritorial Human Rights Obligations, 2021

Human rights bodies have clarified that extraterritorial human rights obligations (ETOs) apply in... more Human rights bodies have clarified that extraterritorial human rights obligations (ETOs) apply in situations of armed conflict. ETOs arise whenever a State exercises effective control over a person or territory, or has the ability to infringe upon a person’s human rights. In particular, the degree of control exercised in a given context determines the extent to which the three obligations to respect, protect and fulfil human rights apply. Against the background of three specific scenarios (deprivation of liberty, occupation and other instances of effective control over a territory, and use of force by distance), the analysis concludes that the obligation to respect applies in all circumstances, whereas the obligations to protect and fulfil may apply only when a State exercises effective control over a person or territory, depending on the circumstances. By referring to the Maastricht Principles throughout the analysis, the chapter further examines their actual relevance in respect of extraterritorial military action.

Kurt Mills and Melissa Labonte (eds), Accessing and Implementing Human Rights and Justice, Routledge, 2018

The purpose of this paper is to explore whether international law supports the victims of unlawfu... more The purpose of this paper is to explore whether international law supports the victims of unlawful use of force in armed conflict in seeking reparation for the harm suffered. The main argument is that international human rights law (IHRL) allows answering in the positive. The analysis will examine how this framework may enhance the ability of victims of international humanitarian law (IHL) violations to find redress in the responsible state’s domestic courts. The aim is to show that the added value of applying IHRL in armed conflict is that it may fill the gaps present in IHL concerning individual remedies.

The paper firts provides an overview of the way IHRL has gradually been interpreted in expansive terms, with a view to ensuring its applicability extraterritorially and in times of conflict. It then turns to analyse the rules regulating the use of lethal force in armed conflict. In this context, the paper explores how the International Court of Justice (ICJ) and human rights bodies have solved at the interpretive level the differences characterising IHL and IHRL in this respect. In the final section, the analysis consider how individuals may benefit from the application of IHRL in armed conflict, especially from the viewpoint of the right to a remedy and reparation.

P. De Hert, S. Smis, M. Holvoet (eds.), Convergences and Divergences Between International Human Rights, International Humanitarian and International Criminal Law, Intersentia, 2018

The present contribution examines the interaction between international humanitarian law (IHL) an... more The present contribution examines the interaction between international humanitarian law (IHL) and human rights law (HRL) in relation to the duty to investigate in armed conflict. The analysis looks into how IHL and HRL respectively regulate this duty, showing that whereas the latter prescribes in detail the standards an investigation must follow in order to be deemed effective, the former does not. Accordingly, the research question is whether and how HRL may complement IHL and fill what is here considered a gap in the law.

In order to determine how HRL may complement IHL, the study looks at how the two bodies of law interact both as legal regimes and at the level of specific norms. It accordingly delineates a theoretical framework based on a perspective of complementarity between the two, operationalised at the micro level through the principle of systemic integration.

With specific regard to the obligation to investigate in armed conflict, the analysis considers two scenarios: concurrent applicability of IHL and HRL, and exclusive applicability of IHL. It shows that the standards of effectiveness may be applied to war crimes investigations in both scenarios. This is possible by means of the ‘all reasonable steps’/‘all feasible measures’ test, an interpretive trend that is emerging in human rights jurisprudence.

Clarifying the impact of HRL on war crimes investigations serves the purpose of shedding light on how States are expected to fulfil their relevant legal obligations. This is important at the normative level, for it brings more clarity within international law. At the practical level, it may be of assistance to those who carry out investigations in armed conflict as well as to those who scrutinise the conduct of investigators.

A. Spagnolo e S. Saluzzo (eds.), La responsabilità degli Stati e delle organizzazioni internazionali: nuove fattispecie e problemi di attribuzione e di accertamento, Ledizioni, 2017

Le operazioni di pace sono generalmente impiegate per far fronte a crisi politiche, militari e/o ... more Le operazioni di pace sono generalmente impiegate per far fronte a crisi politiche, militari e/o umanitarie che rechino una minaccia alla pace e alla sicurezza internazionale. A prescindere dallo specifico mandato ad esse assegnato, le forze multinazionali possono di fatto essere coinvolte nelle ostilità contro forze armate statali o contro gruppi armati organizzati. Alle relative azioni di condotta bellica divengono allora applicabili le regole del diritto internazionale umanitario (DIU). Per stabilire esattamente quali norme si applichino è necessario identificare chi, tra lo Stato di provenienza delle truppe e l’organizzazione alla guida dell’operazione, sia la Parte belligerante soggetta alle norme del DIU.

Poiché il DIU non offre indicazioni specifiche al riguardo, la dottrina ha rivolto la propria attenzione al test di controllo globale (overall control) elaborato dal Tribunale Internazionale Penale per l’ex Jugoslavia e al test di controllo effettivo (effective control) codificato nell’Articolo 7 del Progetto di Articoli sulla responsabilità delle organizzazioni internazionali. Il presente contributo si propone di analizzare entrambi i test e di determinare quale sia il più adatto all’identificazione delle Parti belligeranti nelle operazioni di pace.

R. Barnes and V.P. Tzevelekos (eds.), "Beyond Responsibility to Protect", 2016

The Responsibility to Protect (R2P) doctrine is concerned with the protection of civilian populat... more The Responsibility to Protect (R2P) doctrine is concerned with the protection of civilian populations from genocide, war crimes, crimes against humanity, and ethnic cleansing. What these international crimes have in common is that they are usually perpetrated by governments or non-State actors against their own populations. The crime of aggression is excluded from R2P’s scope. This seems to be explained by the fact that the threat posed to a population is external, as the crime is perpetrated by a foreign State. However, the inherent gravity of this crime makes it necessary to consider whether aggression ought to find a place in the doctrine.

The aim of the paper is to discuss de lege ferenda the scenario of a broadened R2P doctrine that would encompass aggression. Two main points are made in this respect. First, it is argued that the protective purpose of R2P supports its extension to the crime of aggression. Second, that R2P may offer a useful framework for coordinating decentralised State reaction against acts of aggression. The main argument is that this doctrine may assist in coordinating decentralised State reaction to acts of aggression.

The analysis’ assumption is that what marks the relationship between R2P and international law is interaction: each enacts changes upon and is changed by the other, in a relation of mutual influence. Including the crime of aggression within R2P would mean significantly broadening and modifying the original scope of the doctrine, thereby extending the protection of civilian populations. This, in turn, would allow coordination and improved application of the law of State responsibility and collective self-defence when the crime of aggression is committed. R2P is understood to have a transformative power in that it may cause major changes to the effectiveness of decentralised State reaction to acts of aggression.

W. Benedek, K. De Feyter, M.C. Kettemann, C. Voigt (eds.), "The Common Interest in International Law", 2014

This article analyses the concept of the common interest within the collective security system, w... more This article analyses the concept of the common interest within the collective security system, which is identified in the maintenance of international peace and security. It raises the issue that the discretion the Security Council enjoys often degenerates into selectivity. In this respect, the article attempts to understand whether the doctrine of the Responsibility to Protect (RtoP) may provide useful in reducing such selectivity. RtoP was in fact designed to compel the international community to act whenever genocide, war crimes, crimes against humanity, and ethnic cleansing are occuring or about to occur.

One of the article's arguments is that, even if it consolidated into a legal norm, RtoP would not be capable to impose on the Security Council a duty to act. However, a second argument is that the doctrine may have an indirect impact on the maintenance of international peace and security through its preventive dimension. RtoP may contribute to operationalise an effective early warning and assessment mechanism that could assist the Security Council in making determinations and adopting measures to address threats to international peace and security. The article contends that, while it does not overcome the core problems of the collective security system, RtoP may help correcting the practice of the Security Council in a manner more consistent with the pursuit of the common interest of maintaining international peace and security.

Blogs by Vito Todeschini

Opinio Juris, 2019

On 30 October 2018, the UN Human Rights Committee (HRC) finally adopted the long-awaited General ... more On 30 October 2018, the UN Human Rights Committee (HRC) finally adopted the long-awaited General Comment no. 36 (GC 36) on article 6 of the International Covenant on Civil and Political Rights (ICCPR). GC 36, which replaces GC 6 (1982) and GC 14 (1984), is an impressively long and thorough document, which provides a detailed account of how the HRC interprets the many facets of the right to life. This contribution intends to focus on its paragraph 64, which deals with the protection of the right to life in armed conflict (for commentary on earlier drafts see here, here and here), and which appears in Part V of GC 36 concerning the relationship of article 6 with other provisions of the ICCPR and other legal regimes. For ease of reading, the relevant text has been divided into four thematic parts.

Rights!, 2018

Conflict-related food insecurity and famine are an increasingly pressing concern in contemporary ... more Conflict-related food insecurity and famine are an increasingly pressing concern in contemporary conflicts. Of the various causes, the deliberate starvation of the civilian population and impediment of humanitarian relief from reaching civilians in need are the most critical. Parties to the conflict, particularly in Syria and Yemen, constantly employ sieges and blockades as part of their military efforts. In this respect, the United Nations (UN) Commission of Inquiry on Syria affirmed that: "[o]ver the past five years, the use of siege warfare has affected civilians more than any other tactic employed by the warring parties, and is consistently characterized by denial of the rights to freedom of movement, food, water, education, health care and the right to life". In the face of such brutality, one may rightly wonder what international law says about these methods of warfare, and why the UN Security Council is not taking action to end to these practices. This piece briefly addresses both questions, aiming to provide some food for thought for more in-depth discussion.

SIDI Blog, 2017

In August 2017, the United Nations Human Rights Committee (HRC) presented the revised text of Dra... more In August 2017, the United Nations Human Rights Committee (HRC) presented the revised text of Draft General Comment 36 on the right to life (Draft GC 36), which offers an in-depth reading of Article 6 of the International Covenant on Civil and Political Rights (ICCPR or the Covenant). In discussing the protection of the right to life in situations of armed conflict, the HRC considers the relationship between the Covenant and International Humanitarian Law (IHL) (see here for an earlier commentary). In this post, I will analyse the HRC’s general approach to the interplay between the ICCPR and IHL, and look at how this is applied to the regulation of the use of force in armed conflicts. In particular, I will comment on the HRC’s failure to distinguish between the paradigms of the conduct of hostilities and law enforcement, which risks to undermine the protection of the right to life provided by the Covenant.