International Law, War and Human Rights: The Humanitarian Response against the State of Emergency (original) (raw)
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2021
Objectives: This article aims to revisit the interrelationship between International Humanitarian Law (IHL) and International Human Rights Law (IHRL), in honour of their respective normative scopes and in order to carry out an analysis of their complementary or supplementary application, towards the construction of a more appropriate tool for the protection of human beings in extreme situations, as it occurs during armed conflicts. This is because, amid the multifaceted vulnerabilities that accumulate in today's conflicts, it is essential to provide the most effective source of protection - proportional to the demands for protection that are manifested today, particularly in military occupations around the world, whose occurrence will be the focus of this research. Methodology: As for the method of approach concerning the logical basis of the investigation, the hypothetical-deductive procedure method was selected, with a qualitative approach, and a bibliographic research and case analysis technique, insofar as the corroboration or falsification of the main hypothesis about the effective complementary and harmonious application of IHRL will be tested to cases of human rights violations in International Armed Conflicts in the military occupation modality. The exploratory aim was developed through the understanding of the Military Occupations as an ideal scenario to indicate the legal antinomies between IHRL and IHL. Results: In this investigation, specifically utilising the Military Occupations scenario, it was concluded that the most appropriate positions for the protection of the vulnerable should be substantially grounded on IHRL fundamentals regarding the still obscure area of transition between the two areas, aiming at the consolidation of a doctrinal understanding to base new consultative opinions in the future. Contributions: Given this framework, the core of this work lies in the understanding of the praxis for the complementary application of both aspects in armed conflicts, considering not only International Human Rights Law as lex generalis, but their effective overlap to the detriment of International Humanitarian Law, when it is most beneficial to human protection in the cases of Military Occupations.
The article is devoted to problems of interaction of two distinct bodies of modern international law – human rights law and international humanitarian law in times of armed conflict. Special attention is paid to differences in approaches to human rights applied by the rules of two mentioned bodies of international law. The provisions of international treaties in the field of protection of human rights and international humanitarian law, as well as the opinions of reputable domestic and foreign researchers are analyzed. The purpose of this study is to identify problem points of convergence of human rights law and international humanitarian law during armed conflicts. The research is based on a combination of specific historical, comparative-legal, formal-legal and political-legal methods. The main conclusions of the research are the following: 1) during an armed conflict human rights law and international humanitarian law are complementary bodies of international law; 2) rules of international humanitarian law operate as lex specialis in relation to human rights law; 3) further close interaction between the considered bodies can lead to their merger into a single (joint) body of international law. The novelty of the research is in the fact that it is for the first time in English the opinions of famous Russian international lawyers on the question of the relationship of these bodies of international law are depicted; also the positions of Russian scientists are compared with the opinions of their foreign colleagues.
Revista Opinião Jurídica (Fortaleza), 2021
This article aims to revisit the interrelationship between International Humanitarian Law (IHL) and International Human Rights Law (IHRL), in honour of their respective normative scopes and in order to carry out an analysis of their complementary or supplementary application, towards the construction of a more appropriate tool for the protection of human beings in extreme situations, as it occurs during armed conflicts. This is because, amid the multifaceted vulnerabilities that accumulate in today's conflicts, it is essential to provide the most effective source of protection - proportional to the demands for protection that are manifested today, particularly in military occupations around the world, whose occurrence will be the focus of this research. As for the method of approach concerning the logical basis of the investigation, the hypothetical-deductive method was selected, insofar as the corroboration or falsification of the main hypothesis about the effective complementa...
2023
The article is devoted to analysis of constitutional human rights and freedoms under martial law. The main focus is made on the analysis of human rights that may be restricted during martial law. Human rights are divided into absolute ones and relative ones. Absolute rights are determined as rights that cannot be limited under any circumstances. The legal definition of martial law is analyzed. It was found that martial law is the main legal basis for limiting the constitutional rights and freedoms of the person and of the citizen. Grounds for introducing martial law include threats to national security and territorial integrity. Attention is focused on the mechanisms and guarantees aimed at protection of human rights in conditions of martial law. Any restrictions on human rights must be justified, proportionate and necessary to achieve the legitimate goals of security and defense of the state. Affirmation and provision of human rights and freedoms is the main duty of the state. Therefore, during the legal regime of martial law the state cannot cancel its obligation to guarantee human rights. The list of rights which are not subject to restriction even during martial law, are human and citizen's rights guaranteed by the Constitution. Respect for human rights is a guarantee of state power both at the national and international levels.
Securitologia
Over the past decades, threats have arisen in the international security environment related to the functioning of weak and countries unable to fulfill their functions in ensuring security and basic human rights for their citizens, referred to in the doctrine as failed/failing states. The international community has responded with humanitarian intervention that is part of the concept of responsibility for protection (Responsibility to Protect). This article is devoted to the issue of placing this concept in positive international law (remarks de lege lata) and the resulting applications (de lege ferenda comments).
The Dilemma of International Humanitarian Law: What and How it Protects
The American Journal of Social Science and Education Innovations, 2020
Basically the International Humanitarian Law regime is to prevent armed conflicts and war crime, considering the catastrophic effects of wars generally. This laudable objective clearly underscored the kind of optimism most states expressed on this noble cause. In the contrary, a study of International Humanitarian Law regime over the years has left scholars more critical. This has led to divergent views about who it protects and how. While some studies questioned its evolution to be Eurocentric, some others faulted it to be unviable, non-coercive and unenforceable. This paper constitutes a scholarship on these studies and it contends that, the international humanitarian law is a branch of public international law that deals with humanitarian interventions in wartime and war crimes. The legal framework of the international humanitarian law is rooted in the Geneva Conventions of 1949. The missing link is that, the critics of the international humanitarian law based their argument on the operations of the judicial organ of the international humanitarian law, the International Criminal Court. The critics had seen the Court as a coercive tool in the hands of the western countries to witch-hunt African leaders. However, the operations of the Court should not be used as a premise to diminish the legality of the law to protect its legal personality as provided for in the Conventions. And it does not in any way invalidate the international humanitarian law of being law. This is the angle that this paper stands differently from the previous studies.
Human Rights in Times of Armed Conflicts
2022
The present contribution deals with the issue of human rights in armed conflicts versus the concept of war. This distinction was made in Article 2, and the same in all four Geneva Convention of 1949. In this article, the distinction is made between the universal system of human rights and the International Humanitarian Law of Armed Conflicts (IHLAC). The difference of application between these two sets of law relies on the fact, that the universal agreements of human rights always apply, both in armed conflict and peace when the IHLAC applies only in times of armed conflicts. There is a difference between them in the regulation. Human rights regulate the relationship between the state and persons under its jurisdiction, regardless of their nationality and the IHLAC applies to states and individuals or armed groups distinguishing between a civilian or a veteran. About the compliance control, it is a different system too, for the IHLAC, it is the ICRC and criminal tribunals, and for human rights, there are different committees of tribunals like the International Court of Justice (ICJ). The exam of the jurisprudence of the ECtHR shows, that it does not make a distinction between a state of war and peace, which is called the humanization of the law of armed conflicts. Also, the very important question of the fragmentation of international law is examined, based on the jurisprudence of the ICJ.
The International Legal Protection of Human Rights in Armed Conflict
International Education and Research Journal, 2017
This research paper aimed at the exploration of international legal protection of human rights in the situation of the armed conflict. In the recent situations armed conflict has blighted the lives of millions of civilians. Serious violations of international humanitarian and human rights law are common in many armed conflicts. In certain circumstances, some of these violations may even constitute genocide, war crimes or crimes against humanity. Both human rights law and international humanitarian law inform each other in a number of ways. Both international human rights law and international humanitarian law provide extensive protections and guarantees for the rights of persons not actively or no longer participating in hostilities, including civilians. This paper discusses international human rights law and international humanitarian law as available for the protection of victims in armed conflict.
Minnesota Law Review, 2012
Although international human rights and humanitarian law share common roots in their respective efforts to protect human dignity, the two bodies of law appear to have incompatible requirements in armed conflicts. This article draws on jurisprudence, state practice, and scholarship to describe three approaches to evaluating what is lawful in armed conflicts, explores the consequences of the various applications, and recommends that the United States employ interpretive strategies to minimize discrepancies. In situations where states’ obligations remain irreconcilable, the article endorses a “specificity decision rule” to determine the applicable legal regime.