Taking Stock of Civilian Status in a Quasi Post-Guantanamo Bay World

by | Oct 1, 2019 | AYIH, AYIH 2015

Taking Stock of Civilian Status in a Quasi Post-Guantanamo Bay World

Authors Shannon Bosch

ISSN: 2521-2621
Affiliations: Attorney of the High Court of South Africa; Senior Lecturer in Law, University of KwaZulu-Natal
Source: African Yearbook on International Humanitarian Law, 2015, p. 79 – 95

Abstract

The term ‘unlawful enemy combatant’ was initially coined in a 1942 US Supreme Court decision, as shorthand referring to persons captured while participating in armed conflict without the required authorisation. The notion that a combatant (who by definition is someone authorised to participate directly in hostilities) can be simultaneously unlawful raises complex legal questions. Not surprisingly, the category ‘unlawful enemy combatant’ does not appear in any of the international humanitarian law (IHL) treaties. It is therefore alarming that, since its reincarnation under the Bush administration, it has crept into legal literature, military manuals and case law but has yet to be defined by international agreement. Over the last century and a half, armed conflicts have played out in predominantly civilian locations, giving rise to greater intermingling of civilians with combatants. While previously unauthorised participation in conflict was seen as exceptional, in recent years it has become far more prevalent, to the extent that this increased civilian participation in armed conflicts is appreciably one of the greatest challenges faced by the armed forces. The IHL principle of distinction between lawful combatants and civilians was, and still is, intended to assist commanding officers in making legally defensible targeting decisions. However, the reality is that these supposedly clear-cut categories cannot provide clear-cut answers in modern international armed conflicts that are regulated by conventions which never envisaged the degree of civilian involvement in modern armed conflict. This legal confusion has given rise to misguided ideas — that civilian status can be forfeited or lost, and has fuelled the use of terms such as ‘unlawful enemy combatant’, an issue that is critically explored in this contribution.

The Unforeseen Humanitarian Law Implications of the NATO Intervention in Libya

by | Oct 1, 2019 | AYIH, AYIH 2015

The Unforeseen Humanitarian Law Implications of the NATO Intervention in Libya

Authors Kesolofetse Lefenya, Ilyayambwa Mwanawina

ISSN: 2521-2621
Affiliations: Lecturer of Law, Faculty of Law, North West University; Lecturer of Law, Faculty of Law, North West University
Source: African Yearbook on International Humanitarian Law, 2015, p. 59 – 78

Abstract

Gaddhafi’s forty-two-year rule in Libya ended after uprisings against his government led to a civil war and eventually intervention by the international community. On 31 March 2011, the North Atlantic Treaty Organization (NATO) reported to the international community that it had overall command of international military operations over Libya and that the aim of NATO actions was to protect civilians and civilian-populated areas from attack or the threat of attack. This article seeks to highlight the miscarriages of International Humanitarian Law (IHL), in particular the Third Geneva Convention Relative to the Treatment of Prisoners of War. The article will canvass the capture and murder of Gaddhafi, in that way highlighting the breaches of another body of law, namely International Human Rights Law. It is assumed that, because of the involvement of international parties, the nature of the conflict which started as a civil war turned into a conflict with enough international elements to bring it under the purview of the Geneva Conventions. The common underlying purpose of international humanitarian law and international human rights law is the protection of the life, health and dignity of human beings, regardless of circumstances. It is therefore not surprising that the content of some of the rules is similar. Both bodies of law aim, for example, to protect human life, prohibit torture or cruel treatment, process, include provisions for the protection of women and children and regulate aspects of the right to food and health. On that note, the two bodies of law must ensure to uphold and protect their core objectives and principles, thereby preventing similar atrocity cases like the Gaddhafi matter in future.

Contemporary Conflicts and Protection Gaps in International Humanitarian Law: The Necessity and Practical Utility of Fundamental Standards of Humanity

by | Oct 1, 2019 | AYIH, AYIH 2015

Contemporary Conflicts and Protection Gaps in International Humanitarian Law: The Necessity and Practical Utility of Fundamental Standards of Humanity

Authors Brian Sang YK

ISSN: 2521-2621
Affiliations: None
Source: African Yearbook on International Humanitarian Law, 2015, p. 24 – 58

Abstract

International humanitarian law (IHL), applicable to armed conflict, is coming up against the inevitable challenges of the times because the nature of and participants in contemporary conflicts differ considerably from that in the conflicts of yesteryear. IHL traditionally sought to regulate the conduct of, and damage caused by, armed conflict between rather than within states. Contemporary conflicts are far more likely to be internal rather than international and thus entail the presence, to a large extent, of non-state actors, whether as combatants or victims. The recent history of conflicts reveals that internal armed conflicts and other situations of internal violence of lesser intensity, namely internal disturbances and tensions, are the most common forms of violence today. This high incidence of such conflicts poses major problems for legal regulation and protection of individuals from abuses related to the associated violence. The apparent inadequacy of international law in effectively protecting individuals caught up in grey-zone conflicts generally and the right to life in particular makes clear the necessity to fill the protection gaps. This article asks whether common elements in human rights law and IHL can be identified and articulated as fundamental standards of humanity that ought to apply along the entire spectrum of violence (from internal tensions to fully-fledged civil war), regardless of the formal classification of such situations. Its thesis is that fundamental standards of humanity can offer a means to ensure that grey-zone conflicts are subject to regulatory norms of international law pursuant to which individuals caught up in the violence can be better protected.

The History and Development of the Law of Armed Conflict (Part II)

by | Oct 1, 2019 | AYIH, AYIH 2015

The History and Development of the Law of Armed Conflict (Part II)

Authors Arthur van Coller

ISSN: 2521-2621
Affiliations: Senior lecturer, Nelson R Mandela School of Law, University of Fort Hare
Source: African Yearbook on International Humanitarian Law, 2015, p. 1 – 23

Abstract

This paper is Part II in a two-part series, and continues the investigation into the history of armed conflict and its influence on the development of the Law of Armed Conflict (LOAC). Part I considered the early history of armed conflict and its implications on the development of the LOAC. The historical events leading up to The Hague Peace Conference of 1907 has shown that the development of armed conflict is closely linked to scientific, military and industrial technology. Part II considers the development of armed conflict during the subsequent time period from 1907 to the present day. The paper concludes with some prognostic observations. Thus, the developments in the LOAC reflect an attempt to regulate specific weapons that have developed as a result of technological advancements. Fifth-generation warfare will see new dimensions and perspectives regarding the options available to military and political commanders and will be decidedly influenced by information dominance through sustained cyber technologies and military force.

Persuasive Prevention: Ending Mass Atrocities in Africa

by | Oct 1, 2019 | AYIH, AYIH 2016

Persuasive Prevention: Ending Mass Atrocities in Africa

Authors Dan Kuwali

ISSN: 2521-2621
Affiliations: Extraordinary Professor of International Law, Centre for Human Rights, University of Pretoria, Distinguished Professor of International Law and International Relations, University of Lilongwe, Malawi, and Fellow, Carr Centre for Human Rights Policy, Harvard Kennedy School of Government
Source: African Yearbook on International Humanitarian Law, 2016, p. 108 – 136

Abstract

Africa is a continent which has experienced some of the world’s worst mass atrocities. Notwithstanding the provision of the right to intervene in a member state in the face of war crimes, genocide and crimes against humanity under Article 4(h) of the Constitutive Act of the African Union and construction of an ambitious continental human rights protection architecture, Africa is still a continent riddled with conflicts where mass atrocities have flourished. This paper advances a concept of ‘persuasive prevention’— a graduated approach to secure respect for human rights and humanitarian norms as well as conflict prevention strategies through constructive engagement by civil society and the international community with potential perpetrators, backed by credible multilateral enforcement mechanisms. The aim of the Article 4(h) intervention should, first and foremost, be to prevent mass atrocities from occurring and, where mass atrocities are occurring; intervention should be aimed at protecting the populations at risk and the pursuit of perpetrators.

Many Small Wars: The Classification of Armed Conflicts in the Non-Self-Governing Territory of Western Sahara (Spanish Sahara) in 1974-1976

by | Oct 1, 2019 | AYIH, AYIH 2016

Many Small Wars: The Classification of Armed Conflicts in the Non-Self-Governing Territory of Western Sahara (Spanish Sahara) in 1974-1976

Authors Ben Saul

ISSN: 2521-2621
Affiliations: Challis Chair of International Law, Sydney Law School, University of Sydney, Australia
Source: African Yearbook on International Humanitarian Law, 2016, p. 85 – 107

Abstract

Much has been written about the various international legal aspects of the Western Sahara dispute, yet there has been little attention to the legal classification of the violence which engulfed the then Spanish Sahara in 1974-1976. This article closely examines the historical record in order to identify how international humanitarian law applied leading up to and during the Spanish withdrawal and the attainment of control by Morocco and Mauritania. In particular, it finds that there existed a series of five consecutive and/or parallel conflicts of different legal characters, including three non-international armed conflicts (involving Polisario against Spain, Morocco and Mauritania respectively) and two international armed conflicts (between Spain and Morocco, and Morocco and Algeria). (The non-international conflict between Morocco and Polisario was also transformed into an international (self-determination) conflict as a result of the application of Additional Protocol I of 1977 in 2011.) The legal classification of the hostilities is not merely of historical interest, but has continuing consequences for the legal responsibility of states, and the criminal liability of individuals, for violations of international humanitarian law in each of the conflicts. Accountability is likely to be an important aspect of a comprehensive peace settlement and post-conflict justice.

The Innocent Civilian, the Mandated Soldier and the Unlawful Fighter: A Re-Evaluation of the ‘Direct Participation in Hostilities’ Dilemma

by | Oct 1, 2019 | AYIH, AYIH 2016

The Innocent Civilian, the Mandated Soldier and the Unlawful Fighter: A Re-Evaluation of the ‘Direct Participation in Hostilities’ Dilemma

Authors Arthur van Coller

ISSN: 2521-2621
Affiliations: Associate Professor, Nelson R Mandela School of Law, University of Fort Hare
Source: African Yearbook on International Humanitarian Law, 2016, p. 65 – 84

Abstract

The Law of Armed Conflict (‘the LOAC’) incorporates terms and concepts that, on initial scrutiny, appear uncomplicated. However, the meaning and practical application of several concepts within the LOAC have often proven to be highly ambiguous and contested. The notion of ‘Civilian Direct Participation in Hostilities’ (‘C-DPH’), found, arguably, in Common Article 3 of the Geneva Conventions of 1949 and explicitly in Additional Protocol I of 1977, Article 51(3), and Additional Protocol II of 1977, Article 13(3), represents one such contested concept. C-DPH is a cornerstone concept in the LOAC and has attained the status of customary international law. On a conceptual level, civilians should be protected from intentional attack unless, and ‘for such time’, as they ‘directly participate in hostilities’. However, no definition of C-DPH or an indication of the actions that amount to C-DPH exist in the Geneva Conventions or in the Additional Protocols, despite the serious practical and legal consequences that may result from such participation. It is therefore imperative to establish a universal, comprehensive and practical definition of C-DPH.