Armed Forces and International Jurisdictions

Armed Forces and International Jurisdictions


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Armed Forces and International Jurisdictions by Marco Odello

Different activities conducted by armed forces and their personnel are governed by different branches of international law, in particular international humanitarian law, international criminal law, and human rights law. In recent times, the expanding jurisprudence of international jurisdictions has also addressed the activities of military personnel engaged in different scenarios, including the internal organization of armed forces and forms of violation of different rules of international law. Relevant decisions have come from, for instance, the international ad hoc criminal tribunals, special courts, and truth and reconciliation commissions, as well as human rights courts and the International Court of Justice. This book explores the relationship between armed forces and international tribunals, courts, and non-judicial bodies, taking into consideration the case law developed by those jurisdictions. The contributors are legal academics from various European university law schools, with specific expertise in international human rights law, criminal law, and humanitarian law.

Product Details

ISBN-13: 9789400001831
Publisher: Intersentia
Publication date: 10/28/2013
Pages: 234
Product dimensions: 6.20(w) x 9.30(h) x 0.60(d)

Table of Contents

List of Abbreviations ix

Introduction xi

Chapter 1 Armed Forces and International Jurisdictions: a General Survey Peter Rowe 1

1 The Role of National Law 3

2 Other Armed Forces' within a State 5

3 International Law and Armed Forces 6

4 Conclusion 12

Chapter 2 International Legal Regimes, Armed Forces and International Jurisdictions Marco Odello 15

1 Introduction 15

2 Concept, Nature and Evolution of International Law Related to Armed Conflict 19

2.1 War and Armed Conflict 23

2.2 The Definition of Armed Conflict 27

3 Human Rights Obligations 29

3.1 Human Rights and Armed Forces 30

3.2 The Relationship between IHL and IHRL 31

3.3 Extraterritorial Applicability of Human Rights Obligations 34

4 International Jurisdictions and International Humanitarian Law 37

4.1 Jurisdiction Ratione Materiae 38

4.2 Jurisdiction Rntione Personae 41

5 International Criminal Law: a Way to Fill the Gap? 43

5.1 The Nature of International Crimes 44

5.2 Individual Criminal Responsibility and Armed Forces 46

Conclusions 48

Chapter 3 Armed Forces and the International Court of Justice: the Relevance of International Humanitarian Law and Human Rights Law to the Conduct of Military Operations Giulio Bartolini 51

1 Introduction 51

2 The Relevance of IHL in the Case-Law of the ICJ 55

3 Sources of IHL and the Case-Law of the ICJ 59

4 Obligations Erga Omries and Jus Cogens in IHL 65

5 The Application of IHL Principles by the ICJ 68

5.1 Definition of Armed Conflicts 68

5.2 Conduct of Hostilities 69

5.3 The Law of Occupation 74

5.4 Humanitarian Assistance 78

5.5 Guarantees for the Implementation of IHL 78

6 The Application of Human Rights Obligations during Armed Conflicts 80

6.1 The Extraterritorial Application of Human Rights Treaties in the ICJ's Case-Law 82

6.2 The Relationship between IHL and HRL according to the ICJ 83

7 Conclusions 88

Chapter 4 Armed Forces before the International Court of Justice: the Jus Ad Bellum Constantine Antonopoulos 91

1 Introduction 91

2 Passage through Foreign Territory in Peacetime 94

3 The Jus Ad Bellum 97

3.1 The Justiciability of Disputes on Resort to Force 98

3.2 Nature and Extent of the Prohibition of the Use of Force 101

3.3 Threat of Force 105

3.4 Support to Armed Bands as a Violation of the Prohibition of the Use of Force 106

3.5 The Right of Self-Defence Against an Armed Attack or Against a Use of Force Short of an Armed Attack 107

3.5.1 Self-Defence in Customary Law 108

3.5.2 The Concept of Armed Attack 109

3.5.3 Necessity of Self-Defence 111

3.5.4 Proportionality 112

3.5.5 Collective Self-Defence 113

3.5.6 Reporting of Measures of Self-Defence to the Security Council 114

3.5.7 The Response to a Use of Force Short of an Armed Attack 115

3.5.8 The Use of Force Against Irregular Armed Forces 117

3.5.9 Anticipatory Self-Defence and "Pre-emptive Self-Defence" 124

3.6 Humanitarian Intervention 130

3.7 State Consent 134

4 UN Peacekeeping Forces 138

5 Conclusions 140

Chapter 5 The Practice of International Courts and Tribunals on Armed Forces: Issues of Status and Attribution Andrea Carcano 141

1 Introduction 141

2 Issues of Status 142

2.1 Civilians and Armed Forces 143

2.2 The Notion of Direct Participation in Hostilities 145

2.3 The Mrškic Case: Status of POW by Agreement? 148

2.4 Child Soldiers - Between Civilian and Combatant Status 152

3 Status of Armed Groups 155

3.1 The Bosnian-Serbs Forces Operating in Bosnia and Herzegovina (1992-1995) 156

3.2 Croatian Forces Fighting in Vukovar in 1991 Against the JNA 156

3.3 The Kosovo Liberation Army (KLA) 157

3.4 The Albanian National Liberation Army (NLA) 159

3.5 The Rwanda Patriotic Front 161

3.6 The Revolutionary United Front (RUF) 162

3.7 The Union des Patriotes Congolais (UPC); and the Force Patriotique pour la Libération du Congo (FRPI) 162

4 Issues of Attribution of the Conduct of Armed Forces to a State 164

5 Conclusion 166

Chapter 6 Echoes of 'The Life of Johnny Reb'. The Protection of the Fundamental Rights and Freedoms of Armed Forces Personnel in a Comparative Human Rights Perspective Francesco Seatzu 169

1 Introduction 169

2 Strengths and Weaknesses of the 'Citizen in Uniform' Approach by the ECtHR 171

3 The 'Courts Resisting Courts' Approach of the ACtHR in Dealing with Cases Involving Military Jurisdictions 174

4 Developing an Alternative and Integrated Approach that Reconciles the Protection of the Human Rights of Armed Forces Personnel with the Enforcement of Military Discipline Through Ad Hoc Jurisdictions: a Modest Proposal 179

Chapter 7 The Relationship between Truth Commissions and Armed Forces Alison Bisset 189

1 Introduction 189

2 Truth Commission Investigations, Armed Forces and Violations of International Law 190

3 Truth Seeking and Armed Forces Participation 193

4 The Push Towards Prosecution 196

5 The Use of Truth Commission Materials in International Proceedings 200

6 Conclusions and Prospects for Participation 204

Conclusions and Recommendations Marco Odello Francesco Seatzu 207

1 Conclusions 207

2 Recommendations 211

Selected Bibliography 213

Table of Cases 217

Index 221

The authors 233

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