Program on Humanitarian Policy and Conflict Research

The mandate interpretation process is crucial to the implementation of fact-finding missions geared toward investigating alleged violations of international law, including human rights, international criminal law, and international humanitarian law. However, many disagreements exist about how fact-finding practitioners should weigh different factors in their mandate interpretation processes.

Abstract:      

This working paper examines how monitoring, reporting, and fact-finding (MRF) missions have responded to challenges regarding public communication and report drafting. Overall, the paper aims to present a portrait of the views and practices of the MRF community — as well as the implications of different approaches — regarding transparency. What should MRF practitioners communicate publicly? What information should be kept private? When a mission does communicate publicly, how should practitioners do so? What factors should shape practitioners’ communications strategies?

This paper sets out various dilemmas faced by practitioners undertaking fact-finding missions, based on a desk analysis and extensive interviews with expert practitioners. The paper addresses the challenges, both practical and theoretical, related to standards of proof and information collection and suggests policy options that might be pursued moving forward.

One dilemma that faces practitioners serving on monitoring, reporting, and fact-finding (MRF) missions concerns the protection of witnesses, victims, and staff. The paradox underlying the issue of protection is that, while statements from witnesses and victims account for the predominant evidence when investigating human rights violations, the very fact that victims and witnesses decide to come forward and contribute to the establishment of the truth can put these individuals at risk.

The design and planning process is crucial to the implementation of monitoring, reporting, and fact-finding (MRF) mechanisms geared toward investigating violations of international law, including human rights, international criminal law, and international humanitarian law. However, many disagreements exist about how MRF actors should weigh different factors in their design and planning decision-making processes.

The! way! in! which! international! actors! implement monitoring,! reporting,! and! fact1 finding! (MRF)!mechanisms!is! changing. Modern!MRF!mechanisms!date back! to 1913,! when,! after! the! Balkans! had! erupted! in! war! for! the! second! time! in! two! years,! the! Carnegie! Endowment! for! International! Peace! initiated a! commission! to! investigate! potential violations!of!international!law. But!the!Carnegie!Endowment!did!not!begin its! work! until! fighting! had! ceased,! believing,! as! the! mission’s! final! report! notes,! that a! mission! initiated! before! the! conflict’s!

A simple glance at recent news headlines reveals the growing prevalence of international missions tasked to monitor and report on potential violations of international law.  In the past few months alone, the United Nations (UN) dispatched a team to monitor the ceasefire in Syria, and the United Nations Human Rights Council (UNHRC) mandated a commission of inquiry to examine Israeli settlements in the West Bank, extended the mandate of the International Commission of Inquiry on Syria, and mandated a new Special Rapporteur on human rights and the environment.  These missions are part of a rap

In line with its mission to engage in critical examination of humanitarian and conflict policy, HPCR undertakes a variety of academic and research initiatives to identify significant developments in Humanitarian and Human Right Law. As part of this research, in 2010 HPCR established a thematic working group on IHL and IHRL. This working group was comprised of senior level practitioners from both the humanitarian assistance sector and the military. While not comprehensive, this document seeks to provide key jurisprudence and doctrine in both the humanitarian and human rights fields. 

In recent decades, the international community has exhibited an increased devotion to civilian protection and promotion of international legal accountability. To activate this sense of responsibility, during armed conflicts and internal disturbances, international actors have created numerous monitoring, reporting, and fact-finding (MRF) mechanisms to investigate potential violations of international law.

A prominent issue in contemporary international law and policy involves civilians living in the Occupied Palestinian Territory (“OPT”)1 who wish to seek reparation for damage allegedly sustained as a result of Israel’s activities vis-à-vis the OPT, whether in the course of belligerent occupation or armed conflict. This policy brief provides humanitarian practitioners with a basic understanding of the legal framework applicable to that issue.

The debates over the applicability and interpretation of the Law of Armed Conflict (LOAC) are vital to unity of effort as well as clarity of rules in coalition operations.  This paper has addressed the key sources of uncertainty underlying how LOAC is and should be applied in coalition operations, focusing first on understanding which legal frameworks apply in particular context of armed conflict.

The increase in violent attacks against civilians and non-civilians and the claims made by groups waging such attacks that their acts are legitimate under Islamic law generated wide interest in Islamic ‘laws of war’. This paper attempts to challenge the approach focused on comparison between international humanitarian law (IHL) and Islamic law on the basis of the rules adopted in each system and argues that both legal regimes are governed by certain theoretical and ideological paradigms that are distinct from each other.

Recent incidents involving private security companies1 (PSCs) in Iraq have raised questions among governments and international agencies regarding the appropriate legal framework to regulate these organizations as well as to determine both company and employer liability under international humanitarian law (IHL).2 While the use of PSCs in the Occupied Palestinian Territory (OPT) has remained more limited than in Iraq,3 the growing presence of PSCs, especially at military checkpoints and crossings, has raised concerns among humanitarian practitioners.

Humanitarian organizations operate in increasingly hostile environments. Although authoritative statistics are scarce, anecdotal evidence suggests that aid workers face life-threatening risks that are exacerbated by the growing number of humanitarian organizations operating in the field with varying mandates, without common professional security standards and with limited success with inter-agency security coordination.

The concept of ‘transnational armed groups’ has been used increasingly since September 11, 2001 by those who consider the ‘war on terror’ to be an armed conflict and who wish to apply the laws of armed conflict, called international humanitarian law (IHL), to that conflict (rather than human rights domestic legislation and international law on cooperation in criminal matters). In this debate, it is often claimed that IHL, as it stands, is inadequate to cover such a conflict and such ‘transnational armed groups’. This paper discusses, firstly, when IHL applies to transnational armed groups.

International human rights law and international humanitarian law are parallel and complementary branches of international law with their distinct and distinctive supervision arrangements. In the conflicts taking place in the world today, both the institutions of international humanitarian law and international human rights law are called upon to apply and uphold international humanitarian law.

Combatancy has throughout the history of organized warfare been an exclusionary concept. Distinguishing between combatants and civilians has long represented an important aspect of warfare and has been recognized as the indispensable means by which humanitarian principles are injected into the rules governing conduct in war. Yet the protection of participants in warfare under international humanitarian law remains characterized by a certain level of uncertainty as regards the codified provisions for combatants and civilians.

International agencies are facing increasing levels of threats against their staff and activities in many of their operations. Since the end of the Cold War, these agencies, intergovernmental and non-governmental alike, have been called to work more intensely in conflict areas.1 These areas have become singularly more dangerous in recent years, exposing staff to greater risks.

When does the application of international humanitarian law properly begin and end in modern conflicts? Classical international law distinguished three types of armed conflict: (1) war; (2) civil war; and (3) armed hostilities short of war. The laws of war were applicable in time of war--from the declaration of war until the formal reestablishment of peace (for example, by the signing of a peace treaty). The laws of war were not applicable in civil wars--which were considered internal matters--unless a state formally recognized the insurgency as a belligerent.

At the dawn of the 21st century international humanitarian law2 is facing a number of significant challenges. The events since 11 September 2001 in particular have focused a bright spotlight on issues such as: the law governing conflict between states and nonstate actors; the criteria to be applied for qualification as a combatant; the identification and targeting of the enemy; and the status and treatment to be afforded to captured “noncombatants” who participate in hostilities. The campaign on terrorism is in many ways a reflection of a broader transformation of modern conflict.

Urban warfare constitutes one of the most serious threats to the security and integrity of civilians in times of war. It represents, consequently, one of the most challenging areas of International Humanitarian Law (IHL) in practice. This note reviews the rules of IHL applicable to the conduct of hostilities in urban environments, and identifies key legal provisions desgned to enhance the protection of civilians in these areas.

This policy brief reviews the rules of International Humanitarian Law (IHL) applicable to the conduct of hostilities in urban environments, and identifies key legal provisions designed to enhance the protection of civilians in these areas.