Publications

2005
Kenneth Watkin. 1/2005. OPS Issue 2: Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle Over Legitimacy.Abstract

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. Who qualifies as a combatant is a question that has plagued those seeking to establish a comprehensive normative regime governing participation in hostilities. Acting on behalf of a state has constituted the primary means of attaining combatant, and therefore legitimate, status. As a result, a significant number of participants in warfare do not meet the established criteria and are, consequently, considered ‘illegitimate’ or ‘unlawful.’ This includes those fighting in international armed conflict as well as groups engaged in armed conflict not of an international character. The uncertain status of these ‘illegitimate’ warriors is evidenced by the variety of terms used to describe them. The traditional dual privileged status approach of dividing a population into combatants and civilians is only as effective as the accuracy with which the definition of ‘combatant’ is established and to the extent there is a clear understanding of when civilians lose the protection of their status by participating in hostilities. Recently, the question of combatancy and the protection of captured enemy personnel has gained prominence due to the decision of the United States government in 2002 to deny prisoner of war status to the Taliban and Al Qaeda fighters. Similarly, there is considerable controversy as to the standard of treatment to be applied to captured unlawful combatants. Historically, a consistent result of being determined to be an unauthorized participant in hostilities has been harsh treatment at the hands of the captor. Questions are asked whether civilian participants in combat are a type of ‘illegal’ combatant, fall under civilian status, or merit their own status under international humanitarian law. The idea of an intermediate status is rejected by many analysts. 

occasionalpaper2_combatants.pdf
2004
Yoram Dinstein. 10/2004. The Dilemmas Relating to Legislation Under Article 43 of the Hague Regulations, and Peace-Building. dinstein.pdf
Yoram Dinstein. 10/2004. “OPS Issue 1: Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding”.Abstract

Article 43 of the Regulations Respecting the Laws and Customs of War on Land, annexed to Hague Convention (II) of 1899 and (IV) of 1907, is the linchpin of the international law of belligerent occupation. Two diverse obligations are imposed on the Occupying Power by Hague Article 43: (a) to restore and ensure, as far as possible, public order and life in the occupied territory; (b) to respect the laws in force in the occupied territory unless an “empêchement absolu” exists. The first obligation has to be implemented by the executive (and the judicial) branch of the Military Government of the Occupying Power, whereas the second obligation devolves to the legislative branch. The first obligation requires acts of commission, and the second duty postulates primarily acts of omission. Neither obligation is absolute. Although in principle the Occupying Power has to maintain the laws in force in the occupied territory, it is generally understood that the preexisting legal system can be modified through new legislation when a necessity arises. In principle, any legislation enacted by the Occupying Power in the name of necessity applies in the occupied territory during the occupation and not beyond that stretch of time. Article 64 of the 1949 Fourth Geneva Convention expresses in a more precise and detailed form the terms of Article 43 of the Hague Regulations. Without exhausting the concept Article 64 allows for suspension or repeal of existing laws and the enactment of new legislation in three exceptional situations: (i) the need of the Occupying Power to remove any direct threat to its security and to maintain safe lines of communication, (ii) the duty of the Occupying Power to discharge its duties under the Geneva Convention, and (iii) the necessity to ensure the “orderly government” of the occupied territory. Obviously, the orderly government exception becomes more prominent under conditions of prolonged occupation. It is, therefore, required to establish a litmus test for resolving disputes concerning the validity of legislation enacted by the Occupying Power in the name of orderly government. How far can the Occupying Power go in tampering, in the name of necessity, with the institutions of government of the occupied territory? Under Article 47 of the Fourth Geneva Convention, should institutional changes be introduced by the Occupying Power, they must not deprive the civilian occupation in the occupied territory of any benefits conferred by international humanitarian law. But the paramount question is whether the Occupying Power can transform radically the political institutions of government in the occupied territory when its action does not affect adversely those benefits. While the practice of States is somewhat ambiguous, it is believed that such changes ought to be undertaken only by the territorial sovereign. The Occupying Power should not be allowed to interfere with fundamental institutions of government in the occupied territory, inasmuch as there is a disquieting possibility that the structural innovations (albeit temporary in theory) may take root and have enduring consequences. Under the Hague Regulations and the Fourth Geneva Convention, the rules stated above relate only to belligerent occupation. However, there is possibly room for their application by analogy also in circumstances of peacebuilding, subject to any binding resolution adopted by the United Nations Security Council.

occasionalpaper1_article_43.pdf
Marco Sassòli. 6/2004. Article 43 of the Hague Regulations and Peace Operations in the Twenty-First Century.Abstract

Under Article 43 of the Hague Regulations, an occupying power must restore and maintain public order and civil life, including public welfare, in an occupied territory. This is not a result it has to achieve, but an aim it has to pursue with all available proportionate means not prohibited by International Humanitarian Law (IHL) and compatible with International Human Rights law. It may suspend the derogable provisions of the latter — but is not obliged to do so - if necessary for that purpose. Local legislation and institutions based upon such legislation must be respected by an occupying power and by any local authorities acting under the global control of the occupying power. New legislation or derogations from existing legislation are however admissible, for the period of the occupation, if essential for (1) the security of the occupying power and of its forces, (2) the implementation of IHL and of International Human Rights Law (as far as the local legislation is contrary to such international law), (3) the purpose of restoring and maintaining public order and civil life in the territory, (4) the purpose of enhancing civil life during long-lasting occupations, (5) or where explicitly so authorized under UN Security Council Resolutions. These obligations and limitations also apply to post-conflict reconstruction efforts, including constitutional reforms, economic and social policies. Article 43 also applies to peace operations when they are at all subject to IHL, i.e., UN authorized or mandated operations resulting from an armed conflict or consisting of military occupations meeting no armed resistance, independently of whether the conflict or operation is authorized by the Security Council and of the aim of the operation. IHL is however not applicable if and as long as the operation meets the consent of the state on the territory on which it is deployed. The applicability of IHL to UN run operations, including UN international civil administrations, is more controversial, even when they result from an armed conflict. When Article 43 is not applicable to such a peace operation, the latter is nevertheless confronted with problems similar to those of an occupying power, which deserve solutions similar to those adopted in State practice under Article 43. Limits to such application of Article 43 by analogy are the purpose of the peace operation defined by the UN Security Council, specific instructions by the Security Council and the fact that UN Human Rights standards, even if laid down in soft law instruments, are binding upon UN operations. Both occupying powers and those involved in peace operations must take into account, when engaged in the restoration or maintenance of public order and civil life according to Article 43 or in legislation permitted under that article, that they are not the sovereign. They should therefore introduce only as many changes as absolutely necessary under Article 43 as understood above and stay as close as possible to similar local standards and the local cultural, legal and economic traditions.

article_43_hague_regulations.pdf
International Committee Red of the Cross. 6/2004. Improving Compliance with International Humanitarian Law.Abstract

Over the years, states, supported by other actors, have devoted considerable effort to devising and implementing in peacetime preventive measures aimed at ensuring better respect for international humanitarian law (IHL). Dissemination of IHL generally, within academic circles and among armed forces and armed groups has been reinforced, and IHL has been increasingly incorporated into military manuals and doctrine. Domestic legislation and regulations have been progressively adopted or adapted, and the necessary structures put in place to give effect to the rules contained in the relevant IHL treaties. In many states specific advisory bodies, such as National IHL Committees, have been established and international humanitarian law is increasingly being considered as part of the political agenda of governments. At the same time, by encouraging the national prosecution of war crimes and, more significantly, by the establishment of international bodies such as the ad hoc international criminal tribunals and the International Criminal Court, the international community has concentrated its efforts since the early 1990s on the repression of serious violations of international humanitarian law. Despite these advancements in preventive and repressive measures, however, insufficient respect for the rules of international humanitarian law during armed conflict remains an abiding problem. It is the result of both the lack of political will and practical ability of parties to an armed conflict — both States and armed groups — to comply with their legal obligations. While efforts to improve both the prevention and repression of IHL violations are fundamental and must continue, the question of how better compliance with international humanitarian law can be ensured during armed conflicts thus deserves greater attention. In 2003, the International Committee of the Red Cross (ICRC), in cooperation with other institutions and organizations, organized a series of regional expert seminars to examine this issue. Regional seminars were held in Cairo, Pretoria, Kuala Lumpur, Mexico City, and Bruges (Belgium). Participants included government experts, parliamentarians, academics, members of regional bodies or non-governmental organizations, and representatives of National Societies of the Red Cross and Red Crescent. 

icrc_ihl_compliance.pdf
Marco Sassòli. 6/2004. Legitimate Targets of Attacks Under International Humanitarian Law.Abstract

According to an uncontroversial principle of customary international humanitarian law (IHL), parties to an armed conflict must distinguish between the civilian population and combatants and between civilian objects and military objectives. In order to spare civilians and the civilian population from hostilities and their effects, it is essential to define who and what may be attacked. The first rule regarding attacks (by acts of violence2 ) is that the intended target must be a military objective. Once a military objective is the target, under additional rules, which are not discussed here, the attack may nevertheless become illegal if excessive collateral damage affecting civilians or civilian objects must be expected. Furthermore, even when attacking a lawful target, precautionary measures to spare civilians have to be taken. While the main aim of the law is to protect persons, it is appropriate to discuss first what objects may be attacked. This permits to clarify the criteria, which make targets legitimate. In addition, attacks on objects involve the greatest danger for persons who are beyond any doubt civilians. 

session1_legitimate_targets_ihl.pdf
Derek Jinks. 6/2004. The Temporal Scope of Application of International Humanitarian Law in Contemporary Conflicts.Abstract

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. And, of course, the laws of war were not applicable as a formal matter in hostilities short of war. Prior to the drafting of the Geneva Conventions in 1949, the applicability of the “law of war” was, therefore, delimited by formal acts of state such as a formal declaration of war or a formal recognition of belligerency. The Geneva Conventions substantially revised this formalistic, de jure approach--making contemporary international humanitarian law applicable during armed hostilities that de facto constitute “armed conflicts.” In both international and non-international armed conflicts, the Geneva Conventions, in general, govern the conduct of hostilities for the duration of the “armed conflict.” This background note briefly outlines the regime established in the Geneva Conventions and summarizes several ambiguities in these rules. Because the scope of application regimes differ sharply between international and non-international armed conflict, these two types of conflict are analyzed separately. 

session3.pdf
International Humanitarian Law Research Initiative. 5/2004. Conduct of Military Operations in Urban Areas.Abstract

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.

conduct_of_military_operations_in_urban_areas.pdf
Phuong Pham, Patrick Vinck, Nehal Bhuta, and Nida Alahmad. 5/2004. Iraqi Voices: Attitudes Toward Transitional Justice and Social Reconstruction.Abstract

In attempt to move beyond a past marked by conflict, terror, and violence, Iraq has many hurdles to overcome in achieving social reconstruction and transitional justice. This study reflects the views of Iraqis regarding past human rights abuses, justice and accountability, truth-seeking and remembrance, amnesty, reparations, and reconciliation. Using this data, the study makes recommendations on how Iraq may address the needs and wants of its citizens for fairness, accountability, and justice, while simultaneously prioritizing a peaceful future.

iraqi-voices.pdf
HPCR. 5/2004. The Legality of House Demolitions Under IHL. Read PublicationAbstract

 

This note examines the legal aspects, under international humanitarian law (IHL), of Israel's practice of demolitions of Palestinian houses in the Occupied Palestinian Territory (OPT). It outlines the basis, history, and practice of house demolitions, sets forth the relevant IHL provisions that impact house demolitions, and reviews the positions of the different parties involved on this issue.

 

International Humanitarian Law Research Initiative. 5/2004. Rules of IHL Applicable to the Conduct of Military Operations in Urban Areas.Abstract

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.

rules_of_ihl_applicable_to_the_conduct_of_military_operations_in_urban_areas.pdf
HPCR. 2/2004. The Separation Barrier and International Humanitarian Law.Abstract

This briefing note discusses the legal implications under international humanitarian law (IHL) of erecting and maintaining a separation barrier in the Occupied Palestinian Territory (OPT). The main objective of this note is to review the applicable IHL rules and present the various legal perspectives of the parties involved in the debate on the legality of the separation barrier, particularly in the context of the advisory proceedings before the International Court of Justice in the Hague. This briefing note will be updated as arguments of the various parties are presented to the courts, and as the courts’ rulings are made public.

the_separation_barrier_and_international_humanitarian_law.pdf
HPCR. 1/2004. Program on Humanitarian Policy and Conflict Research 2004 Annual Report. hpcr_ar_2004.pdf
Michael N. Schmitt, Heather A. Harrison Dinniss, and Thomas C. Wingfield. 2004. Computers and War: The Legal Battlespace.Abstract

The use of computers in modern warfare stretches back over decades. Computers have been employed for functions that range from managing materiel and personnel flows into an area of operations to sorting intelligence data and improving the precision capabilities of weapons. In recent conflicts, however, we have witnessed their transformation into a “means of warfare” (weapon) and modern militaries are busily developing information technology “methods of warfare.” This article briefly addresses the legal issues surrounding computer use in classic kinetic-based warfare. Attention then turns to the most significant phenomenon for humanitarian law, namely the employment of information technology during network-centric, four-dimensional operations, which increasingly characterize twentieth-first century conflict.

legal_battlespace.pdf
2003
HPCR. 9/2003. Roundtable Report on Human Rights and Rule of Law: Constitutional and Legal Reform.Abstract

The opportunities for engaging the Afghan public in the process of constitution building and legal reform are quickly disappearing. Decades of war have left the legal system, and its legal culture, in ruins. The project of constitutional and legal reform will be central to the success of reconstruction efforts. For the first time, Afghan legal professionals, civil society leaders, and other groups have the chance to engage in the rebuilding of their country’s legal foundations: both to stabilize a still-insecure country, and to transform their society in more long-lasting ways. However, as the Constitutional Loya Jirga approaches, many key questions regarding the nature of the new Afghan legal order remain, and many Afghans are beginning to feel that they have been left out of the process. The Afghan Independent Human Rights Commission (AIHRC) is in an ideal position to engage civil society groups and legal professionals in wider debate about the protection and integration of human rights standards in the new legal system. Its mandate includes the harmonization of international human rights standards with national law, and perhaps more importantly, the Commission enjoys access to a nation-wide constituency of individuals and groups who support the central government and the modernization of Afghan law. This roundtable report, which presents topics and analysis from a roundtable co-hosted by AIHRC and the Program on Humanitarian Policy and Conflict Research (HPCR) at Harvard University and entitled Human Rights and Rule of Law: Constitutional and Legal Reform, attempts to capture the outcomes of one such effort at engagement and discussion. This Roundtable was one of the first such meetings in Kabul to engage a broad representation of civil society leaders, legal professionals, and Loya Jirga delegates from provinces outside Kabul. In total, there were about forty participants, with half of the group from Kabul and half from other cities and towns. The Roundtable was led by members of the AIHRC, with attendance and participation by members of the Judicial Reform Commission. A series of background papers in Dari was drafted by HPCR (in close consultation with members of the AIHRC) prior to the Roundtable, and made available to the participants along with a copy of President Hamid Karzai’s most recent decree on the Constitutional Loya Jirga and a paper on legal reform in Afghanistan.

aihrc_roundtable.pdf
HPCR. 6/2003. The Future of the Afghan Legal System: Perspectives from the Young Generation - Roundtable Report.Abstract

The purpose of this report is to present the results of a youth roundtable on constitutional and legal reform, hosted February 5-6, 2003, by the Harvard Program on Humanitarian Policy and Conflict Research (HPCR) and co-organized by the Afghanistan Youth Center (AYC). This roundtable discussion, entitled “The Future of the Afghan Legal System: Perspectives from the Young Generation,” was held at the Khyber Hotel in Kabul, Afghanistan. The roundtable was organized as one of a series of activities aimed at enriching the information environment in which legal reform decisions are made in Afghanistan by the Afghanistan Transitional Administration (ATA), the Drafting Committee of the Constitutional Commission, the Judicial Reform Commission, the United Nations Assistance Mission in Afghanistan (UNAMA), and the international community of donor nations. The current publication reflects further research and observation in the months of February through June 2003. It is hoped that many of the views expressed by the participants will serve as an example of the types of frank and open conversations on sensitive issues that can and should take place in the critical months leading to the Constitutional Loya Jirga in October 2003.

youthroundtable.pdf
Macartan Humphreys. 2/2003. Economics and Violent Conflict.Abstract

This essay reviews recent research on the relationships between economies and violent conflict. The type of economic policies that governments choose plays a significant role in determining the likelihood of conflict. Policies that induce conflict may result from deliberate decisions to weaken state institutions so that leaders can more easily enrich themselves. Sometimes however conflict may result from attempts to increase economic efficiency. There is for example ample anecdotal evidence about how the World Bank and IMF’s structural adjustment programs of the 1980’s and 1990’s spawned civil conflicts. This review however has found no systematic support linking structural adjustment to war. It begins by considering the economic factors that make some societies susceptible to conflict. One of the main factors is poverty, though this is mostly a feature in civil wars, not international ones. Economic growth is also associated with lower levels of conflict. Thus, policies that aim to promote growth in developing countries are, in effect, also likely to act as agents for conflict prevention. However, although wealth reduces the chances of conflict, the rise in global economic prosperity throughout the 20th Century has corresponded with an increase rather than a fall in the number of civil wars. This is likely due to the rise in other conflict-inducing factors, such as population levels, and the fact that global growth has been unbalanced. Another feature of economies that is often related to levels of conflict is trade. There is strong evidence that countries that trade with each other are less likely to fight each other, though no comparable work has yet been Also considered is whether violent conflict is caused by undertaken on the effects of internal trade. economic inequality. Statistical research has not found evidence for such a relationship, though that may be because researchers are not working with the right data. While qualitative studies suggest that inequality between regions or groups – known as “horizontal inequality” – is what matters for violent conflict, econometric research has used a measure of “overall inequality” – that is, inequality between individuals irrespective of their group membership The two types of inequality need not be in any way correlated. Also covered in this essay is research that has been undertaken on the ways in which economies function once violent conflicts have broken out, including attempts to quantify the economic costs of conflicts. Some conflicts reduce the levels of investment within zones where fighting takes place; others spur technological innovation and growth. Different studies have tried to estimate aggregate costs and benefits of conflict, using a model of economic production that uses information on levels and rates of change of physical capital, population, human capital, and “total factor productivity.” No study however has yet measured the aggregate costs that arise from all these different channels. And while recent work has focused much on looting activities of groups there has not been much work studying the effects those activities have on economic producers. The ways in which economies are structured is also found to matter. Countries that depend on the sale of primary commodities, for example, are more likely to have wars. In particular the role of natural resources, such as oil and diamonds, has been widely discussed but there is a lack of consensus on the nature of their relationship to conflict. Researchers at the World Bank suggest that natural resources lead to wars because greedy citizens take up arms to capture them. But there are alternative explanations that are at least as plausible. These explanations suggest alternative policy responses on the part of governments and international organizations. Researchers have also studied the economic behavior of different groups during conflicts. Many have focused on ways rebel groups finance themselves. Some rebels do it by gaining control of natural resources, others are supported financially in part by emigrant populations (although this link is still poorly understood) and from third party sources such as foreign governments. Agricultural production is often as important for rebel financing as natural resources, although it is largely ignored by policy makers. The requirements for financing and the form of financing depend however on the relations between rebel groups and civilian populations. When rebels have popular support, they may benefit from donations in cash or in kind. Otherwise, they may rely on extortion. Unfortunately however, research is relatively sparse on the different ways rebels relate to civilian populations even though such variation is likely to have implications for financing, for forms of peace settlements and for war duration. Some political scientists have tried to distinguish between different types of natural resources in order to explore the mechanisms that link resources to conflict. Their research distinguishes between different commodities based on dimensions such as the extent to which production is centralized, the geographic distances between zones of production and the seat of government, and the extent to which trade in the resource is legal. It has also been argued that the institutional capacity of governments alters relationships between natural resources and conflict. These different lines of research have been developed through the examination of case study evidence, but their conclusions have not been tested using statistical techniques. 

economics_and_conflict.pdf
2002
HPCR and Center Security Peace Studies Gadjah Mada for and University. 7/2002. Building Sustainable Peace and Fostering Development in Papua - E Conference Report.Abstract

From 20th June through the 5th of July 2002, the Conflict Prevention Initiative of the Harvard Program on Humanitarian Policy and Conflict Research (CPI HPCR) in cooperation with the Center for Peace and Security Studies at the University of Gadjah Mada (CSPS) carried out a series of activities under the theme: “Building sustainable peace and fostering development in Papua”. This event was an effort to gather ideas and support from those representing Papua in the fields of peacebuilding and development. Using the Internet to discuss policies in the field of conflict prevention, this CPI-CSPS event also aimed at providing a platform for spreading information and strengthening networks between participants and decision makers at the national and international levels. The event started with a roundtable discussion at the University of Gadjah Mada on 20-22 June 2002, with 8 people from Papua representing the academic world, NGOs, religious organizations, customary institutions, women’s groups and youth. The main ideas that emerged during this discussion then became entry points for the e-conference, an online virtual discussion online in Indonesian. The e-conference took place between 24 June and 25 July 2002, with the participation of 89 people from various backgrounds. Simultaneously, an e-forum was carried out in English, with the participation of 32 people.

final_report_english.pdf
HPCR. 5/2002. Securing Communities for Reconstruction in Afghanistan: Final Report of the Conflict Prevention Initiative E-Conference.Abstract

For two weeks in April and May 2002, the Conflict Prevention Initiative (CPI) of the Harvard Program on Humanitarian Policy and Conflict Research (HPCR) hosted the first ever international e-conference on “Securing Communities for Reconstruction in Afghanistan,” attracting over 90 participants. The majority of the participants were Afghan NGO and civil society leaders working in Pakistan and Afghanistan. Others included representatives of various inter-governmental organizations, INGOs, academic institutions and donor governments. This report summarizes the principal themes of the discussion and concludes with a series of recommendations for various actors involved in the process of reconstruction in Afghanistan. These recommendations include both those specifically formulated by participants as well as those drawn more generally from the conference discussion. In addition, actual quotes from the participants are interspersed throughout the report in shaded boxes to suggest the richness and depth of the discussion. The e-conference was preceded by conversations with NGO leaders in Kabul, as well as roundtables with Afghan civil society leaders in Peshawar, Pakistan and Mashad and Zahedan, Iran. The roundtables were designed both to produce substantive inputs for the e-conference as well as to gather perspectives from those who may not have regular internet access. In this way, both the roundtables and the e-conference were designed to engage participants from their separate localities and yet still connect them with broader discussions and analysis. 

e-conference_final_report.pdf
HPCR. 3/2002. Afghanistan: A New Era of Humanitarian Assistance.Abstract

 

Undoubtedly, Afghanistan represents one of the most complex and difficult environments in which humanitarian agencies could operate. Working amidst ongoing military operations, continuous insecurity, and the massive displacement of populations, humanitarian agencies also have to cope with a rising demand for their services and a radically different political and social environment. Shifting from a policy that effectively isolated the former Taliban regime during the last six years, the international community is now gearing itself to actively support the political rehabilitation and social reconstruction of the country. This support, resulting in a new availability of funding and political backing, represents to many Afghans a much awaited engagement of the international community. Unfortunately, it has also generated a number of new challenges due to the sudden availability of political and economic resources emerging amid an operational infrastructure that cannot absorb, coordinate, and manage them properly.

 

brief4vol1.pdf

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