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 Conflict Prevention Initiative of the Harvard Program on Humanitarian Policy and Conflict Research convened an online conference on setting the priorities for preventive action in Nepal from 25 January to 1 February 2001. Eighty respected scholars, NGO activists and officials were selected from Nepal and around the world to join this important forum. The participants were carefully chosen to represent a wide variety of different perspectives on the sources of the current insecurity. The objective of the conference was to provide a closed forum for the exchange of information and analysis on the sources of social, political and economic insecurity in Nepal as well as to deliberate on the most effective strategies for conflict prevention in the region. This conference was the first to develop the use of online conferencing to facilitate exchange between scholars and practitioners from around the world on conflict prevention strategies. This provided an opportunity to bring together a diverse group of individuals, many of whom would be unable to meet in a more traditional forum. This report presents a succinct summary of the main issues and findings of the online discussion, including recommended policies for organizations involved in the promotion of human security in Nepal. It summarizes over 140 contributions by over 80 participants, many of them from Nepal. The contributions were not censored and represent a vast array of political opinions regarding the sources of instability in Nepal. The role of the Program was to present the various perspectives and distill innovative recommendations from the discussion, and not to determine the value of these observations or to judge their appropriateness. Consequently, the report reflects the views of the participants and not necessarily those of the Harvard Program. The report is divided into three sections. The first section outlines the historical background of the unrest. The second provides a discussion of the most significant factors contributing to the current instability. An analysis of a wide range of measures that may contribute to increased stability in Nepal forms the final section.
This paper examines the issues of disorder, emergency, and conflict and their management in a rule of law-based framework, with illustration from the aftermath of the September 11, 2001 attacks on the United States and the war in Iraq. Noting that the promotion of the rule of law by state institutions has decreased in recent years, the paper postulates that the manifestation of violence as a result of sociopolitical unrest and armed conflict, whether domestic or international, is an indicator of a defective functioning of institutions, and that the maintenance and strengthening of the rule of law at all times are key to an effective enjoyment of human rights and to the practice of democracy. The paper notes that there exist a number of distinct corpora of rules in international and domestic law that are applicable to an orderly, efficient, and rights-respecting management of disorder. In particular, it calls for a symbiotic application of international humanitarian law and international human rights law. Whereas the latter is a general law which is implemented at all times, the former is a special branch of law that to be only enacted during conflicts. Yet, though clearly different, the two bodies overlap, particularly in times of emergency as both seek to protect human dignity and reduce human suffering. Clarifying the core connections and establishing an explicit recognition of the international human rights normative framework and humanitarian values to democracy is particularly called for in times of emergency. The typical state response to internal disorder is to enforce stricter interpretations of security laws, assert the power of the state government, and enact emergency legislation meant to facilitate investigation and prevention of violent emergencies. In that respect, the paper places emphasis on the existence of legal limits to emergency powers noting the extent to which derogation is codified formally. Similarly, the paper argues that legitimacy of the power to compel is a fundamental component of the rule of law, particularly in situations where institutions are failing. The practical result, during emergencies, is that no room is provided (or no longer available) for the articulation of citizens’ aspirations as no structural accountability derivative of democratic dynamics is present. In times of crisis and social disorder, dangers to the effective enjoyment of rights can originate (i) in the context of the implementation of derogation to rights, (ii) in the process of the administration of justice, or (iii) in the course of the enforcement of security laws. Limiting the effect of emergency powers and delineating clearly permissible derogations, so that the state of emergency is regarded as a temporary situation and not a norm, is a central aspect of the regulation of societal disorder processes. During emergencies, particular attention should also be paid to the administration of justice, which can come to suffer from degraded or weakened institutions. The modus operandi is the perpetuation of effective and justiciable remedies under the umbrella of a constitution incorporating the principles of international human rights and freedoms.
Despite renewed commitment by States to respect and ensure respect for the rules of international humanitarian law, the surge of violence against civilians has continued. Entire populations in Europe, Africa and Central Asia have been displaced, harassed or subjected to extreme forms of violence as a consequence of armed conflicts, in violation of the most fundamental rules of international humanitarian and human rights law.As a result, traditional schemes of protection enshrined in international law are increasingly questioned, revealing the need to develop new strategies to enhance the protection of civilians in times of war. In his Report to the Millennium Assembly, United Nations Secretary General Kofi Annan wrote: “International conventions have traditionally looked at states to protect civilians, but today this expectation is threatened in several ways. First, states are sometimes the principal perpetrator of violence against the very citizens that humanitarian law requires them to protect. Second, non-state combatants, particularly in collapsed states, are often ignorant or contemptuous of humanitarian law. Third, international conventions do not adequately address the specific needs of vulnerable groups, such as internally displaced persons, or women and children in complex emergencies.”
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. The International Committee of the Red Cross has the lead responsibility internationally for watching over the implementation of international humanitarian law, while the United Nations High Commissioner for Human Rights, the Commission on Human Rights, its subsidiary bodies, and the human rights treaty bodies have the lead responsibility for overseeing the implementation of international human rights law. Basic human rights are being violated on a widespread scale during armed conflicts, and international human rights law operates in parallel alongside international humanitarian law in situations of armed conflict. Violations of international humanitarian law, especially as regards civilians, women and children, are violations of basic human rights with which the High Commissioner for Human Rights must be concerned as part of her responsibilities for the worldwide promotion and protection of human rights. Situations may arise increasingly when a High Commissioner for Human Rights is called upon to react to human rights violations in situations of armed conflict. In such situations, a High Commissioner is perforce required to address violations of international humanitarian law. This calls for the exercise of care and discernment on the part of the High Commissioner. Situations must be handled on the basis of principles, first of international humanitarian law, second of international human rights law, and principles of coexistence regarding institutions of international humanitarian law and international human rights law. Specifically, it is fundamental that the High Commissioner be cognizant of and act in the spirit of the principles pervading international humanitarian law. Generally, it is imperative upon a High Commissioner to help discharge the duty of protection and the responsibility to protect.
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.
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.
The fourth Geneva Convention, adopted 50 years ago, on 12 August 1949, describes the actions that warring parties must take to protect civilian populations from the worst excesses of war. Building on the concept developed in the previous three conventions—that certain activities and people, especially civilians, can be seen as hors de combat—the fourth Geneva Convention defines in detail the many ways in which civilians must be dealt with to shield them from the direct and indirect effects of conflict between combatant forces. Among the responsibilities that this convention sets for the warring parties are explicit actions that would grant medical personnel, and all aspects of the medical enterprise, complete protection from interference or harm. This neutral status for medical relief (and, by extension, all humanitarian aid) rests on the reciprocal assumption that those who deliver this relief are practising in accord with their professional ethics and will take specified steps to maintain their neutral posture vis à vis the warring parties.
Over the last decade, the United Nations (“U.N.”) has taken a central role in the international community’s response to the consequences of disasters and armed conflicts. Increasingly, international strategies to cope with instability and armed conflicts rely on the deployment of the staff of U.N. agencies in the midst of armed hostilities to provide urgently needed humanitarian assistance to threatened populations. Furthermore, reconstruction and development activities traditionally undertaken in peaceful environments have also become an integral part of stabilization efforts in situations that are far from secure.
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.
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.
For over fifty years, Colombia has been embroiled in conflict, displacing nearly seven million people, second only to Syria for the highest number of internally displaced persons (IDPs) in the world. Most are displaced to urban environments into dense informal settlements with inadequate water, sanitation, shelter and power infrastructure. The city of Medellín, has become home to over 200,000 IDPs in informal agglomerations. Medellín’s transformation to a city of progress and innovation through the promotion of “social urbanism” is an example of how collaboration between city institutions and government sectors can address issues of poverty, violence, equality, engagement, and reintegration of displaced populations in Colombia.
The Post-Conflict Colombia Public Health Project is a collaborative academic exchange program aimed at bringing together public health students from the United States and Colombia for the purpose of understanding between the people of both countries. The project aims to educate students while also providing direct service and fostering long-term cross-cultural relationships and sustainable projects. Seminars, skill building workshops, cultural experiences, and community engagement are used to build professional competencies and inform policy recommendations for future projects. Despite the limited research on the educational impact of short-term global emersion programs, small scale evaluations point to an increase in learners’ cross-cultural adaptability. The believed benefit to students’ professional and personal development must be balanced with ethical considerations including preparedness of students, health and safety risks, cultural sensitivity, and issues of sustainability. In order to address these concerns, programs should be developed collaboratively through bi-directional participatory relationships, incorporating both education and direct service components, and promoting local capacity building and long-term sustainability.
Our course pairs 16 carefully selected graduate-level public health and medical students from Harvard and Universidad de Antioquia, who will serve as both student and citizen ambassadors, to come together and share about their culture, values, and experiences through the lens of diplomacy and dialogue to make a meaningful impact in the people and country of Colombia. The course examines the social development model of Medellín and its impact on advances in peace, social equity, and health. Beyond the theoretical concepts, students will learn to apply them to the Granizal community in order to create practical solutions that are sustainable, scalable, innovative, and measurable.
As other disciplines move away from curricula limited to rote learning and fact-based content, public health and policy education will also benefit from incorporating experiential and competency-based learning with an emphasis on skill building in leadership, management, policy-making, and research.5 The Institute of Medicine’s 2003 report, Who Will Keep the Public Healthy? Educating Public Health Professionals for the 21st Century, recommends eight content areas as essential to graduate level public health education programs: informatics, genomics, communication, cultural competence, community-based participatory research, global health, policy and law, and public health ethics.6 The report further acknowledges the importance of developing international relationships between academic institutions, community organizations, and health agencies for collaboration in interdisciplinary and community-based research, learning, and service. Health disparities, issues of social justice, and public health threats from infectious disease are less and less confined by political and geographic boundaries. The future generation of leaders in public health and policy must be able to bridge nations and cultures through diplomacy and be equipped to develop innovative strategies and partnerships across professional disciplines and on a global scale.
While several public health approaches have been documented in the literature, we describe a model for a multi-institutional and cross-cultural collaboration based on The Post-Conflict Colombia Public Health Project, a three-week intensive course developed in partnership between the Harvard Humanitarian Initiative, the Open Hands Initiative, and the University of Antioquia. While this model is a public health course focusing on Colombia, the concepts and educational strategies can be applied across academic disciplines and to other countries and communities.
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.
During the last twenty years, the United Nations, the Red Cross Movement and nongovernmental organisations (NGOs) have had to increasingly utilise negotiation to ensure access and the provision of humanitarian assistance to those in need. Current trends of increasing international and intrastate conflict are likely to continue and thus negotiated access will remain an important issue. After a number of years of experience with such negotiation it may now be time to take stock of the lessons learned. This review has been based on field experience of humanitarian negotiations and on a rapid review of relevant literature. It highlights areas where common principles and issues have become clear in the negotiation process and, as a result, where a common approach and practice have evolved. It then examines areas where constraints have been encountered requiring reflection and analysis and areas where improvements may be needed. The paper finally outlines initial steps to strengthen capacity for humanitarian negotiation in the future.
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.