Methodology

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. 

Claude Bruderlein. 2006. Towards a Common Security Framework: Securing Access and Managing Risks in Hazardous Missions.Abstract

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. The threats of attack, as well as recurring levels of criminal violence, are now part of the daily life of international agencies’ workers in many of these situations, hindering their work and limiting their access to people in need. Although significant resources have been invested recently in building the security capabilities of international agencies, the escalation in security threats has not been matched with the development of corresponding institutional strategies to mitigate operational risks and reduce the exposure of international agencies. Despite serious flaws in existing security systems, international agencies have been inclined to expand their security capacity at a technical level rather than reviewing the relevance of their security strategies. As a response to the attacks against United Nations (UN) headquarters in Baghdad and other field missions, the United Nations is planning to expand significantly the capacity of the UN security system by creating a Directorate of Security, which will centralize all UN security systems, and by adding a number of staff and layers of technical responsibilities to an already bureaucratic and over-procedural security apparatus. While most operational managers agree that the security environment of UN agencies has evolved considerably over the recent years, this significant expansion in security capabilities is being considered without a clear and proper understanding of the types or sources of threats the UN will face in the coming decades.2 There are few discussions on global and local threats against UN operations or the role that agencies can play to mitigate exposure to risks. Similarly, other agencies, such as the International Committee of the Red Cross (ICRC) or Médecins Sans Frontières (MSF), are increasingly tying their security response to conservative interpretations of their mission — relying significantly, in the process, on the neutral character of their activities and the acceptance of the communities. Many organizations, however, fail to acknowledge the changing perceptions of international assistance in some areas of the world and the changing profile of the security threats that endanger not only their operators but the recipient communities as well. For these agencies, the current security developments represent a major challenge 

Marco Sassòli. 2/2006. Transnational Armed Groups and International Humanitarian Law.Abstract

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. Concretely, this involves the question of whether, and to what extent, the ‘war’ against Al Qaeda can be classified as an armed conflict. It is argued, that under international humanitarian law, the ‘war on terror’ must be split into different components. In some cases, the law of international armed conflicts applies. In others, the law of non‐international armed conflicts applies. In most situations of the ‘war on terror’, IHL does not apply at all. Secondly, this paper looks at the related issue of what determines the existence of an armed group as an addressee of IHL of non‐international armed conflicts. According to what criteria can Al Qaeda be considered an armed group for the purpose of making IHL applicable? When are members of such a group covered by IHL, even though said group is not fulfilling those identified criteria? Thirdly, the rules of IHL covering an armed conflict between a transnational armed group and a state are summarized, in particular the status and treatment of members of such groups. Most importantly, this paper examines whether and how the existing rules of IHL should or could be adapted to (more) adequately cover transnational armed groups. In this context, few concrete proposals suggesting which rules should be adapted, and in what sense, were found. Nevertheless, as a fourth issue, this paper tries to identify certain areas where the existing IHL of non‐international armed conflicts is not entirely adequate because of the extraterritorial character of the fight against transnational armed groups. Fifth, skepticism is expressed about the possibility of extending IHL and of applying it beyond armed conflicts as currently defined when transnational groups are involved. Sixth, as for the mechanisms of implementation, several proposals are brought forward regarding ways by which respect for existing (or any new rules of) IHL by transnational or any other armed groups can be improved. It is argued, centrally, that if armed groups are addressees of IHL, it is indispensable to involve them in the development and implementation of the rules. Finally, the article explores ways, obstacles, and the risks of developing new rules and mechanisms of IHL specific to armed conflicts with transnational armed groups. The author remains skeptical about the realism and utility of any attempt to develop specific rules for such conflicts.

HPCR. 4/2006. Transnationality, War and the Law - Roundtable Report.Abstract

On October 30, 2005, the Program on Humanitarian Policy and Conflict Research at Harvard University (HPCR) brought together a select group of international experts for a discussion on the theme of “The Transformation of Warfare, International Law, and the Role of Transnational Armed Groups.” The meeting was hosted by the Geneva Center for Security Policy in their offices in Geneva, Switzerland. This project grew out of a research interest identified at the High-Level Informal Expert Meeting on International Humanitarian Law at Harvard University in June 2004 which gathered representatives of twenty-eight governments and international organizations, as well as distinguished scholars, to examine the legal and policy challenges faced by international humanitarian law (IHL). The purpose of the meeting in Geneva was to explore the changed landscape of transnational wars and the prominent geopolitical role played by transnational non-state armed groups as well as their impact on interpretations and responses of international law to the new warfare. Built around three pillars of changing war, changing actors, and static law, the discussion in Geneva was organized along sessions on the transformation of war, the regulation of new conflicts, the current gaps and limitations of international humanitarian law, and the challenge of compliance and protection in the new environment. Starting from the decolonization wars of the twentieth century, armed conflicts have been departing gradually from the classical, state-centered paradigm embodied in the Geneva Convention of 1949 to the current framework in which non-state actors have acquired a larger, if not yet central, role. That fluctuation constitutes a bending of the traditional tactics of war brought about by the rise of comparatively weaker non-state actors and a modification in the space taken up by the new wars. Participants to the Geneva meeting stressed that non-state actors have been fighting states throughout the history of the state. However, in previous eras they fit more clearly into the realm of domestic law enforcement, as states sought to quell “internal disturbances.” The new conflicts are driven across state borders and represent a true challenge in terms of regulating the behaviors of both transnational non-state armed groups and the corresponding territorial and extraterritorial response of states.

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.

Colonel K.W. Watkin. 1/2005. Combatants, Unprivileged Belligerents and Conflicts in the 21st Century.Abstract

At the dawn of the 21st century international humanitarian law 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. The conduct of asymmetric warfare, which has been defined as “acting, organizing and thinking differently than opponents in order to maximize one’s own advantages, exploit an opponent’s weaknesses, attain the initiative, or gain greater freedom of action” is challenging traditional notions of armed conflict. 

The transnational reach of information warfare, the growth of global terrorism, the blending of domestic and international criminal acts and easier access to weapons of mass destruction have raised the stakes in terms of the types of threats posed to states and their citizens. The ability of both states and non-state actors to act asymmetrically has been enhanced by the technological leap into the information age and the so-called revolution in military affairs. The capacity of international humanitarian law to adequately address conflict in its modern form is being grappled with by government officials and legal practitioners, undergoing judicial review, carefully being analyzed by legal scholars and receiving close scrutiny by the media. In meeting its goal of limiting the effects and suffering of armed conflict international humanitarian law shares many of the same principles and concepts as human rights. However, international humanitarian law differs from human rights law in its requirement to interface with “military necessity”. At the heart of military necessity is the goal of the submission of the enemy at the earliest possible moment with the least possible expenditure of personnel and resources. It justifies the application of force not prohibited by international law. The balancing of military necessity and humanity is often the most challenging aspect of finding agreement on the norms of international humanitarian law. In balancing these two concepts the requirement to distinguish between those who can participate in armed conflict and those who are to be protected from its dangers is perhaps its most fundamental tenet. A careful analysis shows that much of the discussion about the adequacy of international humanitarian law is centered on the principle of distinction. 

William Boothby. 11/2005. Cluster Bombs: Is There a Case for New Law?.Abstract

The numerous unexploded bomblets, or submunitions, discarded on the battlefield as a result of cluster munition attacks have attracted widespread criticism, particularly from non‐governmental organizations, prompting suggestions that new international law arrangements should be agreed to address the problem. These ‘dud’ bomblets may pose a post‐conflict risk for troops and civilians alike. The humanitarian concerns raised by this hazard have been recognised for a number of years. An important debate is now under way, however, to try to identify a way of addressing the problem effectively while recognising the essential defense needs of states. Working out which, if any, developments in the law are appropriate to such a problem necessitates an analysis of existing, relevant law. There are numerous general legal principles that limit the weapons which states are permitted to employ in armed conflict. There are also important treaties applicable to particular technologies. There is, then, the legal obligation accepted by many states to review weapons plans to ensure they comply with applicable law. Of particular relevance to the cluster munition debate is the Conventional Weapons Convention (CCW), a framework treaty under which individual protocols have been negotiated to address such diverse technologies as mines and lasers. Following a seminal meeting in Nyon, Switzerland in September 2000, CCW member states started to discuss the problem of unexploded and abandoned explosive ordnance. Having clarified the nature of the problem, they negotiated a Protocol to the Convention. Its focus is the marking, clearance, removal, and destruction of explosive remnants of war.

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.

ATHA. 1/2006. “ATHA: Security of Humanitarian Staff”.Abstract

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 ability of humanitarian organizations to fulfill their mandates in the future, will be depend in part on their individual success in improving internal security management practices and in finding ways to coordinate their efforts on building common security standards and security coordination across agencies. To meet this challenge, humanitarian organizations must implement improved security management methods and finds ways to coordinate their security operations and planning. Despite broad acceptance of the need to develop better security management and coordination, many humanitarian organizations remain ambivalent about coordinating their security activities and few have instituted robust measures for improving their own security management practices. Further, efforts to improve security management practices are hampered by a critical lack of basic empirical knowledge about the field security environment. In discussions about humanitarian staff safety and security, the least common denominator continues to be cumulative anecdotal evidence provided by the many security personnel working for humanitarian organizations in the field. This policy brief reviews the literature on humanitarian organization security management, highlighting common misconceptions about the field security environment, reviews the main structural and procedural issues impeding more effective security management, and illustrates why current initiatives to improve security management practices will remain only partial successes if they do not include a serious effort to replace anecdotal reporting on the field security environment with systematic collection and analysis of field security data. It argues that staff security requires a common professional approach based on sound security expertise adapted to meet the operational needs of humanitarian organizations. A model is developed for creating a network of security professionals responsible for guiding the design and implementation of common security standards and security information sharing protocol. 

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.

Mohammed-Mahmoud Ould Mohamedou. 12/2005. “Al-Qaida : une guerre non lineaire.” a contrario, 3, 2.Abstract

L’après-guerre froide a été marqué par une rupture dans la réglementation internationale régissant le recours à la force. Malgré le potentiel dévastateur des armes nucléaires, la Guerre froide avait la vertu de réguler le flux de violence. Elle constituait un déploiement tangible de forces antinomiques dont le déclin a conduit, en particulier, à la transformation de la façon dont la conflictualité est canalisée, organisée et argumentée. «Au commencement de la Guerre froide, ce régime a insisté sur l’inviolabilité des obligations du droit international, conformément au dicton pacta sunt servanda (‹les traités lient›). Les dix dernières années de ce conflit, il y a eu un soutien grandissant en faveur de la doctrine légale rebus sic stantibus (‹pour autant que les choses restent ainsi›) qui aurait résilié ces accords si les conditions au moment de la signature n’avaient plus été réunies.»

Naz Modirzadeh. 5/2006. Taking Islamic Law Seriously: INGOs and the Battle for Muslim Hearts and Minds.Abstract

Behind the doors of the most influential human rights organizations in the world, a crisis has been forming. It is a crisis that has become more acute with the increased global media, military, and economic focus on the Middle East/Muslim world since the September 11, 2001, attacks. The Middle East has long been considered a desert of non-compliance within the human rights community, often depicted as the region of the world least interested in international human rights law. The Middle East is, in fact, seen by some as the most rights-abusing region in the world. The growing sense in the West that something must be done about human rights in the Muslim world has pushed the region to the top of the priority list for major human rights organizations. At the same time, there is a sense within many international non-governmental organizations (“INGOs”) that the human rights movement’s response to recent events in the Middle East has been reactive, responding to an agenda set largely by the Bush administration and subject to the whims of global media attention. For many, it seems that human rights organizations are following the U.S. military into the Muslim world. Many also feel that the human rights movement’s rhetoric uncomfortably echoes that of the Bush administration, proclaiming disturbingly similar ends while espousing different means. Aside from making individual human rights professionals uncomfortable, this situation has brought a long-simmering dilemma within the Western-based human rights movement to the surface. This dilemma, yet to be openly addressed, concerns how the human rights movement should deal with Islamic law. 

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