Methodology

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. 

HPCR and Graduate Institute International of Studies. 11/2007. Empowered Groups, Tested Laws, and Policy Options: Report on an International Seminar on Transnational and Non-State Armed Groups.Abstract

The rising importance of non-state armed groups is heightened by three post-Cold War phenomena: the increased fragmentation of states into smaller self-governing entities, the augmented privatization of warfare, and, by virtue of the expansion of global communication networks, the inflated accountability of states towards non-state actors. This context has influenced significantly the emergence of modern transnational and non-state armed groups (NSAGs) — i.e., groups that use force, flow across state boundaries, utilize global communication and transportation networks, seek international influence, and increasingly undertake military operations against dominant states. The key markers of how contemporary conflict between states and NSAGs varies from classical state-based warfare are to be found primarily in tactical and strategic differences. The increased (quantitative) participation of NSAGs in conflict presents in and of itself a strategic challenge for states. Since the events of September 11, 2001, and their aftermath, Al Qaeda and its associated groups, for example, have decentralized and diversified their activities significantly. Almost systematically, NSAGs have proven through their military aptitude that they can innovate faster than states. It, thus, became a strategic test for states to transform and adapt their intelligence and war-fighting capabilities to face these new contests and such mutation. From the tactical perspective, one of the most important developments is the increasingly unconventional and irregular means and methods used by transnational NSAGs. This is also one of the areas that conventional military forces have struggled to respond to. It is important in this changed context to differentiate between non-state armed groups, acknowledge their complexity and broadened goals, and register the implications of such development for states (which are themselves just as variegated as NSAGS). The ability of an NSAG such as Hezbollah to rely on local support, or at least tolerance, is another important modern-day advantage of armed groups that render conventional military tactics much less effective, if not obsolete in some cases. Such evolution underscores the fact that many an NSAG — whether as sophisticated as Hezbollah or more fluidly organized — is well suited to engaging in protracted conflicts in which no decisive military victory is required. 

HPCR. 10/2007. IHL and Civilian Participation in Hostilities.Abstract

This policy brief reviews the legal questions associated with the participation of civilians in hostilities. This issue represents a critical challenge to the protection of civilians in current conflicts, particularly when hostilities are conducted in the midst of civilian populations and assets, and when non-state armed groups are engaged as central actors. This issue is also of particular relevance when the hostilities occur under occupation. While international law recognizes a basic right of selfdetermination for populations under occupation, it provides immunity against violence only to those not participating in hostilities. This apparent contradiction is at the core of the debate on the protection of civilians and raises a number of questions about the roles and rights of civilians in armed conflict, as well as the concept of participation in the war effort and the nature of hostilities. Is a member of a militant group necessarily a “combatant”? Can he or she be targeted according to the rules of international humanitarian law (IHL)? Is membership the key criterion, or are the actual acts of the individual the deciding factors of his or her status under the law? How can a civilian maintain or restore his or her protected status? Practitioners face these and related questions when developing policies for civilian protection in the occupied Palestinian territory (OPT). As with all briefs in this series, this paper focuses on providing practitioners with a clear understanding of the legal framework available for protecting Palestinian civilians living in the OPT, as well as the legal regime applicable to both the Israeli military and Palestinian militants when they engage in military operations. This framework is based on IHL (and, in a broader sense, on international human rights law). This note explores the spectrum of opinion (amongst both scholars and practitioners) on the question of the legal implications of civilian participation in hostilities, in particular the legality of targeting civilians who engage in hostilities. It highlights debates ongoing in the field of IHL without attempting to present “correct” answers, with an eye to enhancing practitioners’ understanding of the types of legal rationale used both to limit and allow targeting of civilians who engage in hostilities. Ultimately, the aim of this brief is to strengthen the capacity of professionals to utilize and negotiate with the law while developing strategies to enhance the protection of civilians.

HPCR. 5/2007. From Legal Theory to Policy Tools: IHL and International Human Rights Law.Abstract
This briefing note aims to assess the interplay between International Humanitarian Law (IHL) and International Human Rights Law (IHRL) in the Occupied Palestinian Territory (OPT), particularly as international agencies are engaged in the protection of Palestinian civilians living under occupation. In so doing, the paper will present a range of legal arguments on the applicability of IHRL considering the current situation in the OPT.
Bruno Demeyere. 6/2007. The Role and Responsibilities of Civil Society in International Humanitarian Law Formulation and Application.Abstract

This paper examines the relationship between the legal framework of international humanitarian law (IHL) and civil society actors operating in conflict situations. Attention is paid to assessing the manner in which the latter can play a role in strengthening the humanitarian dimension of the former. Brief introductory comments are warranted so as to situate the debate, in which non-governmental organizations (NGOs) operating in a conflict zone are adopted as the primary unit of analysis. IHL is the field of public international law which regulates the conduct of hostilities, namely restricting the means and methods of warfare available to parties to the conflict, and laying out protections afforded civilians and those no longer taking part in hostilities (hors de combat). State-centric in its development, the central tenets of IHL are found in the Hague Regulations of 1907, the four Geneva Conventions of 1949 and the two Protocols Additional to the Geneva Conventions of 1977. It is the right of sovereign states to decide which treaty-based international legal obligations they adopt regarding the legal regulation of the conduct of armed conflicts, however a number of legal provisions of IHL have attained the status of customary international law, and are thus binding on all parties to the conflict. This raises questions in regards to the status of non-state actors under international humanitarian law. The legal position of such actors, which for the purpose of this paper will focus on international organizations and non-governmental organizations, warrants close examination. 

Vincenzo Bollettino and Claude Bruderlein. 10/2008. “Training humanitarian professionals at a distance: testing the feasibility of distance learning with humanitarian professionals.” Distance Education.Abstract
Training is an essential part of the professional development of staff working for international humanitarian organizations. While humanitarian workers are being deployed around the world to provide life-saving relief assistance in often-hazardous missions, it is imperative for organizations to ensure that staff members understand the mission and protocol of their organizations and that they develop an appreciation for the impact their work has on beneficiaries. Demand for such training has been expanding exponentially over the last decade with the growing number of humanitarian organizations and personnel. In the United Nations alone, an estimated 37,000 civilian personnel are being employed as part of UN humanitarian operations, an increase of 54% since 1997; 75% of this personnel is composed of national staff of the countries of operation (United Nations, 2008). With the increasing reliance of humanitarian organizations on national staff to manage their field operations, the professional development of staff members poses an ever-growing challenge due to the remoteness and distribution of staff, limiting organizations’ ability to maintain the coherence and cogency of their mission and methods. Although many international humanitarian organizations have adopted some form of distance learning into their staff training, few organizations have evaluated the effectiveness of their distance learning programs. This research briefly evaluates the literature relevant to the use of distance learning for training professional staff in the humanitarian field, assesses how distance learning programs are being used among select humanitarian organizations based in the USA, and reviews the results of a pilot distance learning course offered to mid-career professionals working on international humanitarian issues in a professional capacity.
HPCR. 3/2008. Private Security Companies In The Occupied Palestinian Territory (OPT): An International Humanitarian Law Perspective.Abstract

Recent incidents involving private security companies (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). While the use of PSCs in the Occupied Palestinian Territory (OPT) has remained more limited than in Iraq, the growing presence of PSCs, especially at military checkpoints and crossings, has raised concerns among humanitarian practitioners. The purpose of this policy brief is to assess current uncertainties concerning the legal status of PSCs as they relate to the work of humanitarian agencies, the integrity of military chain of command, and the protection of civilian populations. A central issue lies in determining the extent to which PSC employees are to be considered agents of the Occupying Power and therefore no different, in legal terms, from any member of the Israeli Defense Forces (IDF), or whether they represent a new and separate legal entity whose behavior cannot be directly attributable to the Occupation Power under IHL. For example, what are the legal duties and responsibilities of PSC employees in terms of facilitating humanitarian workers’ access to the occupied population? In the event that PSC employees are involved in military engagements in occupied territory, or if they detain, injure, or kill civilians, what accountability structure applies to their actions? In interviews with humanitarian practitioners in both the UN and the NGO communities, HPCR researchers found that these questions are beginning to trouble those responsible for the coordination and delivery of humanitarian assistance to the Palestinian population. 

Geoffrey S. Corn. 5/2009. Multi-National Operations, Unity of Effort, And the Law of Armed Conflict.Abstract

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. After addressing key current debates over the qualification of conflicts, the paper explores a number of contemporary contexts in which this question of applicability is most salient: intervention in failed state situations and transnational armed conflicts. The paper suggests that resolving this first uncertainty is critical to unity of effort in this increasingly common realm of operations. It then suggests that a number of ongoing questions in the arena of LOAC applicability and interpretation exist where conflicts may be bifurcated and in determining the end of armed conflict. The paper explores the common practice of imposing policy‐based LOAC requirements in coalition situations, and how such practices are relevant to detention policies, command responsibility in situations where multi‐national forces are acting in concert, debates over direct participation of civilians in armed conflict, and the involvement of civilian support personnel in contemporary conflicts.

Claude Bruderlein and MaryAnn Dakkak. 6/2009. Measuring Performance Versus Impact: Evaluation Practices and their Implications on Governance and Accountability of Humanitarian NGOs.Abstract

In the context of increased scrutiny of humanitarian assistance over the past decade, issues around the accountability of international nongovernmental organizations (INGOs) - and the perceived lack thereof - have been discussed widely and frequently. This reflects the recognition of both the increased relevance of INGOs and of the underlying problems associated with their role. Donor agencies in particular have become increasingly concerned with the accountability of the operational agencies they fund, who in return have put in place elaborate evaluation processes and systems. What characterizes these approaches and how are they affecting the ways agencies operate and pursue their humanitarian missions? Were agencies successful in addressing accountability deficits and in correcting the respective incentives towards positive change in humanitarian action? When examining the prevailing practices of major humanitarian INGOs, this research identified not only a general absence of critical self-reflection and meaningful concern over achieved impact, but also a remarkable resistance of the same dilemmas that triggered the call for an ‘accountability revolution’ in the first place. Highlighting considerable weaknesses in the governance of these INGOs, this article confirms also a growing frustration among humanitarian professionals themselves that, while much is measured and evaluated, it is rarely the actual impact of their work. Instead it is apparent that evaluation as it mostly takes place today reflects primarily the needs of donors; is irrelevant for serious organizational learning and programming efforts; adds considerably to the burden of local staff and partners; and does little to shed light on the roles, influence and impact of INGOs as central actors in humanitarian action and protection.

Nesrine Badawi. 2/2009. Islamic Jurisprudence and the Regulation of Armed Conflict.Abstract

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. In order to highlight this difference, the paper examines the different juristic approaches to issues of concern to the jurists and shows how these approaches reflected particular agenda and thus can not be simply compared to rules of IHL, because these are equally governed by other agendas and interests.

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