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Copyright of Latin American Law Review is the property of Universidad de los Andes and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This article will explain how Argentina developed a strong commitment to international criminal justice to address the crimes of the last dictatorship (1976–1983) that transcended the local dimension and shaped the field globally. In particular, the article will focus on three specific dimensions: the disputes surrounding the concept of ‘dirty war’ in relation to the crimes committed in the 1970s and how its legal conceptualisation has evolved over time; how domestic courts have applied international and domestic criminal law to judge these crimes and how this has changed over time; and, finally, what was the role of human rights organisations in fostering the accountability process. [ABSTRACT FROM AUTHOR]

This article examines the classification of armed conflicts under Islamic International Law, with a primary focus on comparing it to international humanitarian law (IHL). The main objective is to determine whether such classification could result in a type of armed conflict known as an 'internationalised armed conflict'. According to IHL, this classification arises when a third state intervenes in a non-international armed conflict (NIAC), thereby introducing international elements that have significant implications within the IHL framework. This article investigates whether foreign intervention in a NIAC would lead to the applicability of different legal rules under Islamic International Law, based on the emergence of a new classification distinct from both international armed conflicts (IACs) and NIACs? Such intervention could involve either a non-Muslim country intervening in a NIAC between Muslim parties or a Muslim country intervening in a NIAC involving non-Muslim parties. The central argument of this article is that Islamic International Law (jus ad bellum) primarily focuses on the legality of intervention in NIAC suggesting that different rules might apply depending on the legality of the intervention, while the protective rules of Islamic International Law (jus in bello) remain applicable regardless of the intervention's legality in Islamic International Law. [ABSTRACT FROM AUTHOR]

The trend toward the "humanization" of international law reflects a greater emphasis on individuals rather than simply states as objects of concern. The advance of human rights law (HRL) has been an important impetus for this trend. Some observers suggest that humanization can be furthered even more by applying HRL rather than international humanitarian law (IHL) to hostilities between states and nonstate armed groups, unless a state explicitly declares that it is engaged in an armed conflict. This essay argues, however, that a court should not defer to a state's characterization of hostilities, but should base its analysis on whether hostilities meet the criteria for an armed conflict. Applying HRL to hostilities that effectively are an armed conflict but not acknowledged as such risks diluting the legitimacy and normative force of HRL. On the one hand, if a court applies conventional stringent HRL standards, this body of law may be seen as unrealistic and is likely to be ignored. On the other hand, a court that adapts HRL standards to armed conflict may need to take a consequentialist approach at odds with HRL's deontological foundations. Clearly differentiating between HRL and IHL may thus best promote the humanization of warfare. [ABSTRACT FROM AUTHOR]

In this iteration of the Review 's "Beyond the Literature" series, we have invited Ezequiel Heffes to introduce his recent book Detention by Non-State Armed Groups under International Law , before then posing a series of questions to Tilman Rodenhäuser, René Provost, Mariana Chacón Lozano and Katharine Fortin, who have agreed to serve as discussants of the book. Tilman Rodenhäuser is a Legal Adviser at the International Committee of the Red Cross (ICRC), with particular expertise in non-State armed groups (NSAGs) and detention. René Provost is the James McGill Professor of Law at McGill University and has written extensively on public international law, including his recent monograph Rebel Courts: The Administration of Justice by Armed Insurgents. Mariana Chacón Lozano has served as the Operational Legal Coordinator for the ICRC in Colombia since October 2020 and has worked for the ICRC since 2011. Katharine Fortin is Associate Professor at the Netherlands Institute of Human Rights within the Faculty of Law, Economics and Governance of Utrecht University. The Review team is grateful to all four discussants, and to Ezequiel, for taking part in this engaging conversation. [ABSTRACT FROM AUTHOR]

This article critiques the articulation of the legal framework applicable to Australian Defence Force operations in Afghanistan found in the Inspector-General of the Australian Defence Force Afghanistan Inquiry Report (Brereton Report). In particular, using the Australian experience in Afghanistan as a case study, the article argues, on the basis of the rules of treaty interpretation, that where a foreign State party to Additional Protocol II (AP II) intervenes in a non-international armed conflict (NIAC) to which AP II applies, that foreign State is bound by AP II, in addition to the host State and non-State armed actors that are parties to the NIAC. The article concludes by outlining the reasons why the Brereton Report's silence in relation to AP II matters. [ABSTRACT FROM AUTHOR]

The idea that Rio de Janeiro has been plunged into an actual "war" against organized crime is widely discussed and is supported by an ever-increasing number of people in Brazil. Not surprisingly, such discourse has led to less protection for the civilian population, particularly in the so-called favelas , while allowing security forces to carry out operations with even greater relative impunity. This article argues that although urban violence in Rio de Janeiro is indeed a serious problem, it does not reach the threshold required to be considered a non-international armed conflict. [ABSTRACT FROM AUTHOR]

The motivations of armed groups are widely considered to be irrelevant for the applicability of international humanitarian law (IHL). As long as organized violence is of sufficient intensity, and armed groups have sufficient capacity to coordinate and carry out military operations, there is an armed conflict for purposes of international law. It follows that large-scale criminal organizations can, in principle, be treated legally on a par with political insurgent groups. Drug cartels in particular, if sufficiently armed and well organized, can constitute armed opposition groups in the legal sense when their confrontation with State forces is sufficiently intense. This article problematizes this interpretation. It corroborates standing legal doctrine in finding that subjective motives are not a sound basis to exclude the application of IHL, but it argues that a workable distinction can be made between the strategic logic and the organizational goals of criminal groups and those of political insurgents. Drawing on a growing body of empirical studies on the political economy of criminal violence, a strong presumption is defended against qualifying as armed conflict organized violence involving criminal organizations. [ABSTRACT FROM AUTHOR]

When the Security Council mandates the protection of civilians mandate in UN peacekeeping missions, it inadvertently forms an obligation on States involved with UN peace missions. To affirm the concept of State sovereignty, the Security Council constantly references 'the primary responsibility of the State to protect' within their resolutions. This developing norm, beginning within the protection of civilians mandate, is an expansion of existing obligations under IHL and IHRL. Within the text of Security Council resolutions there is an obligation that States who are a party to a NIAC are responsible for peace and security. Therefore, force should be used for peace and security, rather than for "triumphing" in the conflict or entrenching power. As such, a State can achieve its obligations under IHL when governments take all reasonable steps to conclude the conflict, for any hostilities within civilian areas by its very nature is a breach of a State's obligation and responsibility to protect their own civilians. [ABSTRACT FROM AUTHOR]

This Article addresses the protection of the natural environment in a non-international armed conflict (NIAC) by applying international humanitarian law (IHL) and international criminal law (ICL) in a transitional justice tribunal.  In December 2016, the Colombian government and the Revolutionary Armed Forces of Colombia–People’s Army (FARC-EP) guerrilla group signed an agreement which established the Special Jurisdiction for Peace (JEP), a tribunal designed to investigate, prosecute, and punish those responsible for the most serious crimes committed during the Colombian Armed Conflict.  The agreement and the regulations of the JEP establish that this tribunal could directly apply IHL and ICL when examining crimes under investigation.  However, case law related to this subject matter is almost nonexistent.  Therefore, the JEP should create case law that can be studied and followed by other international and domestic criminal tribunals, while shedding light on the international standard on environmental protection emanating from IHL and ICL.In this Article, we demonstrate how the JEP can effectively use IHL and ICL when prosecuting war crimes which have harmful effects on the environment.  For this purpose, Part I presents background on the Colombian Armed Conflict.  Part II describes the JEP, the generalities of its legal framework and the specifics of the use of international law by this tribunal.  Part III examines relevant domestic and international sources to explain the insufficiency of domestic law and the ability of international law to surpass those limitations.  Part IV recalls the sources of ICL and IHL related to the protection of the natural environment in NIACs.  Finally, Part V discusses recent JEP decisions related to the protection of the natural environment and some possible conduct to be investigated in the future.  We conclude by describing the benefits of the JEP’s use of international law.

Academic discussion on the adequacy of international law, in particular international humanitarian law (IHL), to protect women from and to respond to gender-based violence against women (GBVAW) has so far omitted a detailed discussion on the law applicable in non-international armed conflict (NIAC). This article reviews the scope of international law, in particular IHL applicable to NIAC and international human rights law (IHRL), on the protection of women from GBVAW, firstly aiming to fill this lacuna in the literature on GBVAW and secondly in an examination as to whether the law on GBVAW in NIAC adequately protects women from GBVAW in NIAC. This analysis is performed distinctly for sexual violence, non-sexual violence, and women in detention. In applying the substance of the law regarding GBVAW under IHL and IHRL to the legal framework on the mutual application of IHL and IHRL in armed conflict, this article finds that IHL applicable to NIAC and IHRL generally may be interpreted harmoniously in substance regarding sexual violence and partially on non-sexual violence and detention. The consolidation of these regimes thus in theory results in a stronger and wider scope of protection from GBVAW. However, this protection may be limited in practice due to challenges in meeting due diligence in conflict and limited human rights responsibility for non-State parties to the conflict. [ABSTRACT FROM AUTHOR]

A major aspect of the United States' war efforts in Afghanistan over the past two decades has been the waging of a counterinsurgency campaign. This article analyzes the extent to which the United States and other Western intervening nations developed and implemented rule of law support missions as a component of the overarching counterinsurgency mission. This article evaluates the successes and failures of the rule of law missions, analyzing the lessons learned from two decades of conflict to provide a foundation for the policymakers and strategic planners who will be tasked with executing counterinsurgency campaigns in the future. The article focuses in particular on the social, political, and cultural factors of the Afghan people that impacted the viability of the Western counterinsurgency and rule of law missions. [ABSTRACT FROM AUTHOR]

Copyright of Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi is the property of Marmara University and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Unconstitutional change of power in Ukraine as a result of the "Maidan revolution" in February 2014, with the subsequent power grab by Ukrainian radicals of local authorities under nationalist slogans, led to the establishment of control over parts of the territory of Donetsk and Lugansk regions by Donbass militias, and then to the ongoing fighting between the armed formations of the latter with units of the regular armed forces of Ukraine. The purpose of this publication is to establish the form of the armed conflict and its legal consequences from the standpoint of current international law, which has not yet found proper legal analysis and coverage in either domestic or foreign (including Ukrainian) legal doctrinе. In official statements and legislative acts of Ukraine, this conflict is declared as a "state of war with Russia", "aggression of Russia", and the Ukrainian doctrine of international law almost unanimously declares the need to apply to the conflict the norms of international humanitarian law and qualifies it as an international armed conflict. In this publication, on the basis of the analysis of existing international legal norms and legal doctrine, the qualification of existing forms of armed conflicts is carried out: war, international armed conflict, non-international armed conflict, internationalized armed conflict. This examines the legal consequences (or otherwise the obligations of the parties to the conflict) that are caused by each form of such armed conflict, that is concealed and ignored by the Ukrainian side. On the basis of the theoretical and legal analysis of the UN Charter, the relevant provisions of the Geneva conventions on the protection of victims of war of 1949 and Additional protocols I and II of 1977, the author qualifies the situation in the South-East of Ukraine as a non-international armed conflict and the obligation to comply with applicable legal norms by all parties to the conflict. At the same time, the author comes to the conclusion about the insolvency of the claims about the applicability of the rules governing other mentioned forms of armed conflicts.

Non-International armed conflicts in which different armed groups are involved is the dominant feature of contemporary armed conflicts. Considering the complex and changing alliances of these groups and the extension of their hostilities across borders, the problem that arises is whether an armed group is considered a party to a non-international armed conflict as defined under international humanitarian law. In this context, the concept of "organized armed groups" is of a fundamental importance, upon which depends the applicability of the international humanitarian law to a specific situation of violence. The research aims to determine the criteria for assessing the fulfilment of the "organization element" in any armed group to be considered a party to a non-international armed conflict. The research also provides an analysis of the link that must exist between the allied armed groups to be considered as a single party to such conflict.

Non-International armed conflicts in which different armed groups are involved is the dominant feature of contemporary armed conflicts. Considering the complex and changing alliances of these groups and the extension of their hostilities across borders, the problem that arises is whether an armed group is considered a party to a non-international armed conflict as defined under international humanitarian law. In this context, the concept of "organized armed groups" is of a fundamental importance, upon which depends the applicability of the international humanitarian law to a specific situation of violence. The research aims to determine the criteria for assessing the fulfilment of the "organization element" in any armed group to be considered a party to a non-international armed conflict. The research also provides an analysis of the link that must exist between the allied armed groups to be considered as a single party to such conflict.

Copyright of Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi is the property of Marmara University and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The Rome Statute has often been criticized for not following international customary law, with calls to more closely resemble this being relatively frequent. This is especially the case in the distinction made between international and non-international armed conflicts and the significant fewer war crimes applicable to non-international armed conflicts. One of the most apparent differences is in the lack of a provision criminalizing the employment of weapons that go against the general principles of weapons law in humanitarian law. This article seeks to address this critique by determining whether the lack of this criminalization in non-international armed conflicts is contrary to customary international law and if this divergence should be amended. [ABSTRACT FROM AUTHOR]

Richard Baxter famously stated that "the first line of defence against international humanitarian law is to deny that it applies at all". While "under-classification" remains an issue today, a parallel trend needs to be acknowledged. This is the tendency to over-classify situations of violence, especially in relation to transnational terrorist organizations such as the so-called Islamic State group or Al-Qaeda. This tendency stems from practical difficulties inherent in the changing operational environment. The last few years have witnessed a proliferation of armed non-State actors that are labelled or designated as terrorists (e.g., in Iraq, Syria, Mali, Nigeria and Yemen). Terrorist groups are characterized by opaque, often volatile organizational structures and tend to operate in decentralized networks rather than clear hierarchies. The formation of splinter groups, changing alliances, temporary reunification and even open hostility among former allies are common phenomena. This complex factual situation has led to the proliferation of theories of conflict classification, many of them arguing in favour of more flexible classification via the loosening of existing standards. Because international humanitarian law is in many respects less protective than international human rights law, particularly regarding the rules on the use of force and detention, classifying a situation of violence as an armed conflict when the threshold has not been met is a problem that should not be underestimated. In this article, we revisit the criteria of intensity and organization, as well as the related matter of the role of motives in conflict classification, considering conflicts involving armed groups described as terrorists. Our goal is to identify minimum requirements that could diminish the risk of over-classification by various stakeholders. [ABSTRACT FROM AUTHOR]

While armed conflicts are principally governed by international humanitarian law (IHL), activities of members of non-State armed groups and their affiliates may also qualify as terrorist offences. After explaining why the concurrent application of IHL and criminal law instruments on terrorism causes friction, this article analyzes the chief mechanism for dissipating this friction: a clause excluding activities governed by IHL from the scope of criminal law instruments on terrorism. Such armed conflict exclusion clauses exist at the international, regional and national level. This article explains how an exclusion clause can best avoid friction between IHL and criminal law instruments on terrorism. [ABSTRACT FROM AUTHOR]

This article assesses the applicability of the criteria for non-international armed conflict to the situation in South-Eastern Turkey. It demonstrates that the Kurdistan Workers' Party (also known as the PKK), as a party to the conflict, fulfils the three main criteria laid down in conventional international humanitarian law and developed by indicative factors in international jurisprudence for assessing the existence of a non-international armed conflict in the context of Common Article 3 to the 1949 Geneva Conventions: being an organised armed group, having the ability to engage in 'protracted violence', and complying with law of armed conflict. It establishes that the PKK qualifies as an organised armed group under responsible command and has the operational ability, structure and capacity to carry out 'protracted violence', to respect fundamental humanitarian norms of international humanitarian law and to control territory. The article also ascertains that Turkey is clearly bound by the provisions of the four Geneva Conventions of 1949, including Common Article 3, and customary international humanitarian law. Accordingly, it concludes that the conflict between the PKK and the Turkish security forces qualifies as a non-international armed conflict within the meaning of both Common Article 3 and customary international humanitarian law. [ABSTRACT FROM AUTHOR]

This article examines whether and how non-State armed groups, as distinct entities, might be required to provide reparations for their violations of international humanitarian law. It shows that the possibility of holding armed groups to reparations is marked by uncertainty in international law. This complex question calls for clarification. In building on these observations, the article explores how the duty to provide reparations by armed groups could be operationalized as a matter of lex ferenda. This exercise involves examining how such a duty could be conceptualized and put into practice. From this discussion, a multi-faceted proposal emerges, which draws upon existing approaches in international law and responds to the particular challenges presented by armed groups. The article ends by considering the implications of the proposal. [ABSTRACT FROM AUTHOR]

In recent non-international armed conflicts in countries such as the Central African Republic, Iraq, Libya, Nigeria, South Sudan, Syria, Ukraine and Yemen, various non-State armed groups (NSAGs) have exercised control over territory and people living therein. In many cases, and for a variety of reasons, NSAGs perform some form of governance in these territories, which can include the maintenance of order or the provision of justice, health care, or social services. The significance of such measures became particularly apparent when in 2020 not only governments but also armed groups took steps to halt the spread of the COVID-19 pandemic. This article examines key legal issues that arise in these contexts. First, it analyzes the extent to which international humanitarian law protects the life and dignity of persons living under the control of NSAGs, rebutting doubts as to whether this field of international law has a role in regulating what is sometimes called "rebel governance". Second, it provides a brief overview of aspects of the lives of people in armed group-controlled territory that are addressed by international humanitarian law and aspects that instead fall into the realm of human rights law. Third, the article discusses whether and to what extent human rights law can be said to bind NSAGs as a matter of law and flags issues that need further attention in current and future debates. [ABSTRACT FROM AUTHOR]

This paper examines the notion of intensity in the context of common Article 3 and Additional Protocol II (AP II) to the Geneva Conventions in order to establish whether AP II demands a different intensity threshold from the minimum threshold of intensity contemplated in common Article 3. The paper considers the question of whether the inclusion of the term "sustained" in the phrase "sustained and concerted military operations" intrinsic to the threshold in Article 1(1) of AP II introduces a temporal requirement in addition to mere protracted armed violence. The paper argues that the inclusion of the term "sustained" in Article 1(1) of AP II potentially demands prolonged protracted armed violence. The research aims to contribute to the existing literature on the notion of intensity demanded by the scope of application inherent in AP II through an interrogation of the phrase "sustained" military operations by employing the rules of treaty interpretation and by examining relevant case law and scholarly debate. In this way, the author hopes to contribute towards filling a lacuna with regard to the minimum threshold for intensity in the context of treaty law concerned with the classification of non-international armed conflicts. [ABSTRACT FROM AUTHOR]

In the past, most armed conflicts were international, but today armed conflicts often are non-international and internal conflicts. However most of international armed conflicts rules are about international armed conflicts and some of them regulate non-international conflicts. Applicability of some of international humanitarian law rules to this kind of conflicts is doubtful. One of these rules is the principle of proportionality. This principle means that incidental and consequential damages resulting from an attack against civilians or civilian objects should not exceed the direct military advantage expected of the attack. 1977 Additional Protocol II to the 1949 Geneva Conventions which deals with the rules governing non-international conflicts has not referred to this principle. However, in accordance with what is discussed in this paper, the principle of proportionality is applicable to these conflicts.

There seems to have been a shift in the state-centric vision of international relations, following the increasing role of non-state actors (NSAs) on the international scene, particularly in the context of armed conflicts. Ezequiel Heffes, Marcos Kotlik and Manuel Ventura, editors of International Humanitarian Law and Non-State Actors, present through this collection of contributions an overview of legal issues arising from this new reality. The editors draw on their personal experience to explain how NSAs contribute to the development of international humanitarian law (IHL) and to suggest that in order to promote respect for IHL by all parties involved in an armed conflict, this new role should be given due consideration from a legal standpoint. The review aims to confront critically the position taken in the volume, assessing the pros and cons of an increased recognition (and potential legitimisation) of NSAs, with a particular focus on non-state armed groups. It discusses, in particular, the implications of this process for the exercise of sovereign rights and respect for fundamental guarantees, especially in relation to the powers to detain and to adjudicate. [ABSTRACT FROM AUTHOR]

Copyright of Foro Internacional is the property of El Colegio de Mexico AC and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The destruction of cultural heritage in armed conflicts has gained increasing political momentum and visibility over the last two decades. Syria, Iraq and Mali, among others, have witnessed the intentional destruction of their cultural heritage by non-State armed groups (NSAGs) that have invoked Islamic law and principles to legitimize their actions. The response of the international community has predominantly focused on the material aspect, to the detriment of the significant impact on the associated intangible manifestation of cultural heritage in local communities. This article argues that several Islamic legal rules and principles may, more adequately than international humanitarian law, safeguard the intangible dimension of cultural heritage in certain contemporary armed conflicts in Muslim contexts. It aims to demonstrate the importance of drawing from multiple legal traditions in order to enhance the protection of intangible cultural heritage in armed conflicts and to strengthen engagement with the relevant NSAGs. [ABSTRACT FROM AUTHOR]

In terms of Additional Protocol II to the Geneva Conventions 'territorial control' is a requirement in order to determine whether, as contemplated by the provisions of the Protocol, a non-international armed conflict exists. Complex situations in which conflict is not confined to the territorial borders of the State where the non-international armed conflict originated increasingly present a challenge to those responsible for conflict classification under the conventional law of non-international armed conflict. In situations such as these, a non-international armed conflict is no longer restricted to the territory of a single State. Multiple non-international conflicts involving numerous actors can co-exist in a single territory at the same time or lead to fighting across borders. The complex conflict situations in the Central African Republic, Mali, South Sudan and the Democratic Republic of the Congo serve as examples. Attaining legal certainty is pivotal with respect to conflict classification because the category of conflict determines the applicable rules of the conventional law of armed conflict. Even though Additional Protocol II remains the only comprehensive treaty dedicated to the regulation of non-international armed conflict, there is a paucity of literature which analyses its scope of application, and specifically the territorial control requirement. This article offers an in-depth examination of the territorial control requirement. [ABSTRACT FROM AUTHOR]

This article analyses how international criminal courts and tribunals have pronounced on the contextual elements of their respective war crimes provisions. A comprehensive overview of the way these institutions treated the material scope of application of IHL shows that the ad hoc tribunals tended to avoid classification as either international or non-international armed conflict​, and merely found that a generic 'armed conflict' existed at the relevant​ time. The ICC shows a tendency to classify situations as non-international armed conflicts without considering whether the situation concerned may instead (or at the same time) qualify as an international armed conflict. Non-international​ armed conflict is often, mistakenly, treated as a residual regime. Incorrect conflict classification may​ affect IHL's scope of application, and negatively impact on an accused's fair trial​ rights under international criminal law. The author proposes a fresh look at the​ ICC's legal framework to solve conflict classification​ problems. [ABSTRACT FROM AUTHOR]

Copyright of Academia & Derecho is the property of Universidad Libre - Seccional Cucuta and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)