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- Introduction to the Special Issue on Partnered Operations and
International Law-
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Pages: 131 - 134
Abstract: Paartnered operations refer to military operations where States collaborate with each other, with non-State actors (such as organized armed groups) or with intergovernmental organizations (such as the United Nations) to achieve a common aim in a given conflict situation. Partnered operations are not a new phenomenon, but nowadays they have become the standard modality of conducting military operations, with the armed conflicts in Afghanistan, Iraq, Libya, Mali, Syria, Yemen being such examples.
PubDate: Thu, 11 Aug 2022 00:00:00 GMT
DOI: 10.1093/jcsl/krac012
Issue No: Vol. 27, No. 2 (2022)
- Ensuring Respect by Partners: Revisiting the Debate on Common Article 1
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Pages: 135 - 157
Abstract: AbstractAccording to the International Committee of the Red Cross (ICRC), the duty to ‘ensure respect’ in Common Article 1 of the Geneva Conventions includes an external dimension: States have to ensure that other states respect their obligations under the Conventions, and arguably under international humanitarian law as a whole. This potentially has far-reaching consequences for states engaging in military operations together with partners, and the ICRC interpretation has been met with explicit pushback from a number of states as well as scholars. The present article seeks to revisit the debate on the extent of the obligation following from Common Article 1 in the context of partnered operations. We begin by providing a detailed outline of the ICRC view on the duty to ‘ensure respect by others’, as well as the reactions from states and scholarly contributions. Against this background, we examine—by carefully applying the customary rules on treaty interpretation enshrined in the Vienna Convention of the Law of Treaties—whether the duty to ensure respect has an external dimension judged by the ordinary meaning and intentions of the drafters, subsequent practice (both in relation to the ICRC and in other contexts) and judicial pronouncements. Having concluded that doctrinal legal analysis does indeed support an external dimension of Common Article 1, we then explore whether this duty to ensure respect by others applies to states regardless of the nature of the armed conflict and their own involvement in it. Finally, we analyse the exact content of the obligations arising from the duty to ensure respect by others under Common Article 1.
PubDate: Thu, 11 Aug 2022 00:00:00 GMT
DOI: 10.1093/jcsl/krac007
Issue No: Vol. 27, No. 2 (2022)
- Partnered Operations and the Positive Duties of Co-Parties
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Pages: 159 - 184
Abstract: Abstract A key issue in partnered operations is the extent to which partners have obligations under international law as regards each other’s conduct. For partnered operations in situations of armed conflict, this issue has generated a rich and vivid debate on the existence of a duty to ensure respect for international humanitarian law (IHL) by one’s partners, and in particular, whether this duty would require taking positive action. Rather than weighing in on the general question of whether all States bear such duties, this article sheds light on one aspect that this debate has tended to overlook. The article specifically looks at the situation in which multiple parties are engaged in the same armed conflict alongside one another against a common adversary—here labelled ‘co-parties’. It investigates which positive obligations these parties have as regards each other’s conduct. The central argument is that co-parties in an armed conflict have multiple complementary sets of duties to take positive steps vis-à-vis the conduct of their fellow co-parties. The resulting network of duties reflects the central role of the parties to the conflict to ensure that armed conflicts are carried out in accordance with the protective purposes of IHL. Built into the established structure of the legal framework regulating armed conflict, the account of the duties of co-parties presents a more refined conception to the allocation of obligations under IHL in cooperation settings, which, if implemented, may contribute to addressing the protection challenges raised by partnered operations.
PubDate: Thu, 11 Aug 2022 00:00:00 GMT
DOI: 10.1093/jcsl/krac006
Issue No: Vol. 27, No. 2 (2022)
- Detainee Transfers and the Principle of Non-refoulement in Relation to
‘Non-belligerent Supporting States’ in Non-international Armed
Conflicts-
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Pages: 185 - 209
Abstract: AbstractIn the past 20 years, many States have purposefully shifted away from taking detainees in non-international armed conflicts (NIACs) and have instead relied on partner forces—both State and non-State actors—to take responsibility for any NIAC detainees. The question this article seeks to address is to what extent ‘non-belligerent supporting States’ have obligations to ensure that detainee transfers by partners comport with the principle of non-refoulement, by which a person may not be transferred if they are at a real (or substantial) risk of a violation of their fundamental rights. The authors explore several legal approaches to better understand how a non-belligerent supporting State may incur legal obligations in relation to detainee transfers through the support it provides. The article first examines how support triggers belligerent status (and thus belligerent obligations) under International Humanitarian Law (IHL), and tackles to what extent non-belligerent supporting States may incur legal obligations under IHL more generally, noting the gap between the rules of International Armed Conflict and NIACs in this respect. Secondly, specific obligations non-belligerent States may incur with respect to the principle of non-refoulement in relation to detainee transfers by a belligerent party during a NIAC are identified. Finally, the authors examine three categories of support—logistics/transportation support, intelligence sharing, and belligerent-party-to-non-belligerent-party detainee transfers—to demonstrate how varying degrees of support by non-belligerent States in the context of a NIAC could trigger the obligations to ensure respect of the prohibition against non-refoulement by belligerent partners through the auspices of Common Article 1. The article concludes that while Common Article 1 obligations indeed arise in these scenarios, the scope of the external or positive obligations of Common Article 1 are still unsettled under IHL and thus require further development to create a common understanding of the international legal obligations to avoid the violation of the principle of non-refoulement by partner forces.
PubDate: Thu, 11 Aug 2022 00:00:00 GMT
DOI: 10.1093/jcsl/krac009
Issue No: Vol. 27, No. 2 (2022)
- Revisiting the Law on UN Peace Operations’ Support to Partner Forces
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Pages: 211 - 227
Abstract: AbstractModern UN peace operations frequently deploy in non-international armed conflicts (NIACs). Their activities tend to support governmental forces in stabilizing the country, including the combat against non-state actors. This is one of the most prominent examples of ‘support relationships’ or ‘partnered warfare’, namely situations in which a foreign partner provides military support for an ally in an armed conflict. This also raises the question, however, of the legal status of UN peace operations and their activities in such circumstances. This article examines the legal situation and finds that the current legal tenets regarding UN peace operations becoming a party to a conflict and individual peacekeepers directly participating in hostilities do not address the issue in a satisfactory manner. It also finds that while the International Committee of the Red Cross has proposed the support-based approach to clarify the issue, this lacks an appropriate legal basis. The article argues that a ‘totality-of-the-circumstances’ approach regarding the existence of a NIAC, which corresponds to the original spirit of Common Article 3 of the Geneva Conventions, provides a proper legal basis which addresses identified concerns. The article concludes by discussing such an approach’s advantages and drawbacks in the case of support relationships.
PubDate: Thu, 11 Aug 2022 00:00:00 GMT
DOI: 10.1093/jcsl/krac010
Issue No: Vol. 27, No. 2 (2022)
- Overlap Between Complicity and Positive Obligations: What Advantages in
Resorting to Positive Obligations in Case of Partnered Operations'-
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Pages: 229 - 252
Abstract: AbstractPartnered operations are very frequent and pose complex questions in international law, such as the allocation of responsibility in cases of violations of international human rights law and/or international humanitarian law (IHL). The present article deals with the question of complicity in partnered operations between States and between States and/or non-State actors, focusing on the possible overlap between responsibility for complicity and responsibility for breach of positive obligations in partnered operations in the light of the relevant case law of the International Court of Justice and of the European Court of Human Rights. As the requirements laid down by art. 16 of the International Law Commission Draft Articles on the Responsibility of States with respect to complicity are often difficult to meet, the author intends to explore the potential advantages of resorting to positive obligations in light of the due diligence standard. Although the article focuses primarily on human rights violations, in the final section the author investigates the benefits of this approach also with respect to breaches of IHL.
PubDate: Thu, 11 Aug 2022 00:00:00 GMT
DOI: 10.1093/jcsl/krac008
Issue No: Vol. 27, No. 2 (2022)
- Complicity of States in Partnered Drone Operations
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Pages: 253 - 278
Abstract: AbstractMilitary operations carried out with armed drones call into question not only the international responsibility of the drone-sending State but also the potential international responsibility for complicity of assisting States. Drone strikes are conducted through a complex set of tasks that would not be possible without the military cooperation of partner States. Three main scenarios of partnered drone operations are described, namely lending foreign military bases, providing logistical and technological support and intelligence sharing for targeting purposes. The article explores the issue of State complicity under the lens of Article 16 of the Articles on the Responsibility of States for Internationally Wrongful Acts. The core features of State complicity—the ‘significant contribution element', the ‘mental element' and the ‘opposability element'—are discussed and applied to the three scenarios. The practice of partnered drone operations is extensively analysed, focusing on the assistance provided by Italy, Germany and the Netherlands to the US drone programme. The study concludes that in the cases under consideration, the international responsibility for complicity of assisting States is likely to be entailed, should the action of the assisted State result in an internationally wrongful act.
PubDate: Thu, 11 Aug 2022 00:00:00 GMT
DOI: 10.1093/jcsl/krac011
Issue No: Vol. 27, No. 2 (2022)
- N. Jevglevskaja, International Law and Weapons Review Emerging Military
Technology Under the Law of Armed Conflict-
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Pages: 279 - 283
Abstract: JevglevskajaN., International Law and Weapons Review Emerging Military Technology Under the Law of Armed Conflict. Cambridge: Cambridge University Press, 2022, xxxii + 282pp. ISBN 978-1-108-83755-2, £ 85.00
PubDate: Thu, 12 May 2022 00:00:00 GMT
DOI: 10.1093/jcsl/krac017
Issue No: Vol. 27, No. 2 (2022)
- Natia Kalandarishvili-Mueller, Occupation and Control in International
Humanitarian Law-
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Pages: 283 - 291
Abstract: Kalandarishvili-MuellerNatia, Occupation and Control in International Humanitarian Law. London: Routledge, 2021, 217pp. ISBN 978-0-367-47664-9. £120
PubDate: Wed, 11 May 2022 00:00:00 GMT
DOI: 10.1093/jcsl/krac018
Issue No: Vol. 27, No. 2 (2022)
- A. Dirk Moses, The Problems of Genocide: Permanent Security and the
Language of Transgression-
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Pages: 291 - 296
Abstract: Dirk MosesA., The Problems of Genocide: Permanent Security and the Language of Transgression. Cambridge: Cambridge University Press, 2021, 598pp. ISBN: 978-1-107-10358-0 (hardback), 978-1-107-50312-0 (paperback), £74.99 (hardback), £26.99 (paperback)
PubDate: Tue, 10 May 2022 00:00:00 GMT
DOI: 10.1093/jcsl/krac019
Issue No: Vol. 27, No. 2 (2022)
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