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The New Challenges of Humanitarian Law in Armed Conflicts (International Humanitarian Law) [Hardcover]

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Item description for The New Challenges of Humanitarian Law in Armed Conflicts (International Humanitarian Law) by Pablo Antonio Fernandez-sanchez Symposium on International Humanitarian...

This work represents an analysis of and a reflection on the new challenges of humanitarian law in armed conflicts. It covers the jurisprudential dimension not only of the International Court of Justice, but also all the different legal bodies, including the ad hoc tribunals created by the United Nations. It analyses the purely doctrinal dimension of general aspects such as the solutions to world disorder in this field, the relationship between jus in bello and jus ad bellum, the principles of universal and international jurisdiction, and the notion of justice and peace. More concrete aspects include the situation of foreigners and journalists in armed conflicts, terrorist acts in terms of international humanitarian law and sexual violence as a war crime.

Despite the range of themes addressed, they are all linked with the essential theme of the book, The New Challenges of Humanitarian Law in Armed Conflicts.



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Item Specifications...


Studio: Martinus Nijhoff
Pages   380
Est. Packaging Dimensions:   Length: 9.7" Width: 6.4" Height: 1.1"
Weight:   1.8 lbs.
Binding  Hardcover
Release Date   Oct 31, 2005
Publisher   Martinus Nijhoff
ISBN  9004148302  
ISBN13  9789004148307  


Availability  0 units.


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Product Categories

1Books > Subjects > Law > General
2Books > Subjects > Law > International Law
3Books > Subjects > Nonfiction > Politics > International > Diplomacy
4Books > Subjects > Nonfiction > Politics > International > United Nations
5Books > Subjects > Professional & Technical > Law > International Law



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Diaplomats View of Human Rights During War  Apr 6, 2006
Excerpt: International Humanitarian Law has been a predecessor of the protec?tion of human rights in armed conflicts, as proved by the adoption of the 1949 Geneva Conventions and its 1977 Additional Protocols I and II. Subsequently, several treaties on human rights equally protect cer?tain rights, recognized as non-suspendable or non-abolishable, in all cir?cumstances.
Likewise, we'd like to stress that the fight against impunity in armed conflicts has its roots in International Humanitarian Law, without prej?udice to the contribution developed to this end by several treaties on human rights adopted by the United Nations and the Organization of American States, reaching its zenith on a universal level with the adoption of the Statute of the International Criminal Court. The problem stems from the fact that International Humanitarian Law does not con?tain any clear provision to combat impunity in non-international armed conflicts. In spite of this, its silence should not be interpreted as an indication that the Law is in favour of impunity, since the common Article 3 of the 1949 Geneva Conventions seems to hint towards a "no to impunity". In any case, this gap is now covered by the entry in force of the Statute of Rome of the International Criminal Court, since the latter has the power to judge war crimes, committed during international or internal conflicts. All this apart from the fact that ad hoc International Criminal Courts (former Yugoslavia and Rwanda) and the Special Court for Sierra Leone have the power to judge violations included in the common article 3, and therefore also the violations committed in non-international armed conflicts.
International Humanitarian Law did not recognize the "right of access to justice" to the victims of violations (although it did not deny it either) before national or international bodies. It limited itself to determine the duty of the States to judge the persons responsible of "serious offences" committed during international armed conflicts, but it doesn't say any?thing about internal conflicts, once again emphasizing the scarce impor?tance of these conflicts for this branch of international legislation. This gap as to the access to justice is more or less covered by International Human Rights Law containing provisions applicable in all circumstances, in periods of peace and internal or international armed conflicts. The access to justice of the victims in order to see their rights recognized, is recognized before national bodies and international ones, judicial or not. Nevertheless, what can happen is that the State Party in the treaty, recognizing the right of access to justice before national bodies to vic?tims, suspends this right, since it is not included in the list of non-abol?ishable rights. If this situation occurs, the victims are absolutely defenceless. If we look at the right of access to justice before international bodies, we see that in this case said right cannot be abolished; notwithstand?ing, the rights recognized by the treaty in question can be suspended, except the "core rights", which are those considered non-abolishable. In consequence, the right of access to justice of the victims before inter?national bodies is conditioned by the nature of the violated right. As a result we consider that International Humanitarian Law and International Human Rights Law should make an important effort so as to not leave the victims of human rights violations committed during armed conflicts absolutely defenceless.
The international criminal liability of individuals during armed conflicts was codified by the 1949 Geneva Conventions, affirmed by various treaties on human rights and definitively confirmed by the 1998 Statute of Rome. Nowadays, States have the power to judge war crimes, com?plemented by the International Criminal Court, meaning that the pas?sive legitimation of individuals before the international jurisdiction is not questioned. Nevertheless, International Law does not recognize the right of the victims to exercise penal actions before national criminal courts (although it doesn't deny the right), neither are the victims actively legitimated before the International Criminal Court, which could be considered one of the current failures of International Law. This way,
the "right to justice" is ignored in the sense of the right of the victims to see the authors of violations brought to trial and it is only estab?lished as a duty of the State (investigate, judge and punish the authors) in International Humanitarian Law and as a competence of the Inter?national Criminal Court in the Statute of Rome.
. Up till now, the "right to truth" is not recognized by any international treaty, nevertheless, this right is an autonomous concept comprised in the right of the victims and their relatives (individual dimension) and of society (collective dimension) to know the truth. Since the 1949 Geneva Conventions determines the obligation of the States to judge and punish the authors of "serious offences", the truth shall be known by the international procedure. But here again we are dealing with the issue that this right only exists for international armed conflicts, so that there is an important gap with regard to victims of human rights vio?lations committed during non-international armed conflicts. This gap is covered by the International Human Rights Law, where applicable, and certainly by the Statute of Rome, since the International Criminal Court has the power to judge war crimes committed during both types of armed conflict and whenever the Court judges a case, the truth shall be known.
Since International Humanitarian Law does not recognize the victims' right of access to justice, it cannot recognize their right to obtain a compensation. This gap is covered by International Human Rights Law, although once again we are dealing with the problem that this right is valid or not in accordance with the State's attitude, no longer being valid if the State decides to suspend these rights. In this sense, the Statute of Rome is a great step forward, since the International Criminal Court can determine compensations (indemnity, restitution or rehabili?tation) in favour of victims or their relatives.
The gaps detected when analysing the situation of victims of human rights violations committed during armed conflicts are originated by a possibly erroneous conception of the applicable regulations, because even if it is absolutely true that the Law applied in armed conflicts is the International Humanitarian Law, it is not less true that International Human Rights Law is also applicable, since the latter, apart from estab?lishing a "core" (rights which are not abolishable in any circumstance), contains very strict requisites for the suspension during armed conflicts of rights which are not included in the list of non-abolishable rights.
Finally, we'd like to emphasize the point that although one has to rec?ognize the advances in the protection of victims of human rights vio?lations committed during armed conflicts; it is nevertheless true that many of these advances happened outside International Humanitarian Law, so that we consider that there is still a long way to go. To do this, we shall have to abandon the underlying idea in International Humanitarian Law that the physical person is a legal object worthy of protection (just like material objects), accepting instead the idea of the value and dignity of a human being.
 

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