This fully revised fourth edition of Constraints on the Waging of War considers the development of the principal rules of international humanitarian law from their origins to the present day. Of particular focus are the rules governing weapons and the legal instruments through which respect for the law can be enforced. Combining theory and actual practice, this book appeals to specialists as well as to students turning to the subject for the first time.
Who is accountable under international law for the acts committed by armed opposition groups? In today's world the majority of political conflicts involve non-state actors attempting to exert political influence (such as overthrowing a government or bringing about secession). Notwithstanding their impact on the course of events, however, we often know little about these groups, and even less about how to treat their actions legally. In this award-winning scholarship, Liesbeth Zegveld examines the need to legally identify the parties involved when internal conflicts arise, and the reality of their demands for rights. Her study draws upon international humanitarian law, human rights law and international criminal law to consider a fundamental question: who is accountable for the acts committed by non-state actors, or for the failure to prevent or repress these acts? This study will be of interest to academics, postgraduate students and professionals involved with armed conflict and international relations.
International humanitarian law ("IHL") has never been confined to the level of relations between States. 1 On the contrary, the initiators of the nineteenth century conventions already believed that human persons had inviolable rights even during armed conflicts. 2 However, recognition of rights is one thing, the right to claim those rights is another. So far, States have been reluctant to entitle, explicitly and in general, victims of violations of international humanitarian law to claim reparation. As humanitarian law treaties do not expressly envisage causes of action for victims in national or international law, they are hardly able to exercise their rights. On this point international humanitarian law sharply contrasts with tendencies in international law. In spite of the gap in the International Law Commission's Articles on State Responsibility, which were finally adopted in 2001 3 but fail to mention rights of individuals in the regime of secondary rights, 4 it is generally known that human rights treaties provide a remedy, both substantive and procedural, for individuals suffering injury from unlawful conduct by State authorities. For example, Article 13 of the European Convention on Human Rights stipulates that individuals whose rights as set forth in that Convention are violated shall have "an effective remedy before a national authority". And Article 50 of the same Convention mandates the European Court of Human Rights to afford just satisfaction to victims. Human rights treaties also provide for specific provisions on compensation, for example to victims of unlawful arrest or detention. 5 Most recently, the Rome Statute of the International Criminal Court 6 authorizes the Court to determine any damage, loss or injury to victims and order reparations to them. * * Liesbeth Zegveld, Ph.D. practises as an international lawyer in Amsterdam, the Netherlands. She would like to thank Frits Kalshoven for his useful comments and Gijs Kuijper for his assistance in preparing this article.
Currently, no judicial or quasi-judicial mechanisms exist with the explicit competence to consider complaints of individuals claiming to be victims of violations of international humanitarian law. The International Committee of the Red Cross (ICRC) cannot fulfil this role as it has neither the means, the purpose nor the mandate to make enforceable judicial determinations with regard to claims of individuals alleging to be victims of such violations. Instead, it operates mainly through confidential discussions with governments. Likewise, criminal prosecutions of individual perpetrators before national or international courts, while contributing significantly to improving the implementation of humanitarian law, cannot and should not be the only answer to violations of the law. For one thing, the future International Criminal Court (ICC) will only consider the most serious violations of humanitarian law, leaving numerous other violations uninvestigated. Moreover, criminal prosecutions are concerned with individuals rather than parties to the conflict. The acts that are labelled as international crimes, however, find their basis in the collectivity. Crimes are unlikely to be prevented nor will compliance with their prohibition be significantly improved through criminal prosecution of individuals alone. Similarly, while the ICC may, either upon request or on its own motion, afford reparations to victims of war crimes, these are reparations afforded within the individual responsibility framework of the ICC. The Court may make an order directly against a convicted person rather than against a state or entity.
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