The Coordination of the Rules of International Humanitarian Law, Human Rights Law and Criminal Law Applicable to International Forces and Transitional Civil Administrations
Annual Call for Projects 2001
Keywords
Hague Conventions - International Humanitarian Law - international transitional civil administrations - Iraq - Kosovo - United Nations CharterSummary
This research aims at determining to what extent international human rights law, international humanitarian law, national criminal law and, where appropriate, international criminal law apply to the activities of military forces and international transitional civil administrations (ITAs), when one or different international organisations intervene and operate in a State's territory. An additional goal of this research is to determine whether the aforementioned legal regimes should be seen as complementary with one another, or, rather, they should be regarded as separate and distinct systems. Funding for this project is generously provided by the Geneva International Academic Network (GIAN).
The working assumption is that the complexity of the applicable legal regimes reflects the complex character of the actual situations in the field. In other words, it is not always easy to delimitate the boundaries between an on-going conflict situation, which requires a peace-enforcement intervention, and a post-conflict situation, where peace has been restored and must be maintained. Within the framework of an enduring crisis, it can be quite difficult to establish a clear-cut division between different phases requiring the exclusive application of the law of armed conflicts or of another legal regime.
In order to answer these questions, it is necessary to provide some accurate definitions of the categories, which form the object of analysis. Therefore, the first part of the study is meant to highlight the main distinctive features of the different international armed operations, be they carried out under effective command and control of the United Nations or simply authorised by them, and of the relatively new phenomenon of ITAs. It must be underlined that, in both cases, an international civil presence always comes with a military component.
Part two of the study concerns international humanitarian law (IHL). The first question deals with the applicability of IHL ratione personae to the activities of international organisations. The question of the applicability ratione materiae must be analysed separately for military forces of international organisations and for ITAs. With regard to military forces, the coexistence of the Geneva and the Hague regimes, as well as the recent Convention on the security of UN and associated personnel, will have to be examined. As for ITAs, this study will attempt to trace a specific customary law regime governing their activities and determine whether this regime is complementary with or alternative to IHL norms. The ultimate purpose of this part of the research is to define the normative system that provides the best protection of civilians in a territory under ITA. Within this perspective, it must be established whether ITAs can be assimilated to situations of territorial occupation, so as to trigger the applicability of the relevant provisions of IHL.
The other legal regimes are analysed in part three, which focuses primarily on ITAs. In this context, it seems necessary, first of all, to determine the requirements for the actual implementation, ratione personae and ratione materiae, of international human rights law to the different actors in the field. As already noticed, the activities of a strictly civil character often coexist with military activities, the best illustration of which is perhaps the operation in Kosovo. This part of the study will be mostly based on an analysis of practice and, although from a different perspective, on the issues developed in part two.
Similar considerations apply to the second section of part three which is concerned with the application of rules of criminal law and criminal procedure. The applicability of the aforementioned legal regimes to the activities of international organisations is still a controversial matter. A particularly difficult question is that of the relationship between the domestic criminal law of the State where the intervention takes place, provided it can be applied, and the rules of international criminal law. In this area an analysis of the lex lata frequently yields to speculations mostly based on lex ferenda.
Part four focuses on the content of the rules applicable to the forces of international organisations and to ITAs. Once again, the two questions must be addressed separately. In particular, one should ascertain if and, if so, to what extent international organizations are required to respect rules, which were originally conceived as having States as their addressees. This part, which is at the same time a development and a synthesis of the issues previously considered, is based on an analysis of international practice, in particular, the experience of Kosovo, East Timor, Somalia and Bosnia-Herzegovina.
Part five is concerned with issues of enforcement. After a cursory analysis of preventive measures, the focus will be shifted towards issues of international responsibility for violations of IHL rules, human rights rules and criminal law, committed by members of international forces and ITAs. In this context, it will be necessary to distinguish between the attribution of these violations to international organisations (and the consequences which may ensue, particularly from the perspective of international responsibility, not least the issue of reparation) and individual criminal responsibility, at both national and international level. Attention will be finally drawn on the control mechanisms which can be used, either extant ones, such as those provided by IHL, or those which might be developed within the framework of the United Nations, or of other institutions.
The grant provided by the GIAN for this project totals SFr 200,000
Project Team
Prof. Andreas Auer , Coordinator, Department of Constitutional Law (CONST) , Faculty of Law , University of Geneva (Unige) .
Prof. Robert Kolb , Co-coordinator, Institute of public law , University of Bern (Unibe) .
Prof. Andrea Bianchi , Principal Member, Department of International Law , Graduate Institute of International Studies (GIIS) .
Prof. Andrew Clapham , Principal Member, Department of International Law , Graduate Institute of International Studies (GIIS) .
Dr. Knut Doermann , Principal Member, International Committee of the Red Cross (ICRC) .
Dr. Alexandre Faite , Principal Member, International Committee of the Red Cross (ICRC) .
Dr. Marc Henzelin , Principal Member, Department of Penal Law (PENA) , Faculty of Law , University of Geneva (Unige) .
Mr Jean-Philippe Lavoyer , Principal Member, International Committee of the Red Cross (ICRC) .
Dr. Gabriele Porretto , Principal Member, University Centre for International Humanitarian Law (UCIHL) , University of Geneva (Unige) .
Prof. Yves Sandoz , Principal Member, University Centre for International Humanitarian Law (UCIHL) , University of Geneva (Unige) .
Dr. Sylvain Vité , Principal Member, University Centre for International Humanitarian Law (UCIHL) , University of Geneva (Unige) .
Related Links
> Geneva Academy of International Humanitarian Law
Research Output
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International Humanitarian Law Applicable to Civil Administrations and Military Occupation
(available in English and French) > more |
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The Application of International Humanitarian Law and Human Rights Law to International Organizations
> more |
|
Expert Meeting on the Supervision of the Lawfulness of Detention During Armed Conflict
(available in English only) > more |
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Expert Meeting on Multinational Peace Operations: Applicability of International Humanitarian Law and
International Human Rights Law to UN Mandated Forces, 11-12 December 2003
(available in English only) > more |