Law
The UN Charter contains an approximation of the natural law-like principles concerning humanity but also vigorously restates étatisme by protecting state sovereignty. Critics of humanitarian intervention rely on the principle of sovereignty and independence to uphold non-interference whereas others find humanitarian actions morally, if not legally, compelling. The mystification of legal discourse emanating from the interface of substructure and superstructure has been contested within the positivist tradition which arrives at different conclusions. For Austin, the legal character of a rule is affirmed irrespective of its contravening ethical imperatives whereas in Kelsen's theory, law becomes normative and de-psychologised. Kelsen, conscious of the identified dilemmas, wants to purify law from psychological, ethical, moral, sociological or political elements. Interestingly, Kelsen observes that an international organisation which establishes a system of international security can request a state to sacrifice the lives of its subjects in order to guarantee international security.
The phenomenon of pre-conditions, or to coin a phrase 'World Trade Organization (WTO) conditionality', from an implementation perspective has not been widely considered as such. Yet 'pre-conditions' as a technique for ensuring or facilitating the observance of the WTO code are a method employed by the WTO. It is of particular significance at the time of the accession of a state. This chapter focuses on accession alone but the observations are of general relevance. Under Article XXXIII of GATT 1994 accession by a government is permitted, so that an entity that is not a state or a nation can also be a party to the agreement. The chapter illustrates account from the report of the Working Party on the accession of El Salvador.
This book examines the historical evolution of international humanitarian law, in particular the legal and political bases for the penalisation of infractions associated with this body of law. The interaction of law, politics and financial considerations have proved detrimental for staging criminal prosecutions, even to this day, but ultimately have not negated the criminal liability of perpetrators. The book explores the various forms of direct participation in humanitarian law offences and the concept of the doctrine of superior responsibility. It stipulates the liability of those persons who, being in a position of authority, fail to prevent or punish crimes committed by their subordinates. The book deals with the elaboration of a legal theoretical model, defined as the 'duty to control', which attempts to address the gap identified in the relevant law of causation. It traces the evolution of humanitarian law in the context of non-international armed conflicts, with the aim of determining the application of humanitarian and criminal norms therein. Although for the purposes of humanitarian law the distinction between non-international and international conflicts is becoming less significant, people must still be aware of the mechanism known as 'conflict classification'. The world's major powers, with the exception of the UK, have expressly or implicitly widened their judicial jurisdiction by penalising extraterritorial breaches committed in internal armed conflicts. The book focuses on the legislative and judicial efforts of developed nations, mainly from Europe and North America. For these countries, the suppression of extraterritorial crime is not of imminent importance.
This chapter addresses the legal, philosophical and empirical enquiries which the protection of nationals entails and which would justify its assimilation into a concept of humanitarian intervention lato sensu. Prior to this, it is necessary to explore the legal and theoretical structure of the self-defence argument. The protection of nationals as self-defence implies an identification of interests between nationals and states which triggers the state's defensive action and coincides with the emergence of modern states. The development of self-defence into an international legal proposition coincides with the emergence of the community of states and the organisation of its enforcement and sanctioning mechanisms. In the self-defence argument, one can trace a state-conscious concept, an attempt to buttress legal discourse against de-legitimisation and destabilization. Since protection of nationals raises similar moral and legal questions as humanitarian intervention, this may jeopardise the clarity and efficiency of legal rules to order state interaction.
Humankind has enjoyed a rich history of wars, ever since men could organise themselves into fighting units against adversary forces. While international law categorically sanctioned the resort to war other than for legitimate self-defence, the family of nations has since time immemorial, whether individually or collectively, attempted to regulate personal conduct in warfare. After the Thirty Years War, which was terminated with the 1648 Peace Treaty of Westphalia, war became an interstate affair, rather than as previously a personal feud between princes. This chapter examines the evolution of custom in international humanitarian law and the elements that demonstrate evidence of state practice and opinio juris with regard to criminalisation. Wright, in his comments to the concluding Law Report of the allied trials of World War II, claimed that the punishment of war criminals had 'been recognised by the practice of nations and [was] part of the traditional law'.
War crimes are violations of the laws and customs of war incurring individual criminal responsibility. Although the prohibition of the recruitment of children under 15 was first promulgated as a rule of international humanitarian law, it might be said that it has since migrated to become a part of international human rights law. The prohibition on the recruitment and use of child soldiers was originally linked to situations of armed conflict. The prohibition of the recruitment of children can be seen as straddling both international human rights and international humanitarian law. However, in one respect in particular, it sits firmly on the international humanitarian law side of the fence. International human rights law binds only states. However, there now exists a ruling of an international tribunal on the point, an interlocutory decision of the Appeals Chamber of the Special Court for Sierra Leone in Prosecutor v. Samuel Hinga Norman.
This chapter redescribes one's actualisation under the discursive framework of human dignity which describes a process but also a human achievement. Human dignity encompasses his/her sense of humanity which transgresses the particular individual and reveals the solidarity established by acknowledging his/her humanity and his/her empowerment to share it. Human dignity as dignified existence becomes the guiding ideal in the redescription which transforms the legal argument concerning humanitarian intervention. The chapter relates human dignity to actuation, arguments or consequences and links the private and the public domain of human discourse. It presents the argument for humanitarian intervention in a discursive model of human dignity. The chapter also discusses the cases of Somalia and Kosovo to illustrate not only the contradictions of the legal arguments but also the labours in connection with the value of human dignity.
This chapter considers the consequences of children's mental and moral immaturity for their criminal responsibility for their actions, and the availability of a defence of duress in respect of child soldiers' responsibility for atrocities, given that their participation in hostilities is frequently coerced. It shows that international law provides only vague guidelines with regard to the minimum age of criminal responsibility and only permits duress as a defence to international crimes in very limited circumstances. The chapter looks at the scope of the defence of intoxication, although it will be seen quickly that this defence raises fewer issues, as it applies to children in much the same manner as it does to adults. In his report on the establishment of a Special Court, the UN Secretary-General acknowledged the difficulty of prosecuting child soldiers for war crimes and crimes against humanity, given their dual status as both victims and perpetrators.
This book describes the general forces which have shaped the law over the centuries, beginning in the Middle Ages and continuing to the present day. The law of neutrality is the law regulating the coexistence of war and peace. Its history is the story of the competition between opposing right, those of belligerents against those of neutrals. Belligerents claim a right to take whatever steps are necessary to bring their foes to heel including, when necessary, interrupting their trade with neutral persons. Neutrals claim a right to carry on doing 'business as usual' with the warring sides, with whom they are at peace. The most striking feature of the treaty network of the seventeenth and eighteenth centuries was its liberality towards neutrals. The single most important sign of lenient treatment of neutral commerce concerned the carriage of enemy property at sea. The eighteenth century was particularly rich in armed-neutrality initiatives. France was frequently their sponsor, with varying degrees of overtness, even though it was belligerent itself. The Convention on Neutrality in Naval War was more complex than its land-warfare counterpart. It combined a number of prohibitions upon belligerents with affirmative policing duties on neutrals. Neutrality considerations featured in several of the other Hague Conventions as well. The code-of-conduct advocates naturally favoured continuing the pre-war programme of codifying the law of neutrality, to bring it up to date in the light of the harsh experiences of the recent conflict.
Article 1 of Protocol No. 1 relates to property rights. Article 2 of Protocol No. 1 provides: 'No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.' Article 3 of Protocol No. 1 provides: 'The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.' Article 1 of Protocol No. 6 reads as follows: 'The death penalty shall be abolished. No one shall be condemned to such penalty or executed.'