The formation of the treaty law of non-international armed conflicts / Laura Perna.

Format:

Book

Author/Creator:

Perna, Laura.

Series:

International humanitarian law series ; v. 14.

International humanitarian law series ; v. 14

Language:

English

Subjects (All):

Treaties.

Civil war.

Pacta sunt servanda (International law).

Physical Description:

xviii, 168 pages ; 25 cm.

Place of Publication:

Leiden ; Boston : M. Nijhoff Publishers, [2006]

Summary:

The purpose of this work is to trace the processes that led and continue to lead to the formation of the treaty norms applicable in non-international armed conflicts. If the purpose of humanitarian law is to achieve a balance between military necessity and humanitarian considerations and to prevent unnecessary suffering and destruction, humanitarian law rules should be equally applicable to both international and internal armed conflicts. Whilst, however, there are a huge number of treaty provisions applicable to international armed conflicts, very few provisions are specifically designed to regulate non-international armed conflicts despite the dramatic increase in the number of such conflicts. This study investigates the reasons behind the differences by analysing, inter alia, questions such as: Where does the international law of internal armed conflicts come from? Why did it evolve differently from the law regulating international armed conflicts? Where is the international law of internal armed conflicts going?

Contents:

Chapter I The Evolution of the Concept of Non-International Armed Conflicts in Early Times 1

1 The Christian tradition and the conduct of hostilities in non-international armed conflicts 1

2 The doctrine of natural law and the social contract theory 9

3 Natural rights, revolutions and the legitimisation of power 11

4 The theory of state sovereignty 13

5 Non-international armed conflicts in the work of the early international law jurists: Vitoria, Ayala, Grotius, Gentili, and Vattel 15

6 The view of the makers of military strategy in early times 23

Chapter II From the Lieber Code to the Drafting of Common Article 3 of the Geneva Conventions: The Rise of International Law Concern 29

1 The theory of recognition of belligerency 29

2 The American civil war and the Lieber code 31

3 The role of the International Committee of the Red Cross (ICRC) in the formation of humanitarian law 34

4 The influence of the Spanish civil war on the development of rules of law applicable in non-international armed conflicts 39

5 The evolution of the principle of state sovereignty and the formation of rules of law applicable in non-international armed conflicts 41

6 The impact of the human rights movement on the international scene 45

7 Right to revolt and the Christian tradition 48

8 An overview of the drafting history of Common Article 3 to the Geneva Conventions of 1949 49

Chapter III The Evolution in the Elements Shaping the Treaty Law Rules Applicable in Non-International Armed Conflicts 61

1 The makers of military strategy and non-international armed conflicts 61

1.1 Internal armed conflicts and guerrilla warfare 62

1.2 The strategy of counter-insurgency 64

1.3 Case studies: Northern Ireland, Latin America, and Algeria 68

2 The Christian and Islamic traditions and humanitarian law: A different evolution 72

3 The impact of the work of regional and international human rights bodies on the formation of rules of law relating to internal armed conflicts 77

4 The role of Non-Governmental Organizations (NGOs) in the formation of the treaty law of non-international armed conflicts 91

Chapter IV 1949-1980: Protocol II Additional to the Geneva Conventions of 1949 and the Conventional Weapons Convention 99

1 The drafting history of Protocol II 99

2 The background to the Conventional Weapons Convention and to its Landmines Protocol 107

Chapter V 1980-the Present: A Dramatic Increase in the Number of Treaty Law Rules Applicable in Non-International Armed Conflicts 113

1 1980-1996: The rise of international concern toward a complete ban of landmines. Amended Protocol II 114

2 Military Weapons and the Formatiion of Humanitarian Law: The Ottawa Process and the Second Review Conference of the Conventional Weapons Convention 122

3 The protection of cultural property: The Second Hague Protocol 128

4 Children and armed conflicts: The Optional Protocol to the Convention on the Rights of the Child (CRC) on the involvement of children in armed conflict 131

Chapter VI Reaching an Agreement on Criminalizing the Violations of the Rules of Law Applicable in Non-International Armed Conflicts: The Statute of the International Criminal Court (ICC) 135

1 Punishing the law-breaker prior to the drafting of Common Article 3 to the Geneva Conventions 135

1.1 The Convention on the Prevention and Punishment of the Crime of Genocide (1948) 138

2 1949-1980: No liability for the violations of the law of internal armed conflicts 139

2.1 Article 3 Common to the Geneva Conventions and enforcement measures 139

2.2 1949-1980: No prosecution for those who commit wartime offences 140

2.3 Protocol II Additional to the Geneva Conventions and enforcement measures 142

3 1980-the present: The prosecution of war criminals is on the national and international agenda 144

3.1 The enforcement of the law of non-international armed conflicts at the national level 144

3.2 The enforcement of the law of non-international armed conflicts at the international level 146

3.3 The work of the ICTY relating to internal armed conflicts 149

4 The International Criminal Court 152

4.1 Short overview of the main stages that have led to the adoption of the Rome statute 153

4.2 The ICC and non-international armed conflicts 154.

Notes:

Includes bibliographical references and index.

ISBN:

9004149244

OCLC:

70131253