International Law in the Transition to Peace : Protecting Civilians Under Jus Post Bellum

This book proposes a normative framework specifically designed for the complex and legally uncertain time period between armed conflicts and peace. As such, it contributes both to the furthering of a jus post bellum framework, and to enhanced legal clarity in complex and legally uncertain environments. This, in turn, contributes to strengthened protection engagements, and thus to improved prospects of enabling sustainable peace and security in both national and international perspectives. The book offers a novel but persuasive argument for a legal framework specific for transitional environments. Such legal framework, it is argued, is warranted in order to enable legal clarity to contemporary and outstanding legal issues, as well as to furthering peace efforts in complex environments. The legal framework suggested proposes a dividing line between applicable legal frameworks that, it is submitted, enhances both legal clarity on protection engagements and the quest for sustainable peace. The framework proposed is founded on a legal analysis of the protective nature and function of law. It thus provides a rare but important perspective on law that is of value in the quest for sustainable peace and security. The research draws uniquely on both contemporary legal debates, and on peace and conflict research. It does so in order to enable legal analysis that is both legally sound, as well as appropriate and adequate in today’s peace and security realities. The book provides a valuable resource for academics, researchers and policy-makers in the areas of Public International Law, International Humanitarian Law, International Human Rights Law, (the law of) Peace Operations, and Peace and Security Studies. This book proposes a normative framework specifically designed for the complex and legally uncertain time period between armed conflicts and peace. As such, it contributes both to the furthering of a jus post bellum framework, and to enhanced legal clari Cover 1 Half Title 2 Series Page 3 Title Page 4 Copyright Page 5 Dedication 6 Table of contents 8 Acknowledgement 14 Abbreviations 15 Table of cases 17 Table of legislation 21 Section I Introduction 24 Chapter 1 Introduction 26 1.1 Background 27 1.2 Protection of civilians jus post bellum 30 1.3 Definitions 32 1.4 Outline 34 Section II Setting the scene: A brief history, and international legal foundations of United Nations peace operations 36 Chapter 2 A brief historical account of security, protection, and United Nations peace operations 38 2.1 The rise of human security 41 2.2 A brief history of United Nations peace operations 45 2.3 The evolution of protection in United Nations peace operations 47 Chapter 3 International law and the legal foundations of peace operations 51 3.1 State sovereignty, jurisdiction, and peace operations 53 3.2 The UN Charter, peace operations and international law 58 3.3 Scope and limitation of the Security Council’s authority 60 Chapter 4 Applicability of international law to peace operations 65 4.1 The Security Council and law 66 4.2 The legal character of Security Council resolutions 68 4.3 Applicability of international human rights law to peace operations 72 4.3.1 General principles and customary law as sources of human rights obligations of peace operations 74 4.3.2 The UN Charter and ‘principles and purposes’ as sources of human rights obligations 75 4.3.3 Security Council mandates as a source of legal obligations of peace operations 79 4.4 Applicability of international humanitarian law to peace operations 80 4.4.1 The Safety Convention 85 4.4.2 The SG Bulletin on Observance by United Nations Forces of International Humanitarian Law 87 4.4.3 Applicability of the law of occupation to peace operations 89 Section III Protection of civilians in contemporary context: Policy, guidelines, and mandates on protection 94 Chapter 5 The concept of protection in United Nations policy and guidance instruments 96 5.1 The definition of protection of civilians in UN peace operations 97 5.2 Protection of Civilians: Implementing Guidelines for Military Components of United Nations Peacekeeping Missions 102 5.3 Use of force by military components in United Nations peacekeeping operations 105 5.4 The role of United Nations police in the protection of civilians 110 Chapter 6 Security Council mandates to protect civilians 116 6.1 Contemporary mandates on protection 116 6.2 A new generation of protection mandates: protection through warfare? 121 6.3 Chapter VII and ‘all necessary means’: reappraising the executive character of mandates 124 Section IV An introduction to the law of protection under jus post bellum 126 Chapter 7 International human rights law under jus post bellum 128 7.1 The special character of IHRL reinforces its centrality for protection under jus post bellum 128 7.2 The universality of human rights and the distinction between positive and negative obligations 132 7.3 Extraterritorial human rights obligations of states 134 7.4 An emerging impact-based approach to extraterritorial human rights obligations? 144 Chapter 8 International Humanitarian Law under jus post bellum 150 8.1 Material scope of application of IHL 151 8.2 Temporal scope of application of IHL 151 8.3 Geographical scope of application of IHL 155 8.4 Material, temporal and geographical scope of the law on occupation 157 Chapter 9 Identification and classification of armed conflicts 160 9.1 Identification and classification of an international armed conflict 161 9.2 Identification and classification of non-international armed conflicts under treaty law 163 9.2.1 Common Article 3 of the Geneva Conventions (CA3) 166 9.2.2 Additional Protocol II (APII) 171 9.2.3 The ICC Statute – a third threshold? 176 9.3 Differentiating between CA3 and APII conflicts: enhancing legal clarity and advancing prospects for effective, purposive and sustainable protection under jus post bellum 176 9.4 Internationalisation of a non-international armed conflict 183 9.5 Classifying an armed conflict involving a peace operation 184 Section V The protective nature and function of law: Towards a normative framework for effective, purposive, and sustainable protection under jus post bellum 188 Chapter 10 The protective nature and function of the law enforcement paradigm under International Human Rights Law 190 10.1 Regulation of the use of force in IHRL 191 10.1.1 International law of law enforcement 191 10.1.2 Principles of (absolute) necessity and proportionality in IHRL 194 10.1.3 Requirement of graduated force, proportionality and the notion of ‘minimum use of force’ in peace operations 197 10.2 Self-defence as a justification for the resort to force 200 Chapter 11 Protective nature and function of the paradigm of conduct of hostilities under International Humanitarian Law 206 11.1 Terminology in relation to the regulation of conduct in IHL 208 11.2 Regulation of conduct of hostilities in IHL 210 11.2.1 The principle of military necessity 211 11.2.1.1 The permissive and restrictive function of military necessity 212 11.2.1.2 Military necessity as determinative of the protective nature and function of IHL 218 11.2.2 The principle of distinction 219 11.2.2.1 Combatants and ‘fighters’ 221 11.2.2.2 The concept of civilians 223 11.2.2.3 Direct participation in hostilities and continuous combat function 223 11.2.3 The principle of proportionality 225 11.2.3.1 Temporal and geographical proximity requirements of military advantage 228 11.2.4 Relation between military necessity and proportionality 232 Section VI A protection regime jus post bellum: The law of occupation, the law of non-international armed conflicts and an emergency law regime under jus post bellum 234 Chapter 12 Protection in the law of occupation 236 12.1 Regulation of conduct in the law of occupation 236 12.2 Identifying a dividing line between conduct of hostilities and law enforcement in situations of occupation 238 Chapter 13 Protection in non-international armed conflicts 241 13.1 Identifying a dividing line between IHL and IHRL in NIACs 241 13.2 IHRL as a prevailing regime in NIAC? Criteria for determining thresholds for the application of IHL in NIAC 245 13.3 The significance of the purpose of force 246 Chapter 14 An emergency law regime under jus post bellum – a missing link to peace? 249 14.1 Recent developments in addressing situations of emergency 250 14.2 The law regulating emergencies and emergency powers 254 14.2.1 Case law on derogations in the jurisprudence of the ECHR 259 14.2.2 Guiding instruments on derogation under the ICCPR and the ACHR 264 14.2.3 Contextualising the law on state of emergency under jus post bellum 265 14.3 Differentiating emergencies from armed conflicts 267 14.4 The purpose of derogation 269 14.5 Extraterritorial derogation, state sovereignty and peace operations 271 Chapter 15 Identifying a dividing line between the conduct of hostilities and law enforcement jus post bellum 278 15.1 Intensity of violence and level of control as criteria for distinguishing between law enforcement and conduct of hostilities 279 15.2 The geographical scope of the law on targeting: combat zone as a distinguishing factor between law enforcement and conduct of hostilities? 283 15.3 Distinguishing between law enforcement in the context of armed conflicts and peacetime law enforcement 285 Section VII Conclusion – a normative framework for protection under jus post bellum 290 Chapter 16 A normative framework for effective, purposive, and sustainable protection of civilians jus post bellum 292 16.1 Primacy of IHRL: an individual- and human rights-centred approach to protection under jus post bellum 293 16.2 Extraterritorial derogation for enhanced protection of civilians under jus post bellum 294 16.3 Threshold 1: Common Article 3 as a first threshold for the application of IHL in relation to protection engagements under jus post bellum 295 16.4 Threshold 2: utilising APII criteria for the application of IHL in relation to protection engagements under jus post bellum 296 16.5 Threshold 3: distinguishing between resumption and rise of a conflict 297 Bibliography 300 Index 338 Jus,post,Bellum;,International,Human,Rights,Law;,International,Humanitarian,Law;,Protection,of,Civilians;,United,Nations,peace,operations Jus post Bellum,International Human Rights Law,International Humanitarian Law,Protection of Civilians,United Nations peace operations "This book proposes a normative framework specifically designed for the complex and legally uncertain time period between armed conflicts and peace. As such, it contributes both to the furthering of a jus post bellum framework, and to enhanced legal clarity in complex and legally uncertain environments. This, in turn, contributes to strengthened protection engagements, and thus to improved prospects of enabling sustainable peace and security in both national and international perspectives. The book offers a novel but persuasive argument for a legal framework specific for transitional environments. Such legal framework, it is argued, is warranted in order to enable legal clarity to contemporary and outstanding legal issues, as well as to furthering peace efforts in complex environments. The legal framework suggested proposes a dividing line between applicable legal frameworks that, it is submitted, enhances both legal clarity on protection engagements and the quest for sustainable peace. The framework proposed is founded on a legal analysis of the protective nature and function of law. It thus provides a rare but important perspective on law that is of value in the quest for sustainable peace and security. The research draws uniquely on both contemporary legal debates, and on peace and conflict research. It does so in order to enable legal analysis that is both legally sound, as well as appropriate and adequate in today's peace and security realities"-- Provided by publisher