Pretoria University Law Press (PULP)

PULP is an open-access publisher based at the Centre for Human Rights, University of Pretoria

Convergence and Conflicts of Human Rights and International Humanitarian Law in Military Operations

Convergence and Conflicts of Human Rights and International Humanitarian Law in Military Operations
Edited by Erika de Wet and Jann Kleffner
2014
ISBN: 978-1-920538-32-3
Pages: 416
Print version: Available
Electronic version: Free PDF available

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About the publication

The book explores the implications of the increased interplay between international human rights law (IHRL) and international humanitarian law (IHL) in military operations, sometimes in ways that imply convergence and other times in ways that suggest conflict. These convergences and/ or conflicts are particularly acute in non-international armed conflicts, situations of belligerent occupation and in the area of peace support operations (PSOs). Non-international armed conflicts imply that individuals, including members of organized non-state armed groups and civilians that directly participate in hostilities, are ‘within the jurisdiction’ of the territorial state against whom they are fighting. IHRL and IHL may therefore apply in parallel. In a similar vein, the control exercised by a belligerent occupant regularly entails an exercise of ‘jurisdiction’ and hence triggers the applicability of human rights norms. As far as PSOs are concerned, it becomes increasingly difficult to classify them as taking place in a context of ‘peace’ or ‘armed conflict’. More often than not, the situation implies elements of both. In all of the aforementioned contexts, the interplay between the fields of IHRL and IHL as the areas of law that provide the most pertinent regulatory frameworks for the conduct of pertinent actors – states, international organisations, organised armed groups and individuals – is elevated to great practical significance. This edited volume contains 16 peer-reviewed essays by academics and practitioners.

About the editors:

Erika de Wet is Co-Director of the Institute for International and Comparative Law in Africa and Professor of International Law in the Faculty of Law of the University of Pretoria.
Jann Kleffner is Professor of International Law and Head of the International Law Centre at the Swedish Defence University.


Table of Contents

Affiliations of authors
Introduction
PART A: THEORETICAL AND CONCEPTUAL ISSUES

  • 1. Human rights protection during armed conflict: what, when and for whom?
    Iain Scobbie
  • 2. A gender perspective on the relationship between human rights law and international humanitarian law
    Bonita Meyersfeld
  • 3. The applicability of the law of armed conflict and human rights law to organised armed groups
    Jann K Kleffner

PART B: SITUATIONAL PERSPECTIVES

  • 4. Interplay as regards dealing with detainees in international military operations
    Bruce ‘Ossie’ Oswald
  • 5. Interplay as regards conduct of hostilities
    Michelle Lesh
  • 6. On the relationship between international humanitarian law and human rights law in times of belligerent occupation: not yet a coherent framework
    Andrea Carcano
  • 7. The interplay of international humanitarian law and international human rights law in peace operations
    Marten Zwanenburg
  • 8. Selected aspects of applicable international human rights law and international humanitarian law in naval counter piracy operations off the east coast of Africa
    André R Smit

PART C: INSTITUTIONAL PERSPECTIVES

  • 9. The interplay between human rights and international humanitarian law in UN operations
    Daphna Shraga
  • 10. Convergence and conflicts of human rights and international humanitarian law in military operations: A NATO perspective
    Peter M Olson
  • 11. Conflicts of law: NGOs, international law, and civilian protection in wartime
    James Ross
  • 12. The legal advisor in the Canadian armed forces addressing international humanitarian law and international human rights law in military operations
    Blaise Cathcart

PART D: JUDICIAL PERSPECTIVES

  • 13. The relationship between international human rights and humanitarian law in the African human rights system: An institutional approach
    Frans Viljoen
  • 14. A regional perspective on the convergence and conflicts of human rights and international humanitarian law in military operations: The European Court of Human Rights
    Karin Oellers-Frahm
  • 15. Humanitarian law in the Inter-American human rights system
    Dinah Shelton
  • 16. The jurisprudence of the International Court of Justice and international criminal courts and tribunals
    Gentian Zyberi

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