DOCSLIB.ORG

Prohibition and Punishment of Torture and Other Forms of Ill-Treatment

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Prohibition and Punishment of Torture and Other Forms of Ill-Treatment ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN LAW ____________________________________ Prohibition and punishment of torture and other forms of ill-treatment There is an absolute ban on torture and other cruel, inhuman or degrading treatment and outrages upon personal dignity under international humanitarian law (IHL) and international human rights law (IHRL). The prohibition of torture and other forms of ill- treatment derives from the Geneva Conventions of 1949, their Additional Protocols of 1977, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, and other international instruments. Both IHL and IHRL converge and complement each other in establishing a comprehensive legal framework for the prevention and punishment of acts of torture and other forms of ill-treatment. 1. Definition of torture and other person to such a degree as to be treatment to be war crimes in both forms of ill-treatment generally recognized as an outrage international and non-international upon personal dignity. Unlike armed conflicts (Art. 8(2)(a)(ii) and Under international humanitarian torture, there is no requirement that 8(2)(c)(i) and (ii)) as well as crimes law (IHL) and international human these acts be inflicted for a specific against humanity (Art. 7(1)(f) and rights law (IHRL), the definition of purpose. (k)). torture comprises three main aspects: IHL applies to all parties to an Rule 90 of the ICRC study on armed conflict. In contrast IHRL customary IHL (2005) establishes 1. Any act by which severe pain or treaties, including the 1984 that the prohibition on torture, cruel suffering, whether physical or Convention against Torture and or inhuman treatment and outrages mental, is inflicted on a person; Other Cruel, Inhuman or Degrading upon personal dignity, in particular 2. The act must be intentionally Treatment or Punishment (CAT), humiliating and degrading inflicted; apply exclusively to States. As treatment, in both international and 3. The act must be instrumental for such, Article 1 of the CAT contains non-international armed conflicts is such purposes as: the additional requirement that the a norm of customary international (a) obtaining from the individual or prohibited acts be “inflicted by or at law. Further, Rule 156 provides a third person information or a the instigation of or with the that serious violations of IHL, confession, or consent or acquiescence of a including torture and other inhuman (b) punishing him/her for an act public official or other person acting treatment, constitute war crimes in he/she or a third person has in an official capacity.” both international and non- committed or is suspected of international armed conflicts.1 having committed, or (c) intimidating him/her or a third 2. Key international instruments person, or b) IHRL (d) coercing him/her or a third a) IHL person, or The prohibition on torture is (e) for any reason based on The main IHL instruments that enshrined in international human discrimination of any kind. prohibit torture and other forms of rights instruments, such as the ill-treatment include: the 1907 1948 Universal Declaration of What distinguishes torture from Hague Regulations respecting the Human Rights (Art. 5), the 1966 other forms of ill-treatment, which Laws and Customs of War on Land International Covenant on Civil and include other cruel, inhuman or (Art. 4); the four Geneva Political Rights (Art. 7), the 1984 degrading treatment and outrages Conventions of 1949 (GC I, Art. 12; Convention against Torture, and upon personal dignity, is the third – GC II, Art. 12; GC III, Arts 13, 17 the 1989 Convention on the Rights purposive – aspect. and 87; GC IV, Arts 27 and 32; of the Child (Art. 37(a)). GC I-IV common article 3 and arts Inhuman and cruel treatment is 50, 51, 130 and 147 respectively; The prohibition on torture is also defined as the infliction of severe Additional Protocol I of 1977 contained in regional human rights physical or mental pain or suffering, (Art. 75(2)(a)(ii)); and Additional which goes beyond mere Protocol II of 1977 (Art. 4(2)(a)). degradation or humiliation. 1 See ICRC Customary Law Outrages upon personal dignity are The 1998 Rome Statute of the database at acts that humiliate, degrade or International Criminal Court (ICC) http://www.icrc.org/customary- otherwise violate the dignity of the deems torture and other inhuman ihl/eng/docs/home 06/2014 instruments, such as the 1950 To give effect to the principle of European Convention for the complementarity, States party to Protection of Human Rights and the ICC Statute must adopt Fundamental Freedoms (Art. 3); domestic legislation to incorporate c) Prosecuting or extraditing the 1969 American Convention on all crimes under the Statute, alleged offenders Human Rights (Art. 5.2); the 1981 including the crime of torture. African Charter on Human and (i) IHL Peoples’ Rights (Art. 5); the 1985 (ii) IHRL Inter-American Convention to States also have an obligation to Prevent and Punish Torture; the Article 4(1) of the CAT obliges all search for persons alleged to have 1987 European Convention for the States Parties to ensure that all committed, or to have ordered to Prevention of Torture and Inhuman acts of torture are offences under be committed, such grave or Degrading Treatment or their criminal law, including breaches, and to bring such Punishment; the 2004 Arab Charter attempts to commit torture, as well persons, regardless of nationality, on Human Rights (Art. 8); and the as acts by any person that before the State’s own courts, if 2012 Human Rights Declaration by constitute complicity or participation such persons are not extradited to the Association of Southeast Asian in torture. States Parties are also another State. This is reflected in Nations (Art. 14) required to make these offences Articles 49/50/129/146 of GC I-IV, punishable by appropriate penalties respectively, and in AP I, Articles 3. Key legal obligations deriving that take into account their grave 85(1) and 86(1). from the prohibition of torture nature. and other forms of ill-treatment (ii) IHRL under international law b) Jurisdiction over acts of torture According to Article 7(1) of the a) Enacting criminal sanctions CAT, States are required to (i) IHL prosecute the alleged perpetrators (i) IHL of the offence of torture in any States are required under the territory within their jurisdiction, if Torture and other forms of ill- Geneva Conventions and such persons are not extradited to treatment are grave breaches of Additional Protocol I to exercise another State. the Geneva Conventions (GC) and universal jurisdiction over grave their additional Protocols (AP), as breaches, including acts of torture Under Article 8 of the CAT, States well as being serious violations of and other forms of ill-treatment must make torture, including international humanitarian law and committed during international complicity or participation therein, war crimes in both international and armed conflicts. Thus, States have an extraditable offence in any non-international armed conflicts. an obligation to search for and extradition treaty between States The relevant provisions include: prosecute alleged perpetrators, Parties. Under Article 8(2), where Articles 50/51/130/147 of GC I-IV, regardless of their nationality and States make extradition conditional respectively, and their common of where the act was committed. upon the existence of an extradition Article 3(1)(a); Article 85 of AP I; Under Rule 157 of the ICRC study treaty, the CAT may serve as a Article 4(2)(a) of AP II; on customary IHL, States also have legal basis for extradition if a State Article 8(2)(ii) of the ICC Statute; the right to vest universal does not have an extradition treaty and Rule 90 of the ICRC study on jurisdiction in their national courts with the requesting State. customary IHL. for war crimes, including torture and other forms of ill-treatment d) Non-refoulement States have a duty to enact committed in non-international legislation prohibiting acts of torture armed conflicts. The CAT (Art. 3) provides that no and other forms of ill-treatment and State Party shall expel, return punishing those who commit them (ii) IHRL ("refouler") or extradite a person to or order them to be committed. another State where there are Individuals can be held criminally Under the CAT, States Parties substantial grounds for believing responsible for committing these must establish jurisdiction over acts that he would be in danger of being war crimes. Further, military of torture where the offences are subjected to torture. The CAT commanders are required to committed in any territory under further states that, for the purposes prevent, repress and take action their respective jurisdiction, or of determining whether there are against those under their control where the alleged offender or the such grounds, the competent who commit acts of torture and victim is a national of the State. authorities shall take into account other forms of ill-treatment. These all relevant considerations protections are listed under Articles In addition, the CAT specifies in including, where applicable, the 49/50/129/146 of GC I-IV, Article 5(2) that a State can also existence in the State concerned of respectively, and their common establish universal jurisdiction over a consistent pattern of gross, Article 3(1)(a); AP I, Articles 86 and the crime of torture where the flagrant or mass violations of 87; AP II, Article 4(2)(a); and Rules offender is present in any territory
Load more

Recommended publications
  • Publicationsthe Prohibition of Torture
    THE PROHIBITION OF TORTURE: AN INTRODUCTORY GUIDE This is a publication of the Center for Hu- man Rights & Humanitarian Law at American University College of Law — authored by Associate Director of Impact Litigation and the Kovler Project Against Torture Jennifer de Laurentiis and Assistant Director of the Anti- Torture Initiative Andra Nicolescu, and designed by Center Program Coordinator Anastassia Fagan. TABLE OF CONTENTS MESSAGE FROM DEAN CAMILLE A. NELSON.......................................................................................................i MESSAGE FROM CENTER DIRECTOR, PROFESSOR MACARENA SAEZ.........................................................ii INTRODUCTION: WHY DOES THE PROHIBITION OF TORTURE AND OTHER ILL-TREATMENT MATTER?...............................................................................................................1 WHAT IS TORTURE?.....................................................................................................................................................2 WHAT ARE “OTHER ACTS OF CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT WHICH DO NOT AMOUNT TO TORTURE?”...................................................5 WHAT IS THE DISTINCTION BETWEEN TORTURE & OTHER ILL-TREATMENT?...........................................6 CAN PRIVATE ACTORS COMMIT “TORTURE”?......................................................................................................7 WHAT DOES THE CONVENTION AGAINST TORTURE REQUIRE?.....................................................................9
    [Show full text]
  • The Politics of Torture in Great Britain, the United States, and Argentina, 1869-1977
    Claremont Colleges Scholarship @ Claremont CMC Senior Theses CMC Student Scholarship 2014 Holes in the Historical Record: The olitP ics of Torture in Great Britain, the United States, and Argentina, 1869-1977 Lynsey Chediak Claremont McKenna College Recommended Citation Chediak, Lynsey, "Holes in the Historical Record: The oP litics of Torture in Great Britain, the United States, and Argentina, 1869-1977" (2014). CMC Senior Theses. Paper 875. http://scholarship.claremont.edu/cmc_theses/875 This Open Access Senior Thesis is brought to you by Scholarship@Claremont. It has been accepted for inclusion in this collection by an authorized administrator. For more information, please contact [email protected]. CLAREMONT McKENNA COLLEGE Holes in the Historical Record: The Politics of Torture in Great Britain, the United States, and Argentina, 1869-1977 SUBMITTED TO PROFESSOR LISA FORMAN CODY AND DEAN NICHOLAS WARNER BY LYNSEY CHEDIAK FOR SENIOR HISTORY THESIS SPRING 2014 April 28, 2014 Acknowledgments This thesis would not have been possible without the brilliant minds of my professors at Claremont McKenna College and the encouragement of my family. First, I would like to thank my reader and advisor, Professor Lisa Forman Cody. From my first day in her class, Professor Cody took what I was trying to say and made my statement, and me, sound ten times smarter. From that moment, I started to truly believe in the power of my ideas and a central tenet that made this thesis possible: there is no wrong answer in history, only evidence. Through countless hours of collaboration, Professor Cody spurred my ideas to levels I never could have imagined and helped me to develop my abilities to think critically and analytically of the historical record and the accuracy of sources.
    [Show full text]
  • Reproductive Rights Violations As Torture Or Ill-Treatment
    REPRODUCTIVE RIGHTS VIOLATIONS AS TORTURE OR ILL-TREATMENT CAT Committee Jurisprudence on Violations of Reproductive Rights The Committee against Torture (CAT Committee) has found that several restrictions on access to reproductive health services and abuses that occur when seeking these services may constitute violations of the Convention against Torture (CAT) because they put women’s health and lives at risk or may otherwise cause them severe physical or mental pain or suffering. For instance, the CAT Committee has found that complete bans on abortion, which exist in only five countries in the world (Nicaragua, El Salvador, Chile, Malta, and the Dominican Republic) may constitute torture or ill-treatment on their face, because these laws place women at a risk of preventable maternal mortality. • As the CAT Committee noted in its 2009 review of El Salvador, “the current Criminal Code of 1998 penalizes and punishes with imprisonment for periods ranging from 6 months to 12 years all forms of recourse to voluntary interruption of pregnancy, including in cases of rape or incest, which has resulted in serious harm to women, including death,” recommending that El Salvador take measure to prevent torture and ill-treatment by “providing the required medical treatment, by strengthening family planning programmes and by offering better access to information and reproductive health services, including for adolescents.”1 The CAT Committee has also recommended that abortion be legal in a variety of instances where a pregnancy may cause a woman severe physical or mental suffering. To date, the CAT Committee has found that states have an obligation to ensure access to abortion for women whose health or life is at risk, who are the victims of sexual violence, or who are carrying non- viable fetuses.
    [Show full text]
  • Torture and the Cruel, Inhuman and Degrading Treatment of Detainees: the Effectiveness and Consequences of 'Enhanced
    TORTURE AND THE CRUEL, INHUMAN AND DE- GRADING TREATMENT OF DETAINEES: THE EFFECTIVENESS AND CONSEQUENCES OF ‘EN- HANCED’ INTERROGATION HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED TENTH CONGRESS FIRST SESSION NOVEMBER 8, 2007 Serial No. 110–94 Printed for the use of the Committee on the Judiciary ( Available via the World Wide Web: http://judiciary.house.gov U.S. GOVERNMENT PRINTING OFFICE 38–765 PDF WASHINGTON : 2008 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 VerDate Aug 31 2005 15:46 Jul 29, 2008 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 H:\WORK\CONST\110807\38765.000 HJUD1 PsN: 38765 COMMITTEE ON THE JUDICIARY JOHN CONYERS, JR., Michigan, Chairman HOWARD L. BERMAN, California LAMAR SMITH, Texas RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, JR., JERROLD NADLER, New York Wisconsin ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia HOWARD COBLE, North Carolina MELVIN L. WATT, North Carolina ELTON GALLEGLY, California ZOE LOFGREN, California BOB GOODLATTE, Virginia SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio MAXINE WATERS, California DANIEL E. LUNGREN, California WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah ROBERT WEXLER, Florida RIC KELLER, Florida LINDA T. SA´ NCHEZ, California DARRELL ISSA, California STEVE COHEN, Tennessee MIKE PENCE, Indiana HANK JOHNSON, Georgia J. RANDY FORBES, Virginia BETTY SUTTON, Ohio STEVE KING, Iowa LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida BRAD SHERMAN, California TRENT FRANKS, Arizona TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas ANTHONY D.
    [Show full text]
  • Tables for UN Compilation on Pakistan I. Scope of International
    Tables for UN Compilation on Pakistan I. Scope of international obligations1 A. International human rights treaties2 Status during previous cycle Action after review Not ratified/not accepted Ratification, accession or ICERD (1966) OP -CRC-AC (2016) ICRMW succession ICESCR (2008) ICPPED ICCPR (2010) ICCPR-OP 2 CEDAW (1996) OP-CAT CAT (2010) CRC (1990) OP-CRC-SC (2011) CRPD (2011) Complaints procedures, – – ICERD, art. 14 inquiries and ICCPR, art. 41 urgent action3 ICCPR-OP 1 OP-ICESCR OP-CEDAW CAT, arts. 20-22 OP-CRC-IC OP-CRPD ICRMW ICPPED Reservations and / or declarations Status during previous cycle Action after review Current Status ICESCR (General OP -CRC-AC – declaration, 2008) (Declaration, art. 3 para. 2, CEDAW (General minimum age of recruitment declaration and reservation 16 years, (2016) art. 29, para. 1, 1996) CAT (Reservation, arts. 8 para. 2, 28 para. 1 and 30 para. 1. 2010) ICCPR (General reservation, 2008) B. Other main relevant international instruments Status during previous cycle Action after review Not ratified Ratification, accession or Convention on the – Rome Statute of the succession Prevention and Punishment International Criminal Court of the Crime of Genocide Geneva Conventions of 12 Palermo Protocol5 August 19494 Additional Protocols I, II and III to the 1949 Geneva Conventions6 ILO fundamental – Conventions on refugees conventions7 and stateless persons8 – – Convention against Discrimination in Education – – ILO Conventions Nos. 169 and 1899 II. Cooperation with human rights mechanisms and bodies A. Cooperation
    [Show full text]
  • Application of the US Torture Statute to the Physical and Psychological
    Rape as Torture: Application of the U.S. Torture Statute to the Physical and Psychological Consequences of Rape and Sexual Violence on Victims Lindsay Gorman Rape is considered a crime against humanity and an act of torture in international law in large part due to its severe physical and psychological effects on individuals and communities. It is not the purpose of this memorandum to contrast U.S. and international jurisprudence, but rather to explore these physical and psychological effects common to incidents of sexual violence with an eye towards situating this crime within the bounds of the U.S. torture statute, 18 U.S.C. §2340. Elsewhere, we discuss the psychological motivations of the perpetrator of these crimes in the interest of satisfying the statute’s specific intent requirement. Here, our focus is on the victims—and precisely on showing that rape and sexual crimes indisputably meet Title 18’s severity standards. In this section, we will show that rape and sexual crimes: (1) have the potential to cause severe physical pain or suffering; (2) result in prolonged mental harm; and (3) cause this prolonged mental harm via circumstances enumerated under the U.S. torture statute. Points (2) and (3) are sufficient to show that rape and sexual violence amount to the “severe mental pain or suffering” stipulated by the statute. (1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions)
    [Show full text]
  • The Right to Political Participation in International Law
    The Right to Political Participation In International Law Gregory H. Fox I. INTRODUCTION ................................................ 540 I1. THE EMERGING INTERNATIONAL LAW OF PARTICIPATORY RIGHTS ................. 544 A. ParticipatoryRights Before 1948: The Reign of the State Sovereignty Approach ..... 544 B. The Nature and Scope of Post-War Treaty-Based ParticipatoryRights ........... 552 1. The InternationalCovenant on Civil and PoliticalRights ................ 553 a. Non-Discrimination .................................... 553 b. The Right to Take Part in Public Affairs........................ 555 c. Requirements Concerning Elections ........................... 555 2. The FirstProtocol to the European Convention on Human Rights ........... 560 a. Rights Concerning Elections ................................ 561 b. Non-Discrimination .................................... 563 3. The American Convention on Hwnan Rights ........................ 565 4. Other InternationalInstruments Guaranteeing ParticipatoryRights .......... 568 a. The African Charteron Hwnan and Peoples' Rights ................ 568 b. Council on Security and Co-operationin Europe Accords ............. 568 5. Summary of Treaty-Based Norms ................................ 570 II. INTERNATIONAL ELECTION MONITORING: THE ELABORATION AND ENFORCEMENT OF PARTICIPATORY RIGHTS ......................................... 570 A. Election Monitoring Priorto 1945 .................................. 571 B. Monitoring Under the United Nations System .......................... 572 1. The
    [Show full text]
  • Universal Declaration of Human Rights
    Universal Declaration of Human Rights Preamble Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, Whereas it is essential to promote the development of friendly relations between nations, Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom, Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms, Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge, Now, therefore, The General Assembly, Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.
    [Show full text]
  • Treatment of American Prisoners of War in Southeast Asia 1961-1973 by John N. Powers
    Treatment of American Prisoners of War In Southeast Asia 1961-1973 By John N. Powers The years 1961 to 1973 are commonly used when studying American POWs during the Vietnam War, even though history books generally refer to the years 1964 to 1973 in defining that war. Americans were captured as early as 1954 and as late as 1975. In these pages the years 1961 to 1973 will be used. Americans were held prisoner by the North Vietnamese in North Vietnam, the Viet Cong (and their political arm the National Liberation Front) in South Vietnam, and the Pathet Lao in Laos. This article will not discuss those Americans held in Cambodia and China. The Defense Prisoner of War/Missing Personnel Office (DPMO) lists 687 American Prisoners of War who were returned alive by the Vietnamese from 1961 through 1976. Of this number, 72 were returned prior to the release of the bulk of the POWs in Operation Homecoming in 1973. Twelve of these early releases came from North Vietnam. DPMO figures list thirty-six successful escapes, thirty-four of them in South Vietnam and two in Laos. There were more than those thirty-six escapes, including some from prison camps in Hanoi itself. Some escapes ended in recapture within hours, some individuals were not recaptured for days, and some were simply never seen again. There were individuals who escaped multiple times, in both North and South Vietnam. However, only thirty- six American prisoners of war escaped and reached American forces. Of those thirty- six successful attempts, twenty-eight of them escaped within their first month of captivity.
    [Show full text]
  • Accountability for Torture: Why a Criminal Investigation Is Necessary
    Accountability for Torture: Why a Criminal Investigation is Necessary The Senate Intelligence Committee’s torture report confirms that the CIA tortured and brutalized prisoners in secret prisons around the world. The report, which is the culmination of a multi-year inquiry, also provides startling, new details about the level of cruelty perpetrated in our names. The conduct that the report describes violates both international and domestic law. Much of this conduct was authorized at the highest levels of government, with the involvement of the White House, the Justice Department, and the Defense Department. Given the gravity of the conduct described in the report, the Justice Department has a duty to investigate issues of criminal responsibility. A criminal investigation is an unequivocal obligation under international law. It is also necessary to repair our country’s damaged moral authority and prevent similar abuses from occurring again. The Justice Department Should Appoint a Special Prosecutor To ensure that the investigation of the torture program is comprehensive and insulated from political interference, Attorney General Eric Holder should appoint a special prosecutor from within the Justice Department and transfer to that special prosecutor all of his authority to investigate and prosecute crimes relating to the program. A special prosecutor would be able to make prosecutorial decisions without having to seek the attorney general’s permission. The special prosecutor’s mandate should be broad. It should include the authority to investigate and prosecute decisions to approve torture, to carry it out, and to conceal it. The special prosecutor should also examine CIA efforts to impede or improperly access the Senate’s investigation of CIA torture.
    [Show full text]
  • Law of War Handbook 2005
    LAW OF WAR HANDBOOK (2005) MAJ Keith E. Puls Editor 'Contributing Authors Maj Derek Grimes, USAF Lt Col Thomas Hamilton, USMC MAJ Eric Jensen LCDR William O'Brien, USN MAJ Keith Puls NIAJ Randolph Swansiger LTC Daria Wollschlaeger All of the faculty who have served before us and contributed to the literature in the field of operational law. Technical Support CDR Brian J. Bill, USN Ms. Janice D. Prince, Secretary JA 423 International and Operational Law Department The Judge Advocate General's Legal Center and School Charlottesville, Virginia 22903 PREFACE The Law of War Handbook should be a start point for Judge Advocates looking for information on the Law of War. It is the second volume of a three volume set and is to be used in conjunction with the Operational Law Handbook (JA422) and the Documentary Supplement (JA424). The Operational Law Handbook covers the myriad of non-Law of War issues a deployed Judge Advocate may face and the Documentary Supplement reproduces many of the primary source documents referred to in either of the other two volumes. The Law of War Handbook is not a substitute for official references. Like operational law itself, the Handbook is a focused collection of diverse legal and practical information. The handbook is not intended to provide "the school solution" to a particular problem, but to help Judge Advocates recognize, analyze, and resolve the problems they will encounter when dealing with the Law of War. The Handbook was designed and written for the Judge Advocates practicing the Law of War. This body of law is known by several names including the Law of War, the Law of Armed Conflict and International Humanitarian Law.
    [Show full text]
  • Corporate Actors: the Legal Status of Mercenaries in Armed Conflict Katherine Fallah Katherine Fallah Is Ph.D
    Volume 88 Number 863 September 2006 Corporate actors: the legal status of mercenaries in armed conflict Katherine Fallah Katherine Fallah is Ph.D. candidate at the University of Sydney, presently working as a Research Associate to the Judges of the Federal Court of Australia. Abstract Corporate actors are taking on an increasingly significant role in the prosecution of modern warfare. Traditionally, an analysis of the law applicable to corporate actors in armed conflict commences with inquiry into the law as it applies to mercenaries. As such, the rise of the private military industry invites a reconsideration of the conventional approach to mercenaries under international law. This article critically surveys the conventional law as it applies to mercenaries, and considers the extent to which corporate actors might meet the legal definitions of a ‘‘mercenary’’. It demonstrates that even mercenaries receive protection under international humani- tarian law. The debate about the definition and status of mercenaries is not new. It is one which has provoked a polarized response from different groups of nations, with some arguing that mercenary activity should be prohibited outright, and others contending that mercenaries should not receive any differential treatment under international law. In the second half of the twentieth century, objectionsto mercenary activity were grounded in concerns about preserving the right of post-colonial states to self-determination. This approach is reflected in the language adopted by the United Nations in its persistent consideration of the use of mercenaries ‘‘as a means of violating human rights and impeding the exercise 599 K. Fallah – Corporate actors: the legal status of mercenaries in armed conflict of the right of peoples to self-determination’’.1 Until recently, legal consideration of corporate actors in armed conflict was limited to the question of mercenaries.
    [Show full text]