The principal aim of this thesis is the articulation of an overarching conceptual framework for the formulation and evaluation of procedural rules for war crimes tribunals of all kinds. As such, it examines an area of international procedural criminal law largely neglected by scholars and researchers. In setting out this framework, the thesis carries out three functions. The first is to highlight the anomaly consisting in the co-existence of, on the one hand, a coherent and uniform body of substantive war crimes law and, on the other, an incoherent and inconsistent body of procedural war crimes law. The second is to expose the negative practical consequences flowing from this anomaly. The third, and most fundamental, is to show how the articulation of an overarching conceptual framework for war crimes tribunals takes the important first step in removing the anomaly and eliminating its negative practical consequences.

The aim of this thesis is to prove that Article 3 is not a sufficient tool for' regulating ill-treatment during interrogation. This issue can, in the view of this author, be best dealt with by reformulating the wording of Article 3 and by developing standards which would enhance the protect.!.on of detainees during the interrogation period. A summary of this thesis is as follows. The current system by v-:hich the European Court considers whether a breach of Article 3 has occurred is criticised. It is argued that the terms 'inhuman' and 'degrading' have little meaning in themselves and, that Article 3 should be reworded:so that it more accurate.l y describes the types of ill-treatment it sets out tQ prevent. The scope of Article 3, it .is argued, should also be widened. The thesis argues that there are a number of questioning methods which may currently be lawfully used but which Article 3 ought to prohibit. Additionally, it is contended that although the prohibition against torture is clear and unambiguous, the prohibition against ill-treatment not amounting to torture is weak, mainly due to the fact that the legal consequences following a finding of what is currently classed as inhuman and/or degrading treatment are under-developed. It is argued in this thesis that there are a number of standards which should be created and adopted by Signatory States to the European Convention aimed at setting out the legal consequences following a finding of prohibited ill-treatment not amounting to torture. As well, there should be standards developed of a more general nature aimed at enhancing the protection of detainees. These standards could be adopted through the ratification of an'-Additional Protocol to the European Convention. This thesis outlines a form that such a Protocol might take.

No description available.

Existing international legal literature recognizes that parties to armed conflicts and individual combatants are legally required not only to refrain from deliberately attacking non-combatants and civilian objects, but also to take care to ensure (to the extent feasible) that such persons are not killed or injured, and such objects not destroyed or damaged, by accident or incidentally during military operations. This thesis looks at the practical application of this latter principle during a twenty-five year period following the entry into force of Protocol I Additional to the Geneva Conventions of 1949. It contends that although the rules in this area are not easily susceptible to judicial enforcement, they are nevertheless sufficiently flexible and realistic to be capable of effective implementation without detriment to military effectiveness. Examination of the practice of parties to various conflicts during the period under review suggests that if and to the extent that belligerents are ready to devote time and resources to training, leadership, internal accountability procedures, and to the provision of appropriate military equipment, they can, so long as they are not too impatient for quick results, comply with the Protocol I rules on precaution in attack without the need for combatants to take unreasonable risks for the sake of enemy non-combatants. Efforts to enforce the law externally have, however, met with mixed results, revealing more about the selectivity of international justice than about its effectiveness as a tool for ensuring fair treatment for victims and alleged violators of the rules on precautions in attack. The most potentially effective form of enforcement of these rules appears set to remain, for the time being at least, the influence over belligerents which some third party states and other international actors retain, but are perhaps sometimes hesitant to exercise in the interests of promoting respect for the law of armed conflict.

The critique of the laws of war (and international law in general) coming out of America as the war on terror began seemed to have emerged as a response to the horror of 9/11 and the belief that the US was now engaged in a 'new paradigm' of warfare. However, the Bush administration's argument needs to be situated in a wider historical context. The source of the arguments against the post-Vietnam US military legal regime emerged well before 9/11 and can be traced to the end of the Cold War. These doctrines emerged out of the work of the 'new sovereigntists' and out of the frustrations guided by coalition warfare. The implications of the Bush administration's arguments are very significant for America's relationship with the laws of war, challenging the traditional division between jus ad bellum and jus in bello associated with the rise of the Westphalian system. As the world's most powerful army, and the most active army in the West, America's stance will have important implications as to how the laws of war are applied to future conflicts. Additionally, as the war on terror has generated new ethical dilemmas for the American military, the rebalancing of the priority between international law and the need for security has proved very problematic. Legal uncertainties and inconsistent policies have arguably resulted in several scandals, most notably the abuse at Abu Ghraib prison in Iraq. The thesis will trace US thinking on the laws of war since 1945, noting in particular the impact of Vietnam, the 1991 Gulf War, Kosovo, Afghanistan and Iraq.

This thesis analyses the international legal standing of the right to reparations for victims of serious human rights and humanitarian law violations and assesses the degree of practical implementation of the right at the national level through post-conflict and transitional justice measures. The central objective of this study is to chart and evaluate developments in law and practice in order to substantiate arguments in favour of an emerging customary right for individuals to receive reparations for serious violations of human rights and a corresponding responsibility of States. To this end, Part I explores the customary nature of human rights and humanitarian law provisions, outlines the basic premise of State responsibility in relation to violations and identifies the general international norms which establish the obligation of States to provide reparations. An examination of the jurisprudence of the International Court of Justice, the Articles on State Responsibility of the International Law Commission and the convergence of norms in different branches of international law, notably human rights law, humanitarian law and international criminal law as well as extensive human rights jurisprudence, international as well as regional, supports the position that the right to reparations is gaining customary recognition. The adoption in 2006 of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law by the General Assembly of the United Nations further strengthens this claim. Following the legal analysis, Part II of the study explores State practice in relation to reparations through four case studies; Guatemala, Sierra Leone, East Timor and Colombia between 1999 and 2009. Analysis is undertaken of peace agreements and to what extent post-conflict measures, such as Truth Commissions, have promoted State responsibility for reparations, been supported by the United Nations, interacted with human rights mechanisms and prompted subsequent elaboration of domestic legislation and reparations policies. The thesis concludes that there is significant convergence in law in favour of the right to reparations. The lacuna between norm and implementation should be overcome by reinforcing State responsibility to provide reparations for victims.

Treaty rules governing the classification of armed conflicts have been said to give rise to problems in both theory and .practice. This requires examination, as classification determines the specific set of ius in bello rules which must be applied to a particular armed conflict. If classification rules are problematic, the treaty and/or customary rules critical to the protection of victims and the conduct of hostilities may not be applied. This thesis first examines the treaty classification system to determine its legal coherence and practical workability. Each category within this system is considered in order to identify the criteria and sub-criteria which need to be satisfied for cl situation to fall within it. In doing so, treaty negotiation records and commentaries, State practice, court judgments and commentators' writings are analyzed. The thesis also investigates whether certain types of armed conflicts fall outside the current system. Second, it determines whether there is a customary classification system, an issue which rarely receives attention. It is also examined for legal coherence and practical workability. . It is concluded that, in the main, the treaty classification system is legally coherent and workable in practice, although there are legal grey areas which require attention. It also concludes that there is a customary classification system, albeit one which is still emerging. Although this system clearly recognizes a distinction between international and non-international armed conflicts, whether there is more than one threshold for non-international armed conflicts is unclear. In addition, some of the criteria and sub-criteria are not clearly ascertainable, and their scope is also frequently unclear. These issues notwithstanding, assertions that the treaty classification system is inherently problematic are argued to be unfounded. The reluctance by some States to acknowledge that they are engaged in particular types of armed conflicts leads to a proposal that an independent, authoritative and contemporaneous mechanism for classification determination is desirable.

The international normative framework relative to the regulation of means and methods of force is becoming more 'population-centric' in that both states and institutions of international civil society are ascribing greater weight to humanitarian considerations and individual rights. The material conditions as well as the strategic objectives of contemporary conflicts are two of the major driving forces behind this humanizing transformation. Contemporary jurisprudence, military doctrine and scholarly discourse recognize that the notion of a clear binary distinction between war and peace is untenable. In its place there is a growing appreciation of both the legal and the factual complexity of conflicts which can be described as full-spectrum, mixed or hybrid in character. Namely, in any given conflict there is likely to be a range of combat, law enforcement and humanitarian activities taking place simultaneously within a single operational theatre that can be characterized as urban, civilianized and transnational. The character of hostilities in these circumstances may frequently be described as unconventional, irregular and asymmetric and civilians are at extreme risk from the immediate and long term consequences of the use of force. Better objective criteria for conflict classification are needed to guide the application of the most appropriate and efficacious legal frameworks and for assessing the parameters of civilian immunity from attack. Connected to this, there needs to be progressive and principled interpretation and coordination of existing legal frameworks relative to the use of force, i.e. targeting and weaponry law. There are compelling theoretical, legal and strategic arguments for progressive reinterpretation of existing standards.

The codifying of international humanitarian law (IHL) that began in the mid-nineteenth century has not diminished the importance of customary international humanitarian law (CIHL), at least, in filling the gaps between the needs of the victims of armed conflicts and the inadequacies of conventional law. This is fully reflected in the case-law of international criminal tribunals (ICTs) where customary law has been extensively applied in areas that are not sufficiently regulated by treaty provisions or where the parties to armed conflicts were not parties to similar treaties. This study mainly focuses on the contributions of the judicial decisions of the ICTs to the current state of CIHL. It examines how the decisions have reaffirmed certain rules of CIHL or, when applicable, how they have influenced the subsequent development of CIHL. It also seeks to analytically study the rules of IHL identified as customary in the decisions of ICTs. In the course of research, the customary definition of non-international armed conflicts (NIACs), tests for determining internationalized armed conflicts, customary content of war crimes, and their application to NIACs are discussed in greater details. It is argued that the ICTs contribute to customary rules by way of reaffirmation and development. They develop CIHL through judicial interpretation or practical application of existing laws to new cases. CIHL has the advantages of flexibility in formation and universality in application. The case-law of ICTs, however, clearly reveals that the prime advantage of CIHL is its constituent elements and the prerogative that the ICTs can exercise in identifying customary rules. The ICTs deliberately choose combinations of the elements of opinio juris and State practice to draw the rules that they consider to be suitable for protecting the victims of armed conflicts. The methodology has been occasionally criticized to be ultra vires law-making. This research shows that the methodology is still definable in the positivist views to international law-making, though they have managed to develop CIHL beyond its traditional boundaries to cover areas of IHL, such as NIACs where States have been traditionally reluctant to develop.

The information revolution has transformed both modern societies and the way in which they conduct warfare. This thesis analyses the status of computer network attacks in international law and examines their treatment under the laws of armed conflict. A computer network attack is any operation designed to disrupt, deny, degrade or destroy information resident in computers and computer networks, or the computers and networks themselves. The first part of the thesis deals with a States right to resort to force and uses the U.N. Charter system to analyse whether and at what point a computer network attack will amount to a use of force or an armed attack, and examines the permitted responses against such an attack. The second part of the thesis addresses the applicability of international humanitarian law to computer network attacks by determining under what circumstances these attacks will constitute an armed conflict. It concludes that the jus in bello will apply where the perceived intention of the attacking party is to cause deliberate harm and the foreseeable consequence of the acts includes injury, death damage or destruction. In examining the regulation of these attacks under the Jus in bello the author addresses the legal issues associated with this method of attack in terms of the current law and examines the underlying debates which are shaping the modern laws applicable in armed conflict. Participants in conflicts are examined as increased civilianisation of the armed forces is moving in lock-step with advances in technology. Computer network attacks also present new issues for the law relating to targeting and precautions in attack which are addressed; objects subject to special protections, and their digital counterparts are also examined. Finally the thesis addresses computer network attacks against the laws relating to means and methods of warfare, including the law of weaponry, perfidy and the particular issues relating to digital property.