The legal protection of civilians in armed conflict and military occupation : international humanitarian, human rights, and criminal laws, and the protection of civilians in the Israeli occupied Palestinian Territory, Afghanistan and Iraq
Date
2012
Authors
Motta, Francesco Pietro Alessandro
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This thesis examines the international legal framework for the protection of civilians in military occupation and armed conflict, and whether it sufficiently provides for appropriate legal (and factual) protection to civilians. The situations of Palestinians living in the Israeli occupied Palestinian territory (oPt - Palestine) and civilians subject to the armed conflicts and military occupations in Afghanistan and Iraq, and the legal protections offered to them by International Humanitarian Law (IHL), international human rights law (IHRL), and accountability mechanisms under international criminal law (ICL) are specifically examined. IHL and IHRL apply concurrently in military occupation and armed conflict, although IHL serves as the lex specialis. However, IHL and IHRL have largely failed to provide Palestinians minimum safeguards because of Israel's view that, except for principles of IHL embodied in customary international law, no IHL or human rights treaties apply to Palestinians living in the oPt. On Afghanistan and Iraq, the factual application of principles of IHL and IHRL to protect civilians and non-combatants remains problematic owing to factors, including: arguments about when international armed conflict, military occupation, and non-international armed conflict commenced and ended, and the content of applicable rules; the existence of weak central governments which cannot ensure application of the rules by their security forces in conflict areas; the non-application of human rights standards by the International Military Forces (IMF) in military operations; and non-State actors participating in hostilities who do not view themselves as bound by the relevant rules. The lack of consistent adherence to applicable norms or narrow interpretations of obligations by responsible actors, and lack of consistent enforcement or accountability at the national and international levels through the UN Security Council, the International Court of Justice or the International Criminal Court, or the lack of diplomatic, political, economic or legal action by the international community, means that application of the rules protecting civilians are largely left to the will of the parties (both State and non-State). International criminal law, as an accountability mechanism, is also problematic. Not all States are signatories to the ICC Statute, and its jurisdiction only becomes active if the relevant State is unwilling or unable to deal effectively with alleged breaches. Furthermore, very few States are willing to accept universal jurisdiction in relation to non-nationals accused of committing breaches or violations without a sufficient connection to their jurisdiction. To address the gap between the legal and factual protection of civilians, greater coherence and effective action by the international community is required to ensure respect and implementation of the rules and effectiveness of mechanisms of accountability and redress. Until such seriousness of intent is exhibited, legal protections offered to civilians living under military occupation or armed conflict will remain deficient- leaving civilians to continue to suffer disproportionately, such as in Afghanistan and Iraq, and particularly the Palestinian people, many of who have endured 60 years of displacement and 45 years of occupation, with little respect for their protection or their legal rights and with little prospect of redress in sight.
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Thesis (PhD)
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