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Statehood IHL

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22 views5 pages

Statehood IHL

Uploaded by

faizan21091999
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Bjornstjern Baade/Linus Muhrel/Anton O. Petrov (eds.

International Humanitarian Law


in Areas of Limited Statehood

Adaptable and Legitimate or Rigid and Unreasonable?

Nomos
Table of Contents

Acknowledgements 5
List of Contributors 11
Table of Treaties and other Legal Instruments 13
List ofAbbreviations 17

Introduction: International Humanitarian Law and Areas of


Limited Statehood 21
He ike Krieger, Bjbrnstjem Baade and Linus Miihrel

A. Areas of Limited Statehood 23


B. Legal Issues when other Actors Step in 24
C. International Humanitarian Law’s Lack of Responsiveness 33
D. About this Volume 35

Part I: Fundamental Considerations

A History of Division(s): a Critical Assessment of the Law of Non-


International Armed Conflict 43
Raphael Schafer

A. Introduction 43
B. What’s in a Name? The Different Denominations of the Jus in
Bello 46
C. The Current Jus in Bello: Its Humanitarian Present and Military
Past 48
D. In Lieu of a Conclusion: Thoughts on the Global War on Terror
and the Search for a New Concept 55

Sunken Vessel or Blooming Flower? Lotus, Permissions and


Restrictions within International Humanitarian Law 59
Katja Schoberl and Linus Miihrel

1
Table of Contents

A. Introduction 59
B. Theoretical Background 64
C. Existence of an International Humanitarian Law-Specific
Approach? 68
D. Conclusion 79

Comment: neither Sunken Vessel nor Blooming Flower! The Lotus


Principle and International Humanitarian Law 80
Pia Hesse

A. Introduction 80
B. The International Law on Jurisdiction 81
C. The International Law on Jurisdiction and International
Humanitarian Law 83
D. Conclusion 84

Part II: Detention in Non-Intemational Armed Conflict

Detention for Security Reasons by the Armed Forces of a State in


Situations of Non-Intemational Armed Conflict: the Quest for a
Legal Basis 89
Manuel Brunner

A. Introduction 89
B. Does International Humanitarian Law Provide a Legal Basis for
Detentions for Security Reasons? 90
C. Human Rights Law Applicable to Detention in Non-Intemational
Armed Conflicts 99
D. Potential Legal Bases for Detentions for Security Reasons in
Situations of Non-Intemational Armed Conflict 106
E. Summary and Conclusions 116

Comment: Detention in Non-Intemational Armed Conflict by States


- Just a Matter of Perspective on Areas of Limited Statehood? 118
Anton O. Petrov

A. Rule of Law and the Needfor Legal Authorisation 118

8
Table of Contents

B. Concerns Regarding the Human Rights Paradigm 120


C. Areas of Limited Statehood as a Challenge to the Dichotomy of
International Armed Conflicts and Non-Intemational Armed
Conflicts 121

Detention by Organised Armed Groups in Non-Intemational Armed


Conflicts: the Role of Non-State Actors in a State-Centred
International Legal System 124
Vincent Widdig

A. Introduction 124
B. The Legal Personality of Organised Armed Groups and the Risk
of their Legitimisation 127
C. The Argument of Effectiveness 136
D. Provisional Summary 139
E. The International Normative Basis 140
F. The Domestic Argument 151
G. Integrating Organised Armed Groups into the Process of ‘Law-
Making’ 154
H. Accountability 159
I. Conclusion 162

Comment: Detention by Armed Groups 163


Lars Muller

Part III: International Humanitarian Law and International


Investment Law

Foreign Investments as Non-Human Targets 171


Ira Ryk-Lakhman Aharonovich

A. Introduction 171
B. The Classification of Assets under Investment Law 174
C. The Classification of Commercial Objects under International
Humanitarian Law 178
D. The Classification of Investments into Protected Civilian Objects
and Permissible Military Targets 184

9
Table of Contents

E. Concluding Remarks 192

The Protection of (Foreign) Investment during Belligerent


Occupation - Considerations on International Humanitarian Law
and International Investment Law 194
Charlotte Ltilf

A. Introduction 194
B. The Laws of Belligerent Occupation and the Protection of
(Foreign) Investment 195
C. The Role of Investment Law during Belligerent Occupation 208
D. Concluding Remarks 215

Concluding Observations: how International Humanitarian Law


is Shaped to Meet the Challenges Arising from Areas of Limited
Statehood - Theoretical Problems in Practice 217
Bjomstjern Baade, Linus Miihrel and Anton O. Petrov

A. Introduction 217
B. The Research so far 218
C. The Development of Law in Theory and Practice 220
D. The ‘Nature’ of International Humanitarian Law 224
E. How to Approach Non-State Actors 226
F. States, Courts, Scholars and the Development of International
Humanitarian Law 233

Index 241
Table of Cases 247

10

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