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Völkerrechtsblog

This chapter assesses the relationship between international human rights law (IHRL) and international humanitarian law (IHL). While IHRL, unlike IHL, was not founded specifically to protect people affected by armed conflicts, both branches of international law apply simultaneously during such conflicts. This raises the question of how they interrelate and also how possible contradictions between them can be resolved. Today, genuine armed conflicts are mainly not of an international character. In such situations, the relationship between IHL and IHRL is particularly controversial and difficult to determine. Nevertheless, both IHL and IHRL lead, in most cases, to the same results. In the few instances where results differ, states could do a lot to harmonize their obligations under both branches, by resorting to derogations permitted under IHRL, one of the means offered by international law to harmonize their IHRL obligations with their IHL obligations. Beyond this, legal reasoning allows for differentiated solutions on when and on which issues one or the other branch prevails.

This chapter discusses the rules governing the release, accommodation in neutral countries, and repatriation of prisoners of war (POWs). It covers repatriation and accommodation in neutral countries during hostilities; repatriation at the end of active hostilities; cases where repatriation at the end of active hostilities is not required; and status and treatment of prisoners of war who are not repatriated. Concerning the obligation to repatriate prisoners of war at the end of active hostilities, the determination of that point in time, the fact that this obligation is not subject to reciprocity, the relevance of objections and fears of prisoners of war to be repatriated, the destination of the repatriation, and practical arrangements and modalities are discussed. Finally, the relevance of the rules on repatriation of prisoners of war in non-international armed conflicts and particular legal consequences of an unlawful non-repatriation or repatriation of prisoners of war are discussed.

This chapter focuses on the concept and beginning of military occupation. It first discusses the traditional criteria that must be fulfilled for a territory to be considered occupied: the establishment of effective control over territory by a belligerent power, loss of effective control by its adversary and absence of consent by the latter. Subsequently, those criteria which are not relevant for determining whether a territory is occupied are discussed. On this basis the chapter then addresses the controversy of whether and to what extent the rules of international humanitarian law (IHL) on military occupation already apply during an invasion. Lastly, the chapter deals with special cases, such as occupation without armed resistance and national liberation wars, the relevance of occupation in non-international armed conflicts and the particular legal consequences of a violation of IHL on military occupation.

Völkerrechtsblog

This contribution argues that autonomous weapon systems may have advantages from the perspective of ensuring better respect for international humanitarian law (IHL), if they are one day capable of perceiving the information necessary to comply with IHL, then to apply IHL to that information, and if it can be ensured that they will not do what humans who created them did not want them to do. In view of the author, targeting decisions do not imply subjective value judgements, a machine would be unable to make. However, to respect IHL by using such autonomous systems, agreement must be found on how to interpret certain IHL rules discussed in this contribution properly when a machine executes autonomously attacks according to parameters established by human beings. In particular, the accountability of those who produce and program such systems must be clarified; the sytem must be constantly updated with information on the military advantage to enable it to determine what is a military objective and to apply the proportionality principle; parameters must be established for comparing the performance of autonomous weapon systems with that of human beings in carrying out attacks; and the feasibility of precautions must be redefined in relation with attacks using such systems.

The contribution discusses the general problems armed groups face when they want to respect, as they must, international humanitarian law (IHL) and specific difficulties in the field of the conduct of hostilities : whether the police and government officials may be targeted; how the proportionality of an attack aiming at symbolic political advantages can be assessed; how they can accept the surrender of government soldiers and then detain them; or the feasibility of precautionary measures when the group has only one weapon that is capable of reaching the enemy. The author however recalls that the rules of IHL are flexible and the obligations are situation-dependent. Therefore most rules are capable of being respected by an armed group, if interpreted taking the peculiarities of armed groups into account.