جستجوی مقالات مرتبط با کلیدواژه « مخاصمه مسلحانه » در نشریات گروه « فقه و حقوق »

From the perspective of international law, the conflict between resistance groups and the occupying power is subject to the rules of international humanitarian law governing international armed conflicts. The current exploratory-analytical research has attempted to explain the basis and sources of this right by relying on the idea of “Natural Rights” and in the light of international law, exploring its effects. Based on this, in the light of natural rights and specifically the right to self-determination as one of the peremptory norms of international law.
The concept of "occupation," despite its seemingly simple appearance which denotes the presence and domination of foreign forces in a country, is a complex concept that has been defined in different meanings such as acquiring homeland or domination and imposing military authority on land belonging to another. The legitimacy or illegitimacy of a conflict does not affect the application of humanitarian law; however, the legal order cannot ignore the inherent qualities of human beings such as belonging to their land and property and consequently respecting the defense of the land.
Within this framework, the question arises: do the people of the land that have been attacked and aggravated without being members of the armed forces of their country have the right to armed resistance against the aggressor and occupation, and under what conditions is it applicable and what consequences does it have? Therefore, the present descriptive-analytical study tries to answer these questions by relying on legal principles and then on the sources of international law. Additionally, the focus of this research is on the exercise of this right concerning the occupied Palestinian territories.
In the present study, the authors first studied the basis and foundation of “the right to resistance" and in light of the doctrines of natural rights have considered natural rights as the basis for resistance. For this purpose, after a brief introduction of natural rights and their position in the philosophy of law, the right to resistance to natural rights with a historical approach has been measured and evaluated. Accordingly, this paper claims that the restoration of the right to resistance as a natural right in the traditional natural rights and thought of the ancient and middle ages is difficult because to accept the right to resistance in the system requires acceptance of preconditions such as "individualism" and "artificial state or man-made State"; now that both of them have a strong position in the ancient world. In other words, the citizen will have the right to resist the government, which has been involved in the creation it through a social contract. Moreover, the prevailing thought in the ancient and middle ages is not accepted by this doctrine and the enquiry into philosophical thought of that section shows that the state, like some of the previous and innate phenomena such as the family, is considered as a natural institution that existed before the individual and essentially no right to "create" and "durability" of the State. In addition, he has an underlying "individualist" right to resistance, according to which a human being, as a human being and as a moral agent of the creator of the state, can resist the trust entrusted to the state through supervision, reform and even rebellion, and in this way, the right to resist, and he will claim his right to self-determination.
Writers in the light of the thought of philosophers such as Locke and Kant and relying on doctrines and natural law such as the nature of man and desire for independence, self-authority, "trust relationship" between the people and the ruler, and especially the right to self-determination, deserve the right to resistance. According to the above-mentioned thoughts, the right of revolt against the government of the civil uprising can be proved for the citizen, therefore it can be said that inherent right of State to self-defense do note preclude the right by the people of the occupied land, against the occupying government.
In a simple manner, as in the school of natural rights in the form of individual and as a nation in a collective way, they have the natural right to self-determination and against the occupying government as a violation of this right, they have the right to resist. The first protocol of 1977, has been recognized as an international armed conflict the conflict between resistance groups and occupying power and numerous documents of the United Nations General Assembly and other international entities have endorsed this right. Therefore, it can be said that arming civilians is sometimes the last remedy to preserve the territorial integrity of a country. However, the theory of self-defense does not cover the resistance or resistance groups organizations fight against occupation. The right to resistance can only be inferred from the concepts of human rights and the natural right to self-determination; although the channel and the conditions of applying this right are subject to humanitarian law.
With these words, the occupying power does not have the right to resort to self-defense except in its territory - not the occupied territories - and the right to resist is a tool and approach to end the occupation, which is at first a violation of international law itself. And secondly, the rules regarding the duty to terminate occupation, are still legally incomplete. Third States have an obligation to not protect the occupying State and not to recognize the situation of occupation and its results. However, exercising the right to resist is not without responsibility. Resistant forces can have individual international criminal responsibility, and on the other hand, in certain situations, the resistance group may be attributed to the relevant government and cause the government's international responsibility. Therefore, the effort of the resistance group to respect humanitarian law is important both for maintaining the position and legitimacy of the group and determining the nature of the conflict, as well as in terms of the related effects and responsibilities and from causing more harm to the civilians in the occupied territory.

The development of humanitarian rights is an undeniable necessity. The need to formulate this important need of human society during conflicts is an inevitable outcome of war. As Article 48, Paragraph 2 of Articles 51 and 52 of the First Additional Protocol to the Geneva Conventions refers to the fact that attacks should only be carried out against military personnel. The following article, by examining library sources in a comparative-analytical way, aims to develop humanitarian actions from the perspective of the Islamic legal system. The issue is, which trades have support in Islamic and international law? In the Islamic legal system, with what characteristics are people protected and what acts cause people to leave immunity? Searches show that since the beginning, Islam has given special rights to people who are not involved in battles. The present study, by examining the persons who were supported in the narrative sources, reached the conclusion that Islam has supported all those who lack the "description of active action" in war. Immunity is waived only by "direct and indirect participation in the conflict" and "requirement of the principle of military necessity".

In recent decades, various armed conflicts have created threats to the marine environment. The Gulf War of 1990-91, the Israeli attacks on The Jiyeh Power Station in 2006, and the massive oil spill in the Persian Gulf and the Mediterranean Sea have all caused serious damage to the marine environment. The need to prevent, reduce and control pollution of the marine environment as a result of armed conflict is an important task for international humanitarian law. The purpose of this study is to explain the challenges faced by international humanitarian law in the protection of the marine environment. The findings of the paper show that international humanitarian law faces significant normative gaps in this field that seriously affect its ability to protect the marine environment. The appropriate responses to maritime environmental challenges during armed conflict include: adoption of precautionary measures, applying the Martens clause, updating pertinent provisions, explaining the scope of existing norms and conclusion of new provisions governing armed conflicts as regards maritime environmental protection.

The environment has become a silent victim of armed conflicts around the world. Armed conflict, for whatever reason or justification, causes significant damages to the environment. In this regard, international humanitarian law has protected the environment in a few of its provisions. These provisions which is limited to damages by widespread, long-term and severe nature, are vague and provide only superficial protection. The provisions of international environmental law as well, as an alternative option, is less than adequate to protect the environment during armed conflict. Due to non-liquet in international law and to clarify the meaning and scope of environmental protection, in 2013, the International Law Commission (ILC) decided to include the topic in its programme of work. Six years later, the ILC adopted ‘‘draft principles on protection of the environment in relation to armed conflicts’’. In principle 12, the ILC setting out the Martens Clause in a new form. This inclusion in the draft principles, reflects the role and positon of the Martens Clause in protecting the environment in armed conflicts. The author, with a new direction for the Martens Clause, believes that implementing the Clause in this context will result in the emergence and facilitating the emergence of other principles and rules that can protect the environment during armed conflict.

Starvation of civilian population as a method of warfare is prohibited in both international and non-international armed conflicts. This proscribed conduct, as a grave breach of international humanitarian law, is criminalized as a war crime by international criminal law. Taking into account international instruments and jurisprudence, this paper seeks to conceptualize starvation and its constituent elements. As an international crime, starvation requires three elements. First, contextual element and that is the conduct should be committed in the context of an armed conflict. Second, material element which defines the concerned conduct as depravation of civilians from objects indispensable for their survival, which implies that the term of starvation goes behind its literal meaning. It means that starvation is not limited to depravation of food and water. Third, mental element which requires the perpetrator to intend to starve civilian population as a method of warfare. This stipulation does not require that the crime exclusively seeks a military objective but it should be committed in the context of an armed conflict.

The purpose of the present study is to examine whether or not the status of perpetrators of piracy is consistent with international humanitarian law and is covered by the Fourteenth Geneva Conventions of 1949. Pirates have become a major international shipping challenge in the international seas and waterways in the last decade. It seems that pirates never fall within the scope of these conventions and “humanitarian law”; in addition to historically assessing the status of offenders outside the law of war, there are also significant doubts. There is talk of “armed conflict” as the country's naval battle with pirates. In spite of this, the Third Geneva Convention can have some implications for the arrests of pirates. Arrested persons suspected of piracy may, in the event of compliance with this Convention, claim to be protected and demanded to be treated as prisoners of war. This is, of course, until such time as a competent court declares it inaccurate, and secondly, it merely affects how he was treated during his detention, but will not prevent his trial on charges of piracy under domestic law.

One of the Statute of International Criminal Court’s construction is the concept of situation. This notion performs various jurisdictional function, including delimiting the scope within which the Court has an authority to exercise its jurisdiction. States Parties to the Rome Statute have a right to refer a situation to the Office of the Prosecutor to warrant further investigation. Moreover, the United Nations Security Council and non-member States have a right to extend the Court’s jurisdiction over a situation related to non-member States. But what a situation means? This piece by reviewing the jurisprudence of the Court in addition to human rights law as an applicable law to the Court shows that a case has a territorial aspect but it does not mean a territory. This piece conceptualizes the notion of situation as a concrete crisis that corresponds with the contextual element of international crimes, i.e. armed conflict of international or non-international character and a widespread or systematic attack against civilian population. Consequently, states and Security Council by determining a situation can limit the Court’s jurisdictional authorities to such a situation.

The Energy Infrastructures are critical for countries in terms of economic and social aspects. The occurrence of international armed conflicts expose them to destruction or disruption. These infrastructures have also faced modern cyber threats with the development of technology. Therefore the international legal and humanitarian protections of these installations have become a paramount necessity. Such legal protections are applicable under international human rights and humanitarian law. The provisions of the Geneva Conventions and the First Additional Protocol, play a significant role in this between. This article has been written in a descriptive and analytical method, with the aim to conceive the nature of these international legal obligations and to understand the state of these rules and regulations. The article eventually concludes that, by the emergence of new methods of warfare and the growing threats against the energy infrastructures, the protections stipulated in these instruments appear to be inefficient. The initiatives of governments and international organizations to codify the legal rules and regulations, although non-binding in nature, need to keep pace with the increasing threats.

In recent years, the international community has witnessed the emergence of a non-state actress called "Daesh" that it constitutes a global and unprecedented threat to international peace and security. When Daesh occupied areas of northern Iraq, this event triggered an armed conflict between the Iraqi army and the Daesh armed forces. The main focus of armed conflict, whether international or non-international, is respect for international humanitarian law, including fundamental principles such as the principle of distinction and proportionality. Daesh has contravened numerous international law provisions by its conduct in Iraq. The group has breached several of its IHL obligations as a non-state actor involved in the conflict occurred in Iraq. According to the findings of this article, it seems that Daesh's actions in various respects have provided the threshold for pursuing under international crimes of genocide, crimes against humanity and war crimes.

Although the United Nations Security Council is a political entity, due to the obligation of all member nations under article 25 of the United Nations Charter, its decisions have implications for international law, especially counter-terrorism law. This is so evident that some experts in the subject of counter-terrorism consider the council as a global legislature. By making various resolutions, the Security Council takes into account the new aspects of the issue of terrorism, and makes decisions. One of the new issues in the area of terrorism has to do with foreign terrorist fighters. Presence of the foreign fighters in the armed conflicts is not a new problem, but in recent years their joining to the terrorist groups has highlighted this problem. For this reason, the Security Council has addressed the issue of foreign fighters in a number of resolutions such as 2178, but the question is why the presence of foreign fighters in conflict zones including in Syria has not still stopped. Apparently, the Security Council's resolutions on this issue do not seem to be effective, due to lack of transparency. Therefore, the present paper uses a descriptive-analytic method, investigates the historical origins and concept of the foreign fighter and assesses the Security Council's anti-terrorism resolutions concerning the issue of warriors; then, it analyzes the position of the Council in this regard. Eventually, this article addresses the ineffectiveness of the decisions of the Security Council on the issue of terrorism, especially foreign fighters.

The practice of targeting some persons and killing them has been criticized in recent years in the international community. Now targeted killing is defined as the use of lethal force attributable to a subject of international law with the intent, premeditation and deliberation to kill individually selected persons who are not in the physical custody of those targeting them and recognized as a clear violation of international human rights and international humanitarian law. It violates some fundamental rights of human beings such right to life and right to fair trial. Some basic rules of humanitarian law are also in conflict with this policy, for example it opposes the obligation of state for protection of civilians in armed conflicts and violates the principle of proportionality. UN human rights experts challenge targeted killing policies and consider it in relation to extrajudicial, summary or arbitrary Executions. Therefore non-Justiciability of the policy of targeted killing is reaffirmed in humanitarian law and human rights.

Following the development of communicational technologies, countries gradually found out about the unexpected role of propaganda in manipulating the thoughts of people in global relations. So in time, countries and people started broadcasting propaganda to convince the world that their hostile and illegal acts are necessary or humanitarian. Propaganda was specifically used to incite to war and its examples could be seen in United States` invasion to Iraq, the case of Ukraine and the propaganda of ISIL. Unlike what people might think, it has been repeatedly mentioned and banned in international law. The most important example is written in the first part of article 20 of the International Covenant of Civil and Political rights. It is also indicated in the procedures of International tribunals and the resolutions of international organizations. In order to thwart such increasing process, it is essential to study the approach of international law on propaganda for war.

21 century is the beginning of change in one of the areas of International Law namely the law of armed conflicts. Access to new weapons, technological developments and resorting to today’s tactics, not only lead the insidious phenomenon of war to be totally departed from International Law but by some recent changes, more complexities are added. Conflict and its forms that were primarily being accepted in traditional international law as a principle in International Relations and in the light of subsequent developments of various legal instruments were accepted as an exception in states relations, with the development of technology, these Conflicts and their forms have been transformed significantly faster than the conceptual evolution in rights and obligations. Conceptual evolution in use of force not only has changed the fundamental concepts and principles of conflict but also the elements of traditional conflict and propounded subjects including principle of distinction, legality and legitimacy. With analyzing the concept of cyber warfare, we intend to assess the possibility of extending the rules governing traditional armed conflicts to cyberspace and evaluating its legal limitations. Since this matter would not be possible without concentrating on international practice, Georgian cyber-attacks will be examined as a case study.

Destruction of historical buildings and sites, using archaeologic site for military purposes and smuggling historical and antiquity objects are some of the war crimes committed in large scale and in a targeted, planned and systematic way against Syrian cultural heritage by Islamic State of Iraq and Syria. Lack of appropriate internal laws and regulations, failure of judicial, political and cultural organs of Syria, being not member to most of the international treaties governing cultural heritage, unwillingness and inability of security council for adopting appropriate measures such as military intervention or referral of Syria situation to international criminal court and non-compliance in the side of armed non-state groups of the rules and principles of international humanitarian law has brought a dangerous situation for Syrian cultural heritage which are part of the common heritage of mankind. War crimes against such heritage is a threat to international peace and security. Hence, the international community shall use all of its legal and political capacities for prosecution and trial of persons who committed those crimes.

This article tries to explain the rules of International Humanitarian Law that apply to the conflict in Gaza. International Humanitarian Law, includes rules protecting civilians and regulating the means and methods of warfare. International criminal law rules about investigating the past violations and prosecutes the suspected perpetrators of the Zionist Regime's forces. Several human rights bodies reported that Israeli forces have been using white phosphorous and other munitions and weapons in an unlawful manner in Gaze which leads to criminal prosecution of perpetrators. It is now acceptable that international community including UN and all states have obligations against impunity and reparation of victims in recent conflict in Gaza.

This article reviews the recent judgment of the International Court of Justice in Bosnia v. Serbia together with the Nicaragua Judgment, International Law Commission’s Draft on State Responsibility and the judgment of the International Criminal Tribunal for the former Yugoslavia in Tadic case to highlight the dispute between the ICJ and the ICTY on the appropriate legal standard for the attribution of state responsibility. The ICJ in its Bosnia judgment discussed the question of whether the acts of genocide carried out at Serbrenica must be attributed to the Federal Republic of Yugoslavia. It applied the “effective control” test set out in Nicaragua, while reaching a negative conclusion, the court rejected the “overall control” test enunciated by the ICTY.