IL - 5 - IL and the Individual & peaceful stetelments Flashcards
example of common factor between all individuals and IL?
eg: human rights, every one gets it without asking.
what a about human rights?
1948 Universal declaration
• Most Human Rights considered customary
• Enforcement patchy in non-democratic societies
what do some say about human rights?
that it is either Opinios Juris or customary law.
all states use it instead of Jus Cogens
many states use it in their declarations of independance.
what was drafted in 1966
2 majour conventions (int treaties) Torture, women, children, racial discrimination, Apartheid added to HumRigh.
does a treaty with no teeth have any point?
yeah because it holds in the court of law if the country is signatory and in most cases a country must sign
whats about il and torture?
outlawed all forms of torture 15 years ago.
what is general law wit refugees?
In principle States have discretion as to allowing entrance of non-nationals
most countries have a quota or say only the ritch or the ones with jobs.
when was refugee treaty sined?
what is it?
1951 UN Convention Relating to the Status of
Refugees
Defines a refugee as a person who fled his country or can’t return because of “a well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion
what is non-refoulment?
you cannot send refugee back if he is going to be killed.
does tis apply to the palestinians?
no because they are part of the 1949, the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) is a relief and human development agency, originally intended to provide jobs on public works projects and direct relief for 652,000 Arabs who fled or were expelled from Israel during the fighting that followed the end of the British mandate over Palestine.[2] Today it provides education, health care, social services and emergency aid to 5 million Palestinian refugees from the 1948 and 1967 wars and their descendents
what exacly can refugees do?
Article 13 (2) Universal Declaration of HumRes refers to “Everyone has the right to leave any country, including his own and to return to his country.”
Article 12(4) of the 1966 ICCPR “No one shall be arbitrarily deprived of the right to enter his country.”
what are palestinian arguments for the Right of Return?
Israel was part of Mandatory Palestine hence it is “the country” of the Palestinians
The decision to refuse return is based on a general prohibition, not individual hence it is arbitrary
After most wars, refugees have been allowed to return
Not all refugees may wish to return but that is their choice
what is the israeli response to the refugee fuck up
Israel is not “the country” of the Palestinians
The demand of a right of return is not compatible with the demand for an independent Palestinian state in the West Bank. That would mean that both Israel and the West Bank are “Palestinian.”
Where there has been a division of a country (for example India-Pakistan), there is no right of return.
No rights for descendants of refugees.
which general asembly anti israel resolution sais we should take back the scum.
Article 11 UNGA Resolution 194 (III) 1948
“Those refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest
practicable date.”
waht are the palestinian arguments for the resolution 194?
Originally not binding but has frequently been reaffirmed by the UNGA
Refers to “their homes” not to a particular regime.
Clearly refugees who individually will be a danger to Israel can be refused entry but only on an individual basis
More than sixty years is surely an
“earliest practicable date.”
waht are the il arguments for the resolution 194?
UNGA resolutions are not binding and reaffirmation doesn’t make them binding
All Arab states voted at the time against
the resolution
The word “should” is recommendatory language
No reference to descendants of refugees
what else is important to the resolution 194
Agreements with Israel signed subsequent to the Resolution (UNSCR
242, Peace with Egypt, Oslo DOP with PLO, Peace with Jordan, Road Map etc. make no reference to Resolution 194)
who deals with indviduals who break IL?
how?
International Criminal court.
Grave war crimes, Crimes against Humanity, Piracy, Slave Trade, Terrorism
where is the court?
what cannot be tialed therer?
Haigue, the prison is in holland in the hague.
not terrorism, arabs vetoed it.
who is trialed in ICC
a normal country trials its own ppl, ICC only if a country is unable to tial, ie UK il trial its soldiers nationally.
why would a state join ICC? why let all nationals open to jusrisdiction which is not your own.
because it is part of the convention.
??????????????
what is consulatation?
its the step before negotiation, its simply a hearing,
do negotiations have legal procedurings?
no, unless it is multilateral and there is a specific procedure, booring and what robbie did for his thesis.
ie int. war condferance in Swiss, they give text every one gives amendments, votes, then states vote on text, this is negotiations. they then go home and decide if to sign or not.
can you try any one?
no, cant try heads of state?
but international tribunals can, ie usa cant try saddam, but ICC can.
what is a deposit?
an optimal clause specifying that states can simply agree ruling of the court.
what is conciliation
it is non-binding state opinin
When conciliation is used, a commission of inquiry is introduced to investigate and report on the facts surrounding a particular dispute.
dif to Arbitration in that the terms of a conciliation settlement constitute mere proposals to the disputing powers, whereas an arbitration settlement is binding.
what is arbitration?
s a technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal”), by whose decision (the “award”) they agree to be bound.
kwho can give advisory legal oppinion
ICC and ICJ
what can mediation bring that drect cant bring.
1 Consultation
2 Negotiations (Multilateral Treaty Drafting)
3 Good Offices
what are the 4 steps of conciliation
o Formal, Requires Agreement
o Neutral conciliators and party appointed
o Recommendations by voting
o Non-binding
what are the 4 steps of ENQUIERY
o Formal, Requires agreement (Unless IO with authority) o Neutral + party appointed o Decisions by vote o Factual findings only o Non-binding
Main points of arbitration
o Formal, requires agreement "compromis" o Neutral+Party appointed o Decisions by vote o Law and facts o Mandate o Evoidence o In camera o Decision reasoned, public +separate or individual opinions o Binding o Invalidity (Fraud, abuse of process, invalid compromis)
what is ICJ
Internaitonal court of Justice
- gives advidsory oppinion to all UN bodies, it tries states against each other, as long as they have legal status.
who judges ICJ
Permanent judges at Hague for 9 years
Appointment by UNGenAses & UNSecCou
ad hoc judges (specific for the task)
what is the catch of icj
o Only between states o Legal disputes o Binding between parties (enforcement by UNSC) o No binding precedent
whats the story of egypt with nukes
asked WHO 2 questions
1 do nukes harm health
2 is use of weapon legal
ICJ said 1 has nothing to do with law and 2 has nothing to do with them. so egypt went to the the UNGA who said; states can do what they want as long
what did UNGA answer to the Egypt nuke thing
they said state can do as they wish, as long as customary law and treaty.
ie we have had them since 1945 and no one has used them, so it has become custom to not use them, but under OPPINIONURIS states had theatend to use them.
what about ICJ and politics?
ICJ wont give political oppinin, ie didnt answer if security fence was legal, passed question to the UNGA (who said it was illegal)
JUS AD BELLUM
when can you use force (m b4 o)
JUS IN BELLO
what you can do in the force (m b4 o)
why are laws of war needed today?
b4 disputes, states would go to war, and this didnt affect citizens, today it is ilegal to go to war.
2 cases where UN carter permits use of force?
ARTICLE 51 CHAPTER 7 permission to go to war for SD
(as soon as SecCou allows)
any state, must be proportional.
what is meant by proportionality?
do you have to weight untill you have phisiclly been attacked?
israeli joke about canibal
what is the problem with pre-emptive?
what about il iraq
world said if you suport this it can never stop, ie atack every country with a weapon/army.
could packistan and india do eachother stam.
so problematic that il paid compendation to iraq.
what was the caroline case?
british burned and threw a arms boat over niagra. it was american on way to canada.
what is caroline formulae 4 things?
1 necesity of selfdefence
2 instant
3 overwhelming
4 choice for deliberation
what about not military strike
1950’s jordan and syria tried to block israels water by (banias and chatzbania) its a DOG IN THE MAJOUR they have nothing to gain but did it in spite. il blew up all of their digging equipment.
what about when il blew up iraq, who said what?
Regan said ; boys will be boys
whats most fucked up about article 51?
not allowed to send troops even in case of genocide.
what is prima facia?
the one who makes first streps towards force is agressor not the one who uses force frst.
what does charter say about self defence
“Nothing in the present Charter shall impair the inherent right of individual or collective self- defence if an armed attack occurs against a Member of the United Nations…”
what UN GA resolution talks about prime facia
UNGA Resolution 3314 Defining aggression “The First use of armed force by a State in contravention of the Charter shall constitute Prima facie evidence of an act of aggression”. Hence not conclusive proof.
why cant we go help african genocide?
because africans dont want colonial powers back into africa, prefer genocide.
JUS IN BELLUM
when uk faught for survival in wwii had to remember
1 reciprocity, you will have to live with the enemy eventually.
2 moral code just cant do, cant shoot kiddies
3 important thing is militatry victory, killing POW wont help the war effort
cant do to others what they have done to you, eg
CANT KILL POW
are laws different fo the two sides?
yes, no difference between agresor and defendor, because both sides think they are the defender.
when can an enemy comabttant be attacked?
anywhere at anytime, pj’s dont give imunity.
is a civilian a good target?
ie:
not a legitimate target but if he takes up hostilities then he looses his civilian status.
amunition factory at work is legitimate target, at home he is not.
is a human shield a legitimate target?
yes 100% Legitimate
when is a combatabnt not good target
if he has surrendered, wounded or sick. AKA hors de combats
Crew Parachuting in distress
Negotiating a truce
what is a legitimate military target?
Legitimate target if they make an effective contribution to military action and destroying them offers a definite military advantage
• Army installations
• Arms factories
• But also, heavy industry, civilian roads, railways, ports, bridges, oil depots where they are used by armies
what is not a legitimate target?
Civilian houses Schools, hospitals Civilian non-strategic factories Dams Nuclear Power stations • Civilian objects lose their immunity if used for military purposes
