Uganda: constitutional law

The implementation of international humanitarian law (IHL) is a continuous and evolving process. As such, the International Committee of the Red Cross (ICRC) co-operates closely with the Commonwealth Secretariat with the aim to advise and support Commonwealth states on developments in IHL and to assist them in meeting their IHL treaty obligations. The present update highlights some of the key issues and recent developments in IHL that are of interest to Commonwealth states.     

Comments on the 2007 Draft Manual on International Humanitarian Law in Air and Missile Warfare

Although substantial changes have been made to the 2006 DraftManual on International Humanitarian Law (IHL) in Air and MissileWarfare, questions remaining in the 2007 Draft should be clarifiedfrom the point of view of IHL, and the fundamental principlesand basic concepts of IHL ought to be reaffirmed and respected.Since there are hints of confusion and violations of these principlesand concepts, in places such as the definition of terms, thecontroversial and permitted weapons and the scope of applicationof the Manual, attention should be paid to them when perfectingthe Draft Manual.     

Strengthening Humanitarian Law: what role for Commonwealth countries

This article explores some of the new challenges confronting Commonwealth countries in the context of international humanitarian law (IHL). The very nature of non-international armed conflicts presents new challenges that did not exist in the context of inter-State conflicts, which were conducted in the traditional battlefield with well demarcated boundaries. The point is made that, in addressing the role of the Commonwealth in relation to contemporary IHL issues, a good starting point would be the shared commonalities between the two branches of law, HRL and IHL, notwithstanding their distinct paths of development. There are several important areas that could form the core of Commonwealth cooperation in strengthening IHL, including in the area of legislation, national mechanisms for the implementation of IHL and regional measures to strengthen IHL.     

Skeletal estimation and identification in American and East European populations

Forensic science is a fundamental transitional justice issue as it is imperative for providing physical evidence of crimes committed and a framework for interpreting evidence and prosecuting violations to International Humanitarian Law (IHL). The evaluation of evidence presented in IHL trials and the outcomes various rulings by such courts have in regard to the accuracy or validity of methods applied in future investigations is necessary to ensure scientific quality. Accounting for biological and statistical variation in the methods applied across populations and the ways in which such evidence is used in varying judicial systems is important because of the increasing amount of international forensic casework being done globally. Population variation or the perceived effect of such variation on the accuracy and reliability of methods is important as it may alter trial outcomes, and debates about the scientific basis for human variation are now making their way into international courtrooms. Anthropological data on population size (i.e., the minimum number of individuals in a grave), demographic structure (i.e., the age and sex distribution of victims), individual methods applied for identification, and general methods of excavation and trauma analysis have provided key evidence in cases of IHL. More generally, the question of population variation and the applicability of demographic methods for estimating individual and population variables is important for American and International casework in the face of regional population variation, immigrant populations, ethnic diversity, and secular changes. The reliability of various skeletal aging methods has been questioned in trials prosecuted by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Prosecutor of the Tribunal against Radislav Krstic (Case No. IT-98-33, Trial Judgment) and again in the currently ongoing trial of The Prosecutor of the Tribunal against Zdravko Tolimir, Radivolje Miletic, Milan Gvero, Vinko Pandurevic, Ljubisa Beara, Vujadin Popovic, Drago Nikolic, Milorad Trbic, Ljubomir Borovcanin (IT-05-88-PT, Second Amended Indictment). Following the trial of General Krstic, a collaborative research project was developed between the Forensic Anthropology Center at The University of Tennessee (UT) and the United Nations, International Criminal Tribunal for the Former Yugoslavia, Office of the Prosecutor (ICTY). The purpose of that collaboration was to investigate methods used for the demographic analysis of forensic evidence and where appropriate to recalibrate methods for individual estimation of age, sex, and stature for specific use in the regions of the former Yugoslavia. The question of "local standards" and challenges to the reliability of current anthropological methods for biological profiling in international trials of IHL, as well as the performance of such methods to meet the evidentiary standards used by international tribunals is investigated. Anthropological methods for estimating demographic parameters are reviewed. An overview of the ICTY-UT collaboration for research aimed at addressing specific legal issues is discussed and sample reliability for Balkan aging research is tested. The methods currently used throughout the Balkans are discussed and estimated demographic parameters obtained through medico-legal death investigations are compared with identified cases. Based on this investigation, recommendations for improving international protocols for evidence collection, presentation, and research are outlined.     

Promotion and implementation of international humanitarian law: a Commonwealth perspective

This paper provides an update on some important developments and initiatives relating to international humanitarian law (IHL), with specific reference to the Commonwealth. In particular, the paper considers the promotion and implementation of IHL and highlights the importance of preventing and punishing violations of IHL. It also outlines key humanitarian themes and legal concepts.     

The Hamdan Case and the Application of a Municipal Offence: The Common Law Origins of 'Murder in Violation of the Law of War'

This article examines the legal origins of ‘murder inviolation of the law of war’, an offence defined in theUS Military Commissions Act (MCA) and resorted to in the caseagainst Salim Ahmed Hamdan. Hamdan was acquitted of conspiringto commit this offence based in part on a questionable legalinstruction. The acquittal may have been proper under a correctview of the law. Nevertheless, the specific context in whichthis offence was alleged, combined with the judge's instruction,highlights key aspects of the US approach to the prosecutionof unprivileged fighters for a ‘law of war violation’.This approach, which is substantially represented by the USSupreme Court's judgment in ex parte Quirin, has been criticizedby International Humanitarian Law (IHL) scholars as an erroneousview of customary IHL. However, close analysis of the legaland historical context in which this approach developed revealsthat ‘murder in violation of the law of war’ isa municipal US offence that represents an English common lawimplementation of the law of nations. This article explainswhy reading this offence to incorporate IHL war crimes, as Hamdan'sjudge did, is inappropriate in the context of the MCA and Hamdan'scase. It then demonstrates that the authorities relied uponby the Quirin Court, the Lieber Code and a treatise by authoritativeUS military law commentator, William Winthrop, understood punishmentfor law of war violations to be permitted by the law of nationsbut imposed under municipal law. Thus, ‘murder in violationof the law of war’ is properly viewed as a municipal,common law offence punishing unprivileged fighters. In futurestudies the author will address the appropriateness of prescribingand enforcing this municipal offence in extraterritorial armedconflict.     

The UN Commission of Inquiry on Lebanon: A Legal Appraisal

In the wake of the Second Lebanon conflict, the UN Human RightsCouncil established an independent body of experts to investigatealleged violations of international humanitarian law (IHL) perpetratedby Israeli forces. The Commission's report suffers from oneserious and conspicuous flaw — the Commission was notcharged with simultaneously considering Hezbollah's violationsof the same body of law. In some instances, this one-sided focuswas not only politically unbalanced, but substantively inadequatesince a full understanding of Hezbollah's command structure,strategic objectives and military operations was essential indetermining whether targets destroyed by Israel were legitimatemilitary objectives and whether consequences for civilians weredisproportionate to the military advantage gained. Be that asit may, the Commission's final report testified to the excessive,indiscriminate and disproportionate use of force by Israeliforces and an overall lack of respect for the cardinal principlesregulating the conduct of armed conflict. The Commission's findingsare particularly disquieting, given the independent nature ofthe investigation and, ultimately, the compatibility of muchof the Commission's legal reasoning with orthodox interpretationsof IHL. The legal issues raised by the Inquiry are thereforeof ongoing importance, most notably for the Israeli-appointedWinograd Committee.     

全球化的背景下国际组织与主权国家的互动分析

随着经济全球化的迅猛发展,国际组织成为具有结构性协调功能的重要的国际行为主体,国际组织是由主权国家建立的,它的权力是主权国家赋予的,主权国家是国际组织的实际推动者,国际组织既对国家权力产生限制和制约,又是国家利益延伸和权力共享的机制和平台。分析国际组织与主权国家之间互动关系,对于更好地维护国家利益具有十分重要的现实意义。     

May the Force Be with You: The Legal Classification of Intervention by Invitation

Netherlands International Law Review - It is a truth universally acknowledged that states can consent to the military presence of other states on their territory. This is better known as...     

国际通信法:界域、主体及架构

国际通信法是现代国际法专业化发展的产物,其界域包括两类通信领域的国际事务:一是国际通信活动的规制,二是通信制度的国际协调;其主体具有鲜明的多元化特征,被国际通信法赋予国际人格并参加国际通信法律关系的实体,不仅有国家和政府间国际组织,还有法人和个人。国际通信法是一个庞大的法律体系,其规范具有普遍性、区域性和双边性三个不同层次,分属国际电信联盟、万国邮政联盟、世界贸易组织等众多国际体制,归于国际通信通道法、国际通信服务法和国际通信行为法三个不同板块,由此形成了国际通信法的立体网络架构。我国通信事业的发展非常迅速,但有关通信的立法相对滞后。因此,有必要熟悉通信领域的国际规则,加强国际通信法的研究。     

Justice Between Sites of Justice

Michael Blake argues that states are the primary sites of justice for persons and that the function of international justice is to ensure that states interact with each other in ways that preserve the capacity of each to realize justice for their own members. This paper will argue that justice among states requires more of states than that they preserve and maintain each other's capacity as primary sites of justice. Justice among states will require some justification, as well, of the claims of states over resources and territory within their borders. Such a justification, I suggest, must presume a global institutional order, and this will introduce the problem of coercion in the international domain. International coercion will have implications for Blake's understanding of international economic justice since it is premised on the claim that the domestic context is coercive in a way that the international arena is not.     

International Organisations and States Within an Agency Relationship: The Distribution of Responsibility

Netherlands International Law Review - This article first examines the entire range of agency relationships between an international organisation, acting as a principal, and one or more states,...     

我国刑法规定国际犯罪的立法模式探讨

国际犯罪分为"国际核心罪行"与"一般国际犯罪",它们源于习惯国际法或者条约国际法,但都被国际公约明确规定.我国缔结、加入了大量规定有国际犯罪的国际公约,而这些公约都要求缔约国通过国内立法对国际犯罪加以规定.因此,在我国全面或者大部分地规定国际犯罪,既是作为条约缔约国的义务,也是防止、有效惩治国际犯罪所必需的措施.鉴于我国的刑事立法特点,我们宜在刑法典中统一规定国际犯罪.即在修改刑法第9条、增加其对国际公约适用灵活性的同时,我们可以将一般国际犯罪根据其侵犯的客体规定于现有各章中,并新增一章"危害人类和平与安全罪"来规定战争罪、种族灭绝和危害人类罪这些国际核心罪行.     

China’s Stance on Investor-State Dispute Settlement: Evolution,Challenges, and Reform Options

Netherlands International Law Review - China is one of the most active states in concluding bilateral investment treaties (BITs) globally. Its BITs can be categorized into three generations based...     

Meeting of Commonwealth Law Ministers and Senior Officials

The paper broadly captures the legal framework for the prosecution of piracy cases in Kenya, given the experience that Kenya has gained from piracy prosecutions since 2006. It also underscores the need for regional, coastal and flag states to co-operate in the repression of piracy off the coast of Somalia in line with the UN Security Council resolutions on the subject. The challenges that Kenya has encountered in piracy prosecutions are also highlighted, and suggestions on how best states can co-operate in this regard are made. International co-operation is identified as a key component to the success in combatting piracy.     

The Effect of ‘Stabilization’ in the Mandates and Practice of UN Peace Operations

Netherlands International Law Review - In the last decade UN peace operations have begun to explicitly seek ‘stabilization’ in the states to which they are deployed. Despite the term...     

备战打仗中的国际人道法规则运用

国际人道法的基本原则之一是区分对待战斗员和平民,以便在武装冲突中有效地对战争受难者进行保护,平衡"军事必要"与"人道需求"这一矛盾。从实践经验上看,我军在战争中往往守法做的比较好,而在对付敌人违法作战方面准备不足。在未来军事斗争中应利用国际人道法的相关知识,做到既严格遵守又灵活运用。具体做法包括:将遵守国际人道规则列入部队训练和演习内容;运用国际人道法合理进行目标选择与打击;做到正确、灵活地对待和使用保护性标志;灵活处置国际人道法的守势反用等。     

国际宪政思潮的兴起与国际法“宪法化”趋势

演进中的国际法出现了＂宪法化＂的趋势。从研究视角上看主要表现在国际社会共同体与国际宪政、国际组织宪政主义、WTO宪政（或国际贸易宪政）等方面。国际宪政更多地体现在应然法意义上,主要反映在共同体法的层面和价值层面上,并在制定规范方面发挥指导作用。但是主权林立的国际社会的平权式的结构影响和制约着国际法宪法化的发展。     

务实考虑加入《鹿特丹规则》

《鹿特丹规则》全名《联合国全程或部分海上国际货物运输合同公约》,2008年12月通过,2009年9月23日开放签署及之后的批准、接受、核准程序,目前已有24个国家签署。西班牙于2011年1月19日批准该公约。借由实务经验解释条文,发现有些文章对公约的理解似是而非,这些言论阻挠了许多政府的签署及批准。试就现有条文作实务面之解读,矫正过虑的误解并促请早日加入该公约。     

Governing international freshwater resources: an analysis of treaty design

International rivers create complex relationships between their riparian states, which can contribute to economic, political, and social losses. Treaties provide a means for states to coordinate their actions in managing international river disputes to minimize these losses. However, there is little knowledge about treaty content and the factors influencing treaty design. We test whether a relationship exists between the challenges of negotiating, complying, and distributing the gains in bilateral, multilateral, and basin-wide negotiation contexts and the depth of cooperation along with the degree of institutionalization. While the great challenges confronting multilateral or basin-wide negotiations can produce treaties that focus on joint gains and shallow cooperation to secure the signature of riparians, we find that they can also provide opportunities for deeper, more behavior-altering, cooperation. To manage the difficulties of maintaining multilateral cooperation, we find a higher degree of institutionalization. We also find that bilateral negotiations provide states with opportunities for deeper cooperation, but a lower degree of institutionalization.