The Duty to Investigate in Situations of Armed Conflict: An Examination under International Humanitarian Law, International Human Rights Law, and Their Interplay: Leiden Studies on the Frontiers of International Law, cartea 11
Autor Floris Tanen Limba Engleză Hardback – 24 sep 2023
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Specificații
ISBN-13: 9789004540934
ISBN-10: 9004540938
Pagini: 665
Dimensiuni: 155 x 235 mm
Greutate: 0 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Leiden Studies on the Frontiers of International Law
ISBN-10: 9004540938
Pagini: 665
Dimensiuni: 155 x 235 mm
Greutate: 0 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Leiden Studies on the Frontiers of International Law
Notă biografică
Floris Tan, PhD (2022) is a legal officer with the Netherlands Ministry of Foreign Affairs. He obtained his PhD from Leiden University. His publications are in the field of human rights law and, beyond the topic of his PhD, relate to the prohibition of limitation of rights for ulterior purposes.
Cuprins
Acknowledgements
List of Figures
Abbreviations
Table of Cases
Table of Instruments
1Introduction
1 Investigating Incidents in Armed Conflict Situations
1.1The Role of Investigations during Armed Conflicts
1.2Investigations during Armed Conflicts: A Search for Clarity
2 Central Research Questions
2.1Questions Guiding the Enquiry
2.2Breaking Down the Research Question: Relevant Concepts and Terminology
3 Selecting Research Methods
3.1The Doctrinal Legal Method and the Question What the Law Is
3.2Tailoring the Method, and Structuring the Enquiry
Part 1
International Humanitarian Law
2Introduction to the ihl System
1 Introduction
2 The Aims, Purposes, and Main Sources of ihl
3 The Principles of ihl
4 ihl’s Scope of Application
4.1Introduction
4.2ihl’s Material Scope of Application
4.3ihl’s Personal Scope of Application
4.4ihl’s Temporal and Geographic Scope of Application
5 ihl’s Implementation, Supervision, and Enforcement System
5.1From the State Level …
5.2… to the International …
5.3… Back to the State
5.4Résumé
6 Conclusion
3The Duty to Investigate Violations of ihl
1 Introduction
2 The ihl System’s Implication of Investigations
2.1The System of Self-enforcement and the Duty to Ensure Respect for ihl
2.2Rationales for Investigative Obligations under ihl
2.3Résumé
3 Scope of Application and Sources of Investigative Obligations
3.1Introduction
3.2Serious Violations of ihl: War Crimes
3.3Other ihl Violations
3.4Investigations in Non-international Armed Conflicts
3.5Résumé
4 Substance of the Obligation: Investigative Standards
4.1Introduction
4.2The Nature and Purpose of the Investigation: Criminal or Administrative
4.3Standards for Investigations Into Serious ihl Violations (War Crimes)
4.4Standards for Investigations Into Simple ihl Violations
4.5Résumé
5 Conclusion: The Duty to Investigate ihl Violations
Part 2
International Human Rights Law
4Introduction to the ihrl System
1 Introduction
2 The Aims, Purposes, and Main Sources of ihrl
3 The Nature of Human Rights Obligations
3.1Introduction
3.2Rights and Obligations
3.3Positive and Procedural Obligations
4 ihrl’s Scope of Application
4.1Introduction
4.2ihrl’s Material Scope of Application
4.3ihrl’s Personal Scope of Application
4.4ihrl’s Temporal Scope of Application
4.5ihrl’s Geographic Scope of Application
4.6ihrl’s Applicability during Armed Conflict and Occupation
5 ihrl’s Implementation, Supervision, and Enforcement Mechanisms
6 Conclusion
5The Duty to Investigate under the Global Human Rights Systems
1 Introduction
2 Explicit Duties of Investigation in Global Human Rights Treaties and the Sword-Function of Human Rights Law
3 Legal Basis and Rationale for the Duty to Investigate under the iccpr
3.1Introduction
3.2Legal Basis for the Duty to Investigate under the iccpr
3.3Rationale of the Duty to Investigate under the iccpr
4 Scope of Application of the Duty to Investigate under the iccpr
4.1Introduction
4.2The Material Scope of Application and the Investigative Trigger
4.3The Personal Scope of Application
4.4The Temporal Scope of Application
4.5The Geographic Scope of Application
5 Substance of the Duty to Investigate: Investigative Standards under the iccpr
5.1Introduction
5.2A Due Diligence Obligation
5.3Investigative Standards
5.4Résumé
6 Applicability and Flexibility in Conflict Situations, and the Role of ihl
6.1Introduction
6.2The (Non-)Derogability of the Duty to Investigate
6.3Applicability during Armed Conflict and Interaction with ihl
6.4Investigations into Violations Committed during Armed Conflict
7 Conclusion
6The Duty to Investigate under the Inter-American System of Human Rights Protection
1 Introduction
2 The Inter-American Context
2.1Endemic Human Rights Abuses and the Dawn of the Fight against Impunity
2.2The Prevalence of Civil Wars and the Interaction with International Humanitarian Law
3 Legal Basis, Rationale and Consequences of the Duty to Investigate
3.1Introduction
3.2Legal Basis for the Duty to Investigate under the achr
3.3Rationale of the Duty to Investigate under the achr
3.4Legal Consequences on the International and National Levels
4 Scope of Application of the Duty to Investigate
4.1Introduction
4.2The Material Scope of Application and the Investigative Trigger
4.3The Personal Scope of Application
4.4The Temporal Scope of Application
4.5The Geographic Scope of Application
4.6Résumé
5 Substance of the Duty to Investigate: Investigative Standards
5.1Introduction
5.2A Due Diligence Obligation
5.3Investigative Standards
6 Applicability and Flexibility in Conflict Situations, and the Role of ihl
6.1Introduction
6.2The (Non-)Derogability of the Duty to Investigate
6.3International Humanitarian Law in the Inter-American Human Rights System
6.4Investigations Into Violations Committed during Armed Conflict
7 Conclusion
7The Duty to Investigate under the European System of Human Rights Protection
1 Introduction
2 The European Context
3 Legal Basis and Rationale of the Duty to Investigate under the echr
3.1Introduction
3.2Legal Basis for the Duty to Investigate under the echr
3.3Rationale of the Duty to Investigate under the echr
4 Scope of Application of the Duty to Investigate under the echr
4.1Introduction
4.2The Material Scope of Application and the Investigative Trigger
4.3Personal Scope of Application
4.4Temporal Scope of Application
4.5Geographic Scope of Application
4.6Résumé
5 Substance of the Duty to Investigate: Investigative Standards under the echr
5.1Introduction
5.2An Obligation of Means, Not of Result
5.3Investigative Standards
5.4Résumé
6 Applicability and Flexibility in Conflict Situations, and the Role of ihl
6.1Introduction
6.2The (Non-)Derogability of the Duty to Investigate
6.3Applicability during Armed Conflict and Interaction with ihl
6.4Investigations Into Violations Committed during Armed Conflict
7 Conclusion
8Duties of Investigation under International Human Rights Law – Conclusions
1 Duties of Investigation under the International Law of Human Rights
1.1Bringing the Human Rights Research Together
1.2The Sword-Function of ihrl and Explicit Investigative Obligations
1.3The Why of Investigations: Rationale, Legal Basis, and Place within the System
1.4The When of Investigations: Scope of Application and Knowledge Triggering the Duty to Investigate
1.5The How of Investigations: Investigative Standards
1.6The Duty to Investigate and Armed Conflict
1.7Conclusion
Part 3
Interplay
9The Interplay between ihl and ihrl – A Roadmap
1 Introduction
2 Context and Background: The Nature of International Law
2.1A Polycentric Legal System
2.2Of Trees and Octopuses: Articulating the Nature of the International Legal System
3 From Fragmentation to Interplay: Concurrent Application of ihl and ihrl
3.1ihl and ihrl against the Background of Fragmentation
3.2The Fear of Co-existing and Co-applying: A Polarised Debate
3.3Contemporary Controversies
4 Developing an Interplay Methodology
4.1Introduction
4.2Interaction of Norms in the International Legal System
4.3Articulating a Methodology for Interplay: A Step-By-Step Approach
5 Articulating Situations of Interplay in Normative Terms
5.1Conflicting Conceptions of Conflict
5.2A Typology of Normative Overlap: Conflict, Convergence and Competition
5.3Résumé: Refining the Methodology for Interplay
6 Solving Situations of Interplay
6.1Introduction
6.2The Limited Role of Conflict Clauses and Derogations
6.3Conflicting Norms
6.4Converging Norms
6.5Competing Norms
7 Conclusion
10The Duty to Investigate under the Interplay of ihl and ihrl
1 Putting together the Pieces of the Puzzle: A Roadmap
2 The Aims of Investigations under ihl and ihrl
3 Scope and Triggers of the Duty to Investigate under Interplay
3.1Introduction
3.2The Relationship between the Duty to Investigate and Substantive Issues of Interplay
3.3Convergence in the Scope of Investigative Duties
3.4Divergence in the Scope of Investigative Duties
3.5Information Triggering the Duty to Investigate
3.6Résumé
4 Procedural Standards of the Duty to Investigate under Interplay
4.1Introduction
4.2Convergence in the Investigative Standards
4.3Divergence in the Investigative Standards
4.4Résumé
5 Conclusion
11Drawing Conclusions
1 Answering the Research Question
2 Overarching Conclusions on the Duty to Investigate under ihl
2.1ihl’s System of Self-Enforcement
2.2The Scope of the Duty to Investigate under ihl
2.3Knowledge Triggering the Duty to Investigate
2.4Investigative Standards and the Question How States Must Conduct an Investigation
3 Overarching Conclusions on the Duty to Investigate during Armed Conflict under ihrl
3.1Legal Basis of Investigative Obligations
3.2Rationale and Place of Investigations within the ihrl Framework
3.3The Scope and Contents of Investigative Obligations under ihrl
3.4The Scope and Contents of the Duty of Investigative Obligations under ihrl during Armed Conflict
4 Overarching Conclusions on the Interplay between ihl and ihrl
5 Duties of Investigation under the Interplay of ihl and ihrl
5.1Rationale
5.2Scope of Application
5.3Knowledge Triggering the Duty to Investigate
5.4The Applicable Investigative Standards under Interplay
6 Investigations and Armed Conflict: A Final Reflection
Bibliography
Curriculum Vitae
Index
List of Figures
Abbreviations
Table of Cases
Table of Instruments
1Introduction
1 Investigating Incidents in Armed Conflict Situations
1.1The Role of Investigations during Armed Conflicts
1.2Investigations during Armed Conflicts: A Search for Clarity
2 Central Research Questions
2.1Questions Guiding the Enquiry
2.2Breaking Down the Research Question: Relevant Concepts and Terminology
3 Selecting Research Methods
3.1The Doctrinal Legal Method and the Question What the Law Is
3.2Tailoring the Method, and Structuring the Enquiry
Part 1
International Humanitarian Law
2Introduction to the ihl System
1 Introduction
2 The Aims, Purposes, and Main Sources of ihl
3 The Principles of ihl
4 ihl’s Scope of Application
4.1Introduction
4.2ihl’s Material Scope of Application
4.3ihl’s Personal Scope of Application
4.4ihl’s Temporal and Geographic Scope of Application
5 ihl’s Implementation, Supervision, and Enforcement System
5.1From the State Level …
5.2… to the International …
5.3… Back to the State
5.4Résumé
6 Conclusion
3The Duty to Investigate Violations of ihl
1 Introduction
2 The ihl System’s Implication of Investigations
2.1The System of Self-enforcement and the Duty to Ensure Respect for ihl
2.2Rationales for Investigative Obligations under ihl
2.3Résumé
3 Scope of Application and Sources of Investigative Obligations
3.1Introduction
3.2Serious Violations of ihl: War Crimes
3.3Other ihl Violations
3.4Investigations in Non-international Armed Conflicts
3.5Résumé
4 Substance of the Obligation: Investigative Standards
4.1Introduction
4.2The Nature and Purpose of the Investigation: Criminal or Administrative
4.3Standards for Investigations Into Serious ihl Violations (War Crimes)
4.4Standards for Investigations Into Simple ihl Violations
4.5Résumé
5 Conclusion: The Duty to Investigate ihl Violations
Part 2
International Human Rights Law
4Introduction to the ihrl System
1 Introduction
2 The Aims, Purposes, and Main Sources of ihrl
3 The Nature of Human Rights Obligations
3.1Introduction
3.2Rights and Obligations
3.3Positive and Procedural Obligations
4 ihrl’s Scope of Application
4.1Introduction
4.2ihrl’s Material Scope of Application
4.3ihrl’s Personal Scope of Application
4.4ihrl’s Temporal Scope of Application
4.5ihrl’s Geographic Scope of Application
4.6ihrl’s Applicability during Armed Conflict and Occupation
5 ihrl’s Implementation, Supervision, and Enforcement Mechanisms
6 Conclusion
5The Duty to Investigate under the Global Human Rights Systems
1 Introduction
2 Explicit Duties of Investigation in Global Human Rights Treaties and the Sword-Function of Human Rights Law
3 Legal Basis and Rationale for the Duty to Investigate under the iccpr
3.1Introduction
3.2Legal Basis for the Duty to Investigate under the iccpr
3.3Rationale of the Duty to Investigate under the iccpr
4 Scope of Application of the Duty to Investigate under the iccpr
4.1Introduction
4.2The Material Scope of Application and the Investigative Trigger
4.3The Personal Scope of Application
4.4The Temporal Scope of Application
4.5The Geographic Scope of Application
5 Substance of the Duty to Investigate: Investigative Standards under the iccpr
5.1Introduction
5.2A Due Diligence Obligation
5.3Investigative Standards
5.4Résumé
6 Applicability and Flexibility in Conflict Situations, and the Role of ihl
6.1Introduction
6.2The (Non-)Derogability of the Duty to Investigate
6.3Applicability during Armed Conflict and Interaction with ihl
6.4Investigations into Violations Committed during Armed Conflict
7 Conclusion
6The Duty to Investigate under the Inter-American System of Human Rights Protection
1 Introduction
2 The Inter-American Context
2.1Endemic Human Rights Abuses and the Dawn of the Fight against Impunity
2.2The Prevalence of Civil Wars and the Interaction with International Humanitarian Law
3 Legal Basis, Rationale and Consequences of the Duty to Investigate
3.1Introduction
3.2Legal Basis for the Duty to Investigate under the achr
3.3Rationale of the Duty to Investigate under the achr
3.4Legal Consequences on the International and National Levels
4 Scope of Application of the Duty to Investigate
4.1Introduction
4.2The Material Scope of Application and the Investigative Trigger
4.3The Personal Scope of Application
4.4The Temporal Scope of Application
4.5The Geographic Scope of Application
4.6Résumé
5 Substance of the Duty to Investigate: Investigative Standards
5.1Introduction
5.2A Due Diligence Obligation
5.3Investigative Standards
6 Applicability and Flexibility in Conflict Situations, and the Role of ihl
6.1Introduction
6.2The (Non-)Derogability of the Duty to Investigate
6.3International Humanitarian Law in the Inter-American Human Rights System
6.4Investigations Into Violations Committed during Armed Conflict
7 Conclusion
7The Duty to Investigate under the European System of Human Rights Protection
1 Introduction
2 The European Context
3 Legal Basis and Rationale of the Duty to Investigate under the echr
3.1Introduction
3.2Legal Basis for the Duty to Investigate under the echr
3.3Rationale of the Duty to Investigate under the echr
4 Scope of Application of the Duty to Investigate under the echr
4.1Introduction
4.2The Material Scope of Application and the Investigative Trigger
4.3Personal Scope of Application
4.4Temporal Scope of Application
4.5Geographic Scope of Application
4.6Résumé
5 Substance of the Duty to Investigate: Investigative Standards under the echr
5.1Introduction
5.2An Obligation of Means, Not of Result
5.3Investigative Standards
5.4Résumé
6 Applicability and Flexibility in Conflict Situations, and the Role of ihl
6.1Introduction
6.2The (Non-)Derogability of the Duty to Investigate
6.3Applicability during Armed Conflict and Interaction with ihl
6.4Investigations Into Violations Committed during Armed Conflict
7 Conclusion
8Duties of Investigation under International Human Rights Law – Conclusions
1 Duties of Investigation under the International Law of Human Rights
1.1Bringing the Human Rights Research Together
1.2The Sword-Function of ihrl and Explicit Investigative Obligations
1.3The Why of Investigations: Rationale, Legal Basis, and Place within the System
1.4The When of Investigations: Scope of Application and Knowledge Triggering the Duty to Investigate
1.5The How of Investigations: Investigative Standards
1.6The Duty to Investigate and Armed Conflict
1.7Conclusion
Part 3
Interplay
9The Interplay between ihl and ihrl – A Roadmap
1 Introduction
2 Context and Background: The Nature of International Law
2.1A Polycentric Legal System
2.2Of Trees and Octopuses: Articulating the Nature of the International Legal System
3 From Fragmentation to Interplay: Concurrent Application of ihl and ihrl
3.1ihl and ihrl against the Background of Fragmentation
3.2The Fear of Co-existing and Co-applying: A Polarised Debate
3.3Contemporary Controversies
4 Developing an Interplay Methodology
4.1Introduction
4.2Interaction of Norms in the International Legal System
4.3Articulating a Methodology for Interplay: A Step-By-Step Approach
5 Articulating Situations of Interplay in Normative Terms
5.1Conflicting Conceptions of Conflict
5.2A Typology of Normative Overlap: Conflict, Convergence and Competition
5.3Résumé: Refining the Methodology for Interplay
6 Solving Situations of Interplay
6.1Introduction
6.2The Limited Role of Conflict Clauses and Derogations
6.3Conflicting Norms
6.4Converging Norms
6.5Competing Norms
7 Conclusion
10The Duty to Investigate under the Interplay of ihl and ihrl
1 Putting together the Pieces of the Puzzle: A Roadmap
2 The Aims of Investigations under ihl and ihrl
3 Scope and Triggers of the Duty to Investigate under Interplay
3.1Introduction
3.2The Relationship between the Duty to Investigate and Substantive Issues of Interplay
3.3Convergence in the Scope of Investigative Duties
3.4Divergence in the Scope of Investigative Duties
3.5Information Triggering the Duty to Investigate
3.6Résumé
4 Procedural Standards of the Duty to Investigate under Interplay
4.1Introduction
4.2Convergence in the Investigative Standards
4.3Divergence in the Investigative Standards
4.4Résumé
5 Conclusion
11Drawing Conclusions
1 Answering the Research Question
2 Overarching Conclusions on the Duty to Investigate under ihl
2.1ihl’s System of Self-Enforcement
2.2The Scope of the Duty to Investigate under ihl
2.3Knowledge Triggering the Duty to Investigate
2.4Investigative Standards and the Question How States Must Conduct an Investigation
3 Overarching Conclusions on the Duty to Investigate during Armed Conflict under ihrl
3.1Legal Basis of Investigative Obligations
3.2Rationale and Place of Investigations within the ihrl Framework
3.3The Scope and Contents of Investigative Obligations under ihrl
3.4The Scope and Contents of the Duty of Investigative Obligations under ihrl during Armed Conflict
4 Overarching Conclusions on the Interplay between ihl and ihrl
5 Duties of Investigation under the Interplay of ihl and ihrl
5.1Rationale
5.2Scope of Application
5.3Knowledge Triggering the Duty to Investigate
5.4The Applicable Investigative Standards under Interplay
6 Investigations and Armed Conflict: A Final Reflection
Bibliography
Curriculum Vitae
Index