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AbstractThe Therapeutic Turn in International Humanitarian Law: War Crimes Tribunals as Sites of "Healing"? by Diana Elizabeth Anders Doctor of Philosophy in Rhetoric Designate Designated Emphasis in Women, Gender, and SexualityUniversity of California, Berkeley Professor Judith Butler, Co-Chair Professor David Cohen, Co-Chair This dissertation examines the growing tendency to figure international war crimes tribunals in terms of their therapeutic value for their victims. My project documents and questions how the discourse of juridical healing emerged from what I term "the therapeutic turn" in international humanitarian law (hereafter, IHL). I analyze this phenomenon in terms of its key features, conditions of possibility, modes of legitimization, and effects, focusing on legal institutions designed to adjudicate crimes such as genocide, mass rape, and torture. My central argument is that the rhetoric of juridical healing, despite its commendable achievements, comes at an important cost, in that the appeal to law can invite new forms of regulation and domination. In short, this novel form of justice produces and authorizes its own forms of violence. It does so in part by obscuring the political effects of the law's promise to heal. To bring this uncomfortable fact into relief is but a first step towards countering such ill effects. This project focuses on the first two international ad hoc tribunals -- the International Criminal Tribunals for the former Yugoslavia and the International Tribunal for Rwanda -- as well as the International Criminal Court (hereafter, the ICTY, the ICTR, and the ICC). All were established in the 1990s in the beginning of what has been called the "tribunal era," which has ushered in an unprecedented emphasis on victims of atrocity. Primarily by means of discourse analysis, I examine court documents and trial transcripts, as well as relevant statements made by diplomats, politicians, court officials, scholars, and non-governmental-organizations. Such analysis aims to chart the expansion of a new norm of justice as healing that has so far largely gone unrecognized. Chapter One outlines the general problem of the dissertation, introducing the phenomenon of juridical healing and situating it historically. Although such healing has become a powerful, even normative trope in humanitarian discourse, it has not been well defined. The chapter raises questions concerning what juridical healing can realistically achieve, and how it might constitute a new mode of power that paternalistically regulates the very subjects it pledges to heal. It also examines how the special status of healing discourse as "above reproach" has shielded it from critical scrutiny. Chapter Two surveys the growing scholarly discourse on juridical healing, arguing that such inquiries tend to uncritically accept the core terms of the therapeutic turn. This work can thus serve to reify the problematic notion of healing promulgated elsewhere. Such thinking holds that tribunals can occasion forms of "catharsis" and "closure," both for individual victim-witnesses and more broadly. I argue that this belief in "disclosure for closure" forecloses critical reflection on the effects of juridical healing, or on alternatives to this conception. In Chapter Three, I develop a genealogy of juridical healing in relation to new legal institutions. I analyze how the promise of healing has served as a means of legitimization, even as it has led courts into uncharted legal territory. Even as the tribunals of the 1990s derived their credibility from the Nuremberg and Tokyo tribunals that followed World War II, they also had to distance themselves from the accusation that the latter had only dispensed "victors' justice." In an uncanny echo, recent tribunals can be said to have produced forms of "victims' justice." I examine how such rhetoric threatens to undermine the same credibility that it otherwise means to establish, even at the cost of the victims it purportedly champions. Chapter Four considers the tribunals' adjudication of sexual violence as a war crime. Here I use individual case studies to show the unforeseen costs of such procedures. I examine how the female victim of sexual violence is effectively condemned to victimhood by the very discourse that promises to heal her, but denies her meaningful agency. At the same time, "other" victims of wartime sexual violence--such as men, boys, or women from the "enemy camp"--are marginalized. My analyses of these cases explore how therapeutic-juridical interventions can undermine their avowed aims, while concealing the power relations on which they rely and which they perpetuate. The final chapter is based on fieldwork that I carried out in 2009 in The Hague, Netherlands, and examines the depoliticizing effects of juridical healing. Drawing on interviews with ICTY and ICC officials, the chapter outlines the temporal and spatial coordinates of the rhetoric of healing. I focus on the ways in which such rhetoric enacts movements of deferral and displacement, and thus neutralizes potential forms of political activity. As an alternative, I examine Hannah Arendt's account of politics, which is centered on collective, participatory action and antagonistic debate. Such a view allows us to imagine a more capable subject of politics, one with the potential to recover, resist, and revolt. The Epilogue evaluates the current and future implications of the rhetoric of healing, exploring alternative responses to extreme violence. I claim that juridical healing can be understood as the latest "last utopia" or the least "lesser evil" in a time when "human rights" and "humanitarianism" have become increasingly wed to military interventions. I proceed to trace additional contradictions in the discourse of juridical healing, in that contemporary IHL also identifies with the ideology of militarized humanitarianism in its endorsement of the UN doctrine of "Responsibility to Protect." I close by suggesting that juridical healing presents the international community with an aporia that might ultimately be generative, insofar as it produces conditions under which the very politics it stifles might also be aroused. By rethinking and reframing this rhetoric, I hope to indicate avenues for differently imagining and producing the future--a future not destined to repeat or be dictated by the violence, injustice, and pain of the past.

This paper seeks to document Danish experiences with integrating International Humanitarian Law (IHL) and International Human Rights Laws (IHRL) in capacity building and training of foreign armed forces. It is the first such attempt to present experiences from different international missions and engagements and has thus relied on 'inventing' ways and means of identifying and documenting these. The paper builds on a range of interviews with individuals directly or indirectly involved in training and capacity building activities such as military legal advisors and civilian advisors as well as members of the armed forces. Further, the paper draws on presentations and discussions at a Nordic seminar on IHL and IHRL in capacity building held in Copenhagen on 17 November 2015. The majority of relevant Danish military legal advisors were identified and interviewed for this paper. However, the paper would have benefitted from additional interviews with officers in the armed forces with hands on experience from IHL and IHLR capacity building and training in international missions. Future analysis could therefore focus on further identification of practitioners involved in IHL and IHRL training and capacity building from within the armed forces. While the paper presents an overview of IHL and IHRL capacity building and training activities to date it does not satisfactorily present the impact of these activities. Respondents were all asked about their views on the outcomes of the activities conducted in terms of changed behaviour, procedures and practises. However, due to the ad hoc and often discontinued nature of their work, few offered any views on the impact generated. This paper therefore argues that more should be done to monitor the outcomes and impact of IHL and IHRL capacity building and training including through establishing a baseline i.e. some form of assessment of IHL and IHRL adherence prior to the capacity building and training intervention. At the end of this working paper, key findings have been grouped under 5 thematic categories to provide the reader with 'easy access' to key observations. A list of useful resources on IHL and IHRL, all of which can be accessed online, is also included.

On May 31, 2010, in the early hours of the morning, Israeli Defense Forces boarded and occupied a flotilla of six vessels seventy-two nautical miles from the coast of Gaza. The flotilla carried food and other supplies to Gaza, which was under a naval blockade. During the incident, nine passengers were killed and several others wounded. In the aftermath, a key question that emerged was what body of law applied to the incident? Was it subject to human rights law, international humanitarian law, or some mix of the two? This same question has been at the heart of ongoing debates over the counter-terrorism operations of the United States in the wake of September 11, 2001. There was relatively little discussion of the relationship between human rights law and humanitarian law in the U.S. government before the terrorist attacks on September 11, 2001, because the issue did not often arise. On those few occasions that it did arise, the government's position was far from consistent. In 1970, the U.S. government supported U.N. General Assembly resolutions calling for compliance with human rights obligations during armed conflicts. In 1984, however, the United States made clear its view that the Convention Against Torture—a core human rights treaty—was inapplicable during armed conflict. The United States appeared to switch positions yet again when it adopted the International Covenant on Civil and Political Rights in 1992 without adding a similar disclaimer. [.]

According to public international law, humanitarian aid must comply with four fundamental principles, one of which being the principle of independence. Duly complying with this principle means that the humanitarian objectives must be autonomous from political, economic, military, or other objectives, and the principle serves to ensure that the sole purpose of humanitarian aid remains to relieve and prevent the suffering of victims of humanitarian crises. This requirement places the European Union—one of the world's largest donors of humanitarian aid—in a dilemma since, arguably, the Union's treaty-bases simultaneously require that it promotes, amongst others, principles of democracy, rule of law, human rights, and free trade when providing humanitarian aid to third countries. This article analyses this dilemma. It points out that whilst conflicts only arise infrequently, there have been occasions where they have indeed arisen, and it is argued that the principle of independence takes precedence over the treaty-based duty to promote 'European values'.

Biometrics is a technology that is increasingly being adopted by armed forces. It is the automated recognition of individuals based on their biological or behavioral characteristics. Important questions in relation to the use of this technology by armed forces concern the legal framework that governs such use. This article discusses the relationship between International Humanitarian Law (IHL) and biometrics, by focusing on a number of different activities carried out during armed conflict in which biometrics can play a role. It concludes that although IHL contains no rules that expressly regulate the use of biometrics, a number of IHL rules are relevant to such use. Some IHL rules may require the use of biometrics under certain circumstances, while others may limit such use. The application of IHL to biometrics raises a number of questions of interpretation, and thus lack of clarity. It is submitted that a discussion among States is required before determining whether new rules are required to address that lack of clarity, or whether clarification of the law will suffice. A first step could be the drafting of a document with non-binding "best practices."

In an armed dispute, the protected persons include combatants and the civilian population. Combatants who have horse de combat status must be protected and respected in all circumstances. Combatants who fell into enemy hands gained the status of prisoners of war. Protection and rights as prisoners of war are regulated in Geneva Convention III of 1949. Meanwhile, civilians are entitled to protection as regulated in Geneva Convention IV of 1949. The legal protection given to children is more focused on the consequences of armed disputes that will affect or affect children. As part of the civilian population, children who do not participate in hostilities receive general protection without any adverse distinction based on ethnicity, nationality, religion, or political opinion, and are intended to alleviate the suffering caused by war

In an armed dispute, the protected persons include combatants and the civilian population. Combatants who have horse de combat status must be protected and respected in all circumstances. Combatants who fell into enemy hands gained the status of prisoners of war. Protection and rights as prisoners of war are regulated in Geneva Convention III of 1949. Meanwhile, civilians are entitled to protection as regulated in Geneva Convention IV of 1949. The legal protection given to children is more focused on the consequences of armed disputes that will affect or affect children. As part of the civilian population, children who do not participate in hostilities receive general protection without any adverse distinction based on ethnicity, nationality, religion, or political opinion, and are intended to alleviate the suffering caused by war

The principle of proportionality protects civilians and civilian objects against expected incidental harm from an attack that is excessive to the military advantage anticipated from the attack. However, despite its status as a fundamental norm of international humanitarian law (IHL), key terms are not defined in relevant treaties nor do they benefit from critical judicial explanation. This has caused challenges for both academics and military commanders alike in explaining and applying the test for proportionality. The Article expands upon two points that were raised and generated interesting discussion at The Second Israel Defense Forces International Conference on the Law of Armed Conflict during a panel that dealt with contemporary issues in proportionality.

The International Law Association Study Group on the Conduct of Hostilities in the 21st Century was established in 2011 and held its first meeting in 2012. The Study Group has explored numerous issues arising from the relationship between international humanitarian law (IHL) and international human rights law in the conduct of military operations, technological challenges posed by new weapons systems, and the basic principles of IHL in the conduct of hostilities. In 2015, the Study Group established three working groups focusing on core issues within IHL in relation to the conduct of hostilities in modern warfare. These working group topics were military objectives, the principle of proportionality, and precautions in attacks. Each of these working group reports contributed to this final report, which the Study Group presented at the 77th International Law Association Conference in Johannesburg, South Africa on August 7–11, 2016.

The Crimean Crisis of February and March 2014 poses several questions to International Law. This Article explores one of them: Does the use of unmarked troops, soldiers in uniforms but without nationality insignia, in Crimea violate principles of International Humanitarian Law (IHL)? This Article first provides a brief summary of Crimea's history and the facts of the 2014 Crimean Crisis. It will be argued that IHL is applicable to the events in Crimea in February and March 2014 since the unmarked soldiers are attributable to Russia--either as Russian nationals or through Russia's exercise of control over them--and that there was no valid consent given justifying an "intervention by invitation." The Article will argue that the principle of distinction under IHL is not violated since it requires only that combatants should be distinguishable from the civilian population but does not require a link between the combatant and a particular party to the conflict. Furthermore, it will be demonstrated that IHL regarding military uniforms leaves states a broad area of discretion as to the appearance of a military uniform and does not oblige combatants to visibly disclose their nationality by wearing emblems or insignia. This Article will also argue that the use of unmarked soldiers in the case at hand does not amount to illegal perfidy under IHL but--absent clear legal provisions and noticeable examples from state practice--must be regarded as a lawful ruse of war. Lastly, the final Part will consider whether it is wise to amend the current legal rules in order to prohibit the use of unmarked soldiers in similar situations arising in future armed conflicts and will spell out a recommendation.

The participation of private and military contractors in armed conflicts is the contemporary phenomenon that concerned policymakers and military strategists, particularly Russian contractors. This phenomenon attracts most politicians to set up initiatives and to draw international guidelines to all concerned parties. The purpose of this research paper is to investigate the condition of Russian private military and security companies (PMSCs) in recent armed conflicts. The research is based on the realism approach, which will help explain Russian state behavior towards PMSCs, while the neoliberalism approach will help to explore this phenomenon from the Russian economic perspective. This research applies inductive, exploratory, and qualitative approaches, which solely based on secondary resources and media contents. The main finding of this research shows that those contractors have obligations under International Humanitarian Law (IHL), but the only limitation is the state's obligation to endorse them. Besides, it seems that an international treaty between countries could be a practical step towards having a useful regulatory framework.

The International Humanitarian Law regime undoubtedly calls for its implementation at a national level in order to have an adequate impact in the regulation of armed conflict. This paper aims to critically explore the application of such regime in Ecuador, not only in terms of the implementation of international treaties in national legislation, but also regarding the role of government and other institutions. For this purpose, Ecuador's accession to international treaties and its connection with national legislation will be analyzed, as well as other actions related to institutions such as the Ministry of Foreign Affairs, the Ministry of Defense, educational institutions, the National Commission of International Human Law and the Ecuadorian Red Cross. ; El régimen de Derecho Internacional Humanitario, sin duda, requiere de su implementación a escala nacional para tener un impacto apropiado en la regulación de los conflictos armados. El presente trabajo busca explorar de manera crítica la aplicación de dicho régimen en Ecuador, no únicamente en términos de implementación de tratados internacionales en la legislación nacional, sino también en el rol del gobierno y otras instituciones. Con este propósito, se analizará la adhesión del Ecuador a tratados internacionales y su vinculación con la legislación nacional, así como otras medidas relativas a instituciones como el Ministerio de Relaciones Exteriores, el Ministerio de Defensa, entidades educativas, la Comisión Nacional de Derecho Internacional Humanitario y la Cruz Roja Ecuatoriana.

State practice shows the increase use of drones in internal armed conflict. The discussion is conducted to answer whether national law adopts humanitarian law principles on the use of drones in internal armed conflict. Qualitative analysis is conducted with primary and secondary legal materials. The Regulation of the Minister of Transportation No. 90/2015 on Unmanned Aircraft Operation Control in airspace served by Indonesia and Minister of Defense Regulation No. 26/2016 on the use of drones for defense and security affairs does not contain the distinction principle, proportionality principle and precautionary principle. It is interpreted that the clauses in both rules on licensing, airspace classification and its activities can be used as a first step in intelligence gathering which will be useful in applying the distinction principle at the time of internal armed conflict. It is necessary to formulate the rules in detail in Military Manual that adopt humanitarian law principles. Keywords: drone, humanitarian law principles, Indonesian legislation

Terrorism is used to intimidate the civilian population, influence government policies, and influence the organization of the state by means of kidnappings and killings. The terminology of terrorism itself is actually nothing new, until now terrorism remains an actual thing and continues to grow. Its development is in line with the development of human thought, science and technology and the development of high human movement between countries. These acts of terrorism are a global issue that affects the political policies of all countries in the world, making it a starting point for the perception to fight terrorism as an international enemy. In the War on Terror, the U.S. government is committing an "armed attack" against Afghanistan, with the aim of "self-defense" under article 51 of the U.N. Charter. The war on terror has raised new problems in International Humanitarian Law. The purpose of the study was to determine the status of terrorists in war on terror and understand the relevance of International Humanitarian Law in the context of the Global War on Terror imposed by the United States.Keywords: Humanitarian Law, Terrorism, War on Terror

On October 2, 1995, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia' held that the Tribunal has jurisdiction to try Dusko Tadic, a Bosnian Serb, for war crimes and crimes against humanity. The Appeals Chamber ruled that the establishment of the Tribunal was lawful, that the Tribunal's primacy over national courts does not violate international law, and that the Tribunal's jurisdiction extends to crimes committed in internal armed conflict. The decision cleared the way for the first international war crimes trial since Nuremberg and Tokyo. The Appeals Chamber was right to uphold the validity of the Tribunal and its primacy over national courts, but, as this article will argue, the Chamber's sweeping interpretation of the Tribunal's jurisdiction raises some troubling questions.