Indiscriminate attacks as 'Jus in Bello' violations. Bridging the gap between international humanitarian law and international criminal law.

Daniele, L ORCID: https://orcid.org/0000-0002-2451-2380, 2019. Indiscriminate attacks as 'Jus in Bello' violations. Bridging the gap between international humanitarian law and international criminal law. PhD, Nottingham Trent University.

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Abstract

This research aims to unveil gaps, contradictions and areas of ineffectiveness within the international legal regime governing ‘indiscriminate attacks’ as Jus in Bello violations, namely attacks failing to comply with the fundamental principle of distinction between civilians and combatants that lies at the very foundations of the law of armed conflicts.

The enquiry will focus on a specific issue: the lack of congruence in the respective definitions and treatment of indiscriminate attacks by International Humanitarian Law (IHL), on the one hand, and International Criminal Law (ICL), on the other.

By doing so, it aims to address the following two questions: are indiscriminate attacks international war crimes? Is it at all possible to hold those responsible for indiscriminate attacks criminally liable at the international level? The research will then assess the impact of this incongruence on the chances of prosecution of such conducts under ICL, in particular when committed by agents of internationally hegemonic States.

ICL originates from a number of historical attempts to establish – at the international level – individual criminal liability for violations of the laws of war. Thus, as a project of global justice, ICL came into being to serve as the ‘enforcement arm’ of IHL (and only at a later stage of development brought about the criminalization of the most serious human rights violations). Together, IHL and ICL constitute the main complementary legal regimes in the laws of war area. Nonetheless, these two regimes, when cross-examined, reveal several areas of contradiction and misalignment, given their different theoretical and normative paradigms, and their distinct historic, cultural and ideological characteristics. The substantive treatment of indiscriminate attacks offers an utmost paradigm of these discrepancies, unveiling a fracture in which it is possible to measure, in international law, all the thorny and unresolved issues revolving around the problem of civilian victimization in wartime.

The research suggests that the international legal regime conceived to prevent indiscriminate attacks reveals specific weaknesses in confronting the challenge of adjudicating such conducts when committed by agents of powerful States in the international arena.

At present, the most recent contributions about civilian victimization arising from other fields (such as political science, military history, international relations, sociology, strategic and security studies) indicate that liberal democracies are no less likely than authoritarian regimes to commit, be complicit in (or sanction as a strategic/tactic option) civilian victimization in wartime. Since the currently hegemonic States in the global sphere are (neo)liberal democracies, this convergence of legal hypotheses and social sciences’ findings further reinforces the idea that revisiting the constraints on the waging of war (in order to overcome their ineffectiveness in preventing the crimes of the ‘powerful’) is a necessary axiological and teleological step.

The final aim of the research, thus, is to indicate a perspective of legal reform of the international penal provisions punishing to the commission of indiscriminate and disproportionate attacks, in order to achieve greater effectiveness and higher equality of their enforcement.

Item Type:	Thesis
Description:	A thesis submitted in partial fulfilment of the requirements of Nottingham Trent University and University of the Studies of Naples Federico II for the degree of Doctor of Philosophy.
Creators:	Daniele, L.
Date:	September 2019
Rights:	This work is the intellectual property of the author. You may copy up to 5% of this work for private study, or personal, non-commercial research. Any re-use of the information contained within this document should be fully referenced, quoting the author, title, university, degree level and pagination. Queries or requests for any other use, or if a more substantial copy is required, should be directed to the owner(s) of the Intellectual Property Rights.
Divisions:	Schools > Nottingham Law School
Record created by:	Jeremy Silvester
Date Added:	10 Jul 2020 15:25
Last Modified:	21 Jan 2022 16:20
URI:	https://irep.ntu.ac.uk/id/eprint/40206

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