The first issue of the Israel Law Review for 2021 features four articles, all emanating from the 14th Annual Minerva/ICRC Conference on International Humanitarian Law, held at the Hebrew University of Jerusalem in November 2019 on the theme ‘Military Justice and Armed Conflict: Old Problems, New Challenges’.
Claire Simmons’ article, ‘The Scope of Military Jurisdiction for Violations of International Humanitarian Law’, addresses the role and limits of military jurisdiction over violations of international humanitarian law (IHL). As questions are often raised about the adequacy of military jurisdiction over violations of international law, the article explores both the extent to which some form of military justice may be necessary for the effective enforcement of certain provisions of IHL, and the way in which rights of individuals have led to restrictions on the format and scope of military jurisdiction.
In ‘The “Soul of an Army”: A Defence of Military Court Trials for Violations of the Law of Armed Conflict’, Conor Donohue responds to criticism of military justice as a body of law, noting that the field has undergone significant reforms to ensure that fair trial rights can be achieved. According to the article, modern military justice systems are appropriate mechanisms for addressing violations of the law of armed conflict (LOAC) committed by service members. The goals of military justice are consistent with LOAC, and the purported disadvantages of military trials are sufficiently mitigated to prevent cover-ups and unfair trials. Furthermore, military justice offers several benefits that cannot be achieved in a civilian or international forum.
A third article emanating from the same conference is Amber Brugnoli's ‘Denying Due Process While Promoting Democracy: The Iraqi Detention Story’. The fall of Saddam Hussein's regime in 2003 and the resulting security vacuum ultimately led to a massive detention operation that lasted for more than five years. This system, run mostly by US service members including military lawyers, attempted to work both within and outside Iraq's criminal justice system. The men and women of the coalition's Task Force 134 found themselves operating in a new environment in which little regard was given to the various investigative, prosecutorial and evidentiary conflicts that might arise when foreign lawyers operate in a domestic court without adequate training or background. The article explores these conflicts and shines a light on the due process concerns that should be considered when implementing wide-scale security measures in a post-conflict society.
In a final article from the conference, ‘Lex Generalis Derogat Legi Speciali: IHL in Human Rights Regulation of Military Courts Operating in Situations of Armed Conflict’, Anne Herzberg examines comments, case law, draft rules and other measures taken by the United Nations Human Rights Council and the African Commission on Human and People's Rights, in order to analyse their approach since 2000 to the use of IHL in assessing the legitimacy and operation of military courts. The article considers the validity, legality and effectiveness of these efforts. It concludes that in reviewing military courts, there exists a significant neglect of IHL in human rights frameworks. By overlooking IHL or relegating it to a sub-specialty of international human rights law, the Human Rights Council and African Commission deprive themselves of a wealth of expertise. Herzberg recommends the integration of IHL analysis and theory within relevant human rights discussions, to allow for greater legal and policy coherence.
The issue concludes with commentaries on two books. Dilek Kurban's essay, ‘An Intimate yet Anglo-Centric Account of a Renaissance Human Rights Man’, reviews Mike Chinoy's Are You With Me? Kevin Boyle and the Rise of the Human Rights Movement (Lilliput Press 2020). According to Kurban, Mike Chinoy offers, in a well-researched biography of Kevin Boyle, a fresh alternative to state-centric accounts of the origins of human rights. By portraying a social movement actor-turned legal scholar who used the law to contest the social inequalities against the minority community he belonged to and to push for a solution to the underlying political conflict, Are You With Me? also provides valuable insights for socio-legal scholars, especially those focusing on legal mobilisation.
Atul Alexander and Saiesh Kamath conclude the issue with a review of James Green's The Persistent Objector Rule in International Law (Oxford University Press 2016).
Finally, it is our pleasure to conclude this introduction with the announcement that the 2020 Israel Law Review Prize has been awarded to Henning Lahmann for his article ‘Information Operations and the Question of Illegitimate Interference under International Law’, published in issue 53(2). Congratulations, Henning!
We wish you all an enjoyable and fruitful read.
