Fallujah battles: Violations of the international humanitarian law

In April and November of 2004, the civilian population of Fallujah City experienced two extremely violent battles (“the Fallujah Battles”) initiated by the Coalition Forces (CF) in Iraq. Marked by the killing and displacement of hundreds of thousands of people in Fallujah City, the Fallujah Battles raise a number of issues related to international humanitarian law (IHL), as well as concerns regarding the legal institutions charged with the protection of international human rights.This article generally discusses the crime allegedly committed against civilians by the CF – which included the USA, UK and Iraqi forces – during the Fallujah Battles.The first part examines the principal IHL instruments considered in relation to acts that were committed during the Battles of Fallujah.The discussion then considers whether actions taken against civilians, civilian properties and medical units by the CF; and the prohibition of International Committee of Red Cross (ICRC) from carrying out its duties in wartime by the CF amount to violations of IHL.The second part considers whether the use of white phosphor constitutes a violation of contemporary IHL, particularly in relation to whether such weapons can be considered chemical weapons prohibited by IHL.Finally, this article discusses the potential legal mechanisms available to prosecute alleged perpetrators of war crimes in Fallujah

Protection of the Rights of the Victims of Human Trafficking: Has Malaysia done Enough?

Human trafficking is a grave threat to human rights. Statistic shows that yearly almost thousands of men, women and children grieve in the hand of traffickers as human trafficking victim, in their own countries or abroad. Thus, there is a need for Malaysia to take the necessary step to combat human trafficking and at the same time to provide effective protection for victims of trafficking as enacted under the Malaysian Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (ATIPSOM 2007). The first part of this research examines the international law standards on human rights protection of the victim of human trafficking while the second part analyses any legal and policy measures adopted within the Malaysian context. In this analysis, attention will be made on numerous protection mechanisms such as provision for a shelter, or a place of refuge, appointment of Protection Officers, medical treatment, right to work and safe repatriation. This research further examines and assesses the adequacy and effectiveness of the current measures and laws especially in terms of their enforcement by the relevant enforcement bodies. Analysis on the existing legal framework within other ASEAN States, including Indonesia, is also done so as to provide relevant best practices for consideration and adoption by the Malaysian government. In conclusion, this research provides a number of solutions to address the problems and challenges within the existing legal framework in Malaysia with the ultimate aim at providing better protection for the victims of human trafficking

Definitional dilemma of “terrorism” under international law

Terrorism is not a domestic issue but is instead a global phenomenon. The changing form of terrorism is going to be complex day by day. Every State is facing terrorism, and no State is immune to this disease. None the least, the lack of a universally accepted definition of terrorism is a significant hindrance in developing effective international counter terrorism strategies. The 9/11 attacks in the US have unavoidably shaped the fight against by demanding a rapid and unified reaction from the international community. This Paper examines the meaning of terrorism and also evaluates the definitions of terrorism presented by various scholars. It also highlights the hurdles which are hindering in attaining a universally accepted definition of terrorism. Moreover, the definitions of terrorism by the International bodies such as the United Nations General Assembly, the Security Council, the International Court of Justice and the International Criminal Court are also analysed. The analysis provides a foundation for any future evaluation on definition of terrorism under any domestic counter terrorism laws. This Paper concludes that a universally accepted definition of terrorism is necessary to help in curbing the issue of terrorism globally or domestically

Assessment on state’s duty to protect human rights violations by business enterprises within oil & gas industry (O&G)

To date, transnational corporations (TNCs), including oil and gas (O&G) companies, have had no direct human rights obligations under international law. International law and human rights law have principally focused on protecting individuals from violations by the government. In view of the recent development, it is timely to have a look into O&G laws in Malaysia. This article presents a brief summary of basic picture of O&G industry in Malaysia. In the first part, it gives a brief introduction of historical development of O&G industry and introduction of United Nations Guiding Principle (UNGP). It also discusses on the role of PETRONAS as the appointed main regulators of O&G industry in Malaysia. It then attempts to lay down the relationship between existing legal frameworks governing the activities in the value chain of the O&G industry in Malaysia and State responsibility to protect under UNGP principle

The Libyan NTC Law No.38 2012: a disguised amnesty

The armed conflict of Libya occurred in 2011 and the authoritarian government of Ghaddafi felt down. During the conflict serious violations of human rights and humanitarian rights law (IHL) occurred and both sides committed serious crimes included of willfull killings, rape, looting, torture and aarbitrary arrests. After the fall of Ghoddafi, a transitional government came to power in Libya that was known as the National Transitional Government of Libya (NTC). The Libyan NTC adopted amnesty laws and considered it as part of the transition of power from the previous government to the new one. This amnesty law was criticized by human rights organizations and human rights activists. In this article after providing a brief introduction to amnesty and introducing various types of it and contemplating on transitional justice, the NTC amnesty law will be examined

THE PLIGHT OF REFUGEES IN MALAYSIA: MALAYSIA AS A TRANSIT COUNTRY IN PROTECTING REFUGEES’ RIGHTS

The role of UNHCR and respective transit countries is to help refugees find lasting solutions that will allow them to rebuild their lives in dignity and peace, via local integration, voluntary repatriation or resettlement in a third country. Awaiting resettlement, the refugees are always mistakenly believed to be economic migrants or illegal immigrants. Due to the absence of legal or administrative regulations governing refugees, they are exposed to detention with the possibility of refoulement. These refugees are not legally permitted to work, which leads them to work discreetly and are willing to perform low-paying jobs in order to earn a living. Children are denied proper education and healthcare, which are considered as luxuries they could not afford. All these are common and enduring plights that still haunt refugees in Malaysia. This article reviews the plight of refugees in Malaysia during the transitional period before resettlement, discusses the roles of Malaysia as a transit country, and proposes lasting solutions for refugees in Malaysia. It is hoped that this article will provide a better understanding of the roles of transit countries particularly Malaysia for protection of refugees’ rights especially on their resettlement. In addition, assistance from UNHCR and other NGOs are also important to solve this problem.   Keywords: Malaysia, refugee, resettlement, transit country, UNHCR.   Cite as: Sahak, S., Nordin, R., & Ishak, M. K. (2020). The plight of refugees in Malaysia: Malaysia as a transit country in protecting refugees’ rights.  Journal of Nusantara Studies, 5(1), 378-394. http://dx.doi.org/10.24200/jonus.vol5iss1pp378-39

Non-Adherence to Human Rights and Humanitarian Laws in the Conduct of Armed Conflict in Yemen

To protect the properties, lives, and dignity of human persons worldwide, the International Humanitarian Law seeks to uphold and promote Human Rights Law and other international frameworks regulating the rights of civilians and parties to armed conflict. The conduct of parties to the armed conflict who have grossly violated the combined provisions of International Human Rights Law and the International Humanitarian Law resulted in the persistence of armed conflict and warfare in Yemen, thereby crossing every access road to humanitarian rights and privileges. The researchers adopt the doctrinal methodology to investigate the status of warfare in Yemen, the provisions of the law on International Human Rights and Humanitarian Law, and the extent to which the parties to the armed conflict in Yemen break such laws. The International Humanitarian Law and the International Human Rights Law regulate the conduct of actors and parties in the armed conflict both in Yemen and the world at large. The finding of this studydemonstrates that all the participants in the conflict in Yemen violate the International Humanitarian Law. Therefore, they are accountable for such violations.The research recommends strict adherence and compliance to both the International Human Rights Law and the Humanitarian Law throughout the armed conflict in Yemen to have lasting peace. Furthermore, accountability for violations committed should be identified, and all actors in the armed conflict should be punished accordingly

Paternalistic approach towards the Orang Asli in Malaysia: tracing its origin and justifications

Issue and challenges pertaining to land and the native communities loom large in contemporary Malaysian political and economic affairs. Responding to them often necessitates an understanding of their genesis. The main objective of this study was to examine the importance of land and natural resources to the life of the Orang Asli, and to demonstrate that their limited autonomy was the reason why the British claimed that they needed state protection. To achieve this objective secondary data were examined to provide information background of the Orang Asli, the relationship between Orang Asli and the Malays during pre-colonial period, the relationship between the Orang Asli and the British colonial government during colonial periods, and the relevant policies towards the Orang Asli by both the Malays and the British colonial government during the pre-colonial and colonial periods. This article concludes that the paternalistic approach towards the Orang Asli was adopted during the pre-colonial period and the approach was continued and to the certain extent worsened during British colonial period in which the Orang Asli were treated in a paternalistic manner as compared to the Malays, in particular, with regard to land matters

FEMALE VICTIMS OF DOMESTIC VIOLENCE AND THEIR RIGHTS TO COMPENSATION IN MALAYSIA

In Malaysia, victims of domestic violence including women may seek protection under the Domestic Violence Act 1994 (Act 521) (hereinafter “DVA 1994”). Pursuant to section 10 of the DVA 1994, female victims of domestic violence (hereinafter “FVDV”) have the right to claim compensation from their husbands or former husbands (hereinafter “Abusive Husbands”). The criminal court also has jurisdiction to make a compensation order as stated under section 426 (1A) of the Criminal Procedure Code (Act 593) (hereinafter “CPC”). A qualitative approach was used for this research, consisting of a detailed analysis of the DVA 1994, CPC, Penal Code (Act 574), case laws, journals, newspapers and scholarly writings related to this area. Based on the findings, there are shortcomings within both provisions which may affect the FVDV’s claim for compensation. Thus, it is timely to propose amendments and reforms to enhance their rights. These include the insertion of a provision stressing that the claim for compensation under section 10 of the DVA 1994 can be applied through a stand-alone application, the inclusion of a provision allowing the compensation order to be initiated by the court on its own motion or upon the application by the FVDV themselves, imposing a responsibility on the court to give reasons if the court decides to disallow the application for compensation made, explaining the legal consequence to the offender should the offender fail to comply with the compensation order, and alternatively to consider a state-funded compensation scheme to provide immediate financial assistance to FVDV without going through the court process. Keywords: Abusive husbands, domestic violence, female victims of domestic violence (FVDV), right to compensation. Cite as: Mohammed Na’aim, M. S., Rajamanickam, R., & Nordin, R. (2019). Female victims of domestic violence and their rights to compensation in Malaysia. Journal of Nusantara Studies, 4(1), 384-400. http://dx.doi.org/10.24200/jonus.vol4iss1pp384-40

Legitimacy as a Precondition for the Recognition of New Governments: A Case of Libya

Recognition of new Stets and governments is a political act with legal reverberations. Although the recognition of new States and governments is a traditional concept of international law but the challenging recognition of the transitional government of Libya proved that this traditional concept still can be highly exigent. Traditionally, the States in providing recognition to a new government follow their own benefits and privileges and rarely consider the structure, capacity and public support for the new government. If the rule of law and respecting democracy is going to be means of promoting peace and security is various areas of the world, is not it time to redefine the traditional concepts of international law (included of recognition of new States and government) from a new perspective? Considering the fact that, the existence of a legitimate authority in a group enhances the effective functioning of that group and reduces the internal conflicts, it seems that it is time to expand the political concept of legitimacy of the authorities into the international law. Is there any State practice to support the argument? In this article, the existence of norm creating forces and role of legitimacy in the recognition of the Libyan Transitional Government is going to be analysed. The After studying the role of legitimacy of the Libyan NTC in passing the sovereignty from the past regime to the new government by the international community, the effect of lack of legitimacy on the previous regime will be examined and the question of withdrawing of recognition of governments will be addressed