A Human Rights Perspective to Global Battlefield Detention: Time to Reconsider Indefinite Detention

This article discusses one principal challenge to detention without trial of suspected international terrorists—the international human rights law (IHRL) norm requiring the introduction of an upper limit on the duration of security detention in order to render it not indefinite in length. Part One of this article describes the “hardline” position on security detention, adopted by the United States in the immediate aftermath of the 9/11 terror attacks (followed, with certain variations, by other countries, including the United Kingdom and the State of Israel), according to which international terrorism suspects can be deprived of their liberty without trial for the duration of the armed conflict in which the organizations they are affiliated with participate. Part Two describes judicial and quasi-judicial challenges to the “hardline” position, and Part Three addresses recent developments in IHRL relating to the co-application of IHL and IHRL and the extra-territoriality of certain IHRL norms, and specifically discusses developments relating to the application of IHRL norms governing security detentions. Part Four concludes by offering an IHRL-based perspective to security detention policy and, in particular, to aspects of the policy leading to de facto indefinite detention

Competing Jurisdictions of International Courts and Tribunals: Which Rules Govern?

Recent years have witnessed a sharp increase in the number of international courts and tribunals and greater willingness on the part of states and other international actors to subject themselves to the compulsory jurisdiction of international adjudicative mechanisms. However, because of the uncoordinated nature of these developments, overlaps between the jurisdictional ambits of the different judicial bodies might occur - i.e., the same dispute could fall under the jurisdiction of more than one forum. This, in turn, raises the question of coordinating between the competing jurisdictions, with a view of promoting the smooth operation of international law and safeguarding the rights and interests of the disputing parties. The purpose of the thesis is to study the implications of jurisdictional competition and to identify standards which may alleviate problems associated with the phenomenon. The first part of the thesis examines the jurisdictional ambits of the principal international courts and tribunals and delineates areas of overlap between their respective jurisdictions. It reveals considerable overlaps, which have already resulted, on occasion, in multiple proceedings. The second part discusses some of the potential systematic and practical problems that arise out of jurisdictional competition (e.g., forum shopping and multiple proceedings) and considers the expediency of mitigating them. Finally, the third part identifies and studies existing rules of international law, which govern inter-jurisdictional competition, and considers the introduction of additional norms and arrangements (e.g., the lis alibi pendens rule and the abuse of rights and comity doctrines). The central conclusion of the thesis is that jurisdictional competition, while positive in some ways, ought to be mitigated, or else it could undermine the coherence of the international legal system. Although existing rules regulate some aspects of inter-fora competition, additional rules are needed in order to preserve and improve the harmonisation of the international legal system

Digital Rights and the Outer Limits of International Human Rights Law

This article explores the extent to which key normative and institutional responses to the challenges raised by the digital age are compatible with, or interact with, changes in key features of the existing international human rights law (IHRL) framework. Furthermore, the article claims that the IHRL framework is already changing, partly due to its interaction with digital human rights. This moving normative landscape creates new opportunities for promoting human rights in the digital age, but might also raise new concerns about the political acceptability of IHRL. Following an introduction, Section B of the article will describe the development of digital human rights, using a “three generations” typology. Section C will explain how new developments in the field of digital human rights coincide with broader developments in IHRL, including: the extra-territorial application of human rights, obligations on governments to actively regulate private businesses and the erosion of normative boundaries separating specific human rights treaties from other parts of IHRL and international law. These two segments are followed by concluding remarks

An international attribution mechanism for hostile cyber operations

This article is the result of an international research project organized by the Federmann Cyber Security Research Center at Hebrew University to consider the feasibility of establishing an international attribution mechanism for hostile cyber operations, as well as the usefulness of such a body. The authors observe that, at present, states wielding significant cyber capability have little interest in creating such a mechanism. These states appear to be of the view that they can generate sufficient accountability and deterrence based on their independent technological capacity, access to expertise and to offensive (active defense) cyber tools, political clout, security alliances, and other policy tools, such as sanctions. However, countries with limited technological capacity and less ability to mobilize international support for collective attribution are more amenable to the prospect. To date, proposals to establish an international attribution mechanism have not acquired momentum. However, the authors suggest that progress remains possible by focusing on the three logical constituencies for such a body—States with limited technological, intelligence, and diplomatic capacity; States interested in generating broad collective attribution of attacks perpetrated against them; and international and regional organizations operating a cyber-related sanctions regime. Such a focus, combined with greater granularity, would significantly improve the prospects for the establishment of an international attribution mechanism and its eventual utilization by the international community