The research conducted at EDICA focuses on a general theme and more specific projects that fall within this theme.
The general research theme of EDICA is the hypothesis of an international law of armed conflict as a coherent normative regime within the international legal order. In particular, the research examines the interaction between the different branches of international law applicable to armed conflict.
This objective will be pursued in three stages, namely, first, to theorize the "horizontal" relationships reflected in contemporary practice between humanitarian law and other relevant branches of international law; second, to propose, on this basis, the "vertical" construction of an international law of armed conflict, making it possible to formulate solutions to concrete questions raised by the recent practice of armed conflict; and third, to identify the specific secondary rules of this "special" normative regime.
In general, while the research advocates the harmonization of the branches of international law applicable to armed conflict with a view to enhancing the protection of the person and of property considered essential, it distances itself from the contemporary trend that claims to pursue the same goal but argues for the existence of a convergence, usually "standardizing", of these branches on the basis of a hypothetical common principle of humanity and a questionable concept of coherence.
Several specific projects carried out by EDICA doctoral students fall within the general theme.
These projects concern :
The relationship between international humanitarian law and international criminal law
Humanitarian law and international criminal law are two branches of international law applicable to armed conflict. These two branches are characterized by a strong interdependent relationship: the implementation of humanitarian law is mainly ensured by international criminal law, while the latter draws from humanitarian law the elements necessary for the definition of the war crimes it aims to repress. This relationship of interdependence is not without difficulties. It results in normative influences between the two branches which seem to undermine their respective essential features (the need for flexibility in the case of humanitarian law and their in principle restrictive character in the case of international criminal law), which may prevent each branch from meeting the objectives assigned to it. The research intends to examine these difficulties by analysing the sources, limits and developments in the interdependent relationship between the two branches. The final objective is to propose solutions aimed at overcoming such difficulties. In this respect, starting from the hypothesis that humanitarian law and international criminal law must be able to articulate themselves in a coherent manner insofar as they apply to the same reality, that of armed conflict, and that this coherence is necessary for the effective regulation of this reality, the research intends to consider these two branches in the form of a harmonised plural unity. To this end, it will resort to legal theory, whose key mechanisms make it possible to bring together distinct legal regimes while taking care to preserve the specific features of each of them.
Foreign state intervention against an organized armed group
Foreign State interventions against an organized armed group raise many questions about the scope of application of international humanitarian law, as traditionally conceived. A first question lies in the qualification to be given to this type of conflict situation. The research will seek to demonstrate that the single qualification of non-international armed conflict is the most appropriate one for such situations. It will then propose a taxonomy of extraterritorial non-international armed conflicts. It thus distinguishes between extraterritorialized non-international armed conflicts (when the foreign State intervenes in a pre-existing purely internal armed conflict in coordination with the territorial State) and ab initio extraterritorial non-international armed conflicts (when the foreign State intervenes against the armed group in a totally independent manner). In doing so, the research will address the difficulties related to the extraterritorial or multiterritorial applicability of the treaty texts governing the subject matter as well as the pitfalls specific to customary international humanitarian law. In addition to the issues of qualification and applicable law, the work carried out will also address the geographical scope of humanitarian law. In this regard, the research argues for a deterritorialized applicability of the law of non-international armed conflict. It will take a position in favour of a materially circumscribed applicability on the basis of the key concept of the link of belligerency. The material applicability thus draws the geography of the conflict. Given the concerns expressed about the lack of territorial delimitation per se of the conflict, the research will address these concerns by showing that normative interaction with other branches of law, such as human rights and jus ad bellum, will temper the application of humanitarian law.
Prohibition of arbitrary deprivation of liberty in non-international armed conflicts
The issue of deprivation of liberty in non-international armed conflict (hereinafter CANI) is linked to the contemporary proliferation of this type of conflict on a global scale and to the inadequacy of international humanitarian law (hereinafter IHL) to regulate all aspects of these conflicts. This increase in the number of NNICs has given rise to many challenges for IHL, including those relating to the detention regime. When comparing or considering the legal regime applicable to the CANI in relation to international armed conflict (hereafter IAC), one is disappointed by the lack of detail, specificity and weakness of a regulatory regime. The whole issue in the context of this research therefore concerns the legal basis as well as the procedural guarantees likely to justify the deprivation of liberty of persons taking part in hostilities in a CANI, given that this has not been provided for as such by the international humanitarian law applicable to such conflicts. However, as recalled in the main human rights conventions and doctrine, the principle that "no one shall be arbitrarily deprived of his or her liberty" is customary law and applies to both IACs and CANIs. Thus, the requirement of a valid reason for the deprivation of liberty concerns both the initial reason for the deprivation of liberty and the continued detention. Therefore, a question arises, under what legal basis can persons who participate in hostilities in a CANI be detained?
Since conventional IHL does not answer this question, we will try to analyse whether this basis cannot be implicitly inferred from such silence. If not, does customary IHL provide a basis for detaining persons taking part in hostilities in a CANI? If not, should national law or ad hoc sources be used to justify the detention of persons in CANI? In the event that national law and/or ad hoc sources were to prevail, the problem of accommodating them in the context of armed conflict would likely arise. More particularly, as national law is essentially marked by human rights which provide a better guarantee for the person deprived of liberty, and as States have the option to derogate from them by way of derogation, this protection must be put into perspective. It will then be necessary to clarify the implicit non-derogable nature of certain rules, in particular habeas corpus, protecting persons against arbitrary deprivation of liberty, and to rule out the application of the results of this research to armed groups from the outset, since not only do they appear to be legally incapable of implementing the requirements of international human rights law prohibiting arbitrary deprivation of liberty, but they also lack the necessary logistical means to do so. Nevertheless, the non-derogable nature of certain procedural rules of IHL providing a minimum guarantee of protection for persons deprived of their liberty in the CANI should also be recalled. These norms are binding on all parties to the Humanitarian CANI.
The commitments of armed groups under international law
More and more groups are making or entering into commitments with or for the attention of the State against which they are fighting (and/or with third States, international organisations and the International Committee of the Red Cross). Whether peace or ceasefire agreements, unilateral declarations, codes of conduct or special agreements concluded with armed groups under common Article 3 of the Geneva Conventions, these various instruments have so far been little researched. Both the rare doctrine that has taken an interest in the subject and the international jurisprudence on the subject make it difficult to identify the legal regime of these texts and, moreover, leave many questions unanswered. The proposed research is intended to fill this gap. It makes and intends to test the hypothesis that the commitments of armed groups are governed by specific rules of international law, which implies that such groups should be considered as having the capacity to create international law and enjoying (some) international legal personality.
In order to assess this assumption, the research will proceed in four steps. First of all, the legal interest(s) of the recognition of an international nature in these commitments will have to be demonstrated. Secondly, the research will examine their normative content. This question is not only of interest in order to assess the impact of this content on the ordinary law of armed conflict, but is also indispensable for the analysis of the next two stages, namely, the study of these commitments in the light of the theory of sources, which in turn involves an examination of the theory of subjects and, in particular, the question of a possible international law-making capacity on the part of armed groups and of an international legal personality as the recipient of this capacity.