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Equality in International Law and Its Social Ontological Discontent

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Notes

  1. ‘“Equality” (or “equal”) signifies correspondence between a group of different objects, persons, processes or circumstances that have the same qualities in at least one respect, but not all respects, i.e., regarding one specific feature, with differences in other features’ (see Gosepath 2021).

  2. ‘The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances’ (see common article 1 of the Geneva Conventions 1949).

  3. No matter it is ‘just’ or ‘unjust’, it is a war of aggression or resistance to aggression. See Pictet (1958), 16.

  4. ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as … sex’ (see art 2(1), ICCPR).

  5. The Human Rights Committee has opined that ‘the enjoyment of rights and freedoms on an equal footing … does not mean identical treatment in every instance’ and ‘not every differentiation of treatment will constitute discrimination’ (see HRC GC18 1989, paras 8 and 13).

  6. In other words, they impose ‘duties to treat people in certain ways defined by reference to the way that others are treated’. See Gardner (1998), 355.

  7. While the ‘individuals’ and ‘collectives’ are more commonly referenced in analytic philosophy, ‘agency’ and ‘structure’ are the cognate entities theorised in social sciences. See Baker (2019), 1, and Pleasants (2019), 3. See, in general, Epstein (2021).

  8. For variations of this principle to different types of armed conflicts, see further analysis in Section 4.1.

  9. Pursuant to this principle, in general terms, the il/legality of jus ad bellum does not affect the il/legality of jus in bello and vice versa. See Yip (2020).

  10. The distinction requirements for combatants are provided in art 4, GCIII (n.d.), and art 44, API (n.d.).

  11. The precise legal basis of this remains unclear. For the view that it lies in IHL itself, see e.g. Bothe et al. (2013), 273; for the view that it lies in the law of state immunity, see e.g. Fox and Webb (2015), 593.

  12. E.g. rules on status-based targeting and the elaborate definition of the status, e.g. combatancy.

  13. E.g. long-term policy and strategic goals to avoid the use of force in general. As Sassoli observed, IHL provides a set of ‘objective rules of behaviour’ and their ‘[v]iolations are committed by individuals’. See Sassòli (2002), 402, and Sassòli (2007), 245.

  14. For the view that IHL is functionally negative in its prohibitive nature, see Baxter (1951), 388. Even positive obligations under IHL, e.g. precaution, serve the negative function of minimizing human suffering, instead of promoting human flourishing.

  15. The Genocide Convention (n.d.) and the Apartheid Convention (n.d.) do criminalise specific conduct. Some commentators therefore queried whether it is appropriate to characterise these as IHRL conventions as such rather than international criminal law conventions. See Provost (2002), 68.

  16. Common article 1 of the Geneva Conventions, in which the principle of belligerent equality is enshrined, only applies ‘to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties’ according to common article 2 of the Geneva Conventions unless parties to a NIAC bring it into force between them by special agreement as envisaged under common article 3 of the Geneva Conventions.

  17. For the background to the adoption of these new provisions, see Pilloud et al. (1987), paras 87–94.

  18. Open carrying of arms without wearing distinctive signs, see art 44(3), API (n.d.).

  19. One commentator called it ‘thinking the unthinkable’. See Corn (2011), 255.

  20. For examples of these challenges, see Pilloud et al. (1987), paras 1809–1813.

  21. Gardam argued in the context of the first Gulf War that ‘[i]t seems unlikely that the international community would have tolerated the scale of civilian casualties in the conflict if it were not for the consensus that Iraq's action had no legal or moral basis.’ See Gardam (1993), 412. But, it is questionable whether or not the lack of condemnation of civilian casualties in Iraq was due more to political than to legal reasons—Iraq itself certainly protested against the scale of civilian casualties, it just did not have many friends in the international community at the time to echo that protest. In the context of IAC involving non-state actors, Benvenisti cited two more instances as evidence. However, in relation to Israel’s attack on Lebanon in 2006, he himself referred to the external reaction as having ‘conflated ad bellum with in bello obligations’. In relation to Israel’s attack on Gaza in 2008 and 2009, he cited Khalilzad’s response, ‘Israel has the right to defend itself against these rocket attacks and we understand also that Israel needs to do all that it can to make sure that the impact of its exercise of right of self defense against rockets is as minimal and no affect [sic] on the civilian population.’ This statement, while addressing both considerations of jus ad bellum and IHL, does not suggest that the former has influenced the latter. See Benvenisti (2009), 544–5.

  22. The limited exceptions are that male Ukrainian nationals can cross the border if they are financially supporting three or more children under the age of 18, are single fathers of children under 18 or have children or are guardians of children with disabilities.

  23. The Permanent Mission of Ukraine filed a notification to the United Nations. See Ukraine’s derogation notice to the UN (n.d.).

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  1. College of Law, Hamad Bin Khalifa University, Doha, Qatar

    Ka Lok Yip

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Yip, K.L. Equality in International Law and Its Social Ontological Discontent. Jus Cogens 5, 111–124 (2023). https://doi.org/10.1007/s42439-023-00077-w

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