ISIL YEARBOOK OF INTERNATIONAL HUMANITARIAN AND REFUGEE LAW

Transcription

1 VOL. VI I S I L YEARBOOK OF INTERNATIONAL HUMANITARIAN AND REFUGEE LAW ISIL YEARBOOK OF INTERNATIONAL HUMANITARIAN AND REFUGEE LAW VOL. VI THE INDIAN SOCIETY OF INTERNATIONAL LAW NEW DELHI

2 THE INDIAN SOCIETY OF INTERNATIONAL LAW Executive Council President Ram Niwas Mirdha Executive President R. P. Anand Vice Presidents Narinder Singh C. K. Chaturvedi V. C. Govindaraj Secretary-General Rahmatullah Khan Treasurer R. K. Dixit Editor-in-Chief Rahmatullah Khan Director Manoj Kumar Sinha Members Satpal Nalwa B. C. Nirmal Sanjay Parikh A. Sudhakara Reddy Luther Rangreji S. K. Verma V. G. Hegde C. Jayaraj Shikhar Ranjan A. K. Ganguli J. C. Batra Lakshmi Jambholkar All applications for membership of the Society should be addressed to: Ph : Fax : Secretary-General The Indian Society of International Law V.K. Krishna Menon Bhawan 9, Bhagwan Dass Road, New Delhi isil@giasdl01.vsnl.net.in Website:

3 ISIL YEARBOOK OF INTERNATIONAL HUMANITARIAN AND REFUGEE LAW EDITOR-IN-CHIEF V. S. MANI VOL. VI 2006 The Indian Society of International Law New Delhi

4 Indian Society of International Law Mode of Citation: Vol. VI. ISIL YBIHRL (2006) India : Rs. 400 Developing Countries : US $50 US and Other Countries : US $ 80 The ISIL Yearbook of International Humanitarian & Refugee Law is published annually by the Indian Society of International Law. All the materials of ISIL Yearbook, (in duplicate), and all correspondence regarding the ISIL Yearbook should be addressed to the Chief Editor, ISIL Yearbook, V. K. Krishna Menon Bhawan, 9, Bhagwan Dass Road, New Delhi Manuscripts will not be returned under any circumstances. Views expressed in the articles, book reviews, editorial comments, notes and in all other contributions to this ISIL Yearbook are those of respective authors and are not necessarily the views of the Board of Editors or of the ISIL, ICRC, UNHCR. Edited, printed and published by Prof. V.S. Mani for the Indian Society of International Law, 9, Bhagwan Dass Road, New Delhi and printed at Shivam Offset Press, A-12/1, Naraina Industrial Area Phase-I, New Delhi Ph.: ,

5 ISIL YEARBOOK OF INTERNATIONAL HUMANITARIAN AND REFUGEE LAW Editorial Board Editor-in-chief V.S. Mani Managing Editor Manoj Kumar Sinha Chief Adviser R. K. Dixit Treasurer, Indian Society of International Law Executive Editors Larry Maybee, Regional Legal Adviser, International Committee of the Red Cross, Regional Delegation for South Asia, New Delhi Sumbul Rizvi Protection Officer UNHCR, New Delhi Members Vera Gowlland-Debbas Raul Pangalangan B. Errabbi Professor of Public Prof and Dean of Law Visiting Professor International Law, University of National Academy of Legal Graduate Institute of Philippines Dilman, Study and Research International Studies, Queezon city University Geneva Philippines Hyderabad Gudmundur Alfredsson Rosemary Rayfuse Umesh Kadam Professor of Law Department of International Communication Delegate Raoul Wallenberg Law, University of ICRC, Kualalampur Institute of Human New South Rights and Humanitarian Wales, Sydney, Australia Law, Lund, Sweden Dr. Ch. Benarji Legal Officer, International Committee of the Red Cross, New Delhi

6 CONTENTS ARTICLES The Modern Relevance of the Martens Clause Emily Crawford 1 Denationalization and Statelessness in the Modern World Tang Lay Lee 19 Rechtstaat Aspirations Versus Accomplishments: Rethinking Recent Rule of Law Efforts in Iraq Kevin H. Govern 49 The Culpability of Gender-based Terrorism in International Humanitarian Law: The Rape of Women in Armed Conflicts M. Rafiqul Islam 87 Crimes Within the Jurisdiction of the International Criminal Court and the Indian Response B.C. Nirmal 106 Decisions of the International Court of Justice Involving Bosnia and Herzegovina and Serbia and Montenegro Manoj Kumar Sinha 126 The Use of Military Force in the Fight against Terrorism: International Legal Framework Dominika Švarc 142 Definitions and Elements of Crimes in the Rome Statute: Some Critical Reflections Chandra Jeet 169 A Critique of the Rights of Refugees under the OAU Convention Governing Specific Aspects of Refugees Problems in Africa Oyelade O. S. 201 Refugees, Asylum-Seekers and the Legal Obligations of States for their Protection: Critical Reflections on the South African Approach Dejo Olowu 233

7 Protection of Women During Armed Conflict: A Survey of Existing Network of Treaty - Customary Law and Practice T.V.G.N.S. Sudhakar 251 SHORTER ARTICLE Persecution and the Common Characteristic A Refugee Problem in Particular Social Groups Geoffrey Care 265 OFFICIAL DOCUMENTS Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the IRB, Guideline Issued by the Chairperson Pursuant to Section 159(1)(h) of the Immigration and Refugee Protection Act of Canada 281 BOOK REVIEWS Sumita Das, Refugee Management Lakshmi Jambholkar 291 International Association of Refugee Law Judges, The Asylym Process and the Rule of Law Manoj Kumar Sinha 293 Nilendra Kumar, (ed.), Military Law: Then, Now and Beyond Wg. Cdr. U.C. Jha 296 SELECT BIBLIOGRAPHY Select Bibliography on International Humanitarian & Refugee Law Meenakshi Bhan 299

8 PUBLICATIONS OF THE SOCIETY Indian Journal of International Law The Indian Society of International Law publishes The Indian Journal of International Law a quarterly in March, June, September and December every year. Annual Subscription for the Journal India Abroad Rs. 600 $ Subscriptions are automatically renewed upon expiration unless a notice of discontinuance is made immediately after the receipt of the last issue. Claims for lost, damaged or undelivered issues will be honoured if the claims are made within three months by Indian subscribers after the due date of publication. The Journal has limited stocks of back issues/volumes which can be had at Rs. 150 per issue or Rs. 600/- per volume. The Sino-Indian Boundary (Texts of treaties, agreements and certain exchange of notes relating to the Sino-Indian Boundary) (1962) The Sino-Indian Boundary Question and International Law Rs by K. Krishna Rao (1963) The India-China Boundary Question (A Legal Study with a brief Rs Historical Introduction) (1963) International Commercial Arbitration (1964) Rs The Kutch-Sind Border Question (A collection of Rs documents with comments) (1965) Asian-African States (Texts of International Declarations) (1965) The Question of South-West Africa (Documents and Rs.7.50 ($2.00 or 14s.) Comments) (1966) The Arab-Israeli Conflict (Documents and Comments) (1967) Vietnam: The Cycle of Peace: Illusions and Realities Rs By B.S.N. Murti (1968) ($ 4.00) Non-Aligned Developing Countries (Basic Documents) (1970) Rs ($ 10.00) Essays on International Law: In Honour of Krishna Rao Edited by M. K. Nawaz (1975) Out of Print) Forest Resources Management Legal and Policy Problems Rs in India and Germany (1984) DM 25;US $ 10) By Rahmatullah Khan and Lothar Gundling Terrorism and International Law (1988) Rs Edited by R. P. Dhokalia and K. Narayana Rao Navodit Rajya Evaym Antrashtriya Vidhi (Hindi) Rs By R. P. Anand (1989) Global Environment Change and International Law Rs By Gurdip Singh (1991) International Law in Transition Essays in Memory Rs Of Judge Nagendra Singh (1992) Edited by R. S. Pathak and R. P. Dhokalia International Environment Law Basic Documents Rs and Select References (1996) US $ 60 General Editor: Rahmatullah Khan Adhunik Antarashtriya Vidhi (Hindi) (1998) By B. C. Nirmal Rs Dynamics of International Law in the New Millennium (2004) Edited by R.K. Dixit and C. Jayraj Rs V.K. Krishna Menon Remembered Rs Published by Indian Society of International Law ISIL Year Book Vol. I. (2001) Rs US$80 - Do - Vol. II (2002) Rs US$50 Developing Countries US $ 80 US and Others - Do - Vol. III (2003) -Do- - Do - Vol. IV (2004) -Do- Note: Out of print books are available with ISIL on the payment of photocopying charges. For Enquiry Contact: Secretary General The Indian Society of International Law V. K. Krishna Menon Bhawan, 9, Bhagwan Dass Road, New Delhi

9 GUIDELINES FOR CONTRIBUTORS TO ISIL YEARBOOK OF INTERNATIONAL HUMANITARIAN AND REFUGEE LAW The Yearbook welcomes submission of contributions for consideration by the Editorial Board with a view to publication. For consideration by the Editorial Board the Contributors are requested to observe the following guidelines: 1. All materials for publication and all correspondence regarding the Journal should be addressed to the Chief Editor, ISIL Yearbook of International Humanitarian and Refugee Laws, V. K. Krishna Menon Bhawan, 9, Bhagwan Dass Road, New Delhi A letter stating that the submission is an original, unpublished work which is not being submitted for publication elsewhere. 3. The manuscript should be typed in double space (text as well as footnotes) throughout on one side of A4 size paper and submitted in duplicate. It may also be submitted in a floppy disk, preferably in MS Word. 4. Manuscripts will not be returned under any circumstances. 5. After acceptance, it will not be possible to amend texts or send proofs to the authors for correction. 6. Spellings should follow the British pattern as in the Oxford English Dictionary. 7. REFERENCING STYLE FOR FOOTNOTES: The first reference to any book, article or document should be mentioned in the following way: Book: I. A. Shearer, Starke s International Law, 11 th Edition (Butterworths, London, 1994), p. 10. Article appearing in an edited book: R. P. Anand, The World Court on Trial, in R.S. Pathak and R.P. Dhokalia, (ed.), International Law in Transition: Essays in Memory of Judge Nagendra Singh (Lancers Book, New Delhi, 1987), pp at p. 79. Article appearing in a Journal: A. Jayagovind, Legality of Unilateral Measures in International Trade Law, Indian Journal of International Law, vol. 40 (2000), pp at p. 18. Full name of Journal should be provided where it is being referred to for the first time, thereafter, in subsequent references its abbreviated name should be mentioned.

10 Article in News magazines: Kuldip Nayar, Where the NHRC has Failed, World Focus (New Delhi), vol. 22 (January 2001), pp at p.17. Article from Newspapers: C. Raja Mohan, Another Sino- Indian Bid to Generate Trust, The Hindu (New Delhi), 17 May 2001, p.1. ICJ Reports: Appeal Relating to the Jurisdiction of the ICAO Council, (India v. Pakistan), ICJ Reports 1972, pp at p. 70. UN Documents: United Nations Millennium Declaration, Adopted by the General Assembly on 8 September 2000 at its Fifty-fifth session, UN Doc. A/RES/55/2. Judicial Decisions of the National Courts: Vishaka vs. State of Rajasthan, AIR 1997 SC 3011, at p References from websites: For details pertaining to The Office of the High Commissioner for Human Rights see / In subsequent references to sources already cited in the article, the following format should be used: Starke, note 9, p. 45. (if the reference to Starke appears at foot-note 9). If the same author is quoted more than once in an earlier footnote, in such cases the authors name should be followed by his relevant work. In case, same reference is cited in the succeeding footnote, Ibid should be used. Views expressed in the articles, book reviews, editorial comments, notes and in all other contributions to this Yearbook are those of the respective authors and are not necessarily the views of the Board of Editors or of the Indian Society of International Law, ICRC or UNHCR. For all correspondence contact: Managing Editor ISIL Yearbook of International Humanitarian and Refugee Laws V. K. Krishna Menon Bhawan 9, Bhagwan Dass Road New Delhi , India Tel Nos: , Tel Fax: isil@giasdl01.vsnl.net.in