Cross-border conflict and international law
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International law should not be thought of as just another branch of treaty obligations. Rather it is a complete but parallel legal system, where states are the classical primary actor. International obligations ought to be implemented by states at the domestic level or individuals may not be able to benefit from them. As such, the laws of the states where a conflict is having an impact need to be understood in the light of this other, separate international legal system.
The law relating to going to war (ius ad bellum) is different from the law that applies during an armed conflict (ius in bello). Whether the conflict is lawful in international law is irrelevant to the question as to whether the laws of war (ius in bello) apply: once there is an armed conflict, then the laws of war apply. The laws of war are usually described in terms of Geneva Law, which relates to the protection of non-combatants, and Hague Law, which governs the means and methods of warfare.
One of the novelties of modern international law is that states have granted separate rights to individuals who live within their jurisdiction. Recognising that individuals have rights means that states are bound to comply with the international obligations deriving from such rights.
Persons who violate ILAC and IHRL may be subject to prosecution as international criminals. The state where any crime takes place has jurisdiction to prosecute, subject only to the international law relating to immunities. However, some crimes are so heinous that international law allows for universal jurisdiction, permitting all states to prosecute such crimes. This is particularly so with respect to war crimes, crimes against humanity and genocide. Moreover, the past twenty years has seen a growing use of international and internationalised courts to carry out these prosecutions.
Armed conflicts constitute a potential threat to the international community since they have spillover effects. This threat makes it imperative to help states in such situations to undergo important political and social change, so that they can build systems where the rule of law, democracy, and human rights protection can flourish. In such contexts, peacebuilding measures are necessary to achieve a lasting transformation, to avoid a relapse into conflict and repression.
Conflicts inevitably give rise to displacement, sometimes across a border, sometimes internally within the state. In both cases, the victims suffer in much the same way, but those who cross an international border have a separate regime to guarantee them protection, both in the state of refuge and from return to the country where the conflict is occurring.
Important branches of public international law – ILAC, IHRL, ICL, refugee law and the emerging field of transitional justice – apply to conflicts that impact across borders. The application of international law in such situations has to address complex issues, because of the lack of clarity of such laws or fields, but also due to the state-centred approach that still dominates in international discourse.