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A Reply to Judge Eboe-Osuji

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Kreß, C. A Reply to Judge Eboe-Osuji. German Yearbook of International Law, 65(1), 37-52. https://doi.org/10.3790/gyil.2023.331823
Kreß, Claus "A Reply to Judge Eboe-Osuji" German Yearbook of International Law 65.1, 2024, 37-52. https://doi.org/10.3790/gyil.2023.331823
Kreß, Claus (2024): A Reply to Judge Eboe-Osuji, in: German Yearbook of International Law, vol. 65, iss. 1, 37-52, [online] https://doi.org/10.3790/gyil.2023.331823

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A Reply to Judge Eboe-Osuji

Kreß, Claus

German Yearbook of International Law, Vol. 65 (2022), Iss. 1 : pp. 37–52

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Kreß, Claus

Abstract

Abstract: Judge Eboe-Osuji diagnoses a reluctance to fully integrate the anti-aggression regime into the contemporary international legal order. In order to overcome that state of affairs, he proposes a systemic integration of this regime into the law of international armed conflict so that the State that conducts a war of aggression cannot rely on the permissive rules of that body of law. While Judge Eboe-Osuji’s general observation is well-founded, his proposal meets with insurmountable obstacles as a matter of lex lata. As a matter of lex ferenda, his call must be approached with a fair dose of caution in order to ensure that the laudable attempt is not undermined to ensure respect for a bare humanitarian minimum even in the course of a war of aggression through compliance with the law of international armed conflict. It is suggested to proceed to a systemic integration of the anti-aggression regime into international human rights law, along the lines put forward by the UN Human Rights Committee. While this proposition is situated on a different doctrinal path, it is within the spirit of Judge Eboe-Osuji’s argument, and it is open for implementation as a matter of lex lata.

Table of Contents

Section Title Page Action Price
Claus Kreß\nA Reply to Judge Eboe-Osuji 37
I. Judge Eboe-Osuji’s Bold Call for a Systemic Integration of the ‘Anti-Aggression-Regime’ into the Law of International Armed Conflict 38
II. The Obstacles to the Proposed Systemic Integration as a Matter of Lex Lata 41
III. A Word of Caution as Regards the Proposed Systemic Integration as a Matter of Lex Ferenda 44
IV. A Different Proposal for Systemic Integration: The ‘Anti-Aggression-Regime’ and International Human Rights Law 47
V. Conclusion 51