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Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict
Published online by Cambridge University Press: 25 February 2011
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19 Gasser, H-P., “Internationalized non-international armed conflicts: Case studies of Afghanistan, Kampuchea, and Lebanon”, American University Law Review, Vol. 33, 1983, p. 157.Google Scholar
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22 Article 2 common to the four Geneva Conventions of 1949.
23 Reisman, and Silk, , op. cit. (note 4), p. 461.Google Scholar
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25 The principles include prohibition of: “(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples”. Common Article 3(2) also stipulates that “[t]he wounded and sick shall be collected and cared for”.
26 Farer, T., “The humanitarian laws of war in civil strife: Towards a definition of ‘international armed conflict” Revue Belge du Droit International, 1971, p. 26Google Scholar quoted in Moir, , op. cit. (note 18), p. 46.Google Scholar
27 Commentaries, op. cit. (note 5), p. 4S.
28 Prosecutor v. Tadić, IT–94–1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70 (hereinafter Tadic Jurisdiction Appeal).
29 Baxter, R., “The duties of combatants and the conduct of hostilities (Law of the Hague)” in International Dimensions of Humanitarian Law, Henry Dunant Institute / Unesco, 1988, p. 100.Google Scholar
30 The aspect of Common Article 2 that the section cross-references reads: “…all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.”
31 Bierzanek, , op. cit. (note 17), p. 284Google Scholar: “[L]e conflit international n'est pas synonyme de conflit interétatique; de plus, le droit de la guerre ne présuppose pas, pour toutes ses règles, que les collectivités belligérantes doivent être des Etats.”
32 Additional Protocol II, Art. 1.
33 Ibid.
34 Boelaert-Suominen, op. cit. (note 9), footnote 31.
35 Ibid.
36 Cassese, A., “A tentative appraisal of the old and new humanitarian law of armed conflict”, in Cassese, A. (ed.), The New Humanitarian Law of Armed Conflict, Editoriale scientifica, Naples, 1971, pp. 492–493.Google Scholar
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38 Additional Protocol I, Articles 5i(5)(b), 57(2)(iii) and 85(3).
39 Additional Protocol II, Articles 13–15, relating to the protection of the civilian population, of objects indispensable to the survival of the civilian population and of works and installations containing dangerous forces.
40 Additional Protocol I, Art. 51.
41 Ibid., Art. 35(2)
42 Ibid., Art. 35(3).
43 In international armed conflicts, combatants have a “right to participate directly in hostilities.” Additional Protocol I, Art. 43(2).
44 According to Farer, if an internal combatant's punishment is limited to detention, the conditions and form of detention may approach barbarity without manifestly violating common Article 3 and in spite of the more complete protection that the Third Geneva Convention would offer prisoners-of-war in circumstances of international equivalence. Farer, T., “Humanitarian law and armed conflicts: Towards the definition of ‘international armed conflict’”, Columbia Law Review, Vol. 71, 1971, pp. 39–40.CrossRefGoogle Scholar
45 ICC Statute, Art. 8(2) (b).
46 The ICTY has held that there is no material difference between the term “wilful killing” within the grave breaches regime and common Article 3's prohibition of “murder” and that “torture” is the same legal phenomenon in both types of conflict. Boelaert-Suominen, op. cit. (note 9), citing Prosecutors/. Delalic et al., Case No. IT-96–21-T, Judgement, 16 Nov. 1998 (hereinafter “ûelebići Judgement”), paras 421–23. Other provisions in the ICC Statute, such as those dealing with inhuman treatment including biological experiments (Art. 8(2)(a)(ii)) and wilfully causing great suffering or serious injury to body or health (Art. 8(2)(a)(iii)), correspond to provisions in it relating to violence to life and person (Art. 8(2)(c)(i)) and outrages upon personal dignity (Art. 8(2)(c)(0).
47 For a detailed comparison see Spieker, H., “The International Criminal Court and non-international armed conflicts”, Leiden Journal of International Law, Vol. 13, 2000, p. 417.CrossRefGoogle Scholar
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49 Tadić Jurisdiction Appeal, op. cit. (note 28), para. 127.
50 Memorandum of 22 March 1996 to the Preparatory Committee for the Establishment of the International Criminal Court, in Moir, op. cit. (note 18), p. 51.
51 Tadić jurisdiction Appeal, op. cit. (note 28), Separate Opinion of Judge Abi-Saab.
52 Henckaerts, , op. cit. (note 48), p. 11.Google Scholar
53 See (Belgium): Law of 16 June 1993 concerning repression of grave breaches (“infractions”) of the Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 8 June 1977; (Spain) Codigo Penal, Law 10/1995, of 23 November; (Finland): Chapter 11 of the Revised Penal Code Dealing with War Crimes and Crimes Against Humanity, 21 April 1995, Finnish Law Gazette 1995/587; (United States): Article 6 of the United States War Crimes Act 1996; (Netherlands): The Dutch Law of War Crimes 1952; (Sweden): Chapter 22, Section 11, of the Swedish Penal Code, National Council for Crime Prevention, Stockholm (1986); (Switzerland): Code Pénal Militaire, Federal Law of 13 June 1927; (Nicaragua): Ley de Codigo penal de la Republica de Nicaragua, Bibliografia Técnicas, (1997), all cited in Boelaert-Suominen, op. cit. (note 9), p. 4.3.1.
54 The Amended Protocol II of 1996 to the 1980 UN Weapons Convention, the 1997 Ottawa Convention on the Prohibition of Anti-personnel Mines and the 1999 Second Hague Protocol forthe Protection of Cultural Property in the Event of Armed Conflict all apply equally to international and non-international armed conflicts.
55 See Boelaert-Suominen, op. cit. (note 9), section 4.3.2.
56 Ibid., section 5.
57 Tadic Jurisdiction Appeal, op. cit. (note 28), para. 126.
58 Meron, T., “Classification of armed conflict in the former Yugoslavia: Nicaragua's fallout”, American Journal of International Law, Vol. 92, 1998 (hereinafter “Nicaragua's fallout”), p. 238.CrossRefGoogle Scholar
59 Prosecutors/. Tadić, T-94–1-A, Judgement, 15 July 1999, para. 84 (hereafter Tadic Appeal Judgement).
60 Ibid.
61 Nicaragua case, op. cit. (note 14). The ICJ somewhat confusingly distinguished the question of whether the acts of the contras were imputable to the United States from the question of whether the United States had breached its international obligations to Nicaragua through its relationship with the contras. The Court concluded that it “…does not consider that the assistance given by the United States to the contras warrants the conclusion that these forces are subject to the United States to such an extent that any acts they have committed are imputable to that State. It takes the view that the contras remain responsible for their acts, and that the United States is not responsible for the acts of the contras, but for its own conduct vis-à-vis Nicaragua, including conduct related to the acts of the contras” Nicaragua case, op. cit. (note 14), para. 116.
62 The Court stated that “for this conduct to give rise to a legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.” Ibid., para. 115 (emphasis added).
63 Ibid., para. 109 (emphasis added).
64 Ibid., para. 115.
65 See Meron, “Nicaragua's fallout”, op. cit. (note 58), Byron, , op. cit. (note 20) and Moir, op. cit. (note 18), pp. 46–52.Google Scholar
66 Tadić Appeal Judgement, op. cit. (note 59), para. 116.
67 The Appeals Chamber in Aleksovski declared that “[b]earing in mind that the Appeals Chamber in the Tadic Judgement arrived at this test against the background of the “effective control” test set out by the decision of the ICJ in Nicaragua, and the “specific instructions” test used by the Trial Chamber in Tadić, the Appeals Chamber considers it appropriate to say that the standard established by the “overall control” test is not as rigorous as those tests.” Prosecutors. Aleksovski IT-95–14/1-A, Judgement, 24 March 2000 (hereinafter “Aleksovski Appeal Judgement”), para. 145.
68 Moir describes the overruling as “…an unnecessary (and indeed dubious) piece of reasoning.” Moir, op. cit. (note 18), p. 49.
69 See Tadić Appeal Judgement, op. cit. (note 59); Aleksovski Appeal judgement, op. cit. (note 67), paras 120–154; Prosecutors. Delalić et al. IT-96–21-A, Judgement, 20 February 2001, paras 5–50 (hereinafter “ĉelebići Appeal judgement”); Prosecutorv. Naletilić étal, IT-98–34-T, Judgement, 31 March 2003, paras 183–188.
70 ĉelebići Appeal judgement, op. cit. (note 69), para. 13.
71 Tadić Appeal judgement, op. cit. (note 59), para.137.
72 Ibid., para.,137 (emphasis added).
73 Ibid., para.,141.
74 Ibid., para.,142.
75 Ibid., para.,143.
76 Ibid., footnote 174.
77 See Meron, “Nicaragua's fallout”, op. cit. (note 58), Byron, op. cit. (note 20); Moir, , op. cit. (note 18), pp. 46–52Google Scholar; Hayden, R. “Bosnia's Internal War and the International Criminal Tribunal”, Fletcher Forum of World Affairs, Vol. 22, No. 1, 1998, p. 45Google Scholar; Hayden, R., “Biased ‘Justice:’ Humanrightsism and the International Criminal Tribunal for the Former Yugoslavia”, Cleveland State Law Review, Vol. 47, 1999, p. 566.Google Scholar
78 Judge Shahabuddeen claims “I am unclear about the need to challenge Nicaragua. I am not certain whether it is being said that that much debated case does not show that there was an international armed conflict in this case. I think it does, and that on this point it was both right and adequate.” Tadić Appeal Judgement, op. cit. (note 59), Separate Opinion of Judge Shahabuddeen, para. 17.
79 Prosecutor v Blaskié, IT-95–14, Judgement, 3 March 2000 (hereinafter “The Blaskić Judgement”) Declaration of Judge Shahabuddeen.
80 An “armed conflict” is said to exist “whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.” Prosecutor v Kunarac et al., IT-96–23/1-A, Judgement, 12 June 2002, para. 56 (hereinafter “Kunarac Appeal Judgement”).
81 Much of the evidence used by ICTY decisions to characterize the internal conflicts as internationalized is “[a]n ex post facto confirmation of the fact…”. Tadić Appeal judgement, op. cit. (note 59), para. 157.
82 Gasser, , op. cit. (note 19), p. 157.Google Scholar
83 Ibid. For example, as Reisman and Silk point out, “the war in Afghanistan has never been either purely internal or purely international. Any determination is further complicated by the lack of neutral accounts of the conflict. Afghanistan is caught up in the politics of East-West rivalry, and most reports of the conflict there rely, to a large degree, on sources with a clear preference for or tie to one side or the other in the larger rivalry.” Reisman, and Silk, , op. cit. (note 4), p. 467.Google Scholar
84 Sassòli, M. and Olson, L. M., “International decision: Prosecutors. Tadić (Judgement)”, American journal of International Law, Vol. 94, July 2000, p. 576.Google Scholar
85 Byron, , op. cit. (note 20), p. 88.Google Scholar
86 Tadić Appeal judgement, op. cit. (note 59), para. 84.
87 The Blaŝkiĉ Judgement, op. cit. (note 79), paras. 75, 76 and 94.
88 The Trial Chamber went on to find that the Croatian Defence Council also acted as an agent of the Croatian government, but the analysis of military intervention was independent ofthat finding.
89 The Blaŝkiĉ judgement, op. cit. (note 79), para. 94.
90 Prosecutor v. Kordić S Ĉerkez, IT-95–14/2-T, Judgement, 26 February 2001.
91 Ibid., para. 108(2).
92 Prosecutorv. Naletilic et al, op. cit. (note 69), para. 194.
93 Prosecutorv. Rajić, IT-95–12-R61, Review of the Indictment Pursuant to Rule 61, 13 September 1996, para. 12 “The Appeals Chamber's decision on jurisdiction in the Tadić case did not, however, set out the quantum of involvement by a third State that is needed to convert a domestic conflict into an international one.”
94 Ibid., para. 21 “There is therefore enough evidence to establish for the purpose of the present proceedings that, as a result of the significant and continuous military intervention of the Croatian Army in support of the Bosnian Croats, the domestic conflict between the Bosnian Croats and their Government in central Bosnia became an international armed conflict, and that this conflict was ongoing at the time of the attack on Stupni Do in October 1993.”
95 See Baxter, , op. cit. (note 29), p. 98Google Scholar: “The proper view would seem to be that ‘any other armed conflict which may arise between two or more of the High Contracting Parties’ should be taken as referring to any outbreak of violence between the armed forces of two states, regardless of the geographical extent and intensity of the force employed…”. Fenrick argues that “the firing of weapons by soldiers of opposing sides across a contested border on the uninvited intervention of the armed forces of one State, even in small numbers, in the territory of another State may trigger the application of the Geneva Conventions in totality.” Cottier, M., Fenrick, W., Viseur Sellers, P. and Zimmermann, A., “Article 8, War Crimes”, in Triffterer, O. (ed.), Commentary on the Rome Statute of the International Criminal Court, Observers Notes, Article by Article, Nomos, Baden-Baden, 1999, p. 182Google Scholar, quoted in Byron, op. cit. (note 20), footnote 137. See also Commentaries, op. cit. (note 5): “It makes no difference how long the conflict lasts, or how much slaughter takes place.”
96 Cryer, R., “The fine art of friendship: Jus in bello in Afghanistan”, Journal of Conflict and Security Law, Vol. 7, 2002, p. 42.CrossRefGoogle Scholar
97 Third Geneva Convention, Art. 4(2) (emphasis added).
98 Common Art. 2 of the Geneva Conventions; See also Kunarac Appeal Judgement, op. cit. (note 80), para.56.
99 See for example Judge Shahabuddeen's declaration in the Blaŝkiĉ Judgement where he states that “There is an armed conflict between a secessionist group and the government of the state. A foreign state intervenes militarily in support of the secessionist group and is resisted by the local state. The external military intervention clearly constitutes an armed conflict between states for the purpose of making the Fourth Geneva Convention applicable. But does the internal conflict itself become an armed conflict between states? The answer is in the affirmative if the foreign state assumes control over the secessionist group such that the use of force by the secessionist group becomes a use of force by the foreign state against the local state, thereby giving rise to an armed conflict between states within the meaning of Article 2, first paragraph, of the Fourth Geneva Convention.” The Blaŝkiĉ Judgement, op. cit. (note 79), Declaration of Judge Shahabuddeen.
100 Tadic Appeal Judgement, op. cit. (note 59), para. 130 (emphasis added).
101 Aldrich, , “The laws of war on land”, op. cit. (note 1), p. 63.Google Scholar See also Kalshoven, F., The Law of Warfare: A Summary of its Recent History and Trends In Development, A.W. Sijthoff, Leiden, 1973, p. 15Google Scholar: “it seems justified for the purposes of the present subject to attribute the aforesaid internationalizing effect to intervention taking the form of direct and significant participation of foreign armed forces, as that will incontestably deprive the armed conflict of its original character as a purely intestine affair.”
102 Commentaries, op. cit. (note 5), p. 22.
103 1949 Geneva Conventions, common Art. 2.
104 Baxter, op. cit. (note 29), p. 95. See also Commentaries, op. cit. (note 5), p. 8.
105 See note 7.
106 Schindler, D., “The different types of armed conflicts according to the Geneva Conventions and Protocols”, Recueil des Cours, Vol. II, 1979, p. 150.Google Scholar
107 “On 1 October 1990, the Ugandan army invaded Rwanda under the disguise of an internal rebellion by the Rwandese Patriotic Front (RPF) led by the Rwandan-born Ugandan General Fred Rwigema. At that time, General Paul Kagame was pursuing military studies in USA as an Ugandan military officer; in fact, he was the Deputy Chief of Military Intelligence in the Ugandan government's army (…). When Gen. Fred Rwigema died in the end of October 1990, Major Paul Kagame returned to Uganda and took charge of the RPF.” Rally for the Return of Refugees and Democracy in Rwanda, “No Arms Nor Impunity For Suspected Rwandan War Criminals On Power,” Press Release No. 4/2001 <http://www2.minorisa.es/inshuti/rdr26.htm> See also S. R. Shalom, “The Rwandan Genocide” <http://www.zmag.org/ZMag/articles/april96shalom.htm> “In October 1990, the Rwandan Patriotic Front, an organization of primarily Tutsi refugees from Uganda, invaded the country to obtain the right to return to Rwanda and to overthrow the dictatorial Habyarimana regime. Many of the RPF soldiers were veterans of civil war in Uganda, where they had fought for a non-ethnically based regime, some rising to high positions in the Ugandan military.”
108 Tadic Appeal judgement, op. cit. (note 59), para.84.
109 Prosecutorv. Ntagerura et al, ICTR-99–46-T, 4 July 2002, “Oral Decision”, p. 9.
110 “Taken together, the agreements reached between the various parties to the conflicts) in the former Yugoslavia bear out the proposition that, when the Security Council adopted the Statute of the International Tribunal in 1993, it did so with reference to situations that the parties themselves considered at different times and places as either internal or international armed conflicts, or as a mixed internal-international conflict.” Tadić Appeal judgement, op. cit. (note 59), para. 73.
111 See above note 59.
112 Greenwood also defends the “mixed” approach based on the danger of prejuding the status of the conflict given the marked difference between the criminal law applicable in the two circumstances; the apparent intention of the Security Council that both types of conflict occurred in the former Yugoslavia and the complexity of the conflicts in the area. Greenwood, C. “International Humanitarian Law and the Tadic Case”, European Journal of International Law, Vol. 7, No. 2, 1996CrossRefGoogle Scholar, available at: <http://www.ejil.org/journal/Vol7/N02/art8-oi.html#TopOfPage>.
113 McDonald, A., “The year in review“, Yearbook of International Humanitarian Law, Vol. 1, 1998, p. 121.CrossRefGoogle Scholar
114 Meron, , “Nicaragua's fallout“, op. cit. (note 58), p. 238.Google Scholar
115 Tadić Jurisdiction Appeal, op. cit. (note 28), Separate Opinion of Judge Li on the Defence Motion for Interlocutory Appeal on Jurisdiction, paras. 17–18: “I am of the opinion that the submission of the Prosecution to view the conflict in the former Yugoslavia in its entirety and to consider it international in character is correct.“
116 Prosecutors. Aleksovski, Case No IT-95–14/1, Judgement, 25 June 1999, Dissenting Opinion of Judge Rodrigues, Presiding Judge of the Trial Chamber, paras. 19 and 22: “[I]nternational humanitarian law applies throughout the territory in which an international conflict takes place (…) and for the entire duration of the hostilities, insofar as the conflict must be viewed as a whole” and “I support a global approach to the conflict in the former Yugoslavia.”
117 Byron, , op. cit. (note 20), p. 68.Google Scholar
118 “[T]he Commission is of the opinion that the character and complexity of the armed conflicts concerned, combined with the web of agreements on humanitarian law that the parties have concluded among themselves, justifies the Commission's approach in applying the law applicable in international armed conflicts to the entirety of the armed conflicts in the territory of the former Yugoslavia.” Final Report of the Commission of Experts S/1994/67,4–27 May 1994, section H.A.
119 Prosecutor v. Tadić, IT-94–1-T, “Amicus Curiae Brief presented by the Government of the United States“, 25 July 1995, cited in Meron, , “Nicaragua's fallout“, op. cit. (note 58), pp. 26–34Google Scholar, footnote 15.
120 Meron, , “Nicaragua's fallout“, op. cit. (note 58), p. 238.Google Scholar See also Aldrich, G. H., “Comment: Jurisdiction of the International Criminal Tribunal for the former Yugoslavia“, American Journal of International Law, Vol. 90, 1996, p. 68CrossRefGoogle Scholar: “In my view, this first decision by the appeals chamber is unfortunate in that it complicates unnecessarily the further work of the Tribunal by suggesting that each prosecution will have to involve arguments and decisions as to the characterization of the armed conflict in which the alleged offenses occurred…“.
121 ”Respect for the rules of humanity in Vietnam“, Revue Internationale de la Croix-Rouge/Revue Internationale de la Croix-Rouge, No. 53, August 1965, p. 417.
122 See notes 7 and 90.
123 See Tadić Appeal Judgement, op. cit. (note 59), paras. 73 and 84; The Blaŝkiĉ Judgement, op. cit. (note 79), Declaration of Judge Shahabuddeen.
124 Meron, T. “The Humanization of Humanitarian Law“, American Journal of International Law, Vol. 94, 2000CrossRefGoogle Scholar, (hereinafter “Humanization of Humanitarian Law“), p. 261.
125 Fourth Geneva Convention, Art. 6.
126 Commentaries, op. cit. (note 5), Vol. IV, p. 62.
127 Ibid.
128 Tadic Jurisdiction Appeal, op. cit. (note 28), para. 70.
129 Prosecutors/. Tadic, IT-94–1-T, Judgement, 7 May 1997, para. 607.
130 Ĉelebici Judgement, op. cit. (note 46), para. 215.
131 The Tadić Appeal Judgement found that “[i]n the instant case, there is sufficient evidence to justify the Trial Chamber's finding of fact that the conflict prior to 19 May 1992 was international in character. The question whether after 19 May 1992 it continued to be international or became instead exclusively internal turns on the issue of whether Bosnian Serb forces — in whose hands the Bosnian victims in this case found themselves — could be considered as de iure or de facto organs of a foreign Power, namely the FRY.” Tadic Appeal Judgement, op. cit. (note 59), para. 87 (footnote omitted). In Ĉelebići, the Appeals Chamber accepted that “[t]he issue before the Trial Chamber was whether the armed forces of the Bosnian Serbs could be regarded as acting on behalf of the FRY, in order to determine whether after its withdrawal in May 1992 the conflict continued to be international or instead became internal.” Celebici Appeal Judgement, op. cit. (note 69), para. 29.
132 Gasser, , op. cit. (note 19), p. 155.Google Scholar In early 1978, the international armed conflict between Vietnamese armed forces and the Democratic Republic of Kampuchea, or the Khmer Rouge, culminated in the Vietnamese and Front Uni de Salut National du Kampuchea armies taking the city of Phnom Penh on 7 January 1978, sending the established Khmer Rouge government into exile and installing another regime. For several years thereafter, the United Nations viewed the government in exile as the legitimate representative of Kampuchea, rendering ongoing conflicts between the Khmer Rouge and Vietnamese forces international in nature. According to Gasser, it was only when the majority of countries in the international community abandoned the exiled Khmer Rouge government and recognized the legitimacy of the new People's Republic of Kampuchea that the Vietnamese forces still in the area were no longer subject to the laws governing international armed warfare, since they were present in the country by the authority of the legitimate government.
133 This would occur, for example, where “terrorist” activities that did not constitute protracted armed violence were continued by dissatisfied members of a formerly foreign-sponsored insurgent group against a State after the end of an internationalized armed conflict.
134 “The “overall control” test calls for an assessment of all the elements of control taken as a whole, and a determination to be made on that basis as to whether there was the required degree of control.” Aleksovski Appeal Judgement, op. cit. (note 67), para. 145. See also Prosecutor v. Naletilic et al., op. cit. (note 69), para. 188: “With respect to the latter, it held that a group might be found to be acting on behalf of a State if it is, ‘as a whole', under the overall control of that State.“
135 Sassöli and Olson, op. cit. (note 84), p. 576.
136 See Rousseau, C., Le Droit des Conflits Armés, Édition A. Pedone, Paris, 1983, p. 188.Google Scholar
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138 Tadić Jurisdiction Appeal, op. cit. (note 28), para. 70.
139 Detter, , op. cit. (note 2), p. 344.Google Scholar
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141 Ibid.
142 International humanitarian law continues to apply during the suspension of active hostilities. See Major Morris, S. R., “America's most recent prisoner of war: The Warrant Officer Bobby Hall incident“, Army Law, Vol. 3, 1996, p. 17.Google Scholar
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144 Ibid.
145 Only by common Art. 3, since Afghanistan has not signed Additional Protocol II to the Geneva Conventions.
146 Under Art. 118 of the Third Geneva Convention, captured enemy combatants must be repatriated at the close of hostilities. Art. 17 of the First Geneva Convention requires States Parties to exchange lists showing the exact location and markings of graves “as soon as circumstances permit, and at latest at the end of hostilities”; Articles 67 and 68 of the Third Geneva Convention relate to compensation payable to detainees at the close of hostilities; Art. 46 of the Fourth Geneva Convention states that “in so far as they have not been previously withdrawn, restrictive measures taken regarding protected persons shall be cancelled as soon as possible after the close of hostilities”; Art. 130 of the Fourth Geneva Convention states that “[a]s soon as circumstances permit, and not later than the close of hostilities, the Detaining Power shall forward lists of graves of deceased internees…”; Arts. 133 and 134 of the Fourth Geneva Convention require States “upon the close of hostilities (…) to ensure the return of all internees to their last place of residence, or to facilitate their repatriation”; and Art 33(1) of Additional Protocol I requires each party to the conflict to search “as soon as circumstances permit, and at the latest from the end of active hostilities” for persons reported missing by an adverse party.
147 ĉelebići Judgement, op. cit. (note 46). para. 209.
148 ĉelebići Appeal judgement, op. cit. (note 69), p. 46.
149 Gasser, , op. cit. (note 19), p. 157.Google Scholar
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151 The Treaty of Friendship, Good Neighbourliness and Co-operation was signed on 5 December 1978.
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154 Ibid.
155 Ibid.
156 Gasser, , op. cit. (note 19), p. 149.Google Scholar
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168 The final version adopted the geo-military threshold in Art. 1(1) of Additional Protocol tl which requires parties to “exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations…“.
169 Art. 2(f) of the ICC Statute states that “… armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.“
170 According to Münkler, “[t]he term civil war is the symmetrical opposite of the term international war; the asymmetrical antonym is transnational war, i.e. one in which the boundaries drawn by the States no longer play a role. This type of war crosses national borders without being waged as a war between States, such as the wars in and around Angola, Zaire/Congo, Somalia and Afghanistan.” Münkler, H. “The wars of the 21st century“, Revue Internationale de la Croix-Rouge/International Review of the Red Cross, Vol. 85, No. 849, March 2003 p. 16.CrossRefGoogle Scholar
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172 ”In international armed conflicts, prisoner-of-war status flows from the so-called combatants’ privilege, which simply means that the members of the armed forces of a party to the conflict enjoy immunity for their warlike acts. In other words, the combatants’ privilege is a license to kill, maim, or kidnap enemy combatants, destroy military objectives, and even cause unavoidable collateral civilian casualties. My government, as you know, presides over a new and unstable state. It is plagued with ideological and ethnic rivalries, aided and abetted by external states bent on destabilizing our infant democracy. Do you really think that we would concur in any treaty that would grant immunity from our treason laws to our domestic enemies, and by doing so grant them a license to attack the government's security personnel and property, subject only to honourable internment as prisoners of war for the duration of the conflict?” Solf, W., “Problems with the application of norms governing interstate armed conflict to non-international armed conflict“, Georgia Journal of International and Comparative Law, Vol. 13, 1983, pp. 291–292.Google Scholar
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174 Ibid., p. 293.
175 See Art. 4(A) of the Third Geneva Convention, in particular Art. 4(A)(2), which requires that individuals must be members of a militia that answers to a responsible command, has a fixed and distinctive sign, carries arms openly and conducts its operations in accordance with the laws and customs of war.
176 Article 25 of the ICRC's draft Additional Protocol II extended prisoner-of-war provisions to combatants in non-international armed conflicts on this very basis. That article reads: “Members of regular armed forces and members of those armed forces which have fulfilled the conditions stipulated in Article 4 A (2) of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949, shall receive, after having fallen into the power of the adversary, a treatment similar to that provided for prisoners of war in the said Convention.” Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva 3 May-3 June 1972, Commentary, Vol II, p. 49.
177 According to Doswald-Beck “recognition of belligerency has not, however, been given since the American Civil War and there must thus be serious doubts whether the notion has not fallen into desuetude. Textbooks regularly repeat this doctrine as part of the law, but the real test is whether States seriously view it as a legal reality in modern times, and its total non-use, although not conclusive evidence, must nevertheless be carefully assessed.” Doswald-Beck, L., “The legal validity of military intervention by invitation of the government“, British Yearbook of International Law, 1985, p. 197.Google Scholar
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179 Common Art. 3(3). Art. 8(3) of the ICC Statute provides that “Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.“
180 Tadić Jurisdiction Appeal, op. cit. (note 28), para. 97.
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