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Combatant Status in Non-international Armed Conflicts and the Issues relating to the Lawfulness of the US Operation Against Osama Bin Laden

Master's Thesis 2011 47 Pages

Law - European and International Law, Intellectual Properties

Excerpt

Inhaltsverzeichnis

INTRODUCTION

CHAPTER 1: THE LAW OF ARMED CONFLICTS
1 The evolution in conducting armed conflicts
2 The law of international armed conflicts
3 The law of non-international armed conflicts: Common Article
4 The law of non-international armed conflicts: Additional Protocol II
5 Reducing the legal disparity between international and non-international armed conflicts
6 Conclusion

CHAPTER 2:COMBATANT STATUS AND PRISONER OF WAR RIGHTS
1 Combatant figure under the 1949 Geneva Convention and 1977 Additional Protocol I
2 Historical background relating to POWs and the adoption of the 1949 Geneva Convention III
3 Unlawful Combatants and the denial of combatant status and POWs rights in non-international armed conflict
4 Problem with non-State participants in non-international armed conflict
5 The meaning of direct participation in hostilities
6 The beginning and the end of direct participation in the conflict
7 The origin of the US fight against and the Osama bin Laden killing
8 Conclusion

BIBLIOGRAPHY

This study takes into account the important changes concerning the way to conduct armed conflicts that has been made over the last century. One of the most important changes concerns the types of armed conflicts. Before the Second World War, the international law only specified two types of armed conflicts: war and civil war[1]. The former was conducted between two Nations. The latter was fought between a State Army and an internal armed insurgent people. Nowadays, the term ‘war’ and the phrase ‘civil war’ have been replaced by the phrases, ‘international’ and ‘non-international’ armed conflicts, respectively. As will be demonstrated in the following pages of this study, since the end of the Second World War, an important raise in the numbers of non-international armed conflicts was registered around the world. Despite this, most of the treaties, conventions and regulations concerned the conduct of international armed conflict, even if these armed conflicts were very uncommon.

Taking into account this important change, the International Criminal Tribunal for the Former Yugoslavia (hereinafter ICTY) in a Tadić[2] case suggested that the law of armed conflict should be applied more uniformly. According to the Court orientation, the equal application of the law of armed conflicts is justified by the exponential growing frequency and cruelty of internal conflicts which make irrelevant the distinction between types of armed conflicts. The same conclusion has been reached by the International Committee of the Red Cross (hereinafter ICRC) through its study[3] on the international customary status of international humanitarian law, by which has been proved that there are tangibles reasons in order to support the abandon of the legal distinction between the international and non-international armed conflicts. As it will be demonstrated in the first chapter of this study, the progress made by the international community in this sense has been considerable. Indeed, it can be said that, nowadays, there is an important body of provisions concerning the law of international armed conflicts which applied also to a non-international armed conflicts. However, some distinct areas regulated by the law of armed conflicts, such as combatant status and prisoners of war rights, remain exclusive to international armed conflicts. The second chapter of this study, therefore, will explore the meaning of combatant status and the reasons of its denial to non-State participants during an non-international armed conflict. Consequently, it will be discussed the status of non-State participants when no longer engaged in non-international armed conflict and analysed the legality of the Osama Bin Laden killing in accordance with the law of armed conflict.

CHAPTER 1: THE LAW OF ARMED CONFLICTS

1 The evolution in conducting armed conflicts

Compared to the past, modern warfare has undergone a remarkable modification in terms of duration, intensity, scope and brutality.[4] In the eighteenth century, the rudimental weapons used to conduct wars could inflict very restricted damages to the enemy. This is the reason why conflicts were fought by opposite soldiers in contained battlefields which could ensure a physical proximity between them. The nineteenth century, in particular the period concerning the Industrial Revolution, marked the beginning of weaponry modernisation. Indeed, during the First World War (1914-1918) States began to use weapons, which could cause unthinkable damage not only to the military targets but also the whole population.[5] The Second World War, with the nuclear attack made by the army of the United States against Japan, has been the most dramatic example of destruction to human life that history had ever seen.

The destructive power of modern weaponry and the importance to protect human life, induced the International Community to revisit the law applicable to armed conflicts[6], and to create a new body of provisions which aimed to extend the protection of war victims[7]. The result was the adoption of the 1949 Geneva Conventions and the 1977 Additional Protocols.

2 The law of international armed conflicts

The first international document which introduced innovations in terms of armed conflicts, was the 1949 Geneva Conventions. This document, which is one of the principal sources of the international humanitarian law[8], includes four distinct Conventions[9]:

1) 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field;
2) 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick and Shipwrecked Members of Armed Forces at Sea;
3) 1949 Geneva Convention for the Treatment of Prisoners of War;
4) 1949 Geneva Convention for the Protection of Civilian Persons in Time Of War.

Article 2, which is common to all the above Conventions, provides that:

“In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to 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 recognised 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. Although one of the Powers in conflict may not be a Party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provision thereof”[10].

In my opinion, the article highlights, unmistakably, the applicability of the Conventions to international armed conflicts, because it speaks about any armed conflict “which may arise between two or more of the High Contracting Parties”.[11]

By reading the Conventions, we may notice that the main areas regulated by them are concerned with the civilian population and combatant status. The adoption of the Civilians Convention with its 159 articles can be regarded as the first attempt to protect the innocent population during an armed conflict; this need was linked, in particular, to the Second World War, which procured millions of civilian deaths and injuries.

The adoption of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, introduces further innovations. Indeed, combatant status[12] is extended to people participating in an organised resistance movement. Consequently, they can be treated as prisoners of war and avail themselves of the rights internationally recognised to these figures. Previously, other important international documents such as the 1899 and 1907 Hague Conventions, renowned for containing the “Martens Clause”, attempted to extend the rights entitled to prisoners of war to resistance fighters who took up arms against an invader. The said clause[13] was introduced as a compromise between the European military powers and the smaller States. The former used to define resistance combatants ‘free shooters’, thus, unlawful and subject to execution; the latter considered those combatants lawful, therefore, entitling them not to be treated as criminals.[14] The clause provided that:

“Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience”[15].

In other words, when conducting an armed conflict, states had to respect a basic but fundamental behaviour in the light of considerations of ‘humanity’ and ‘public conscience’.[16]

According to the Martens Clause, Article 3 of the Regulations Respecting the Laws and Customs of War and Land annexed to the 1907 Hague Conventions, provided that armed forces of fighting parties could consist of combatants and non-combatants. However, both have a right to be treated as prisoners of war in case falling into enemy hands.[17] This provision governed combatants capture and detention until the adoption of the 1949 Geneva Convention for the Treatment of Prisoners of War.[18]

The resistance movement phenomenon has been seen, intensely, during the Second World War. In particular, during the Nazi invasion, a relevant group of Italian civilians, usually called ‘Partisans’, took up arms spontaneously in order to defend their country against the invader. Conversely to what provided by the 1899 and 1907 Hague Conventions, captured Partisans were usually regarded as criminals and, consequently, their destiny was to be tortured, executed or deported into concentration camps[19]. One of the most brutal treatment suffered by Partisan fighters was the one inflicted in 1944 by the Nazi Army to Edmondo Riva. He was the chief of a small troop of partisans who was captured during a sabotage operation. During his three day detention, he refused categorically to reveal to the Nazis the name of the rest of his troop members. For this reason he was tortured, his hands cut off, and eventually executed[20].

In order to avoid an episode such as the one mentioned in the previous paragraph from happening again in the future, an important provision has been introduced in the 1949 Geneva Conventions. Specifically, Article 4, paragraph A, no. 2 of the 1949 Geneva Convention for the Treatment of Prisoners of War, stated that people who participate in resistance movements are qualified as prisoners of war if they comply with specific requirements. Indeed, Article 4[21] provides that in order for resistance combatants to be recognised as prisoners of war and enjoy duties and rights reserved to them, they have to conduct fights under the command of a responsible person, wear an evident distinctive sign recognisable at a distance, carry weapons openly, and respect the laws and customs of war.

The 1949 Geneva Conventions are not the only international sources regulating international armed conflicts. Indeed, at the end of the Diplomatic Conferences held between 1974 – 1977, the International Community adopted the Additional Protocols I and II, both entered into force in 1978. Protocol I applies to international armed conflicts and Protocol II, as will be explained in paragraph 3, regulates non-international armed conflicts.

Specifically, Additional Protocol I (hereinafter AP I) concerns the protection of victims of international armed conflicts. Its edited text includes an ample range of rules regulating the protection of the civilian population and civilian objects from possible dangers and consequences from the conduct of armed conflicts. It also includes the protection of wounded and sick, and the acknowledgment of a new category of armed conflicts and lawful combatants.[22]

One of the main innovations introduced by the application of 1977 AP I concerns its Article 1. The latter, confirming the application of AP I to situations described by common Article 2 of the 1949 Geneva Conventions, provides at its 4th paragraph that:

“The situation referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”[23].

According to the Article, the force used by national liberation movements to achieve the right of self-determination is not referable to the prohibition provided by Article 2, paragraph 4 of the United Nations Charter.[24] Indeed, the Declaration on Principles of International Law said above, provides that:

“Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter”[25].

This means that armed conflicts conducted to reach self-determination and national liberation, have to be considered as conflicts between sovereign States. Moreover, Article 96, paragraph 3 provides that:

“The authority representing a people engaged against a High Contracting Party in armed conflict of the type referred to in Article 1, paragraph 4, may undertake to apply the Convention and this Protocol in relation to that conflict by means of a unilateral declaration addressed to the depositary. Such declaration shall, upon its receipt by the depositary, have in relation to that conflict the following effects: (a) the Conventions and this Protocol are brought into force for the said authority as a Party to the conflict with immediate effect; (b) the said authority assumes the same rights and obligations as those which have been assumed by High Contracting Party to the Conventions and this Protocol; and (c) the Conventions and this Protocol are equally binding upon all Parties to the conflict”[26].

In other words, AP I extends for the first time the law of international armed conflicts to certain types of armed conflicts which were considered as internal armed conflicts, such as the wars of national liberation.

Another relevant innovation introduced by Additional Protocol I concerns the concept of lawful belligerents. In fact, since the adoption of AP I, duties and rights relating to the status of prisoners of war – recognised to State armies in international armed conflicts - have been extended to the Guerrilla fighters. The latter are formed by a band of armed civilians which fight within areas occupied by the enemy.[27] These people, defined as irregular combatants, used to fight against the enemy independently from their national army and its hypothetical allies, by launching surprise attacks and using sabotage techniques.[28] Guerrilla fighters are quite difficult to differentiate from civilian people. Indeed, they usually base their military installations within civilian quarters, wear no uniform, and do not carry their weapons openly.[29] As it has been seen in the case of Resistance fighters, the 1949 Geneva Convention for the Treatment of Prisoners of War is applicable only if these kind of combatants comply with the conditions included in its Article 4. Those conditions have been modified by Article 44, paragraph 3 of AP I which has taken into account the nature of this new category of combatants and the difficulty to distinguish them from the civilians. Its text provides that:

“In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly: (a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate”[30].

From the comparison to Article 4 of 1949 Geneva Convention for the Treatment of Prisoners of War, it can be noticed that requirements such as wearing fixed distinctive signs recognisable at a distance and carrying arms openly have been removed. Consequently, if Guerrilla fighters are captured during an international armed conflict, they have to be treated as prisoners of war.

3 The law of non-international armed conflicts: Common Article 3

The protection of human life was necessary also during the non-international armed conflicts which grew dramatically after the Second World War. In fact, at the 1949 Diplomatic Conference there was a debate over the possibility of disciplining this ‘new’ type of armed conflict, regulated under the domestic law of states until that time.[31] As a result, each of the 1949 Geneva Conventions contains a common Article 3, which ensured the application of the fundamental principles of international humanitarian law to non-international armed conflicts. The importance of the principles contained in common Article 3[32] has also been confirmed by the International Court of Justice (ICJ) in the Nicaragua case. According to the Court, “Article 3 which is common to all four Geneva Conventions of August 12 1949 defines certain rules to be applied in the armed conflicts of a non-international character. They are rules which, in the Court’s opinion, reflect what the Court in 1949 called ‘elementary consideration of humanity’”.[33]

Article 3 offers two important protections, which are the respect of human life and non-discriminatory treatment.[34] In my opinion, however, when compared with the law of international armed conflicts, Article 3 presents few lacunae. The first one concerns its applicability only in case of armed conflicts not of an international character, although the Convention does not provide a definition of it. This circumstance, therefore, allows states to determine by themselves whether an non-international armed conflict exists or not.[35] An interpretation of the meaning of ‘non-international armed conflict’ has been given by J.S. Pictet in his commentary to the Geneva Conventions. According to Pictet, the concept of armed conflict included in Article 3 has to be understood as “armed forces on either side engaged in hostilities – conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country”[36]. In other words, states can arbitrarily decide when a revolt reached such an important degree to be defined as a non-international armed conflict, and consequently decide whether common Article 3 can be applied to it or not[37].

However, the lacuna mentioned in the previous paragraph, has been filled by the definition of armed conflicts offered by the International Criminal Tribunal for the former Yugoslavia (hereinafter ICTY) during the Tadić decision. In accordance with the Tribunal, “an armed conflict exists 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”[38]. As affirmed by Greenwood, this description of armed conflicts represents an important development of the law of armed conflicts[39]. Indeed, by reading the quotation reported above, it can be noticed that the Court considers two factors in order to qualify an armed conflict as a non-international one and to apply Common Article 3. Those factors are the intensity of the conflict in terms of protracted violence and the organisation of the parties in the conflict. This approach was also followed by the Trial Chamber in the Delalic case[40] and by the Kordic and Cerkez Appeal Chamber[41]. Both Courts stated in their judgement that the protracted violence and the extent of the organisation of the parties involved had to be considered in order to distinguish a non-international armed conflict from cases of civil unrest or terrorist activities. However, as it has been noted by Gaparayi, the Tadić decision did not explain the meaning of the phrases ‘well-organised armed group’ and ‘protracted armed violence’. Consequently, those requirements have to be determined case by case, by means of a specific analysis of the facts[42]. The decision taken by the ICTY in the case Prosecutor v. Limaj underlines those conditions that, according to the Tadić definition, consent an armed group to be considered ‘well-organised’[43]. One of the most important aspects that was taken into account by the cited Court in defining the Kosovo Liberation Army (hereinafter KLA)[44] as organised was the capacity of the KLA to contrast the opposite military forces and develop diplomatic relations with the European Community. Indeed, in 1998, the KLA was recognised by the International Community as a party involved in the political negotiations undertaken to resolve the Kosovo crisis because of its military actions against Serbian forces[45]. A similar situation has been seen during the ongoing Libyan armed conflict regulated under the 1949 Geneva Convention Common Article 3. This conflict is being fought between the forces loyal to the Libyan dictator Muammar Gaddafi and the civilian rebels who want to depose him and establish a democratic system. The situation began at the inception of February 2011 with a series of peaceful protests against the Gaddafi regime due to the arrest of the human rights lawyer Fathi Therbil[46]. The dictator, through his security forces attempted, to repress such protests that in a very short time spread across the country. Gaddafi was struggling to retain control so he decided to respond with military force and the blocking of communications. This situation escalated into a non-international armed conflict when, on the 27th February 2011, rebels established a coalition named National Transitional Council (NTC). The NTC established its headquarters in Benghazi and conducted its fight against Gaddafi forces in many areas of the Libyan territory. Given its ability to contrast Gaddafi forces, the NTC has been officially recognised as a well-organised armed group by the US, the U.K, France, Italy, Portugal, Spain and Canada as well as the Arab League. In the view of the above countries, in fact, the NTC is a new legitimate representative body of the Libyan people and plays a fundamental role in resolving the conflict[47].

As well as the requirement of ‘protracted armed violence’, requested under the Tadić approach in order to apply Common Article 3, an evaluation case by case[48] is necessary. The degree of intensity required for the existence of a non-international armed conflict and thus for the application of Common Article 3, has been pointed out in the Milošević Rule 98bis Decision[49]. The Court, affirming the existence of protracted armed violence between Milošević troops and the KLA, took into consideration the following factors: 1) the length of the conflict; 2) the seriousness and spread of clashes over the territory; 3) the type of weaponry used during the clashes; 4) the number of governmental forces sent to Kosovo[50]. As it can be noted by reading the factors reported above, the Court emphasizes the level of violence reached in the conflict rather than the purpose for which the parties were fighting against each other. This means that States cannot deny the application of Common Article 3 just because they do not recognise the cause of an organised armed group.

Another important lacuna of common Article 3 concerns the absence of provisions concerning the acknowledgment and regulation of combatants and prisoners of war. Combatant immunity and the status of prisoners of war, in fact, are bound up in the law of international armed conflict. As already explained at paragraph 2, the most important benefit of combatant and, in turn, prisoner of war status is the non prosecution for mere participation in the armed conflict. This means that, after a trial under domestic criminal law, non-State fighters can be punished for having taken up arms against the government, and be punished also with a death sentence[51].

In addition, the Article indicated above does not contain any provision protecting people who do not take part in the conflict (civilian), thus limiting the methods of war and the conduct of hostilities[52]. Such a lack has been clearly seen during the ongoing Libyan conflict, which is being fought in different city across the Libyan territory. In particular the city of Misrata has been the major battlefield between the NTC and Gaddafi forces. Its port is considered, by the parties to the conflict, the most important for the Libyan international maritime commerce on one hand, and, on the other hand, the possible line of division between east and west should the conflict end with a partition of the territory. At the end of February 2011, Heba Morayef, a Libyan researcher for Human Rights Watch[53], released an interview to a IPS news journalist affirming that government forces were indiscriminately bombing the city using cluster bombs. These type of weapons, which have been banned in much of the world because they are very imprecise, has provoked a considerable number of civilian deaths. In particular Morayef stated that an important number of civilians were killed by Gaddafi’s air forces while they were standing in line to receive some bread[54]. In order to prevent more civilian deaths, the United Nations Security Council adopted on the 17th of March 2011 the Resolution no. 1973 imposing a no-fly zone on the Libyan sky[55].

4 The law of non-international armed conflicts: Additional Protocol II

As it has been already said in paragraph 2, in 1977 the International Community adopted the Additional Protocols II (hereinafter AP II) .

AP II concerns the protection of victims of non-international armed conflicts. In particular, it is designed to protect people who do not take direct part in conflicts, or people who have ceased to fight because they have been made prisoners, been wounded or ill[56]. AP II can be considered as a development and an integration of Article 3 of the 1949 Geneva Conventions. It is important to clarify that Common Article 3 and Protocol II do not have the same purpose. Additional Protocol II is applicable only where the fighting has reached a specific degree of intensity.[57] Article 1 of AP II provides that:

[...]


[1] R. Bartles, “Timelines, borderlines and conflicts: the Historical evolution of the legal divide between international and non-international armed conflicts” ,2009, International review of the Red Cross, Vol. 91, No. 873, p. 37.

[2] Prosecutor v. Tadić, (Interlocutory Appeal), 1995, Case No. IT-94-1-AR72, par. 137 , www.icty.org/x/cases/tadic/acdec/en/51002.htm.

[3] J. M. Henckaerts and L. Doswald-Beck, “Customary International Humanitarian Law”,2005, Cambridge University Press, 2 vol.: Vol. I Rules, Vol. II Practice (2 parts).

[4] N. Ferguson, “The War of the World: History’s Age of Hatred”,2006, Penguin Books, introduction, xxxiv.

[5] D. Fleck, “The Handbook of Humanitarian Law in Armed Conflicts”, 1995, Oxford University Press, p. 108.

[6] Until the Second World War, the law applicable to armed conflicts was contained into the 1864 Geneva Convention, the 1899 and 1907 Hague Conventions, and the 1929 Geneva Conventions.

[7] L.C. Green, “The Contemporary Law of Armed Conflict”, 2000, Manchester University Press, pp. 54-55.

[8] R. K., Goldman “International Humanitarian Law: American watch’s experience in monitoring internal armed conflicts” 1993, American University Journal, International Law and Policy, AM. U. J. INT'L L. & POL'Y, Vol. 9:1, p.53

[9] A. Roberts, R. Guelff, “Documents on the Law of War”, 2000, Oxford University Press, pp.197-221-243-301.

[10] See note 1, Article 2, pp. 244-245.

[11] This interpretation is confirmed by the aim of Article 2, which excludes that, by claiming non-existence of armed conflicts, a state party to the 1949 Geneva Conventions might consider itself not bound by the Conventions, M. Glover, “The Velvet Glove: The Decline and Fall of Moderation in War”, 1982, Hodder & Stoughton Ltd, pp. 19-29

[12] A combatant is a person who is allowed to take part in the conflict under the law of armed conflict. Consequently, they are immune for the actions undertaken during the conflict, unless those actions constitute a war crime.

[13] Martens Clause was included in all 1949 Geneva Conventions and 1977 Additional Protocols.

[14] A. Cassese, “The Martens Clause: Half a Loaf or Simply Pie in the Sky?”, 2000, EJIL, Vol. 11, No. 1, pp. 187-216.

[15] See note 9, p.70

[16] See note 10.

[17] See note 14, p. 73.

[18] G.I.A.D. Draper, “The Status of Combatants and the Question of Guerrilla Warfare”, 1971, British YBIL, L 174, p. 181.

[19] F. Bugnion, “The ICRC and the Protection of War Victims”, 2003, Macmillan, pp. 192-194.

[20] See Edmondo Riva, A.N.P.I. Associazione Nazionale Partigiani d’Italia, www.anpi.it/donne-e-uomini/edmondo-riva.

[21] See note 9, Article 4, pp. 245-246.

[22] See note 9, p. 70.

[23] See note 9, p. 423

[24] G. Abi-Saab, “Wars of National Liberation and the Development of Humanitarian Law” in R.J. Akkerman, “Declaration on Principle: A Quest for Universal Peace”, 1977, Kreieken and Pannenborg Eds, pp. 370-371.

[25] Declaration on Principles of International Law concerning Friendly Relations and Co-operation, www.un.org.

[26] See note 9, pp. 476-477.

[27] G.I.A.D. Draper, “The Status of Combatants and the Question of Guerrilla Warfare”, 1971, 30 BYBIL, p. 177.

[28] See note 7, p 178.

[29] R. Taber, “War of the Flea: the classic study of Guerrilla warfare”, 2002, Brassey’s Inc., p. 149-172.

[30] See note 9, pp. 444-445.

[31] D. Schindler, “The Different Types of Armed Conflict According to the Geneva Conventions and Protocols”,1979, 163 Recuil des cours, pp. 117-164

[32] “in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking off 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 recognised as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict”, see note 9, Article 3, p. 245

[33] Nicaragua Case, par. 218, 1986, International Court of Justice, par. 218, www.icj-cij.org.

[34] M. Gandhi, “Common Article 3 of Geneva Conventions, 1949 in the Era of International Criminal Tribunals”, 2001, ISILYBIHRL, Vol. 11.

[35] N. Boister & R. Burchill, “The International Legal Definition of the South African Conflict in the South African Courts: War on National Liberation, Civil War or War At All?”, 1998, Netherlands International Review, vol. 45, pp. 348-361.

[36] See note 34; M. C. Bassiouni, “International Criminal Law”, 2008, Martinus Nijhoff Publishers, p. 114.

[37] See note 34.

[38] See note 2, par. 70.

[39] C. Greenwood, “The Development of International Humanitarian Law by the International Criminal Tribunal for the Former Yugoslavia”, 1998, Max Planck Yearbook of United Nations Law, Vol. 2, p. 114,

[40] Delalic Case, Trial Chamber Judgement, 2008, Case No. IT-04-83-T, par. 184, www.icty.org/case/delic/4.

[41] Kordic and Cerkez, Appeal Chamber Jugment, 2004, Case No. IT-95-14/2-A, par. 341, www.icty.org/x/cases/kordic_cerkez/acjug/en/cer-aj041217e.pdf.

[42] I. Gaparayi, “The Milošević Trial at the Halfway Stage”, 2004, Leiden Journal of International Law, Vol. 17, Issue 4, p. 754

[43] Prosecutor v. Limaj, Trial Chamber Judgemt, 2005, Case No. IT-03-66-T, par. 90, www.icty.org/x/cases/limaj/tjug/en/lim-tj051130-e.pdf

[44] The Kosovo Liberation Army (KLA) was a Kosovar Albanian military organization which fought against the Yugoslav Security forces led by Milošević during his intervention in Kosovo.

[45] See note 43, par. 129.

[46] Libyan Conflict, www.bbc.co.uk/news/world-africa-12680846

[47] A. Haddadi, “Are Libyan RebelsBacked by Saudi Arabian or Iran”, www.uk.ibtimes.com/articles/157943/20110606/are-libyan-rebels-backed-by-saudi-arabia-or-iran.htm

[48] A. Cullen, “The Concept of Non-International Armed Conflict in International Humanitarian Law”, 2010, Cambridge University Press, p. 127.

[49] Milošević, Trial Chamber Decision on Motion for Judgement of Acquittal, 2004, Case No. IT-02-54-T, par. 28, www.icty.org/x/cases/slobodan_milosevic/tdec/en/040616.htm

[50] See note 48, p. 128.

[51] J. S. PICTET ,Geneva Conventions of 12 August, 1949: Commentary” 1958, ICRC, Vol. 4, p.36.

[52] See note 34.

[53] Human Rights Watch is considered by the International Community one of the world’s leading independent organizations dedicated to defending and protecting human rights.

[54]Libya Indiscriminate Attacks Put Non-Combatants at Deadly Risk”, www.menafn.com/qn_news_story.asp?StoryId={0365c35f-18ac-42a2-a08c-b642b6758d1a}; See also “Gaddafi Forces Bomb Civilian Areas”, www.nytimes.com/2011/04/16/world/africa/16libya.html?_r=2&hp&emc=na

[55] Security Council Resolution No. 1973, S/Res/1973 (2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/268/39/PDF/N1126839.pdf?OpenElement

[56] A. Cassese, “Status of Rebels Under 1977 Geneva Protocol”, 1981, International and Comparative Law Quarterly, Vol. 30, p. 419.

[57] See note 1, pp. 62-65

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2011
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Title: Combatant Status in Non-international Armed Conflicts and the Issues relating to the Lawfulness of the US Operation Against Osama Bin Laden