Combatants, not bandits: the status of rebels in Islamic law

2011 ◽  
Vol 93 (881) ◽  
pp. 121-139 ◽  
Author(s):  
Sadia Tabassum

AbstractThe Islamic law on rebellion offers a comprehensive code for regulating the conduct of hostilities in non-international armed conflicts and thus it can be used as a model for improving the contemporary international legal regime. It not only provides an objective criterion for ascertaining existence of armed conflict but also recognizes the combatant status for rebels and the necessary corollaries of their de facto authority in the territory under their control. Thus it helps reduce the sufferings of civilians and ordinary citizens during rebellion and civil wars. At the same time, Islamic law asserts that the territory under the de facto control of the rebels is de jure part of the parent state. It therefore answers the worries of those who fear that the grant of combatant status to rebels might give legitimacy to their struggle.

2009 ◽  
Vol 91 (873) ◽  
pp. 69-94 ◽  
Author(s):  
Sylvain Vité

AbstractAlthough international humanitarian law has as its aim the limitation of the effects of armed conflict, it does not include a full definition of those situations which fall within its material field of application. While it is true that the relevant conventions refer to various types of armed conflict and therefore afford a glimpse of the legal outlines of this multifaceted concept, these instruments do not propose criteria that are precise enough to determine the content of those categories unequivocally. A certain amount of clarity is nonetheless needed. In fact, depending on how the situations are legally defined, the rules that apply vary from one case to the next. By proposing a typology of armed conflicts from the perspective of international humanitarian law, this article seeks to show how the different categories of armed conflict anticipated by that legal regime can be interpreted in the light of recent developments in international legal practice. It also reviews some actual situations whose categorization under existing legal concepts has been debated.


Author(s):  
Gregory H. Fox

This chapter examines the debate concerning a state’s intervention in internal armed conflicts based on invitation, either from the government or from a rebel group fighting against the government. It looks at the issues that arise from intervention by invitation, particularly those relating to the territorial integrity of the state, the status of the actors involved, the nature of the consent, and implications for international law in general and for politics and human rights in particular. The chapter first considers the traditional view of intervention by invitation and the recent challenges to that view. It then discusses the negative equality principle as it applies to intervention in civil wars, as well as the link between intervention by invitation and democratic legitimacy. It also analyses the position of the UN Security Council on intervention by invitation.


2008 ◽  
Vol 90 (872) ◽  
pp. 835-852 ◽  
Author(s):  
Andreas Wenger ◽  
Simon J. A. Mason

AbstractCivilians play an increasingly important and complex role in armed conflicts, both as victims and as perpetrators. While this overall trend towards ‘civilianization’ encompasses all types of present-day conflicts, it is twofold: it takes on a very different nature in high-technology warfare than in the context of low-technology combats that are typical of many civil wars. This article explores these two trends, shows how they merge in asymmetric warfare and outlines key implications for international stabilization and state-building efforts. The present-day conflict landscape is presented from a security policy point of view, placing the ongoing debates on the civilian participation in hostilities in a broader strategic context.


Author(s):  
Betcy Jose ◽  
Peace A. Medie

Studies have shown that civilians are often intentionally targeted in civil wars and that civilian protection efforts launched by the international community have not always been successful, if they occur at all. Civilians, therefore, have had to rely on themselves for protection in most conflicts. However, despite the pervasiveness of civilian self-protection (CSP) and its success at protecting civilians from violence in some cases, it is rarely discussed in the civilian protection literature, and its impact on civilian targeting is inadequately explored. Addressing this gap in the study and practice of civilian protection by carefully conceptualizing CSP and appreciating its role in civil war dynamics can further scholarly and practitioner discussions on civilian protection. CSP is defined as (a) actions taken to protect against immediate, direct threats to physical integrity imposed by belligerents or traditional protection actors; (b) primarily selected and employed by civilians; and (c) employed during an armed conflict. CSP strategies can be organized into three categories. The first, non-engagement, describes strategies in which civilians do not interact with belligerents or traditional protection actors who pose a threat to them. The second, nonviolent engagement, entails some interaction with one or more actors who may harm civilians. The third, violent engagement, includes CSP strategies that incorporate physical violence. These CSP strategies may actually render civilians more vulnerable to threats. First, some CSP strategies might lock civilians into unpredictable relationships with belligerents, which can become dangerous. Second, allying with one set of belligerents might lead to targeting by opposition forces, who view these CSP strategies as crucial support for their enemies. Third, civilians may overestimate how successful their CSP strategies can be, exposing them to harm. Fourth, civilian use of violence may cause belligerents to view them as threats, leading to intentional targeting. Appreciation of the reasons why civilians engage in CSP and understanding when and how this may endanger them can inspire more effective protection policies, as well as advance our understanding of civil war dynamics. For instance, further study on these issues can provide some insights into the conditions under which CSP is effective in protecting civilians and how the international community can support CSP. This information could be particularly useful in the design and execution of peacekeeping strategies that are sensitive to the efforts and needs of conflict-affected communities. Additionally, studying CSP can advance the vast literature on civilian targeting by shedding additional light on why belligerents kill civilians.


Author(s):  
Cenap Çakmak ◽  
Gökhan Güneysu

Abstract This paper compares and contrasts the Islamic law of armed conflict with the modern international humanitarian law, with the view of identifying foundational similarities between these two separate canons, drawing extensively from al-Siyar al-Kabir. To this end, it raises the question as to whether the Islamic law of armed conflict is compatible with its modern counterpart, and, if it is, to what extent. To address these interlinked questions, the study departs from the premise that in order to identify resemblance, it is necessary to enquire into the foundations (both legal and philosophical) of the Islamic and contemporary approaches vis-à-vis armed conflicts.


2009 ◽  
Vol 91 (873) ◽  
pp. 35-67 ◽  
Author(s):  
Rogier Bartels

AbstractCalls have been made in recent years for the legal distinction between international and non-international armed conflicts to be removed. Also as of late, confusion regarding the applicable legal regime has been created by so-called transnational conflicts involving non-state entities. These situations do not fit naturally into the two traditional types of armed conflict recognized by IHL from 1949 onwards. The present article centres on how the legal divide that still exists between international and non-international armed conflict can be explained historically. It aims to further the discussion on whether such a distinction is still relevant, as well as on how certain situations could be classified in the existing typology of IHL.


2014 ◽  
Vol 96 (895-896) ◽  
pp. 1195-1224 ◽  
Author(s):  
Ezequiel Heffes ◽  
Marcos D. Kotlik

AbstractCommon Article 3 to the four Geneva Conventions encourages the parties to a non-international armed conflict to bring into force international humanitarian law provisions through the conclusion of special agreements. Since armed groups are ever more frequent participants in contemporary armed conflicts, the relevance of those agreements as means to enhance compliance with IHL has grown as well. The decision-making process of special agreements recognizes that all the parties to the conflict participate in the clarification and expansion of the applicable rights and obligations in a way that is consistent with the principle of equality of belligerents. This provides incentives for armed groups to respect the IHL rules they have themselves negotiated. However, even upon the conclusion of such agreements, it remains unclear which legal regime governs them. This paper will argue that special agreements are governed by international law instead of domestic law or asui generislegal regime.


2019 ◽  
Vol 57 (3) ◽  
pp. 377-391 ◽  
Author(s):  
Noel Twagiramungu ◽  
Allard Duursma ◽  
Mulugeta Gebrehiwot Berhe ◽  
Alex de Waal

ABSTRACTThis paper discusses the principal findings of a new integrated dataset of transnational armed conflict in Africa. Existing Africa conflict datasets have systematically under-represented the extent of cross-border state support to belligerent parties in internal armed conflicts as well as the number of incidents of covert cross-border armed intervention and incidents of using armed force to threaten a neighbouring state. Based on the method of ‘redescribing’ datapoints in existing datasets, notably the Uppsala Conflict Data Project, the Transnational Conflict in Africa (TCA) data include numerous missing incidents of transnational armed conflict and reclassify many more. The data indicate that (i) trans-nationality is a major feature of armed conflict in Africa, (ii) most so-called ‘civil wars’ are internationalised and (iii) the dominant definitions of ‘interstate conflict’ and ‘civil war’ are too narrow to capture the particularities of Africa's wars. While conventional interstate war remains rare, interstate rivalry using military means is common. The dataset opens up a research agenda for studying the drivers, patterns and instruments of African interstate rivalries. These findings have important implications for conflict prevention, management and resolution policies.


2019 ◽  
Vol 24 (2) ◽  
pp. 271-296
Author(s):  
Ilana Rothkopf

Abstract Do fighters associated with non-state armed groups have the combatant’s privilege in armed conflict? Non-state armed groups are commonplace in contemporary armed conflicts. However, international humanitarian law (IHL), particularly the law that pertains to combatant’s privilege and prisoner of war status, was designed with state actors in mind. This article assesses the conditions under which the members of non-state armed groups have combatant’s privilege. Throughout, it uses the case of Kurdish fighters in Syria as an example of the timeliness of this question and its ramifications for conflict actors. This article notes, with support from the Geneva Conventions, Additional Protocols, and other sources of IHL, that IHL does not foresee a combatant’s privilege for armed groups in a non-international armed conflict. It contends, however, that the international community should agree to a generalisable rule for the treatment of fighters as combatants regardless of conflict type, if these fighters demonstrate the capability and willingness to adhere to IHL. Such a rule would reduce the need to assess both conflict type and the status of individual fighters should they be captured, and more importantly, it would incentivise continued compliance with IHL.


2011 ◽  
Vol 24 (1) ◽  
pp. 1-21 ◽  
Author(s):  
ANDREA BIANCHI

AbstractThis article examines some selected issues relating to terrorism and international humanitarian law (IHL): the characterization of the nature of armed conflicts in which armed groups, qualified as ‘terrorist’, are involved; terrorism as a war crime; and the determination of the status and treatment (including detention) of terrorist suspects apprehended in the course of an armed conflict. The analysis emphasizes the importance of legal categories and legal qualifications of factual situations for the purpose of determining the applicable law as well as the crucial importance of taking societal practice into account when evaluating the state of the law in any given area. The main focus of the article, however, is on providing a few basic insights, drawn from the law & literature movement, on international humanitarian law and terrorism. Short of any epistemological ambition, literature is used as a remainder that the law is not a set of neutral rules, elaborated and applied independently of context and historical background; that the human condition remains central; and that legal regulation cannot be oblivious to it. Finally, mention is made of interpretive techniques, developed in the field of literary studies, that may help establish social consensus on the interpretation of IHL grey areas.


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