Exploring the “continuous combat function” concept in armed conflicts: Time for an extended application?

2018 ◽  
Vol 100 (907-909) ◽  
pp. 267-285
Author(s):  
Sabrina Henry
Keyword(s):  
Armed Conflict ◽  
Armed Forces ◽  
Armed Conflicts ◽  
Armed Groups ◽  
Function Concept ◽  
Extended Application

AbstractThis paper focuses on the “continuous combat function” concept and proposes to extend its application. First, the article will demonstrate that the continuous combat function concept should be extended to certain members of organized armed groups in cases where those groups do not belong to any of the parties to an international armed conflict and whose actions do not reach the level of intensity required for a separate non-international armed conflict (NIAC) to exist. Secondly, the paper will look at the extension of this concept in order to determine individual membership in State armed forces in the context of a NIAC, while arguing that the notion of “armed forces” should be interpreted differently depending of the nature of the conflict, be it international or non-international.

Part IV The Right to Reparation/Guarantees of Non-Recurrence, B Guarantees of Non-Recurrence of Violations, Principle 37 Disbandment of Parastatal Armed Forces/Demobilization and Social Reintegration of Children

2018 ◽  
Author(s):  
Duthie Roger ◽  
Mayer-Rieckh Alexander
Keyword(s):  
Transitional Justice ◽  
Armed Conflict ◽  
Armed Forces ◽  
Theoretical Framework ◽  
Armed Conflicts ◽  
Historical Background ◽  
Armed Groups ◽  
Social Reintegration ◽  
Criminal Violence ◽  
The Right

Principle 37 focuses on the disbandment of parastatal armed forces and the demobilization and social reintegration of children involved in armed conflicts. It articulates measures designed to prevent the transformation of conflict violence to criminal violence through the dismantling and reintegration of all armed groups engaged in abuses, and outlines comprehensive responses to the injustices experienced by children during armed conflict. This chapter first provides a contextual and historical background on Principle 37 before discussing its theoretical framework and practice. It then examines the importance of reintegration processes and how they can be affected by transitional justice measures, along with their implications for former child combatants. It also highlights the relevance of measures for dealing with unofficial armed groups from an impunity standpoint, as well as the efforts of disarmament, demobilization, and reintegration (DDR) programs to address them.

Personal Self-Defense and the Standing Rules of Engagement

2018 ◽  
pp. 109-124
Author(s):  
Christopher M. Ford
Keyword(s):  
Unmanned Aerial Vehicle ◽  
Armed Conflict ◽  
Use Of Force ◽  
Armed Forces ◽  
Armed Conflicts ◽  
Armed Groups ◽  
Self Defense ◽  
Aerial Vehicle ◽  
The Law ◽  
The U.S

The U.S. military Standing Rules of Engagement (SROE) restrict the use of force in armed conflict to either self-defense or “mission-specific” rules of engagement, which refer to the use of force against members of enemy armed forces or organized armed groups that have been “declared hostile.” This bifurcation of authority works well in an international armed conflict, where the enemy force is uniformed and easily distinguished. In these circumstances, the overwhelming number of engagements are against identified hostile forces. In many non-international armed conflicts, however, combatants actively attempt to camouflage their status, and U.S. forces find themselves engaging enemy forces under a self-defense framework. This creates problems. Consider, for example, a situation where three individuals of unknown affiliation launch an attack against a U.S. military convoy in Afghanistan. After a short engagement, the attackers get in a van and speed away from the attack site. The U.S. convoy is disabled, but an unmanned aerial vehicle tracks the van as it retreats into the desert. Thirty minutes later an AH-64 Apache attack helicopter arrives on scene above the still-retreating van. Can the Apache attack the vehicle? The van is retreating and poses no threat, thus self-defense principles would not allow for the use of force, despite the fact that the occupants are clearly directly participating in hostilities. This chapter addresses three questions: Why are the SROE drafted in this manner? What is the basis in the law for the SROE’s approach to self-defense? What are the problems presented by this approach?

How counterterrorism throws back wartime medical assistance and care to pre-Solferino times

2021 ◽  
pp. 1-38
Author(s):  
Françoise Bouchet-Saulnier
Keyword(s):  
Armed Conflict ◽  
Armed Forces ◽  
Armed Conflicts ◽  
Necessary Condition ◽  
Armed Groups ◽  
Military Operations ◽  
Medical Assistance ◽  
Simultaneous Application ◽  
Medical Mission ◽  
The Impact

Abstract Domestic counterterrorism (CT) frameworks have been increasingly employed to criminalize impartial medical care to wounded and sick from non-State armed groups labelled as criminal or terrorist in non-international armed conflicts (NIACs). It has also contributed to legitimize attacks and incidental damage on medical facilities in armed conflicts overlooking the international humanitarian law (IHL) protection afforded to the wounded and sick as well as to medical personnel and facilities. This article compares the treatment of the wounded and sick in both international armed conflicts (IACs) and NIACs in the context of the global war on terrorism. It demonstrates the impacts that CT measures have on the IHL protection of the medical mission while demonstrating the increased acceptance that some incidental damages, such as the downgrading of IHL core protections, are tolerated, by some countries in the global fight against terrorism. The article further illustrates how the special criminal status of wounded and sick from non-State armed groups in armed conflicts that are evolving in a CT context can mechanically contaminate the status of impartial humanitarian medical activities, facilities and personnel in such contexts. It also shows how the simultaneous application of CT and IHL in numerous contexts of armed conflict as well as the involvement of State armed forces under those two different bodies of law contributes to blurring the lines between IHL and CT, between protected or “criminal” humanitarian and medical activities. In contexts of complex military operations, this reality creates a mind-set conducive to legal mistakes and security incidents on the medical mission. Although there is a distinction between the protection from attacks and the protection from prosecution under IHL, in practice, numerous military operations to arrest are launched in ways similar to attacks and can end up with some killings. The article concludes that States could easily limit the impact of CT on IHL by adding an exemption in their CT framework for humanitarian and medical assistance that is compatible with IHL. This is the first necessary condition – even if obviously not a sufficient one – to end the legal ambiguity between IHL and State domestic law as to the criminalization or loss of the IHL protected status for the much necessary needed medical assistance and care activities in times of armed conflict that are evolving in a CT context.

Introduction

2018 ◽  
Author(s):  
Ian Park
Keyword(s):  
Armed Conflict ◽  
Armed Forces ◽  
Armed Conflicts ◽  
Right To Life

The introduction sets out the broad questions to be addressed, namely: do states have right to life obligations during armed conflict; if so, what are these obligations; when do they apply, and in respect of whom; and how can states best ensure compliance with these obligations? The introduction also provides a précis of each chapter and the themes explored therein. Additionally, it makes reference to the fact that UK armed forces doctrine and procedures in respect of recent armed conflicts will be used as examples to explore the issues under consideration in the book. The aim is also to proffer a view on where the current UK procedures do not comply with the state’s right to life obligations and how this can be rectified.

The Definition of Civilians in Non-International Armed Conflicts

2016 ◽  
Vol 7 (1) ◽  
pp. 129-155 ◽  
Author(s):  
Camille Marquis Bissonnette
Keyword(s):  
Armed Conflict ◽  
Codes Of Conduct ◽  
Armed Conflicts ◽  
Armed Groups ◽  
Direct Participation ◽  
State Actors ◽  
Definition Of ◽  
Shed Light

This article analyzes the perceptions of armed groups regarding the concept of civilians in non-international armed conflicts, through their codes of conduct and other commitments. It intends to shed light on the implementation by these non-state actors of the very critical principle of distinction, the exact articulation of is hotly debated in non-international armed conflict. It thus presents the different approaches to the principle of distinction in non-international armed conflict: the specific-act approach, the membership approach, the functional non-privileged combatancy approach, and the direct participation in hostilities with extended temporal scope in light of the commitments and undertakings of various armed groups. It concludes with the findings made on the basis of the study of the commitments made by armed groups, underlying in particular the issues that remain problematic regarding the principle of distinction in non-international armed conflict, as well as the issues on which a consensus in conceivable.

scholarly journals Lessons for the law of armed conflict from commitments of armed groups: identification of legitimate targets and prisoners of war

2011 ◽  
Vol 93 (882) ◽  
pp. 463-482 ◽  
Author(s):  
Sandesh Sivakumaran
Keyword(s):  
Armed Conflict ◽  
Ad Hoc ◽  
Prisoners Of War ◽  
International Standards ◽  
Armed Conflicts ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Law Of Armed Conflict ◽  
The Law ◽  
Rules Set

AbstractArmed groups frequently issue ad hoc commitments that contain a law of armed conflict component. These commitments detail the obligation of the relevant armed group to abide by international humanitarian law, the Geneva Conventions, or particular rules set out in the commitment. They commit the group to abide by international standards, sometimes exceed international standards, or in certain respects violate international standards. Although these commitments are often overlooked, they offer certain lessons for the law of armed conflict. This article considers the commitments of armed groups with respect to two specific areas of the law that are either of contested interpretation or seemingly inapplicable to non-international armed conflicts, namely the identification of legitimate targets and the prisoners of war regime.

The Obama Administration and Targeting “War-Sustaining” Objects in Noninternational Armed Conflict

2016 ◽  
Vol 110 (4) ◽  
pp. 663-679 ◽  
Author(s):  
Ryan Goodman
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Armed Forces ◽  
Second Order ◽  
Armed Conflicts ◽  
Islamic State ◽  
President Obama ◽  
Law Of Armed Conflict ◽  
Economic Infrastructure ◽  
Significant Attention

Since September 11, 2001, legal experts have focused significant attention on the lethal targeting of individuals by both the George W. Bush and Obama administrations. An equally significant legacy of the post-9/11 administrations, however, may be the decisions to target specific kinds of objects. Those decisions greatly affect the success of U.S. efforts to win ongoing conflicts, such as the conflict with the Islamic State of Iraq and the Levant (ISIL). These decisions may also become precedents for military attacks that states consider lawful, whether carried out by cyber or kinetic means, in future armed conflicts.To achieve the goal of destroying ISIL, President Obama embraced what many in the international law community long regarded as off-limits: targeting war-sustaining capabilities, such as the economic infrastructure used to generate revenue for an enemy's armed forces. Although the weight of scholarly opinion has for years maintained that such objects are not legitimate military targets, the existing literature on this topic is highly deficient. Academic discussion has yet to grapple with some of the strongest and clearest evidence in support of the U.S. view on the legality of such targeting decisions. Indeed, intellectual resources may be better spent not on the question of whether such objects are legitimate military targets under the law of armed conflict, but on second-order questions, such as how to apply proportionality analysis and how to identify limiting principles to guard against unintentional slippery slopes. In this article, I discuss the legal pedigree for war-sustaining targeting. I then turn to identify some of the most significant second-order questions and how we might begin to address them.

Detention by armed groups: overcoming challenges to humanitarian action

2011 ◽  
Vol 93 (883) ◽  
pp. 759-782 ◽  
Author(s):  
David Tuck
Keyword(s):  
Perceived Risk ◽  
Armed Conflict ◽  
International Committee ◽  
Armed Conflicts ◽  
Red Cross ◽  
Armed Groups ◽  
Unique Role ◽  
Humanitarian Action ◽  
International Character

AbstractArmed conflict and deprivation of liberty are inexorably linked. Deprivation of liberty by non-state armed groups is a consequence of the predominantly non-international character of contemporary armed conflicts. Regardless of the nature of the detaining authority or the overarching legality of its detention operations, deprivation of liberty may nonetheless have serious humanitarian implications for the individuals detained. Despite a need for humanitarian action, effective engagement is hampered by certain threshold obstacles, such as the perceived risk of the group's legitimization. Since the formative work of the International Committee of the Red Cross (ICRC)'s founder, Henry Dunant, the ICRC has sought to overcome these obstacles. In doing so it draws upon its experience of humanitarian action in state detention, adapting it to the exigencies of armed groups and the peculiarities of their detention practice. Although not without setbacks, the ICRC retains a unique role in this regard and strives to ameliorate the treatment and conditions of detention of persons deprived of liberty by armed groups.

scholarly journals ARMED CONFLICT IN THE SOUTH-EAST OF UKRAINE: LEGAL QUALIFI-CATIONS AND CONSEQUENCES

2019 ◽  
Vol 23 (3) ◽  
pp. 394-412
Author(s):  
Petr P. Kremnev
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Armed Forces ◽  
Armed Conflicts ◽  
Humanitarian Law ◽  
Legal Analysis ◽  
The South ◽  
Legal Doctrine ◽  
Legal Norms ◽  
Legal Consequences

Unconstitutional change of power in Ukraine as a result of the "Maidan revolution" in February 2014, with the subsequent power grab by Ukrainian radicals of local authorities under nationalist slogans, led to the establishment of control over parts of the territory of Donetsk and Lugansk regions by Donbass militias, and then to the ongoing fighting between the armed formations of the latter with units of the regular armed forces of Ukraine. The purpose of this publication is to establish the form of the armed conflict and its legal consequences from the standpoint of current international law, which has not yet found proper legal analysis and coverage in either domestic or foreign (including Ukrainian) legal doctrinе. In official statements and legislative acts of Ukraine, this conflict is declared as a "state of war with Russia", "aggression of Russia", and the Ukrainian doctrine of international law almost unanimously declares the need to apply to the conflict the norms of international humanitarian law and qualifies it as an international armed conflict. In this publication, on the basis of the analysis of existing international legal norms and legal doctrine, the qualification of existing forms of armed conflicts is carried out: war, international armed conflict, non-international armed conflict, internationalized armed conflict. This examines the legal consequences (or otherwise the obligations of the parties to the conflict) that are caused by each form of such armed conflict, that is concealed and ignored by the Ukrainian side. On the basis of the theoretical and legal analysis of the UN Charter, the relevant provisions of the Geneva conventions on the protection of victims of war of 1949 and Additional protocols I and II of 1977, the author qualifies the situation in the South-East of Ukraine as a non-international armed conflict and the obligation to comply with applicable legal norms by all parties to the conflict. At the same time, the author comes to the conclusion about the insolvency of the claims about the applicability of the rules governing other mentioned forms of armed conflicts.

Historical Development

2018 ◽  
Author(s):  
Kubo Mačák
Keyword(s):  
Historical Development ◽  
Historical Perspective ◽  
Historical Analysis ◽  
Armed Forces ◽  
Armed Conflicts ◽  
Armed Groups ◽  
National Liberation ◽  
History Of ◽  
Liberation Movements

This chapter examines the access to combatant status by members of non-state armed groups from a historical perspective. It demonstrates that practically since the time the distinction between combatants and non-combatants had solidified into law, the applicable rules have permitted members of at least some non-state armed groups to benefit from combatant status. At various times in the history of regulation of armed conflicts, these groups have included militias and volunteer corps, armed forces professing allegiance to a non-recognized governmental authority, and national liberation movements. Overall, the historical analysis presented in this chapter suggests that it would be erroneous to interpret the rules on eligibility for combatancy in the context of internationalized armed conflicts in an unduly restrictive manner.

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