Extrapolation of Criminal Law Modes of Liability to Target Analysis under International Humanitarian Law: Developing the Framework for Understanding Direct Participation in Hostilities and Membership in Organized Armed Groups in Non-International Armed Conflict

Abstract While armed conflicts are principally governed by international humanitarian law (IHL), activities of members of non-State armed groups and their affiliates may also qualify as terrorist offences. After explaining why the concurrent application of IHL and criminal law instruments on terrorism causes friction, this article analyzes the chief mechanism for dissipating this friction: a clause excluding activities governed by IHL from the scope of criminal law instruments on terrorism. Such armed conflict exclusion clauses exist at the international, regional and national level. This article explains how an exclusion clause can best avoid friction between IHL and criminal law instruments on terrorism.

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Thresholds in Flux—the Standard for Ascertaining the Requirement of Organization for Armed Groups under International Humanitarian Law

Journal of Conflict and Security Law ◽

10.1093/jcsl/kraa024 ◽

2020 ◽

Author(s):

Yutaka Arai-Takahashi

Keyword(s):

Armed Conflict ◽

Geneva Convention ◽

Prisoners Of War ◽

Organizational Level ◽

International Humanitarian Law ◽

Threshold Condition ◽

Special Importance ◽

Humanitarian Law ◽

Armed Groups ◽

International Criminal Tribunals

Abstract The requirement of organization is supposed to be of special importance in international humanitarian law (IHL). In the situation of international armed conflict (IAC), this requirement is implicit as part of the collective conditions to be fulfilled by irregular/independent armed groups to enable their members to claim the prisoners of war status under Article 4 A(2) of the Third Geneva Convention. In a non-international armed conflict (NIAC), the eponymous requirement serves, alongside the requirement of intensity of violence, as the threshold condition for ascertaining the onset of a NIAC. While the requirement of organization has not caused much of disputes in IACs, the international criminal tribunals have shown a willingness to examine scrupulously if armed groups in NIACs are sufficiently organized. Still, this article argues that there is need for a nuanced assessment of the organizational level of an armed group in some specific phases of the ongoing armed conflict whose legal character switches (from an NIAC to an IAC, vice-versa, and from a NIAC to a law-enforcement model). It explores what rationales and argumentative model may be adduced to explain such varying standards for organization in different contexts.

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Non-State Armed Groups and the Power to Detain in Non-International Armed Conflict

Israel Law Review ◽

10.1017/s0021223719000207 ◽

2020 ◽

Vol 53 (1) ◽

pp. 3-33

Author(s):

Joshua Joseph Niyo

Keyword(s):

Human Rights ◽

Armed Conflict ◽

Case Law ◽

Customary Law ◽

International Humanitarian Law ◽

International Human Rights Law ◽

Humanitarian Law ◽

Legal Basis ◽

Armed Groups ◽

Critical Feature

The restriction of personal liberty is a critical feature in all conflicts, whether they are of an international character or not. With the increased prevalence of non-international armed conflict and the drastic proliferation of non-state armed groups, it is critical to explore whether such groups can legally detain or intern persons during conflict. This article proposes that there exists a power and a legal basis for armed groups to intern persons for imperative security reasons while engaged in armed conflict. It is suggested that this authorisation exists in the frameworks of both international humanitarian law and international human rights law, as it does for states engaged in such conflicts. It is proposed that such power and legal basis are particularly strong for armed groups in control of territory, and can be gleaned from certain customary law claims, treaty law, as well as some case law on international humanitarian law and human rights. Certain case law of the European Court of Human Rights on detention by de facto non-state entities conceivably reflects a change in traditional thinking on ‘legal’ detention by armed groups.

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Sources of International Humanitarian Law and International Criminal Law

10.1093/law/9780198745365.003.0042 ◽

2018 ◽

Author(s):

Raphaël van Steenberghe

Keyword(s):

International Law ◽

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

International Criminal Law ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Armed Groups ◽

The Impact

This chapter analyses the specific features which characterize the sources of international humanitarian law (IHL) and international criminal law (ICL). It first examines those which are claimed to characterize IHL and ICL sources in relation to the secondary norms regulating the classical sources of international law. The chapter then looks at the specific features of some IHL and ICL sources in relation to the others of the same field. Attention is given particularly to the Rome Statute of the International Criminal Court and the impact of its features on other ICL sources, as well as to the commitments made by armed groups, whose characteristics make them difficult to classify under any of the classical sources of international law. In general, this chapter shows how all those specific features derive from the specific fundamental principles and evolving concerns of these two fields of international law.

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Returning foreign fighters: The case of Denmark

International Review of the Red Cross ◽

10.1017/s1816383118000656 ◽

2018 ◽

Vol 100 (907-909) ◽

pp. 315-336

Author(s):

Helene Højfeldt Jakobsen

Keyword(s):

Criminal Law ◽

Armed Conflict ◽

Armed Forces ◽

International Humanitarian Law ◽

Islamic State ◽

Direct Part ◽

Humanitarian Law ◽

Armed Group ◽

Legal Regimes ◽

Foreign Fighters

AbstractThis article considers which legal regimes apply in cases where a Danish citizen and/or resident returns from Syria or Iraq after having taken part in the armed conflict on behalf of the group known as Islamic State, and continues his/her affiliation with the armed group. The article argues that international humanitarian law currently applies to the Danish territory and that a Danish foreign fighter may continue to be considered as taking a direct part in hostilities after having returned from Iraq or Syria. The article then considers the application of Danish criminal law to returned foreign fighters and argues that Danish counterterrorism laws do not apply to members of the armed forces of an armed group that is party to an armed conflict with Denmark.

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Direct participation: Law school clinics and international humanitarian law

International Review of the Red Cross ◽

10.1017/s1816383115000089 ◽

2014 ◽

Vol 96 (895-896) ◽

pp. 943-968

Author(s):

Laurie R. Blank ◽

David Kaye

Keyword(s):

Real World ◽

Armed Conflict ◽

School Experiences ◽

Law School ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Clinical Environment ◽

Direct Participation ◽

Fact Finding ◽

High Level

AbstractLaw school clinics focused on international humanitarian law (IHL) enable students to participate directly in the development and application of IHL through concrete “real world” work – from training to research and fact-finding, litigation to high-level advocacy, and many spaces in between. These opportunities do far more than just contribute to these students' development as effective, reflective lawyers, certainly a key goal of any clinical environment. Clinical IHL work also matches clinical pedagogy with cutting-edge issues in armed conflict to deepen students' law school experiences and enables them to engage in the IHL goals of promotion, implementation and enforcement.

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Non-State Armed Groups, Detention Authority in Non-International Armed Conflict, and the Coherence of International Law: Searching for a Way Forward

Leiden Journal of International Law ◽

10.1017/s0922156517000061 ◽

2017 ◽

Vol 30 (2) ◽

pp. 435-456 ◽

Cited By ~ 7

Author(s):

DARAGH MURRAY

Keyword(s):

International Law ◽

Armed Conflict ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Legal Basis ◽

Armed Groups ◽

International Regulation ◽

Current State ◽

Treaty Interpretation

AbstractInternational humanitarian law establishes explicit safeguards applicable to detention occurring in non-international armed conflict. However, debate exists as to whether these treaty provisions establish an implicit legal basis for detention. This article approaches this debate in light of the application of international humanitarian law to non-state armed groups. It examines the principal arguments against implicit detention authority and then applies the law of treaty interpretation to international humanitarian law's detention-related provisions. On the basis of current understandings of international law – and the prohibition of arbitrary detention in particular – it is concluded that international humanitarian law must be interpreted as establishing implicit detention authority, in order to ensure the continued regulation of armed groups. Although, perhaps, problematic from certain states’ perspective, this conclusion is reflective of the current state of international law. However, this is not necessarily the end of the story. A number of potential ‘ways forward’ are identified: implicit detention authority may be (i) rejected; (ii) accepted; or (iii) re-examined in light of the non-state status of armed groups, and what this means for the content of the prohibition of arbitrary detention. These scenarios are examined in light of the desire to ensure: the coherency of international law including recognition of the role of armed groups, the continued effectiveness of international humanitarian law, and state sovereignty. An emphasis is placed on understanding the non-state status of armed groups and what this means for international regulation and the content of imposed obligations.

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THE LIMITATION OF CYBER WARFARE UNDER HUMANITARIAN LAW (Pembatasan Perang Siber dalam Hukum Humaniter)

terAs Law Review : Jurnal Hukum Humaniter dan HAM ◽

10.25105/teras-lrev.v3i1.10741 ◽

2021 ◽

Vol 3 (1) ◽

pp. 1

Author(s):

Laila Almira

Keyword(s):

Armed Conflict ◽

International Humanitarian Law ◽

Cyber Warfare ◽

Humanitarian Law ◽

Armed Groups ◽

Military Operations ◽

Legal Frameworks ◽

The Impact

States and non-State armed groups are increasingly employing cyber capabilities in their military operations in the digitalization environment today. There is a controversy about how current international legal frameworks, especially International Humanitarian Law (IHL), applies to such conduct in cyberspace, most notably in the context of armed conflict. Because one of the fundamental aims of the IHL is to protect civilians from the impact of armed conflict, it is critical to explore the norms of IHL that regulate such operations. This article will be likely to discuss about cyber warfare in the term of armed conflict. Lastly, the article will be reviewing the rules and principle that applies during the cyber warfare.

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The International Legal Status of Armed Groups: Can One Be Determined Outside the Scope of Armed Conflict?

Israel Law Review ◽

10.1017/s0021223718000067 ◽

2018 ◽

Vol 51 (2) ◽

pp. 321-335 ◽

Cited By ~ 1

Author(s):

Tom Gal

Keyword(s):

Armed Conflict ◽

Legal Status ◽

International Criminal ◽

Legal Framework ◽

International Criminal Law ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Armed Groups ◽

Legal Personality ◽

International Legal Personality

In 2016 Daragh Murray published his book Human Rights Obligations of Non-State Armed Groups (Hart 2016). By way of distinction from many other contributions on this widely discussed topic, Murray tries to provide the reader with a complete overview of the legal framework that enables armed groups to acquire international legal status, and preferably outside the framework of armed conflict. He walks the reader through the path of international legal personality, leading towards the acknowledgement of armed groups as addressees of the law. Murray's attempt is courageous, interesting and innovative, but it has its shortcomings. These include his reliance on international criminal law as a source for defining armed groups, and his insistence on stepping outside international humanitarian law. Nonetheless, his contribution is essential for those who wish to include even more armed groups on the international plane.

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6 Fundamental Guarantees

The Oxford Guide to International Humanitarian Law ◽

10.1093/law/9780198855309.003.0006 ◽

2020 ◽

Author(s):

McLaughlin Robert

Keyword(s):

Armed Conflict ◽

International Humanitarian Law ◽

Direct Part ◽

Humanitarian Law ◽

Armed Groups ◽

Broad Category ◽

Law Of Armed Conflict ◽

Specific Rule ◽

Degrading Treatment ◽

Forced Labour

This chapter provides a background of the international humanitarian law (IHL) fundamental guarantees. The IHL fundamental guarantees is that body of rules, equally applicable in both forms of armed conflict, that deals with the treatment (and its consequences) of civilians, and of combatants/civilians who are not taking a direct part in hostilities (DPH)/organized armed groups (OAGs) who are hors de combat or otherwise under the control of an adversary belligerent party (and, in some cases, of their own party), when and whilst they remain under that control, and where no other more contextually specific rule of law of armed conflict (LOAC) applies to the treatment or consequence in question. The chapter then assesses a number of specific fundamental guarantees under two broad category headings. The first is humane treatment, which is itself an umbrella fundamental guarantee encompassing: violence to life; through other violent breaches of fundamental guarantees, such as torture and rape; to the proscriptions relating to degrading treatment. The second broad category is restriction of freedoms, focusing upon forced labour and slavery. Whilst this provides but a slim and selective assessment across the broad and still evolving concept of fundamental guarantees, it is hoped that it will nevertheless furnish some indication of the scope and content of this externally referencing, inclusive category of IHL rights and obligations.

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