The Legal Status of Unlawful Combatants under International Humanitarian Law

2021 ◽  
Vol 28 (1) ◽  
pp. 131-165
Author(s):  
Jun-hyeong AHN
Keyword(s):  
Legal Status ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Unlawful Combatants

Who Are Protected by the Fundamental Guarantees under International Humanitarian Law? Part 2: Breaking with the Control Requirement in Light of the icc Case Law

2021 ◽  
pp. 1-58
Author(s):  
Raphaël van Steenberghe
Keyword(s):  
Armed Conflict ◽  
Legal Status ◽  
Case Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
General Control ◽  
Geneva Conventions ◽  
The Status ◽  
Control Requirement ◽  
Specific Paper

Abstract International humanitarian law provides for fundamental guarantees, the content of which is similar irrespective of the nature of the armed conflict and which apply to individuals even if they do not fall into the categories of specifically protected persons under the Geneva Conventions. Those guarantees, all of which derive from the general requirement of human treatment, include prohibitions of specific conduct against persons, such as murder, cruel treatment, torture, sexual violence, or against property, such as pillaging. However, it is traditionally held that the entitlement to those guarantees depends upon two requirements: the ‘status requirement’, which basically means that the concerned persons must not or no longer take a direct part in hostilities, and the ‘control requirement’, which basically means that the concerned persons or properties must be under the control of a party to the armed conflict. This study argues in favour of breaking with these two requirements in light of the existing icc case law. That study is divided into two parts, with each part devoted to one requirement and made the object of a specific paper. The two papers follow the same structure. They start with general observations on the requirement concerned, examine the relevant icc case law and put forward several arguments in favour of an extensive approach to the personal scope of the fundamental guarantees. The first paper, which was published in the previous issue of this journal, dealt with the status requirement. It especially delved into the icc decisions in the Ntaganda case with respect to the issue of protection against intra-party violence. It advocated the applicability of the fundamental guarantees in such a context by rejecting the requirement of a legal status, on the basis of several arguments. Those arguments relied on ihl provisions protecting specific persons as well as on the potential for humanizing ihl on the matter and also on the approach making the status requirement relevant only when the fundamental guarantees apply in the conduct of hostilities. The second paper, which is published here, deals with the control requirement. It examines several icc cases in detail, including the Katanga and Ntaganda cases, in relation to the issue of the applicability of the fundamental guarantees in the conduct of hostilities. It is argued that the entitlement to those guarantees is not dependent upon any general control requirement, and that, as a result, some of these guarantees may apply in the conduct of hostilities. This concerns mainly those guarantees whose application or constitutive elements do not imply any physical control over the concerned persons or properties.

6 Means of Combat

2021 ◽  
Author(s):  
Longobardo Marco ◽  
Fleck Dieter
Keyword(s):  
International Law ◽  
Legal Status ◽  
Weapons Of Mass Destruction ◽  
Biological Weapons ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Customary International Law ◽  
Effective Implementation ◽  
Conventional Weapons ◽  
Chemical And Biological Weapons

This chapter provides an overview of treaty and customary international law rules applicable to means of combat. Belligerents do not need an authorization from international humanitarian law in relation to a specific means of combat. Rather, they are free to develop, produce, stockpile, transfer, or use any particular weapon, except for those cases in which a prohibitive rule of international humanitarian law dictates to the contrary. In order to guarantee effective implementation of the prohibition of certain means and methods of warfare, it is necessary to provide for an efficient procedure to ensure the legality of new weapons. This procedure is preventive in nature and aims at providing the belligerents with means of combat that do not violate international law prohibitions. The chapter discusses the prohibition of certain conventional weapons and then looks at weapons of mass destruction, which are simply defined as nuclear, chemical, and biological weapons. While the production, possession, and use of chemical weapons and biological weapons is prohibited under treaty law, the legal status of nuclear weapons is more complex.

scholarly journals Revisiting the Legal Framework for Private Military and Security Contractors: Maritime Perspective

2020 ◽  
Vol 8 (1) ◽  
pp. 166-182
Author(s):  
Vijaya Singh Gautam ◽  
Vijay Mishra
Keyword(s):  
Legal Status ◽  
Legal Framework ◽  
Maritime Security ◽  
International Humanitarian Law ◽  
State Responsibility ◽  
Humanitarian Law ◽  
Training Techniques ◽  
Security Companies ◽  
Security Contractors

The paper aims to analyse legal lacunas and suggest possible solutions for the acts and wrongdoings of Private Military and Security Companies within the lens of maritime activities. The paper has been divided into three parts. Part I deals with the necessity and role of Private Military and Security Companies in the present times. Part II discusses the legal status of Private Military and Security Companies and ways of ensuring responsibility for their acts. Part III examines the legal framework for the acts of Private Maritime Security Companies. An assessment of the rules of international humanitarian law (IHL), state responsibility, applicability of the Montreux document and efforts such as GUARDCON have been discussed to highlight the inadequacy of the laws on Private Maritime Security Companies. There has been an upsurge in the employment of Private Maritime Security Companies since 2008 to cope with a myriad of problems at sea including piracy and robbery. However, an umbrella of rules including employment procedures, agreements, training techniques, responsibility in peacetime as well as in times of conflict and the guidelines of IHL must be restructured or enhanced in order to be made applicable to Private Maritime Security Companies.

Unlawful Combatants

2014 ◽  
Author(s):  
Knut Dörmann
Keyword(s):  
United States ◽  
The United States ◽  
Legal Framework ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Geneva Conventions ◽  
Legal Situation ◽  
Military Campaign ◽  
Unlawful Combatants

The legal situation of ‘unlawful combatants’ has been one of the most contentious issues in international humanitarian law. It has been addressed in some detail in legal writings following the adoption of the Geneva Conventions of 1949 and then before the 1977 Additional Protocols to the Geneva Conventions were adopted. The United States-led military campaign in Afghanistan, which started in 2001, revived the debate. This chapter examines the debate concerning the legal framework applicable to the possible detainability and targetability of ‘unlawful combatants’. It first considers ‘unlawful combatants’ in the hands of the enemy within the framework of international and non-international armed conflicts. It then discusses the penal prosecution of ‘unlawful combatants’ as well as their status under the rules of the conduct of hostilities. The chapter concludes by looking at the practice in Israel and the United States, the former in reference to the incarceration of unlawful combatants and the latter with respect to the fight against terrorism.

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

2018 ◽  
Vol 51 (2) ◽  
pp. 321-335 ◽  
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.

Corporate actors: the legal status of mercenaries in armed conflict

2006 ◽  
Vol 88 (863) ◽  
pp. 599-611 ◽  
Author(s):  
Katherine Fallah
Keyword(s):  
International Law ◽  
Significant Role ◽  
Armed Conflict ◽  
Legal Status ◽  
Conventional Approach ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Military Industry ◽  
The Law ◽  
Modern Warfare

AbstractCorporate actors are taking on an increasingly significant role in the prosecution of modern warfare. Traditionally, an analysis of the law applicable to corporate actors in armed conflict commences with inquiry into the law as it applies to mercenaries. As such, the rise of the private military industry invites a reconsideration of the conventional approach to mercenaries under international law. This article critically surveys the conventional law as it applies to mercenaries, and considers the extent to which corporate actors might meet the legal definitions of a “mercenary”. It demonstrates that even mercenaries receive protection under international humanitarian law.

scholarly journals Applying Humanitarian Law: A Review of the Legal Status of the Turkey–Kurdistan Workers’ Party (pkk) Conflict

2021 ◽  
pp. 1-34
Author(s):  
Deniz Arbet Nejbir
Keyword(s):  
Armed Conflict ◽  
Legal Status ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Security Forces ◽  
Armed Group ◽  
Geneva Conventions ◽  
Law Of Armed Conflict ◽  
Operational Ability ◽  
Kurdistan Workers Party

Abstract This article assesses the applicability of the criteria for non-international armed conflict to the situation in South-Eastern Turkey. It demonstrates that the Kurdistan Workers’ Party (also known as the pkk), as a party to the conflict, fulfils the three main criteria laid down in conventional international humanitarian law and developed by indicative factors in international jurisprudence for assessing the existence of a non-international armed conflict in the context of Common Article 3 to the 1949 Geneva Conventions: being an organised armed group, having the ability to engage in ‘protracted violence’, and complying with law of armed conflict. It establishes that the pkk qualifies as an organised armed group under responsible command and has the operational ability, structure and capacity to carry out ‘protracted violence’, to respect fundamental humanitarian norms of international humanitarian law and to control territory. The article also ascertains that Turkey is clearly bound by the provisions of the four Geneva Conventions of 1949, including Common Article 3, and customary international humanitarian law. Accordingly, it concludes that the conflict between the pkk and the Turkish security forces qualifies as a non-international armed conflict within the meaning of both Common Article 3 and customary international humanitarian law.

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