Non-international armed conflicts in international law / Yoram Dinstein.
2014
KZ6355 .D56 2014 (Map It)
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Author
Title
Non-international armed conflicts in international law / Yoram Dinstein.
Published
Cambridge, United Kingdom : Cambridge University Press, 2014.
Call Number
KZ6355 .D56 2014
ISBN
9781107050341 (hardcover)
1107050340 (hardcover)
1107633753 (paperback)
9781107633759 (paperback)
1107050340 (hardcover)
1107633753 (paperback)
9781107633759 (paperback)
Description
xxxi, 264 pages ; 23 cm
System Control No.
(OCoLC)877850824
Summary
"This dispassionate analysis of the legal implications of non-international armed conflicts explores the rules regulating the conduct of internal hostilities, as well as the consequences of intervention by foreign States, the role of the Security Council, the effects of recognition, State responsibility for wrongdoing by both Governments and insurgents, the interface with the law of human rights and the notion of war crimes. The author addresses both conceptual and specific issues, such as the complexities of 'failing' States or the recruitment and use of child soldiers. He makes use of the extensive case law of international courts and tribunals, in order to identify and set out customary international law. Much attention is also given to the contents of available treaty texts (primarily, the Geneva Conventions, Additional Protocol II and the Rome Statute of the International Criminal Court): what they contain and what they omit"-- Provided by publisher.
"This dispassionate analysis of the legal implications of non-international armed conflicts explores the rules regulating the conduct of internal hostilities, as well as the consequences of intervention by foreign States, the role of the Security Council, the effects of recognition, State responsibility for wrongdoing by both Governments and insurgents, the interface with the law of human rights and the notion of war crimes. The author addresses both conceptual and specific issues, such as the complexities of 'failing States' or the recruitment and use of child-soldiers. He makes use of the extensive case lawof international courts and tribunals, in order to identify and set out customary international law. Much attention is also given to the contents of available treaty texts (primarily, the Geneva Conventions, Additional Protocol II and the Rome Statute of the International Criminal Court): what they contain and what they omit"-- Provided by publisher.
"This dispassionate analysis of the legal implications of non-international armed conflicts explores the rules regulating the conduct of internal hostilities, as well as the consequences of intervention by foreign States, the role of the Security Council, the effects of recognition, State responsibility for wrongdoing by both Governments and insurgents, the interface with the law of human rights and the notion of war crimes. The author addresses both conceptual and specific issues, such as the complexities of 'failing States' or the recruitment and use of child-soldiers. He makes use of the extensive case lawof international courts and tribunals, in order to identify and set out customary international law. Much attention is also given to the contents of available treaty texts (primarily, the Geneva Conventions, Additional Protocol II and the Rome Statute of the International Criminal Court): what they contain and what they omit"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references and indexes.
Record Appears in
Table of Contents
Preface
xiii
Table of cases
xv
Table of treaties
xviii
Table of Security Council resolutions
xxvi
Table of General Assembly resolutions
xxvii
Abbreviations
xxviii
1.
The framework
1
I.
Introduction
1
A.
NIACs and IACs
1
B.
LONIAC
3
C.
No NIAC jus ad bellum
4
II.
The legal strata of NIAC law
6
A.
Treaty law
6
B.
Customary international law
9
III.
The triple classification of violence during a NIAC
11
A.
Hostilities
11
B.
Ordinary crimes
12
C.
War crimes
13
D.
The triple classification and wilful killing
16
E.
The disparate perspectives of domestic and international law
16
IV.
Motives and goals of a NIAC
17
A.
Motives
17
B.
Goals
18
2.
The preconditions of a NIAC
20
I.
NIACs as armed conflicts
20
II.
NIACs distinguished from internal disturbances
21
A.
Isolated and sporadic acts of violence
21
B.
The law enforcement paradigm
22
III.
The dichotomy of NIACs and IACs
23
IV.
The territorial dimensions of NIACs
24
A.
A NIAC as an armed conflict within the territory of a single State
24
(a).
The internal character of a NIAC
24
(b).
Extra-territorial spillover
25
(i).
The high seas
25
(ii).
Cyber space
26
(iii).
Cross-border hostilities on land
26
(c).
The 'war' on terrorism
27
(d).
Divided nations
27
V.
A clash between organized armed groups inter se
28
VI.
A modicum of organization of the insurgents
30
A.
Insurgency distinguished from mob violence
30
B.
Insurgents as a party to the conflict
31
VII.
Protracted violence
32
A.
The temporal element
32
B.
Revolutions and coups D'Etat
33
C.
How much time is required?
33
VIII.
Intensity of the fighting
34
A.
Terrorist activities
34
B.
Intensity as an independent criterion
34
C.
Indicia of intensity
35
3.
Thresholds and interaction of armed conflicts
37
I.
The thresholds of armed conflicts
37
A.
Below-the-threshold violence
37
B.
Over the first threshold
38
C.
Over the second threshold
39
(a).
Government armed forces
40
(b).
Dissident armed forces
40
(c).
Other organized armed groups under responsible command
41
(i).
The constituent elements
41
(ii).
The five factors of organization
43
(d).
Control over territory
45
(e).
Sustained and concerted military operations
46
(f).
Capacity to implement AP/II
47
(g).
Permutations
47
D.
The end of a NIAC
48
E.
Over the third threshold
50
II.
Interaction between armed conflicts
52
A.
Two or more NIACs
52
B.
Combinations of NIACs and IACs
54
(a).
Simultaneous combinations
54
(b).
Consecutive combinations
55
4.
Insurgent armed groups and individuals
58
I.
Direct participation in hostilities
58
A.
The concept
58
B.
The meaning
60
(a).
Activities
60
(b).
Members of organized armed groups
61
(c).
Individuals
62
II.
Why are insurgent armed groups bound by LONIAC?
63
A.
The axiom
63
B.
The rationale
64
(a).
Treaty law
64
(i).
Non-State bearers of obligations and rights
65
(ii).
Non-State actors and treaties
68
(iii).
Agreements between Governments and insurgents
70
(b).
Customary international law
72
5.
Foreign intervention in a NIAC
74
I.
The principle of non-intervention
74
A.
The principle and the practice
74
B.
'R2P'
75
II.
Military intervention by a foreign State in support of the incumbent Government
76
A.
The requirement of consent
76
(a).
Consent as a door-opener to foreign intervention
76
(b).
The position of the Institut de Droit International
76
(c).
The general practice of States
78
(d).
The validity and parameters of consent
79
(e).
Consent by treaty
81
(f).
Revocation of consent
81
(g).
Constraints
82
B.
'Failing States'
83
III.
Military intervention by a foreign State against the incumbent Government
84
A.
Use of de facto organs
84
B.
Military assistance to insurgents
84
IV.
The applicable law
86
A.
LONIAC or IAC jus in bello?
86
B.
Some outstanding problems
87
V.
Intervention by the Security Council in a NIAC
88
A.
The UN Charter
88
B.
The case of Libya
90
C.
The range of the Security Council's intervention
91
D.
Peacekeeping forces
93
6.
Recognition
95
I.
Recognition of an insurgent Government
95
A.
Conditions for the existence of a State and a Government
95
B.
Recognition of a new Government
96
C.
Issues related to recognition of Governments
98
(a).
The three main scenarios
98
(b).
Formation of an insurgent Government
98
(c).
Only one Government can be recognized at any given time
99
(d).
Premature and artificially prolonged recognition
99
(e).
De facto recognition
100
(f).
Implied recognition
101
(g).
Recognition as a step towards intervention
102
(h).
Democracy and constitutionality
103
(i).
Avoiding recognition
104
(j).
Government-in-exile
105
D.
Action by the Security Council
106
II.
Recognition of a new State
107
III.
'Recognition of belligerency'
108
A.
'Recognition of belligerency' by the incumbent Government
108
B.
'Recognition of belligerency' by foreign States
109
C.
Implied 'recognition of belligerency'
111
(a).
By the incumbent Government
111
(b).
By foreign States
113
IV.
'Recognition of insurgency'
113
7.
State responsibility
115
I.
The ILC Draft Articles
115
II.
Attribution of acts to the State
116
A.
Organs of the State
116
B.
Private persons
117
C.
Ultra vires acts
117
III.
Due diligence
118
A.
The concept
118
B.
Prevention
118
C.
Punishment
120
IV.
Mob violence and riots
120
A.
Reasonable precautions
120
B.
Attacks against foreigners
121
V.
Insurgency
122
A.
Unsuccessful insurgents
123
(a).
Non-attribution to the State of insurgent acts
123
(b).
Failure to exercise due diligence
124
(c).
Force majeure
125
B.
Successful insurgents
126
(a).
A new Government
126
(i).
Attribution of insurgent acts
126
(ii).
Retroactivity
127
(iii).
Limitations
127
(iv).
Dual attribution
128
(v).
Change of Governments
129
(b).
A new State
129
VI.
Foreign intervention
130
A.
Responsibility of the foreign State for acts of its organs
130
B.
Vicarious responsibility
131
8.
The principal LONIAC treaty provisions
132
I.
Common Article 3
132
A.
The text
132
B.
Analysis
133
II.
AP/II
136
A.
Comparisons
136
(a).
AP/II and Common Article 3
136
(b).
AP/II and AP/I
137
B.
Humane treatment
139
(a).
Fundamental guarantees
139
(i).
Collective punishments and belligerent reprisals
140
(ii).
The protection of children
142
(b).
Internment
143
(c).
Penal prosecutions
143
C.
Wounded, sick and shipwrecked
145
(a).
Protection and care
145
(b).
Medical and religious personnel
146
(c).
The emblem
147
D.
The civilian population
147
(a).
Protection from attack
147
(b).
Starvation of civilians
149
(c).
Works or installations containing dangerous forces
149
(d).
Cultural property
150
(e).
Forced movement of civilians
150
(f).
Relief action
151
9.
Additional treaty texts
154
I.
Treaties explicitly apposite to NIACs
154
A.
Cultural property
154
B.
Weapons
155
C.
Child-soldiers
157
II.
Treaties implicitly apposite to NIACs
159
A.
Enforced disappearances
159
B.
Weapons treaties
159
(a).
Biological weapons
159
(b).
Chemical weapons
160
(c).
Other weapons
161
III.
Search for definitions
161
A.
IAC definitions
162
(a).
Attacks
162
(b).
Wounded, sick and shipwrecked
162
(c).
Hors de combat
164
(d).
Medical and religious personnel
164
(e).
Medical units and transports
165
B.
General treaty definitions
165
(a).
Slavery and the slave trade
166
(b).
Torture
167
(c).
Taking of hostages
169
(d).
Acts of terrorism
171
10.
NIAC war crimes
173
I.
Individual criminal responsibility
173
A.
The nexus to a NIAC
173
(a).
Crimes against humanity and genocide
173
(b).
The growth of NIAC war crimes
174
B.
The Statutes of the ad hoc international tribunals
175
II.
The Rome Statute of the ICC
177
A.
NIAC war crimes based on Common Article 3
178
(a).
The crimes
178
(b).
Scope of application
181
B.
Additional NIAC war crimes
181
(a).
The crimes
181
(b).
Analysis
182
(c).
Interaction with AP/II
188
(d).
Scope of application
190
(e).
The Kampala amendment
192
III.
The Second Protocol to the CPCP
193
IV.
Prosecution in a foreign State and extradition
194
A.
Universal jurisdiction
195
B.
Extradition
196
(a).
Political offences
196
(b).
NIAC war crimes
197
V.
Post-NIAC amnesties
199
A.
AP/II on amnesty
200
B.
Amnesty and impunity
201
(a).
The validity of an amnesty for NIAC war crimes
201
(b).
The Rome Statute of the ICC
203
(c).
The exercise of universal jurisdiction
204
11.
LONIAC customary international law
205
I.
The evolution of LONIAC customary law
205
A.
The pace of the evolution
205
B.
Lex lata and lex ferenda
205
II.
The temporal and spatial scope of application
206
III.
The customary standing of LONIAC treaty provisions (beyond Common Article 3)
207
A.
AP/II
207
B.
Other treaties
209
(a).
Weapons
209
(b).
Cultural property
210
IV.
The process of osmosis from IAC jus in bello
211
A.
Convergence of LONIAC and IAC jus in bello?
211
B.
General principles
213
(a).
Distinction
213
(b).
Unnecessary suffering
215
C.
Specific norms
216
(a).
Indiscriminate attacks
216
(b).
Proportionality
217
(c).
Precautions
218
(d).
Perfidy
218
V.
Divergence from IAC jus in bello
219
A.
POW status
219
B.
Neutrality
221
C.
Additional hurdles
222
12.
LONIAC and human rights law
224
I.
The inter-relationship between LONIAC and human rights law
224
A.
Coexistence of LONIAC with human rights law
227
B.
LONIAC as lex specialis
227
C.
Derogations from human rights
230
(a).
The right to derogate
230
(b).
Non-use of the right to derogate
231
(c).
Non-derogable human rights
232
D.
Limitations built into human rights
233
II.
Some concrete aspects of interaction between LONIAC and human rights law
234
A.
Human rights law within LONIAC
235
B.
Human rights treaties dehors LONIAC
237
(a).
Explicit impact
237
(b).
Implicit impact
239
III.
Non-discrimination
240
A.
Illicit grounds of discrimination
240
B.
Nationality
241
IV.
Refugees and 'non-refoulement'
241
A.
The flow of refugees
241
B.
Refugees and war crimes
243
C.
Fear of persecution
243
D.
'Non-refoulement'
244
Conclusions
246
Index of persons
249
Index of subjects
254