The Treatment of Combatants Under the Law of Armed Conflict
, by Crawford, EmilyNote: Supplemental materials are not guaranteed with Rental or Used book purchases.
- ISBN: 9780199578962 | 0199578966
- Cover: Hardcover
- Copyright: 3/12/2010
This book makes the case for eliminating the distinction between types of armed conflict under international humanitarian law (IHL), specifically as they apply to persons taking a direct part in the hostilities - be they soldiers or insurgents. Currently,
Dr. Emily Crawford is a Visiting Fellow at the University of New South Wales, in Sydney, Australia, where she teaches International Law and International Humanitarian Law. She has a Bachelor of Arts and Bachelor of Laws degree, and completed her Doctoral Thesis at the University of New South Wales on the differing levels of treatment afforded to participants in armed conflicts. Her research interests are international humanitarian law and international criminal law.
Table of Abbreviations | p. xiii |
Table of Cases | p. xviii |
Table of Treaties, Legislation, and International Documents | p. xxii |
Introduction | p. 1 |
The Evolution of Armed Conflict in the Twentieth Century and the International Legal Response-Towards Convergence | p. 6 |
Introduction | p. 6 |
New Means and Methods for Waging War | p. 7 |
The Industrialization of Warfare from the American Civil War to World War Two | p. 7 |
Changes in Methods of Waging War | p. 9 |
The Change in Typology of Armed Conflict in the Modern Era | p. 11 |
National Liberation Wars | p. 11 |
The Rise in Frequency of Internal Armed Conflicts | p. 14 |
Increasing Civilian Casualties | p. 14 |
Internationalized Armed Conflict | p. 15 |
The Modern Laws of Armed Conflict | p. 16 |
The Geneva Conventions of 1949 | p. 17 |
Common Article 3: Rules for Non-International Armed Conflicts | p. 21 |
The Additional Protocols of 1977 | p. 23 |
The Post-Protocols Treaties | p. 27 |
The Growth of International Criminal Tribunals | p. 28 |
The Development of the Customary Law of Non-International Armed Conflicts-Fundamental Principles of IHL and their Customary Status in Non-International Armed Conflicts | p. 29 |
Principle of Distinction | p. 31 |
Prohibition on Indiscriminate Attacks | p. 33 |
The Principle of Proportionality in Attack | p. 34 |
The Principle of Military Necessity | p. 35 |
Prohibition on Causing Unnecessary Suffering | p. 36 |
The General Trend of Invoking IHL Obligations without Making the Distinction as the Source of the Obligation | p. 37 |
State Practice | p. 37 |
UN General Assembly and Security Council Resolutions | p. 39 |
Resolutions of Inter-Governmental Bodies | p. 41 |
Resolutions of Other International Organizations | p. 42 |
The Customary Status of Common Article 3 and Protocol II | p. 42 |
Conclusions | p. 45 |
Combatant Status and Prisoner of War Protections | p. 48 |
Introduction | p. 48 |
The Origins and Evolution of Combatant Status | p. 49 |
The Geneva Rules Regarding Combatants | p. 50 |
The Importance of Combatant Status-Combatant Immunity | p. 52 |
The Consequences of Denial of Combatant Status-'Unlawful Combatants' | p. 53 |
Problems with the Category of 'Unlawful Combatant' | p. 55 |
The Origins and Development of POW Status | p. 61 |
The Geneva Rules Regarding POWs | p. 64 |
Fundamental Guarantees | p. 65 |
General Protections during Captivity, including Working Conditions | p. 66 |
Relations with the Exterior, including Access to Relief Agencies | p. 67 |
Penal and Disciplinary Measures, including Judicial Guarantees | p. 67 |
Termination of Captivity | p. 68 |
Reasons for Denial of Combatant and POW Status in Non-International Armed Conflicts | p. 68 |
Historical Background to the Denial of Combatant Rights to Insurgents | p. 69 |
Preservation of State Sovereignty | p. 73 |
Legitimating Terrorism and Rebellion | p. 74 |
Inability of Insurgents to Fulfil the Conditions of International Humanitarian Law | p. 74 |
Conclusions | p. 76 |
Existing Protections for Participants in Non-International Armed Conflict | p. 78 |
Introduction | p. 78 |
A Prefatory Comment on Detainee Protections under the 1949 Conventions and the Additional Protocols | p. 80 |
General Guarantees for Persons Deprived of Their Liberty | p. 81 |
Humane Treatment (Article 13, GCIII) | p. 81 |
Non-Discrimination (Article 16, GCIII) | p. 89 |
Provisions Regarding Conditions of Captivity | p. 91 |
Safe and Hygienic Detention Facilities | p. 91 |
Working Conditions (Articles 49-57, GCIII) | p. 94 |
Detainee Relations with the Exterior and the Role of the ICRC | p. 95 |
Communication and Correspondence with the Exterior (Articles 63 and 70-77, GCIII) | p. 95 |
Access by the ICRC | p. 96 |
Judicial Guarantees for Detainees in Internal Armed Conflicts | p. 100 |
Judicial Guarantees in Common Article 3 and Protocol II | p. 101 |
Trial by an Independent, Impartial and Regularly Constituted Court (Articles 84 and 102, GCIII) | p. 102 |
Individual Criminal Responsibility and the Prohibition on Collective Punishments (Article 87, GCIII) | p. 102 |
The Principle of Legality-Nullum Crimen Sine Lege (Article 99, GCIII) | p. 102 |
Right to be Informed of the Charges (Articles 104-5, GCIII) | p. 103 |
Prohibition on Compelling the Accused to Testify or Confess (Article 99, GCIII) | p. 103 |
Rights and Means of Defence (Article 105, GCIII) | p. 103 |
Right to Fair Trial through Due Process (Article 105, GCIII) | p. 103 |
Right of Appeal (Article 106, GCIII) | p. 103 |
Termination of Captivity-A Combatant Immunity for Internal Armed Conflicts? | p. 104 |
Amnesty as ex post facto Combatant Immunity | p. 104 |
Amnesty and Serious Violations of IHL | p. 109 |
Amnesty and Transitional Justice | p. 111 |
Additional UN Guidelines for the Treatment of Prisoners | p. 112 |
Conclusions | p. 116 |
Completing the Picture: International Human Rights Law in Non-International Armed Conflicts | p. 118 |
Introduction | p. 118 |
The Place of International Human Rights Law in Times of Armed Conflict | p. 121 |
International Human Rights Law Obligations of Parties to a Non-International Armed Conflict | p. 126 |
International Human Rights Law Protections for Persons Deprived of their Liberty | p. 129 |
Non-Discrimination | p. 129 |
Humane Treatment | p. 130 |
Special Regard for Women | p. 135 |
Recording Identification Details of Persons Deprived of Their Liberty | p. 136 |
Detention in Healthful and Sanitary Facilities, Including Access to Medical Facilities | p. 137 |
Detainee Discipline | p. 138 |
Working Conditions | p. 139 |
Religious, Intellectual, and Physical Activities | p. 139 |
Contact with the Exterior, including Access to Relief Agencies | p. 140 |
Judicial Guarantees | p. 141 |
Termination of Captivity-Release and Repatriation | p. 152 |
Conclusions | p. 152 |
Achieving a Universal Combatant Status | p. 153 |
Introduction | p. 153 |
Combatant Immunity and POW Status-The Rationale for a Unified Law | p. 154 |
Humanitarian Considerations | p. 156 |
Encouraging Reciprocal Application of IHL | p. 156 |
Post-War Reconstruction and Reconciliation | p. 158 |
Ease of Applicability of Rules of IHL | p. 158 |
In the Interests of States to Detain Insurgents | p. 160 |
A Model for a Uniform Application of the Law of Armed Conflict to All Participants | p. 162 |
What Situations Would the Law Cover? | p. 163 |
What Would Such a Law Comprise? | p. 164 |
What Criteria Would Need to be Met? | p. 165 |
A Model Uniform Law | p. 168 |
Conclusions | p. 170 |
Bibliography | p. 175 |
Index | p. 211 |
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