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1. Chapter 1: Introduction

1.6. Structure of the thesis

1.5.Methodology

Although the thesis makes extensive use of the analyses and constructions of scholars, the methodology of the enquiry places primary sources at the very centre of research. This is not only because this author believes in the usefulness and importance of clarifying legal terms and instruments, as this is a requisite for communicating both within and about the law; it is also because an enquiry into concepts can only hope to minimise its arbitrariness and artificiality by looking as close as possible to the relevant behaviour of actors. Such behaviour, crystallised through legal instruments or accruing through state practice or institutional interpretation, will be analysed in this thesis.

Among the analysis of treaties, the courts‘ jurisprudence and the practice of states and

armed groups,49 it will be seen, an emphasis is placed on the narration and analysis of the

travaux préparatoires of the instruments discussed. One reason for this is that, although

supplementary means of interpretation,50 travaux préparatoires often contribute to the

elucidation of terms, a precise understanding of which is necessary for their application.

The argument that the importance of travaux is greater than their formal position has a

long pedigree.51 Additionally, the narration of the travaux provides the link between

history and law, shows the stakes behind abstract formulations,52 and the potential

dynamism of such moments of creation. Ultimately, as this thesis attempts to trace and comprehend the conceptual significance of the words that form the thresholds, the

travaux give us a window into how states, through their agents, (mis)understand these words and their combinations.

1.6.Structure of the thesis

49 The analysis of the practice of armed groups will be useful irrespective of whether this practice can be considered to contribute to the formation of customary international law.

50 As per article 32 of the Vienna Convention of the Law of Treaties.

51 One of the first expositions was in H. Lauterpacht, ‗Some Observations on Preparatory Work in the Interpretation of Treaties‘, (1935) 48 Harvard Law Review 549.

52Dealing with the political stakes involved in negotiations while writing about law might perhaps ‗contaminate‘ the legal narrative. Indeed, Klabbers has argued that the use of travaux in interpretation can lead to the selective use of the past. See J. Klabbers, ‗International Legal Histories: The Declining Importance of Travaux Préparatoires in Treaty Interpretation?‘ (2003) Netherlands International Law Review 267, 269.

31 In accordance with the chronological approach adopted in the thesis, the second chapter of the thesis attempts to situate and analyse the classical jus in bello regulatory paradigm by looking at the rise and fall of the legal categories of recognition of belligerency and insurgency. The expressly state-like nature of the criteria are analysed and put into the context of the decentralised and non-mandatory process of their assessment as well as their legal consequences. The conferment of status through recognition is at the centre of this paradigm.

The third chapter looks at the beginning of the modern era of regulation with the creation of common article 3 of the Geneva Conventions, which constitutes an important shift towards a humanitarian protection rationale. The non-definition of its threshold, it is argued, veils the tension between the conceptually still dominant status- based paradigm of belligerency and an attempt to depart from it. This tension is tracked through a discussion of the creation of the article. The attempt to depart from the past is manifested in the aspirations of its automatic applicability, without a process of recognition as such, as well as the modesty of its substantive regime. The successes and limits of the project are deduced from the relevant practice.

Chapters four and five concern a subsequent attempt at multilateral treaty-making. This occurred at the apex of the historical process of decolonisation and resulted in the two Additional Protocols to the Geneva Conventions. Chapter four looks at the inclusion of wars of national liberation in the category of international armed conflicts through article 1(4) of Additional Protocol I. The different rationales for this inclusion, and the prominence of status as their common ground, are analysed through the debate

contained in the travaux of the 1974-77 Diplomatic Conference. Article 1(4) is analysed

and its (non-)application tracked.

Chapter five examines the attempt, and its relative failure, to address some of the shortcomings of common article 3 through a new instrument, Additional Protocol II. The fate of this attempt was foretold in the travaux. The new threshold and its rather unbalanced nature are analysed and linked to the past and future of regulatory rationales.

Chapter six looks at how the institutionalisation of the process of applicability of the jus

32 the rationale for applicability. Some of the issues informing the chapter are the development of international criminal law, the creation of a customary law threshold, the expansion of the applicable substantive legal regime and the elaboration of the criteria for applicability. It is asked whether, through these developments, there has been a significant move in the paradigm and rationale for applicability.

Chapter seven tracks the creation and early stages of function of a permanent international judicial institution, the International Criminal Court. The tension between

questions of status and the Court‘s function is analysed through the travaux. The new

threshold(s), in article 8 of its Statute and as applied in the early jurisprudence of the Court, is analysed in an effort to see whether the Court constitutes the consolidation of a shift initiated by the development of the international criminal law regime and institutions. This is then related back to the jus in bello in order to answer the central question of this thesis.

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2.

Chapter 2: The law before 1949 Recognition of Belligerency and