This concern requires further explanation. IAC rules contain a unique “grand bargain.” In war, combatants may target enemy combatants and other military objectives. A corollary to the right to target is the privilege of belligerency, otherwise known as combat immunity. In IACs only combat- ants (that is, members of the State’s armed forces) are entitled to engage in lawful hostilities without risk of prosecution under generally applicable domestic law for crimes such as murder, assault, etc. (Of course, if they otherwise violate domestic or international law, for example by committing war crimes, such as targeting civilians, use of prohibited weapons, rape and pillage, they may be, and in some cases must be, prosecuted). States have long recognized combat immunity in IACs. Its logic is grounded in reci- procity: “I agree not to criminalize your soldiers who kill mine and you agree not to criminalize my soldiers who kill yours.” State parties to armedconflict may, however, capture and detain members of the enemy forces to prevent their return to battle, but since that detention cannot be pursuant to criminal law another legal regime needed to be established. That regime is now embodied in the Third Geneva Convention, which addresses grounds, procedures, treatment and conditions of detention of prisoners of war.
The classification of conflicts into two broad categories – international and internal armed conflicts is to help determine the law that applies in any given situation of conflict. Beside these broad classifications, there are other situations of violence which according to the provisions of Additional Protocol II are not covered by IHL. This distinction has given rise to unsettled areas which revolves around when a given situation becomes an armedconflict and the applicable law when there is an intervention by foreign armed troops either on the side of the government or the insurgents. The issue of the applicable law in any situation of violence usually begins with the analysis of the distinctions that have been drawn between internal conflicts and other situations of violence which a lot of people find very difficult to understand when placed against the backdrop of IHL’s objectives of humanity and being effective and credible. This paper discusses the concerns that have arisen as a result of the classification and the non applicability of IHL to other situations of violence in Nigeria and the justification for such. It also discusses the relevant provisions of AP II and the effect on IHL’s aim of protecting humanity and suggests a possibility for reform by reconsidering the threshold question. The paper also suggests ways of ensuring that State do not hide under the guise of other situations of conflict and allow such situations to continue to claim the lives of civilians.
At bottom, the most important point is that these debates about prop- osition 2 are irrelevant for the decision at hand in Mohammed. Proposition 1 is sufficient and well-established without it. There may also be a middle ground here that avoids some of these debates. One might conclude that the rules regulating detention in NIACs, although they do exist, are rela- tively rudimentary. The British courts could conclude that an authority to detain cannot exist with such a limited set of rules to define its scope. But the notion that no such rules exist is mistaken, and, as I aim to demonstrate in the following Part, that notion is also dangerous. It can produce unin- tended negative consequences for the scheme of humanitarian protections in wartime.
8. See also Kenneth Anderson, Targeted Killing and Drone Warfare: How We Came to Debate Whether There is a “Legal Geography of War,” in F UTURE C HALLENGES IN N ATIONAL S ECU- RITY AND L AW (Peter Berkowitz ed., 2011), http://media.hoover.org/sites/default/files/ documents/FutureChallenges_Anderson.pdf; Jennifer C. Daskal, The Geography of the Battle- field: A Framework for Detention and Targeting Outside the “Hot” Conflict Zone, 161 U NIVERSITY OF P ENNSYLVANIA L AW R EVIEW 1165 (2013); Sasha Radin, Global ArmedConflict? The Threshold of Extraterritorial Non-InternationalArmedConflict, 89 I NTERNATIONAL L AW S TUD- IES 696 (2013); Claus Kress, Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts, 15 J OURNAL OF C ONFLICT AND S ECURITY L AW 245 (2010); Louise Arimatsu, Territory, Boundaries and the Law of ArmedConflict, 12 Y EARBOOK OF I N- TERNATIONAL H UMANITARIAN L AW 157 (2009); Sylvain Vité, Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations, 91 I NTERNATIONAL R E- VIEW OF THE R ED C ROSS 69 (2009).
108. See Oona A. Hathaway et al., Ensuring Responsibility: Common Article 1 and State Re- sponsibility for Non-State Actors, Texas Law Review, 95 T EXAS L AW R EVIEW (forthcoming 2017); J AMES C RAWFORD , S TATE R ESPONSIBILITY : T HE G ENERAL P ART 405 (2014); Rob- in Geiß, The Obligation to Respect and to Ensure Respect for the Conventions, in T HE 1949 G ENE- VA C ONVENTIONS : A C OMMENTARY , supra note 37, at 111; M ILES J ACKSON , C OMPLICITY IN I NTERNATIONAL L AW 159 (2015); V LADYSLAV L ANOVOY , C OMPLICITY AND ITS L IM- ITS IN THE L AW OF I NTERNATIONAL R ESPONSIBILITY 218–50 (2016). Brian Finucane’s conclusion on State responsibility is of some relevance here: “For example, if an assisting State continued to provide assistance to its partner with knowledge of systemic deficien- cies in its partner’s targeting or detention practices that render LOAC violations more likely, there is a risk that the intent by the assisting State to facilitate LOAC violations could be inferred.” Brian Finucane, Partners and Legal Pitfalls, 92 I NTERNATIONAL L EGAL S TUDIES 407, 417 (2016) (He is here referring to assistance to a State partner, but similar inferences could be drawn when assisting an armed group.) A recent study carried out at Chatham House concluded that Article 16 of the Articles on State Responsibility had been applied by analogy to assistance to armed groups. See H ARRIET M OYNIHAN , A IDING AND A SSISTING : C HALLENGES IN A RMED C ONFLICT AND C OUNTERTERRORISM , 23–4 (2016), https://www.chathamhouse.org/sites/files/chathamhouse/publications/research/2016- 11-11-aiding-assisting-challenges-armed-conflict-moynihan.pdf.
A 2006 commentary criticising the Dalai Lama’s Middle Way Approach that was widely propagated in the official media is illustrative. It observed that the Dalai Lama (1) refuses to accept Tibet as a part of China; (2) attempts to destroy the current political system; (3) is trying to create a ‘large Tibetan areas [Greater Tibet]’; and (4) distorts the ‘meaning of the autonomous region’ [through his argument that the provisions of the Autonomy Law are not being implemented sincerely]. 165 It goes on to charge that the Dalai Lama (1) seeks to create a peace zone in Tibet which requires China to violate its own national defence and sovereignty by withdrawing troops from Tibet; (2) wants to discriminate against and purge Tibet of non-Tibetans; (3) is under the influence of western anti-China forces; (4) pursues a ‘swindle’ and really aims for Tibetan independence in the disguise of ‘high level autonomy’; (5) and changes his attitude according to prevailing international conditions. 166 In front of the world’s media, Wen Jiabao also accused the Dalai Lama of demanding the withdrawal of the PLA and Chinese settlers in the Tibetan regions. 167 Whether intentionally as diplomatic strategy or due to out-dated information about Dharamsala’s evolving positions (the next chapter discusses this), the above critique concerns the Dalai Lama’s proposals in the 1980s, much of which Dharamsala has taken off its agenda. 168 Samdong Rinpoche confirmed that Dharamsala no longer demands demilitarisation and has only called for stopping the official policy of population transfer or regulation of Chinese migration, never the withdrawal of Chinese settlers. 169 Beijing’s concerns over the security implications of acknowledging the existence of the ‘Tibet Issue’ and addressing the Dalai Lama’s remaining and modified demands are clear from the following analysis.
States engaged in hostilities have a clear interest in keeping enemy fight- ers removed from the conflict for as long as hostilities endure. But modern detention operations have generated complex legal, financial, and political challenges for the detaining authority that incentivize detaining as few indi- viduals and for as short a time as possible. Detainee review processes (DRPs) offer States a method for determining whom they may and, for operational purposes, whom they must detain. Although States may be hesitant to initiate review processes that might be interpreted as legitimizing a non-State en- emy’s fighting force or rewarding individuals for their unlawful participation in hostilities or failure to distinguish themselves, States benefit from deter- mining the status of detainees in NIACs to ensure that the right people are being held for the right amount of time and under the right conditions. DRPs help to prevent mistaken and unnecessarily prolonged detention, saving the detaining power financial, personnel, and infrastructure resources, and avoiding some of the difficulties associated with detaining the wrong people or detaining more people than required.
The insurrection threshold does not present a significant challenge for direct transference. The post-1949 concept of NIAC arguably covers most of the scope of the pre-1949 concept of insurrection, given that such situa- tions would highly likely meet the lowest of the three modern NIAC thresholds. As noted above, there were two primary maritime hallmarks of insurrection status. The first was the allocation by an external State of the political status of insurrection to the conflict. The second was a consequent belief by that external State that any insurrectionist maritime forces who happened to fall into their power should normally not be treated as pirates in relation to their acts against the conflict State’s own vessels, regardless of the conflict State’s call that they do so. The presence of both hallmarks suggests a level of gravity in the scope of the conflict and the organization and capabilities of the rebel group, such that these situations might be properly equated with modern NIACs rather than less-than-NIACs. The correspondence of insurrections and NIACs is quite close in other ways as well. The third State’s belief that it could lawfully choose not to treat ap- prehended maritime rebels as pirates so long as their attacks had only been upon conflict State vessels is in general accord with current NIAC LOAC, which does not require third States to prosecute as criminals rebels who have engaged only in attacks upon the conflict State’s forces and who hap- pen to fall into their hands. 39
181. Both of these points are confirmed by the negotiating history of AP II. Part II of the draft text prepared by the International Committee of the Red Cross, which served as the basis for the intergovernmental negotiations leading to the adoption of AP II, dealt with the humane treatment of persons in the power of the parties to the conflict. Draft Protocol Additional to Geneva Conventions of August 12, 1949, and Relating to the Pro- tection of Victims of Non-InternationalArmed Conflicts, June 1973, in 1 O FFICIAL R EC- ORDS OF THE D IPLOMATIC C ONFERENCE ON THE R EAFFIRMATION AND D EVELOPMENT OF I NTERNATIONAL H UMANITARIAN L AW A PPLICABLE IN A RMED C ONFLICTS pt. III (1978). Article 6 of the draft set out the fundamental guarantees which eventually became Article 4 of AP II. Article 7 of the draft afforded various protections to enemy hors de com- bat “in accordance with Article 6.” The relationship between Articles 6 and 7 and subse- quent discussion during the drafting process confirm that the word “persons” used in Article 6 was intended to include enemy fighters. See 8 O FFICIAL R ECORDS OF THE D IP- LOMATIC C ONFERENCE ON THE R EAFFIRMATION AND D EVELOPMENT OF I NTERNA- TIONAL H UMANITARIAN L AW A PPLICABLE IN A RMED C ONFLICTS 323–24, 332, 336 (1978). Article 7 of the draft (which during the negotiations became Article 22bis) was eventually deleted. However, it was recognized that enemy personnel hors de combat were still covered by the fundamental guarantees in Article 6 of the draft. See id. at 335; 4 O FFI- CIAL R ECORDS OF THE D IPLOMATIC C ONFERENCE ON THE R EAFFIRMATION AND D E- VELOPMENT OF I NTERNATIONAL H UMANITARIAN L AW A PPLICABLE IN A RMED C ON- FLICTS ix (1978)).
It is suggested that territory does still play a role in determining when an armedconflict exists, particularly in the case of “global” armed conflicts. Problems arise if the manner in which the threshold of a NIAC has been determined in internal conflicts is simply transposed to those conflicts that are geographically dispersed across numerous territories. Two issues in par- ticular may challenge the way in which the organization and intensity crite- ria are applied to “global” armed conflicts. The first concerns the matter of links between armed groups—can violence conducted by various armed groups that are linked to one another be conglomerated in order to fulfill the intensity requirement? If so, what must the nature of the link be? Sec- ond, can violence that is dispersed over large geographic spaces be amassed in order to meet the requisite level of intensity for the existence of an armedconflict? In addition, the underlying purpose of the requirements may be affected by a shift in State sovereignty. These factors are now ex- amined.
Non-internationalarmedconflict is one between the government and rebel group(s) within the borders of a state or between rebel group(s) among themselves. This has clear legal regimes applicable and assessment is also simple. However, various armed conflicts fought across Africa today have changed both in dimension and characteristics. Foreign state actors and non-state actor have occupied the space in battle-field fighting for one faction or the other. This has convoluted the notion of international and non-internationalarmedconflict and confused the legal dichotomy inherent in them. The greatest culprit of this is Sub-Saharan African counties with the highest theater of war. This article considers the argument on internationalization of armedconflict generally and within the precinct of the armed conflicts in three Sub-Sahara African countries of DRC, Somalia and Nigeria. The paper finally recommends the removal of the dichotomy between internationalarmedconflict and non-internationalarmedconflict in order to operate a single legal regime that will regulate all types of armedconflict. It argues further that this will engender a seamless assessment and prosecution of violations of laws of armedconflict especially in Africa.
The application of the Tadic case or standard to specific cases, assuming it can be extended to asymmetric transnational armedconflict can encounter difficulties. This is especially true in instances where forcible actions are taken against decentralized transnational bodies such as al – Qaeda (the so – called ‘global war on terror’). The question whether such circumstances amount to ‘armedconflict’, or should be dealt with exclusively as an issue of law enforcement, has generated much controversy. In this study we are concerned with cases in which it is obvious that the threshold of armedconflict has been crossed. Such cases may be found in the fighting between various groups and the US in Afghanistan; the conflict between Israel and Hezbollah in 2006 (assuming Hezbollah’s actions were not attributable to Lebanon). The warfare between Turkey and the PKK in Northern Iraq; or perhaps, the conflict between Rwanda and Hutu militias operating in the Democratic Republic of Congo, during certain stages of the Congolese conflict which has taken place intermittently since 1990’s.
This research is articulated along three objectives, which try to respond to three aspects of the main research question, i.e., the model of education systems emerging, their relationship with peacebuilding and statebuilding, the governance of education reform and the role of international actors therein. First, it seeks to investigate, analyse and conceptualize the different models of education systems that have been promoted by international and local actors in Kosovo and East Timor in 1999-2014; it does so by keeping an eye on how the process has unfolded and the rationales behind given choices. As the empirical chapters will show, international and local actors have interacted in contingent ways in each of the settings explaining differences not just by merely referring to contextual differences. On the other hand, global discourses and agendas have played a role in explaining similarities in intervention or outcome despite the contextual differences. Most of the questions addressing the first objective do not only illuminate patterns in education reform, they also incorporate some elements of a social justice framework that will be useful when investigating the relationship between education and peacebuilding (as part of the second objective). More specifically, some of the questions that I will try to answer with regard to the politics and the process of education reform include:
The above discussions show that so far the ICRC has successfully negotiated with the US government to accord proper protection to the detainees. But, still more efforts are required to be made now to convince the US government to recognize the operations in Iraq and Afghanistan as internationalarmed conflicts as the US and the local government forces were at war with each other. Such recognition will ensure the application of International Humanitarian Law and will compel the US government to give protection under GC III or IV. Alternatively, the prisoners who did not have a role to play in those conflicts but have been arbitrarily detained need to be repatriated immediately. However, it has to be kept in mind that the ICRC mandate does not include judging the efficacy of the laws governing the detainees at the International level. As a result it does not concern itself with the problems that existing laws have in providing effective remedies for the inconsistencies noticed in the grant of POW status to suspected terrorists whose guilt has actually not been proven. Thus, the real changes need to come in the existing provisions of International Humanitarian Law along with simultaneous changes in other branches like International Criminal Law. Time has arrived for the recognition of
The past decades have seen an increasing amount of intra-State wars unfold. The term ‘terrorism’ has increasingly become a license for States to unilaterally conduct their action. Because of that, determining the applicable legal norms that delimit the State’s military power and regulate the warring parties’ conducts is of ultimate importance. Although the legal test for the applicability of international humanitarian law in non- internationalarmedconflict has been largely settled – first found in the second Protocol additional to the Geneva Convention and second supplemented by international tribunals as declaratory of customary IHL – terrorism has caused much frustration in the course of such legal determination, not helped by the obscure facts on the ground. This article will argue that by subjectively classifying a situation as ‘terrorism’ the State has not displaced the applicability question. In fact, the impact that terrorism has on the legal assessment is minimal, if any.