Questioning the utility of the distinction between common articles 2 and 3 of the Geneva Conventions of 1949 since Tadic : a state sovereignty approach
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Macquarie law journal, Vol. 17, 2017, p. 17-36
The distinction between common articles 2 and 3 of the Geneva Conventions of 1949 is unsupportable in the context of contemporary armed conflict. This article argues that the distinction should be eliminated for policy and legal reasons. The differing protection offered by common article 2, which applies in internationalarmed conflicts, compared to common article 3, which applies in non-international armed conflicts, is outlined in Parts I and II. Part III addresses the landmark Tadic Interlocutory Decision of the International Criminal Tribunal of the Former Yugoslavia (‘ICTY’), which acknowledged that there is a trend in international practice to diminish the distinction between common articles 2 and 3. Although the ICTY reasoned on the correctness of the distinction, it did not criticise its legality.