The convergence of the international humanitarian law of non-international and international armed conflicts : the dark side of a good idea
Polis und Kosmopolis : Festschrift für Daniel Thürer
Zürich ; St. Gallen : Dike ; Baden-Baden : Nomos, 2015
Most armed conflicts today are non-international in nature. However, the bulk of international humanitarian law (IHL) is codified in treaties for international armed conflicts (IACs). Of all the rules in the Geneva Conventions and their Additional Protocols, only common Article 3 and in some cases Additional Protocol II apply to non-international armed conflicts (NIACs). However, IHL regulating NIACs has come much closer to that regulating IACs in the past 20 years, notably with the development of customary international law and human rights law. Although there are advantages to applying the rules governing IACs to NIACs, including ensuring that human beings are afforded the same protection regardless of where a battles take place, there are also many negative side effects in practice. This chapter mainly focuses on two disadvantages of the current tendency to close the gap between the law regulating IACs and the rules governing NIACs. First, the author asserts that it is unrealistic to expect armed groups involved in NIACs to follow the laws applicable to IACs and that this might have adverse consequences on the respect for IHL. Then, the author demonstrates how States could invoke the applicability of the law regulating IACs in NIACS to the detriment of persons affected by armed conflict. Some solutions to prevent these unintended consequences, such as using a sliding scale of obligations in NIACs, are offered by way of conclusion.
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