"Enemy-controlled battlespace" : the contemporary meaning and purpose of Additional Protocol I's article 44(3) exception
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Vanderbilt journal of transnational law, Vol. 51, 2018, p. 1353-1380
Kubo Macák and Michael N. Schmitt
The contemporary propensity for, and risk of, armed conflict taking place among the civilian population has cast a new light on several long-standing challenges to the application of international humanitarian law (IHL). One is the determination of combatant status and, more specifically, the question of when the requirement for the combatants to distinguish themselves from the civilian population may exceptionally be relaxed. In addressing this question, the Article re- examines Additional Protocol I’s Article 44(3) and adopts an interpretation thereof that better comports with its object and purpose than those previously prevalent. After exposing the limitations of relying solely on drafting history to understand the provision’s exception, the object and purpose of Article 44(3) are assessed. On that basis, the authors proffer “enemy control of battlespace” as the appropriate standard for determining situations to which the exception applies. Finally, they highlight a number of legal safeguards that promote the protection of the civilian population whenever the exception is applicable.