Actor legitimacy and the application of IHL : a rejoinder to d'Aspremont
Law-making and legitimacy in international humanitarian law
Cheltenham ; Northampton : E. Elgar, 2021
IHL is meant to apply equally to all combatants irrespective of the legitimacy of the nature or origin of the conflict. Yet, this comment demonstrates how legitimacy considerations do influence IHL, especially regarding the applicability of IHL and within the context of the dichotomy between IACs and NIACs. The author depicts how concerns regarding actor legitimacy affect the assessment of both IACs relying on the criteria of statehood under international law, and of NIACs bearing on the intensity of the violence and the degree of organization of the armed group, as these criteria are - contrary to their purpose - not entirely objective and open to interpretation. As far as NIACs are concerned, considerations of actor legitimacy further influence the possibility of allowing criminal prosecution of members of non-state armed groups and denying them belligerent equality, which leads to a worrisome disregard of IHL in NIACs.
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