Cover

Half title

Title

Copyright

Contents

Preface

Table of cases

Table of treaties

Table of Security Council resolutions

Table of General Assembly resolutions

Abbreviations

1 The framework

I. Introduction

A. NIACs and IACs

B. LONIAC

C. No NIAC jus ad bellum

II. The legal strata of NIAC law

A. Treaty law

B. Customary international law

III. The triple classification of violence during a NIAC

A. Hostilities

B. Ordinary crimes

C. War crimes

D. The triple classification and wilful killing

E. The disparate perspectives of domestic and international law

IV. Motives and goals of a NIAC

A. Motives

B. Goals

2 The preconditions of a NIAC

I. NIACs as armed conflicts

II. NIACs distinguished from internal disturbances

A. Isolated and sporadic acts of violence

B. The law enforcement paradigm

III. The dichotomy of NIACs and IACs

IV. The territorial dimensions of NIACs

A. A NIAC as an armed conflict within the territory of a single State

(a) The internal character of a NIAC

(b) Extra-territorial spillover

(i) The high seas

(ii) Cyber space

(iii) Cross-border hostilities on land

(c) The ‘war’ on terrorism

(d) Divided nations

V. A clash between organized armed groups inter se

VI. A modicum of organization of the insurgents

A. Insurgency distinguished from mob violence

B. Insurgents as a party to the conflict

VII. Protracted violence

A. The temporal element

B. Revolutions and coups d’Etat

C. How much time is required?

VIII. Intensity of the fighting

A. Terrorist activities

B. Intensity as an independent criterion

C. Indicia of intensity

3 Thresholds and interaction of armed conflicts

I. The thresholds of armed conflicts

A. Below-the-threshold violence

B. Over the first threshold

C. Over the second threshold

(a) Government armed forces

(b) Dissident armed forces

(c) Other organized armed groups under responsible command

(i) The constituent elements

(ii) The five factors of organization

(d) Control over territory

(e) Sustained and concerted military operations

(f) Capacity to implement AP/II

(g) Permutations

D. The end of a NIAC

E. Over the third threshold

II. Interaction between armed conflicts

A. Two or more NIACs

B. Combinations of NIACs and IACs

(a) Simultaneous combinations

(b) Consecutive combinations

4 Insurgent armed groups and individuals

I. Direct participation in hostilities

A. The concept

B. The meaning

(a) Activities

(b) Members of organized armed groups

(c) Individuals

II. Why are insurgent armed groups bound by LONIAC?

A. The axiom

B. The rationale

(a) Treaty law

(i) Non-State bearers of obligations and rights

(ii) Non-State actors and treaties

(iii) Agreements between Governments and insurgents

(b) Customary international law

5 Foreign intervention in a NIAC

I. The principle of non-intervention

A. The principle and the practice

B. ‘R2P’

II. Military intervention by a foreign State in support of the incumbent Government

A. The requirement of consent

(a) Consent as a door-opener to foreign intervention

(b) The position of the Institut de Droit International

(c) The general practice of States

(d) The validity and parameters of consent

(e) Consent by treaty

(f) Revocation of consent

(g) Constraints

B. ‘Failing States’

III. Military intervention by a foreign State against the incumbent Government

A. Use of de facto organs

B. Military assistance to insurgents

IV. The applicable law

A. LONIAC or IAC jus in bello?

B. Some outstanding problems

V. Intervention by the Security Council in a NIAC

A. The UN Charter

B. The case of Libya

C. The range of the Security Council’s intervention

D. Peacekeeping forces

6 Recognition

I. Recognition of an insurgent Government

A. Conditions for the existence of a State and a Government

B. Recognition of a new Government

C. Issues related to recognition of Governments

(a) The three main scenarios

(b) Formation of an insurgent Government

(c) Only one Government can be recognized at any given time

(d) Premature and artificially prolonged recognition

(e) De facto recognition

(f) Implied recognition

(g) Recognition as a step towards intervention

(h) Democracy and constitutionality

(i) Avoiding recognition

(j) Government-in-exile

D. Action by the Security Council

II. Recognition of a new State

III. ‘Recognition of belligerency’

A. ‘Recognition of belligerency’ by the incumbent Government

B. ‘Recognition of belligerency’ by foreign States

C. Implied ‘recognition of belligerency’

(a) By the incumbent Government

(b) By foreign States

IV. ‘Recognition of insurgency’

7 State responsibility

I. The ILC Draft Articles

II. Attribution of acts to the State

A. Organs of the State

B. Private persons

C. Ultra vires acts

III. Due diligence

A. The concept

B. Prevention

C. Punishment

IV. Mob violence and riots

A. Reasonable precautions

B. Attacks against foreigners

V. Insurgency

A. Unsuccessful insurgents

(a) Non-attribution to the State of insurgent acts

(b) Failure to exercise due diligence

(c) Force majeure

B. Successful insurgents

(a) A new Government

(i) Attribution of insurgent acts

(ii) Retroactivity

(iii) Limitations

(iv) Dual attribution

(v) Change of Governments

(b) A new State

VI. Foreign intervention

A. Responsibility of the foreign State for acts of its organs

B. Vicarious responsibility

8 The principal LONIAC treaty provisions

I. Common Article 3

A. The text

B. Analysis

II. AP/II

A. Comparisons

(a) AP/II and Common Article 3

(b) AP/II and AP/I

B. Humane treatment

(a) Fundamental guarantees

(i) Collective punishments and belligerent reprisals

(ii) The protection of children

(b) Internment

(c) Penal prosecutions

C. Wounded, sick and shipwrecked

(a) Protection and care

(b) Medical and religious personnel

(c) The emblem

D. The civilian population

(a) Protection from attack

(b) Starvation of civilians

(c) Works or installations containing dangerous forces

(d) Cultural property

(e) Forced movement of civilians

(f) Relief action

9 Additional treaty texts

I. Treaties explicitly apposite to NIACs

A. Cultural property

B. Weapons

C. Child-soldiers

II. Treaties implicitly apposite to NIACs

A. Enforced disappearances

B. Weapons treaties

(a) Biological weapons

(b) Chemical weapons

(c) Other weapons

III. Search for definitions

A. IAC definitions

(a) Attacks

(b) Wounded, sick and shipwrecked

(c) Hors de combat

(d) Medical and religious personnel

(e) Medical units and transports

B. General treaty definitions

(a) Slavery and the slave trade

(b) Torture

(c) Taking of hostages

(d) Acts of terrorism

10 NIAC war crimes

I. Individual criminal responsibility

A. The nexus to a NIAC

(a) Crimes against humanity and genocide

(b) The growth of NIAC war crimes

B. The Statutes of the ad hoc international tribunals

II. The Rome Statute of the ICC

A. NIAC war crimes based on Common Article 3

(a) The crimes

(b) Scope of application

B. Additional NIAC war crimes

(a) The crimes

(b) Analysis

(c) Interaction with AP/II

(d) Scope of application

(e) The Kampala amendment

III. The Second Protocol to the CPCP

IV. Prosecution in a foreign State and extradition

A. Universal jurisdiction

B. Extradition

(a) Political offences

(b) NIAC war crimes

V. Post-NIAC amnesties

A. AP/II on amnesty

B. Amnesty and impunity

(a) The validity of an amnesty for NIAC war crimes

(b) The Rome Statute of the ICC

(c) The exercise of universal jurisdiction

11 LONIAC customary international law

I. The evolution of LONIAC customary law

A. The pace of the evolution

B. Lex lata and lex ferenda

II. The temporal and spatial scope of application

III. The customary standing of LONIAC treaty provisions (beyond Common Article 3)

A. AP/II

B. Other treaties

(a) Weapons

(b) Cultural property

IV. The process of osmosis from IAC jus in bello

A. Convergence of LONIAC and IAC jus in bello?

B. General principles

(a) Distinction

(b) Unnecessary suffering

C. Specific norms

(a) Indiscriminate attacks

(b) Proportionality

(c) Precautions

(d) Perfidy

V. Divergence from IAC jus in bello

A. POW status

B. Neutrality

C. Additional hurdles

12 LONIAC and human rights law

I. The inter-relationship between LONIAC and human rights law

A. Coexistence of LONIAC with human rights law

B. LONIAC as lex specialis

C. Derogations from human rights

(a) The right to derogate

(b) Non-use of the right to derogate

(c) Non-derogable human rights

D. Limitations built into human rights

II. Some concrete aspects of interaction between LONIAC and human rights law

A. Human rights law within LONIAC

B. Human rights treaties dehors LONIAC

(a) Explicit impact

(b) Implicit impact

III. Non-discrimination

A. Illicit grounds of discrimination

B. Nationality

IV. Refugees and ‘non-refoulement’

A. The flow of refugees

B. Refugees and war crimes

C. Fear of persecution

D. ‘Non-refoulement’

Conclusions

Index of persons

Index of subjects