From ‘Belligerents’ to ‘Fighters’ and Civilians Directly Participating in Hostilities – On the Principle of Distinction in Non-International Armed Conflicts One Hundred Years After the Second Hague Peace Conference

Kleffner, Jann K.

doi:10.1017/s0165070x07003154

Cited by 19 publications

(6 citation statements)

References 7 publications

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“…Of importance for this article is the fact that 'unprivileged combatants' do not benefit from combatant immunity and can thus be prosecuted for mere participation in hostilities. 18 Concretely this means that besides the possibility of being prosecuted for violations of IHL, they might also be prosecuted for merely having taken up arms, even if the fighting itself is in compliance with IHL. The very existence of the possibility to prosecute members of NSAGs for mere participation in hostilities is however not without controversy.…”

Section: The Status Of Foreign Fighters Under International Humanitarian Lawmentioning

confidence: 99%

The Prosecution of Foreign Fighters in Western Europe: The Difficult Relationship Between Counter-Terrorism and International Humanitarian Law

Cuyckens

Paulussen

2019

Journal of Conflict and Security Law

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The collapse of the Caliphate, including the resulting surrender of hundreds of fighters to the Syrian Democratic Forces, as well as the tweets from President Trump threatening his allies to release 800 Islamic State fighters if they would not take back their own citizens, has led to an intense debate on what to do with these so-called foreign fighters. Many counter-terrorism experts and international lawyers have argued that these fighters should be brought home and brought to justice before national courts, for moral, legal and long-term security reasons. In the context of national prosecutions, the aim should be to not have a one-size fits all, but rather a tailored approach, ensuring that perpetrators are prosecuted, as much as possible, for the actual crimes they have committed. If we consider foreign fighters to be individuals joining a non-state armed group in an armed conflict, there is by definition an important nexus between foreign fighters and armed conflict. Hence due regard should also be paid to international humanitarian law in the framework of their prosecution. This article will analyse and assess the first cases where the relationship between counter-terrorism and international humanitarian law played a role and aims to provide, based on the direction this discussion is heading, the necessary guidance.

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Section: The Status Of Foreign Fighters Under International Humanitarian Lawmentioning

confidence: 99%

The Prosecution of Foreign Fighters in Western Europe: The Difficult Relationship Between Counter-Terrorism and International Humanitarian Law

Cuyckens

Paulussen

2019

Journal of Conflict and Security Law

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“…This points to one of IHL's central complications: the categorical separation between civilian and combatant known as the principle of distinction (see Detter, 2013, pages 346-350). The principle of distinction has been interrogated in a wide range of legal studies and social science scholarship, in large part because of its lack of clarity and ambiguity in practice (Carpenter, 2005;Gregory, 2006;Kasher, 2007;Kinsella, 2006;Kleffner, 2007;Walzer, 1977). Hugo Slim (2003), for example, details the many justifications for attacks on civilians in the Western tradition and explains that part of the problem is the absurdities and intrinsic paradoxes that define civilian identity as one that is wholly separate from war.…”

Section: "Simplistic Conceptions Of Territory" and Ambiguity In Ihlmentioning

confidence: 99%

“…(5) I differentiate military noncombatants from civilian noncombatants, hereafter 'civilians'. See Kleffner (2007) on variations of diverse combatant statuses. (6) Correspondence, meeting minutes, and reports were reviewed from the CR 201 'Humanization of War' and CR 225 'Protection of Civilians' series in the ICRC archives.…”

Section: Introductionmentioning

confidence: 99%

Too difficult to protect: a history of the 1934 Monaco Draft and the problem of territory for international humanitarian law

Kleinfeld

2015

Environ Plan D

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Blurry', 'indeterminate', and 'elastic' are terms used to describe the spatial, legal, and categorical ambiguities that have characterized the war-law-space nexus since September 11th. I argue here that these same qualities were central to the lawmaking process eighty years ago in the case of the Monaco Draft, a draft convention that proposed rules to establish hospital and safety towns, zones, and localities in order to strengthen international humanitarian law. This paper reviews the Monaco Draft's spatial proposals from their conception in 1934 and their discussion at three expert consultations during the 1930s to their incorporation into the 1949 Geneva Conventions as nonbinding recommendations. An analysis of the conversations among experts charged with examining the proposed rules reveals how the interplay of territorial ideology with the more contingent realities of the battlefield produced uncertainties that conditioned the law. This was further complicated by the law's customary basis, which makes untested legal measures especially risky. The broader significance of this research is that it presents a historical case showing the problematic nature of territory, uncertainty, and materializing norms as a continuing feature of humanitarian law.

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“…(see, e.g. Kleffner, 2007). For a minority view on the customary status of Article 44, see: Cassese, 1984. 50 For a discussion see, inter alia, the ICRC Commentary available at: http://www.icrc.org/ ihl.nsf/WebList?ReadForm&id5375&t5com (accessed 24 October 209).…”

Section: Regulating the Irregularmentioning

confidence: 99%

The changing face of enmity: Carl Schmitt’s international theory and the evolution of the legal concept of war

Werner

2010

Int. Theory

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The past few decades have witnessed a renewed interest in the work of Carl Schmitt. Scholars from various disciplines have claimed that Schmitt’s critique of universalism, together with his analysis of irregular warfare, provides useful lenses to make sense of the post 9/11 world. In this article, I will critically assess whether Schmitt’s work is indeed useful for understanding the post 9/11 world. To that end, I will concentrate on one of the core arguments put forward by Schmitt: that the laws of armed conflict are unable to regulate irregular warfare, including acts of terrorism. In order to determine the validity of Schmitt’s arguments, I will focus on one of the instruments used in contemporary counter-terrorism policies: the deliberate killing of specific individuals who are regarded as a security threat (‘targeted killing’). Based on an analysis of US and Israeli practice, the article argues that using Schmitt’s work as an analytical tool yields mixed results. While his analysis of irregular warfare remains relevant for contemporary conflicts, his denouncement of universalism blinds us to the transformational potential of international law.

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From ‘Belligerents’ to ‘Fighters’ and Civilians Directly Participating in Hostilities – On the Principle of Distinction in Non-International Armed Conflicts One Hundred Years After the Second Hague Peace Conference

Cited by 19 publications

References 7 publications

The Prosecution of Foreign Fighters in Western Europe: The Difficult Relationship Between Counter-Terrorism and International Humanitarian Law

The Prosecution of Foreign Fighters in Western Europe: The Difficult Relationship Between Counter-Terrorism and International Humanitarian Law

Too difficult to protect: a history of the 1934 Monaco Draft and the problem of territory for international humanitarian law

The changing face of enmity: Carl Schmitt’s international theory and the evolution of the legal concept of war

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