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However, it must be noted that during the campaign in Afghanistan the United States originally treated all captured personnel as ‘enemy combatants’, denying them any of the rights of lawful combatants under the law of armed conflict. This policy was, however, changed in mid-2006. Bluntschli does not use the term ‘combatants’, although he does speak of ‘noncombatants’. He states: 16
It has been accepted since antiquity that some restraint should be observed during armed conflict. This book examines the apparent dichotomy and introduces any study of the law of armed conflict by considering the nature and legality of war. The purpose of what is known as the law of armed conflict or, more commonly, the law of war is to reduce the horrors inherent therein to the greatest extent possible, bearing in mind the political purpose for which the war is fought, namely to achieve one's policies over one's enemies. The discussion on the history and sources of the law of armed conflict pays most attention to warfare on land because that is the region for which most agreements have been drawn up, although attention has been accorded to both aerial and naval warfare where it has been considered necessary. Traditionally, international law was divided into the law of war and the law of peace, with no intermediate stage between. Although diplomatic relations between belligerents are normally severed once a conflict has commenced, there remain a number of issues, not all of which are concerned with their inter-belligerent relations, which require them to remain in contact. War crimes are violations of the and customs of the law of armed conflict and are punishable whether committed by combatants or civilians, including the nationals of neutral states. The book also talks about the rights and duties of the Occupying Power, civil defence, branches of international law and prisoners of war.
This book bridges the gap between the legal theory propounded in academic works and the practical implementation of customary and treaty law as evidenced by military manuals, operational orders and instructions or in reports relating to incidents occurring in armed conflict. It illustrates conflicts, generally those in which British sailors, soldiers and airmen have been involved. The book highlights the more recent judgments and opinions of the International Criminal Tribunal for the former Yugoslavia, the International Court of Justice and the European Court of Human Rights, the comprehensive work of the International Committee of the Red Cross with regard to customary international humanitarian law and the meaning of 'direct participation in hostilities', the Harvard University air and missile warfare project, the San Remo Manual on non-international armed conflicts, and the UK Law of Armed Conflict Manual of 2004. It discusses the protection of the wounded and sick, the security aspects of belligerent occupation and, because this is constantly raised as a weakness of the law of armed conflict, on the implementation and enforcement of this branch of the law. Concerns about recent events, such as publication of the 'Torture Papers', conditions at Abu Ghraib, the perceived 'legal hole' at Guantanamo Bay or the United Kingdom's Baha Mousa inquiry, caused the author to reflect on the utility of the law of armed conflict given the apparent willingness of some to exploit loopholes in the law or deploy ingenious approaches to its interpretation to the detriment of humanity.
AP I but implicit in its provisions; namely, that child combatants in an international conflict, providing they fulfil the relevant criteria, 2 benefit from the same protections as any other lawful combatants. As Article 43 of AP I states, members of the armed forces of a party to a conflict are combatants; they are entitled to participate directly in hostilities. Children
prisoner-of-war, status. There is no real problem in the case of members of the armed forces of a state or of armed groups that are controlled by a party to the conflict. More problematic is the case of volunteers who, without joining the armed forces, fight for a party to the conflict, either as individuals or as formed groups. If those individuals or groups come under command of a party to the conflict, in the sense of accepting and carrying out the orders of that party, it can be argued that they are lawful combatants, unless they are mercenaries. If they are
claim the right to commit against him direct or indirect acts of hostility and who are not organised in a manner entitling them according to international law to be treated as lawful combatants 93 . . . . It is pertinent . . . to refer to an extreme example of the consequence of the view that the guilty belligerent cannot rely on the law of war. That view
’s assurance that people who appear to be non-combatants pose no threat. In any event, this case established the precedent for the concept of an ‘unlawful combatant’ to which the Bush administration has appealed. According to the administration, unlawful combatants are like lawful combatants in that they may be attacked at will without an attempt to capture them. Yet they lack the rights and immunities of lawful combatants and thus may be tried by either civil or military courts for harms they may cause, even to opposing combatants. The administration also claims
civilian character. 31 This provision has become of major significance since the recognition of a war of national liberation as an international conflict, 32 for now persons not in uniform and apparently civilians and so not easily recognisable as combatants may in fact be lawful combatants and not civilians committing unlawful belligerent acts. 33 This is a problem that was originally
the Treatment of Civilians in Time of War, Schindler and Toman, 495, see Ch. 12 below. 14 On lawful combatants see Ch. 6 above. 15 The position of Leopold III of Belgium in World War II was anomalous. As commander-in-chief he surrendered his
long as the pursuing aircraft remains in contact and the intruding aircraft does not enter the air space of another state, unless it is during conflict and that air space is being used as sanctuary by aircraft belonging to the adverse party. The role of aircraft in war Since they are lawful combatants 20