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Advanced Introduction to International Humanitarian Law

Robert Kolb

This innovative book provides a thought-provoking introduction to international humanitarian law (IHL). Robert Kolb explores the field through questions which are at times challenging and controversial in order to get to the very essence of the subject and give a fresh perspective. The result is an exposition both of the law as it stands, through its written and unwritten rules, and also of the uncertainties, gaps, controversies and practical problems which have arisen. IHL is revealed as a living tool, an ever-adapting means to an ever-remaining need of protection during times of armed conflict.
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2.  International armed conflict and non-international armed conflict

Robert Kolb

Extract

Today, there are two basic types of armed conflicts, to which a certain number of identical and a certain number of differentiated rules apply.1 One type is IAC (armed conflict between States), the other is NIAC (armed conflicts between governmental forces and insurgents or between armed groups).2 There are fewer rules applicable to NIACs than to IACs. More precisely, the basic law applicable to NIACs, namely common article 3 of the Geneva Conventions, defines the scope of application of the rules it contains as being linked to armed conflicts “not of an international character”. This is a negative definition, which could seem to operate as a residual clause: all armed conflicts that are not international in nature (inter-State) must therefore perforce be covered by article 3. No gaps are left. AP II, supplementing and developing common article 3, does, however, limit its own scope of application to armed conflicts between the armed forces of a State party on the one side and dissident armed forces or other armed groups on the other side, if the latter exercise some degree of control over part of the State territory (article 1, § 1). AP II thus sets the scene for classical government/rebels armed conflicts, which are normally of a certain intensity. Moreover, common article 3 contains the restriction “occurring in the territory of one of the High Contracting Parties”. The meaning of that restriction is disputed.3 What if the United States (US) conducts an armed conflict against Taliban forces in Afghanistan or...

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