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Realizing UtopiaThe Future of International Law$
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The Late Antonio Cassese

Print publication date: 2012

Print ISBN-13: 9780199691661

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199691661.001.0001

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How to Improve upon the Faulty Legal Regime of Internal Armed Conflicts

How to Improve upon the Faulty Legal Regime of Internal Armed Conflicts

(p.525) 40 How to Improve upon the Faulty Legal Regime of Internal Armed Conflicts
Realizing Utopia

Sandesh Sivakumaran

Oxford University Press

There are two major gaps in the law governing non-international armed conflicts: not infrequently, armed groups do exercise territorial control, yet international humanitarian law has little to say on the point and rebels lack combatant immunity and the associated prisoner of war status; whether or not such individuals respect the law of internal armed conflict, they may be prosecuted and even sentenced to death. Another problem is that there is a growing view that human rights law offers greater protection to the individual and should therefore replace international humanitarian law in the regulation of internal armed conflict, at least when the violence is below the threshold of Protocol II. However, the consequences of a shift from regulation through international humanitarian law to regulation through human rights law have not been fully explored. A study needs to be undertaken to determine whether all rules now applicable in internal armed conflicts are within the capacity of armed groups, whether certain rules need tailoring to meet the involvement of this category of actor, and whether other norms are needed. In the area of enforcement, three recent initiatives suggest that although traditional enforcement approaches may be of limited value, more creative approaches may prove workable. A way forward might reside in working out a new instrument designed to bind armed groups in each situation.

Keywords:   internal armed conflict, human rights law, international humanitarian law, rebels, enforcement

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