According to Pejic, despite the U.S. Supreme Courts ruling of applying Common Article 3 (NIAC law) and Article 75 (IAC law) to detainees of the GWOT (both articles being fundamental principles of CIL), the reality is that: The two articles do notprovide any guidance on many substantive and procedural legal issues, nor on how to resolve practical questions, that arise in relation to captured unlawful combatants.[36]. international treaties, conventions, pacts, agreements and protocols), according to the LOAC, (2) Whether or not a State or individuals are. [30], In a landmark case Hamdi v Rumsfeld, the U.S. Supreme Court overturned the U.S. governments inter-State International LOAC categorisation of the conflicts and ruled instead (with two dissenting judges) that these captured terrorists and insurgents were in fact non-State and unlawful Enemy combatants of intra-State, Non-International armed conflicts, since armed conflict was taking place against a non-State actor, the terrorist network Al Qaeda, in the territory of countries that were party to the Geneva Conventions (e.g. As a direct result of the CIAs use of the enhanced interrogation techniques on the terrorist detainees at Guantanamo, over the period of 5 years between 2001-2006, the United States is credited with having saved the lives of countless hundreds of innocent, non-combatant, American and foreign citizens from planned Al Qaeda terrorist attacks around the world. Indeed, inevitably, the whole issue comes down to one single question: is it disproportionate and wrong or proportional and right? The [New Zealand Defence Force] Manual of Military Law 1929 includes in its section on the Laws of War observations to the effect that there can, in the nature of things, be no finality regarding the law and usages of war. While it is true that the criminal behaviour of terrorist unlawful combatants, The two articles do notprovide any guidance on many substantive and procedural legal issues, nor on how to resolve practical questions, that arise in relation to captured unlawful combatants., Indeed, Pejic asserts that the GWOT is neither IAC nor NIAC in nature, arguing that it may in some situations be an international armed conflict, in other instances a non-international armed conflict, and in still other cases not an armed conflict in the legal sense at all., Every situation of organized armed violence arising from or in response to terrorism must be examined on a case-by-case basis. After World War I, it was clear the 1906 Convention and The Hague Convention of 1907 didnt go far enough. Despite the U.S. Supreme Courts rulings in 2006 and 2008, however, strong arguments can and have still been made that the former inter-State, International armed conflict classification was, and is, the correct and rightful classification for these extremist and indiscriminately violent detainees captured during the GWOT. [12] The Additional Protocols, dealing expressly with the two categories of International (Additional Protocol I) and Non-International (Additional Protocol II) armed conflict, were written in 1977 in order to reflect this reality, and to express international concern that the victims of Non-International armed conflict likewise be afforded basic protections under the LOAC, especially given the great danger posed by armed groups to the lives of ordinary civilians in these high-intensity and highly-violent internal conflicts. In 1977, Protocols I and II were added to the Conventions of 1949. 169-171). PDF THE LAW OF ARMED CONFLICT - International Committee of the Red Cross [1] Winston S. Churchill, Memoirs of the Second World War An abridgement of the six volumes of The Second World War, New York: Houghton Mifflin Company, 1959, p. 12. To summarize, the law of armed conflict: is a branch of international law; Adopted in 2005 to add another emblem, the "red crystal," to the list of emblems used to identify neutral humanitarian aide workers. In 1859, Genevan businessman Henry Dunant traveled to Emperor Napoleon IIIs headquarters in northern Italy to seek land rights for a business venture. Robert Gates, the U.S. Secretary of Defense under both the Bush and Obama Administrations from 2006-2011, likewise supported the U.S.-led coalitions war to remove Saddam Husseins regime.
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