The New Challenges of the Humanitarian Law of Germany

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Privatization of War; the New Challenges of Humanitarian Law of Germany Introduction In equating the conditions for the internationalization of an internal armed conflict with the conditions under which irregulars will be considered lawful combatants, the ICTY pointlessly forces a considerable narrowing of the class of protected combatants in international armed conflict. It confuses the application of common articles 13(2)/13(2)/4(A)(2), defining lawful combatants, with the application of common Article 2, defining an international armed conflict, and Article 3 of the 1907 Hague Convention IV, Article 13 of the Third Geneva Convention, Article 29 of the Fourth Convention and Article 91 of Protocol I, on a state's responsibility for violations of humanitarian law (Greenwood, 2006). Locked in the logic of its discussion of the internationalization of conflicts, the ICTY seemed to have lost sight of the fact that the situation most clearly envisaged by common Articles 13(2)/13(2)/4(A)(2) was that of an existing international armed conflict in which irregulars take up arms, on the model of partisan action during the Second World War (Blakesley, 2008). In presenting the rationale for that provision as that of the responsibility of the state for acts of 'its' irregulars, the Appeals Chamber overlooks the fact that humanitarian law creates obligations not only for states but also for individuals, and that state responsibility plays a role clearly secondary to that of individual
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