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Jungle justice: passing sentence on the equality of belligerents in non-international armed conflict

30-09-2007 Article, International Review of the Red Cross, No. 867, by Jonathan Somer

A special challenge posed by the IHL principle of equality of belligerents in the context of non-international armed conflict is the capacity of armed opposition groups to pass sentences on individuals for acts related to the hostilities.

   

Jonathan Somer
holds an LL.M. from the University Centre for International Humanitarian Law, Geneva. He has worked for the Organization for Security and Co-operation in Europe (OSCE) and has been a consultant for the Program on Humanitarian Policy and Conflict Research (HPCR), Harvard University as well as the Danish Foreign Ministry. 

 
Abstract 
A special challenge posed by the international humanitarian law (IHL) principle of equality of belligerents in the context of non-international armed conflict is the capacity of armed opposition groups to pass sentences on individuals for acts related to the hostilities. Today this situation is conflated by the concurrent application of international human rights and criminal law. The fair trial provisions of IHL can incorporate their human rights equivalents either qua human rights law or by analogy, recognizing that human rights law does not account for the anomalous relationship between a state and non-state party. It is argued that the preferred solution is the latter. This would put greater focus on the actual fairness of insurgent courts rather than on their legal basis. Moreover, it would be consistent with the equality of belligerents principle, a vital condition to encourage IHL compliance by armed opposition groups.  

   
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