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Moss, Aaron --- "Non-International Armed Conflicts in International Law" [2015] UTasLawRw 10; (2015) 34(1) University of Tasmania Law Review 145

Non-International Armed Conflicts in International Law

Yoram Dinstein

Cambridge University Press: Cambridge, 2014, pp 264, ISBN 9781107633759 (paperback), RRP $49.99

In recent decades, the international community has witnessed an exponential increase in the frequency and ferocity of non-international armed conflicts, and the global attention they demand. Accordingly, to keep abreast of this phenomenon, the law of non-international armed conflict (‘LONIAC’), a subset of international humanitarian law, has undergone substantial transformation and expansion. In Non-

International Armed Conflicts in International Law, Yoram Dinstein catalogues these developments and provides a concise, accessible and impartial summary of one of international law’s most complex areas.

Non-International Armed Conflicts in International Law marks the fourth instalment in a series of texts authored by Dinstein, analysing the law of armed conflict generally.[1] As its title suggests, this text focuses upon the legal regime governing non-international armed conflicts. Dinstein grapples skilfully with the vexed issues of classification, distinction and intensity which define and limit the scope of both LONIAC, and, accordingly, this text.

LONIAC has long proven one of the most difficult areas of international law for practitioners, academics and students alike to comprehend. This complexity flows from its various structural and jurisprudential characteristics. Primarily, difficulty arises from the proliferation of sources which constitute LONIAC. Marked by a vast body of often impenetrable jurisprudence arising from various ad hoc tribunals and special courts established following specific conflicts, a comprehensive understanding of this extensive case law lies beyond the reach of all but the most dedicated individuals.

Furthermore, the task of distilling LONIAC into a single volume is complicated by the discipline’s imprecise boundaries, drawing upon developments in other international law disciplines including statehood, sovereignty, intervention, state responsibility, use of force, treaty law, dispute resolution, human rights law, and international criminal law.

Finally, analysis of LONIAC’s customary law component is made more difficult due to the asymmetric legal treatment of parties to noninternational conflicts, whereby the practice of non-state belligerents are

146 The University of Tasmania Law Review Vol 34 No 1 2015

denied international legal effect to enable them to contribute to LONIAC’s development. Although substantial policy considerations underpin this exclusion, as non-state belligerents are equally bound by LONIAC rules, their actions may offer further practice upon which customary law may develop.[2] In this respect, as Dinstein notes,[3] scholars such as Lisebeth Zegveld have argued that the Geneva Conventions’ Common Article III and Protocol II together impart limited ‘international personality’ on all belligerent parties to a conflict, as their operation extends to require the compliance of non-state actors.[4] Similar logic may form the basis of future developments in this field, expanding the corpus of customary law.

Dinstein directly confronts these difficulties in this volume.[5] In this respect, the text deserves commendation, packing a remarkable academic ‘punch’ despite its short page count. In less than 300 pages, Dinstein provides a succinct and accessible introduction to LONIAC, including chapters dedicated to the LONIAC implications of law regarding intervention, recognition and state responsibility. This text also represents a valuable manual for practitioners, incorporating the jurisprudence of the ad hoc tribunals, recent International Criminal Court developments (including the Kampala amendments), and consolidating complex customary law. As a result, this text is indispensable for anybody interested in, or affected by, international humanitarian law.

However, in doing so, Non-International Armed Conflicts in International Law lays bare many problems which continue to plague LONIAC’s development. The rules of LONIAC, and their operation, are plagued by counterintuitive content, unnecessary complication, embarrassing omissions, and are frequently disregarded in practice. As evidence of this, Dinstein identifies, inter alia:

▪ The absence of an international legal obligation to settle noninternational conflicts peacefully;[6]

▪ Practical difficulties surrounding the development of a precise, universal test determining when individuals (or bodies) are exercising a ‘combat role’ sufficient to remove civilian protection;[7]

Book Reviews 147

▪ The disparity between states and non-state insurgent groups, who are equally bound by LONIAC, but with the actions of the latter unable to contribute to its development;8 and

▪ The lack of express definitions for terms defining Common Article III’s scope and operation,9 including concepts such as ‘torture’, ‘taking of hostages’, and the obligation to ‘collect and care for’ the sick.10

Many of these problems are addressed by custom, supplementary treaty instruments or judicial clarification. Nevertheless, in Dinstein’s opinion, these issues evidence LONIAC’s underlying struggle: the perception that it is little more than ‘an extrapolation of the more robust jus in bello applicable to [international armed conflicts]’.11

This criticism has some force. However, notwithstanding its general acceptance as the prevailing perspective within the international community, characterising LONIAC as merely an ‘outpost’ of other, more developed, strains of humanitarian law produces its own problems. These are best demonstrated by the intricate and complex law governing the nexus between LONIAC and the law governing international conflicts.12

Despite its difficulty, as Dinstein’s text suggests, the search for a universal, ‘organising principle’ to guide LONIAC’s development may prove immeasurably valuable in shaping the future of internal conflicts and the responses of states thereto. In keeping with its emphasis on dispassionate analysis, Dinstein does not attempt to explain or solve these problems. Such a task may form a rich basis of future works.

Notwithstanding this, Non-International Armed Conflicts in International Law represents an immeasurably valuable resource for practitioners, academics and other individuals interested in the development and implementation of international humanitarian law.

Aaron Moss

8 Ibid 73.

9 Common Article III applies in non-international armed conflicts and requires all parties to the conflict to ensure that all ‘persons taking no active part in the hostilities’ are to be ‘treated humanely, without any adverse distinction’, and are prohibited from inflicting ‘violence to life and person’, ‘murder’, ‘mutilation’, ‘cruel treatment’, ‘torture’, hostagetaking, ‘outrages on personal dignity’ and requires the ‘wounded and sick’ be ‘collected and cared for’.

10 Ibid 134-5.

11 Ibid 3.

12 Dinstein considers this in detail. See, eg, 21-24, 37-55, 211-222.

Aaron Moss is a Final Year BA-LLB student at the University of Tasmania and Editor of

the University of Tasmania Law Review for 2015.

[1] Other texts in this series, published by Cambridge University Press, include War, Aggression and Self-Defence (5th ed, 2011); The Conduct of Hostilities under the Law of International Armed Conflict (2nd ed, 2010); and The International Law of Belligerent Occupation (2009).

[2] Dinstein examines this disconnect at 65-73 of the text.

[3] Yoram Dinstein, Non-International Armed Conflicts in International Law (Cambridge University Press, 2014) 65.

[4] See, eg Liesbeth Zegveld, Accountability of Armed Opposition Groups in International Law (Cambridge University Press, 2007).

[5] See Dinstein, above n 3, xiii.

[6] Ibid. 5.

[7] Ibid. 42.

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