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Vol 21 No 9 Sept/Oct 2016

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Goode on Commercial Law

Edited by: Ewan McKendrick
Price: £170.00

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Captured in War: Lawful Internment in Armed Conflict

ISBN13: 9781849465304
Published: March 2013
Publisher: Hart Publishing
Country of Publication: UK
Format: Paperback
Price: £100.00

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A security measure designed to neutralize threats from an enemy party, internment is common in warfare. In the context of internment operations in Afghanistan, Iraq, Guantanamo Bay and the Democratic Republic of the Congo, and of increasing international military intervention in internal conflicts more generally, the legal framework for internment has been widely criticised for being at best ambiguous and full of loopholes, at worst out-dated and inadequate.

In light of such criticism, this book examines the continued relevance and adequacy of the existing legal framework, identifies its shortcomings and proposes possible avenues to remedy them. It offers answers to fundamental questions such as who may be lawfully interned in armed conflict, on what legal basis, for what reasons and for how long. Starting from the premise that internment in armed conflict cannot be lawful under one branch of international law while at the same time unlawful under another, the book offers a fresh view of the interaction between the simultaneously applicable norms of international humanitarian and human rights law. Applying this approach to a comprehensive analysis of relevant normative texts, international and national case-law and actual battlefield practice of the 20th and 21st century, the book not only answers the questions it raises but also offers fresh views of related issues such as the personal scope of application of the Third and Fourth Geneva Conventions, the influence of international human rights law on the interpretation of international humanitarian law and whether States need to derogate from the first in order to rely on the latter.

Reaffirming the adequacy of the legal framework for internment in international armed conflict and occupation, the author nevertheless demonstrates the importance of interpreting that framework in conformity with subsequent developments in international law and actual practice. She lays bare significant challenges in non-international armed conflict, such as the lack of a legal basis to intern in international humanitarian law and the serious risks involved in solutions proposed so far to remedy that gap. Indeed, sole reliance on international human rights law, domestic law or, alternatively, on the rules on targeting are unsatisfactory and inappropriate. Heeding calls for the clarification and modernization of the existing legal framework for internment in armed conflict, the author puts forward concrete proposals for normative developments that seek to reconcile both the practical realities of contemporary armed conflict and significant developments in international law that affirm the right to liberty as one of the most fundamental attributes of any human being.

Human Rights and Civil Liberties, Public International Law
Chapter I-1 - Requirements for lawful deprivation of liberty under general international law
1.1. The right to liberty and the prohibition of arbitrary deprivation of liberty in general international law
1.2. The rule of law, the principle of legality and the right to liberty
Chapter I-2 - Exceptional times and exceptional measures
2.1. Derogation from international human rights law in times of public emergency
2.2. Direct reliance upon international humanitarian law in time of armed conflict
2.3. Conclusions to Part I
Introduction to Part II
Chapter II-1 - Internment on the basis of the Third Geneva Convention: prisoners of war
1.1. Who can be interned on the basis of GC III? Defining "prisoners of war"
1.2. On what grounds and for how long can prisoners of war be interned?
1.3. Conclusions on prisoner of war internment
Chapter II-2 - Internment on the basis of the First and Second Geneva Convention: retention of medical and religious personnel of the armed forces of the parties to the conflict
Chapter II-3 - Internment on the basis of the Fourth Geneva Convention: protected persons
3.1. Who can be interned on the basis of GC IV? Defining "protected persons"
3.2. On what grounds and for how long can be protected persons be interned?
3.3. Conclusions on internment on the basis of GC IV
Chapter II-4 - Internment of persons who are not protected by the Geneva Conventions
4.1. No legal basis to intern the Geneva Conventions or Additional Protocol I
4.2. Protection in captivity: international humanitarian and human rights law
4.3. A legal basis to intern in the 1907 Hague Regulations?
Chapter II-5 - Conclusions on internment in situations of international armed conflict and occupation
5.1. Answers to our research questions and conclusions from
Part II 5.2. Responsibility for lawful internment and independent supervision
Introduction to Part III
Chapter III-1 - The absence of a legal basis for internment in international humanitarian law
1.1. The issue of status in situations of non-international armed conflict
1.2. Is there a gap in international humanitarian law? And is there a need to fill it?
1.3. Claims of an inherent right to intern in armed conflict
1.4. Conclusions and options
Chapter III-2 - Recommendations for a normative development of international humanitarian law
2.1. Basic qualities of a valid legal basis to intern in non-international armed conflict
2.2. Lawful grounds for internment in non-international armed conflict