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Vol 23 No 5 May/June 2018

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Status and Treatment of Deserters in International Armed Conflicts

ISBN13: 9789004308831
Published: February 2016
Publisher: Brill Nijhoff
Country of Publication: The Netherlands
Format: Hardback
Price: £131.00

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In this study, Heike Niebergall-Lackner discusses the classical military offence of desertion from the standpoint of international law.

Taking account of the three factual situations that might arise following a desertion in international armed conflicts - capture by the home country, capture or crossing over to the enemy party, and seeking refuge in a country not involved in the conflict – the examination offers a comprehensive overview of the treatment and the protection afforded to deserters under international human rights law, international humanitarian law and refugee law.

The examination is conducted against the background of the duties of soldiers under modern international law and shows that, depending on the legality of the conflict, desertion might represent the legitimate decision of the individual to act in accordance with these duties.

Public International Law
Chapter 1: Defining desertion
A. When soldiers stop fighting
B. Desertion in domestic military law
I. Definitions of the military offence
II. Punishment ranges
III. Summary
C. Desertion in the context of international law
I. International and multinational forces
II. Desertion in international law literature
III. Summary
D. The use and meaning of the term desertion in the present study
Chapter 2: The deserter and his or her home country
A. Desertion in past conflicts – a history of severe punishment and reluctant forgiveness
I. Punishment of deserters
II. Acts of clemency
III. Legal rehabilitation
IV. Summary
B. New standards of international law and their impact on the punishment of deserters
I. Procedural guarantees for criminal trials
II. The right to conscientious objection to military service
III. International criminal law
IV. Conclusion
Chapter 3: The deserter and the enemy party
A. Treatment in past conflicts – contempt, strategic use and cautious solidarity
I. Prisoner of war status
II. Use of enemy deserters in the military forces
III. Repatriation of deserters
IV. Summary
B. The protection of deserters under contemporary international humanitarian law
I. The deserter’s legal status under international humanitarian law
II. Rights and obligations of the enemy party with regard to the deserter
III. Conclusion
Chapter 4: The deserter in a country of refuge
A. The deserter as a beneficiary of international protection
I. Territorial asylum
II. Refugee status according to the Geneva Refugee Convention
III. Refugee protection at a regional level – the European example
IV. Complementary or subsidiary protection
V. The prohibition of refoulement
VI. Conclusion
B. Obligations under the law of neutrality
I. Duty to intern foreign troops
II. Summary
C. Extradition of a deserter to his home country
I. Duty to extradite
II. Principles of extradition law
III. Conclusions regarding the obligation to extradite
Chapter 5: Conclusion and outlook
Bibliography, Index.