tag:blogger.com,1999:blog-7506249.post168550481280342637..comments2023-11-05T04:43:31.501-05:00Comments on Kenneth Anderson's Law of War and Just War Theory Blog: Geoff Corn on why unlawful belligerency is not a separately charged tribunal crimeUnknownnoreply@blogger.comBlogger2125tag:blogger.com,1999:blog-7506249.post-29398576076111841552006-11-02T17:33:00.000-05:002006-11-02T17:33:00.000-05:00It was good to see a picture of Geoff Corn; I hadn...It was good to see a picture of Geoff Corn; I hadn't seen him for over ten years. I've got a question about finding out if anyone's done any meta-analyses on academic journal articles or books that compare pro / con arguments about any of the following topics: preemptive war, preventive war, the legitimacy of the Military Commissions Act, or whether the threat should be pursued as a law enforcement activity (international criminal law) rather than a long war (laws of armed conflict). etc. I would be in your debt if anyone could help direct me to find more information. I'm trying to see if there's more consensus than usual in the legal community (one way or the other) on the big legal issues surrounding this war. Please email me if you can help me out...<br /><br />And Hi Geoff,<br /><br />Dr. Tim Challans<br />Associate Professor of Philosophy<br />School of Advanced Military Studies (SAMS)<br />tim.challans@jhu.eduAnonymoushttps://www.blogger.com/profile/03822596937741050511noreply@blogger.comtag:blogger.com,1999:blog-7506249.post-61076688688758704872006-09-27T12:25:00.000-05:002006-09-27T12:25:00.000-05:00I disagree with Geoff and Ken's assumption that "u...I disagree with Geoff and Ken's assumption that "unlawful belligerency" is a distinct international law crime or violation of the laws and customs of war when it occurs in international armed conflicts. To say that a combatant is an "unlawful combatant" is simply to say that the person does not meet the criteria set out in Art. 4 of GCIII and that this person does not benefit from the privileges of lawful combatantcy. However, failure to meet these criteria is not by itself a violation of the laws of war. What it does mean that the person can be prosecuted for the ordinary crimes which any combatant would otherwise be prosecuted for if not entitled to combatants immunity/privilege. Thus, an unlawful combatant can be prosecuted for murder, destruction of property and other acts of violence which are lawful under the laws of war. Now, if a State were to make it an offence for a person to fight without fulfilling the conditions for lawful combatancy international law does not prohibit that. However, that would not be a violation of the laws and customs of war. It is a domestic crime but one that international law allows prosecution of.<br /><br />Given what I have said above, it follows that unlawful belligerency cannot be a violation of the laws and customs of war in non-international armed conflict though states are free to prosecute for it. However, more importantly, the concept of unlawful belligerency is redundant in non-international armed conflicts as States are entitled to prosecute any combatant on the other side. There is no combatants immunity in such conflicts so their combatantcy is neither lawful nor unlawful under international law.<br /><br />Finally, the US Supreme Court in Ex Parte Quirin was similarly confused on the concept of unlawful combatancy when it stated that: “Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.” While, as stated above, there is nothing to bar a state from prosecuting a person for acts which render his belligerency unlawful, this is not the main point of the concept. The main point is that such a person is subject to prosecution for acts which are lawful under the laws of war.<br /><br />Dapo Akande, University of OxfordAnonymousnoreply@blogger.com