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DISTINCTION IN NON-INTERNATIONAL ARMED CONFLICTS 315 NILR 2007
FROM BELLIGERENTS TO FIGHTERS AND CIVILIANS DIRECTLY PARTICIPATING IN HOSTILITIES ON THE PRINCIPLE OF DISTINCTION IN NON-INTERNATIONAL ARMED CONFLICTS ONE HUNDRED YEARS AFTER THE SECOND HAGUE PEACE CONFERENCE
by Jann K. Kleffner
1. Introduction
2. Hague Regulations, combatant status and the principle of distinction in international armed conflicts
3. Absence of combatant status in non-international armed conflicts
4. Principle of distinction in non-international armed conflicts4.1 Relevant treaty provisions4.1.2 Common Article 34.1.3 Additional Protocol II4.2 State practice and (quasi-) judicial decisions4.2.1 The ICRC Customary Law Study4.2.2 (Quasi-) judicial decisions 4.3 Different approaches considered4.3.1 Membership approach4.3.2 Specific acts approach4.3.3 Direct participation on a gliding scale4.3.4 Discussion
5. Conclusion
Ph.D., LL.M., Assistant Professor of International Law, Faculty of Law, University of Amsterdam, Managing Editor of the Yearbook of International Humanitarian Law. The article was prepared as part of the research programme on The Role of Law in Armed Conflict and Peace Operations of the Amsterdam Center for International Law, University of Amsterdam. I wish to thank Nils Melzer for comments on an earlier draft. The usual caveats apply.
Netherlands International Law Review, LIV: 315-336, 2007 2007 T.M.C. Asser Instituut and Contributorsdoi: 10.1017/S0165070X07003154
J.K. KLEFFNER 316 NILR 20071. INTRODUCTION
When the delegations of the forty-four states that participated in the Second Peace Conference met in the Hague from 15 June to 18 October in 1907, one of the tasks before them was to revise the general laws and customs of war, either with a view to defining them with greater precision or to confining them within such limits as would mitigate their severity as far as possible.1 The result was the adoption of Convention (IV) Respecting the Laws and Customs of War on Land (hereafter Convention IV) and the Regulations Respecting the Laws and Customs of War on Land annexed to it (hereafter the Regulations). Convention IV and the Regulations resemble to a large extent the provisions of its precursor, Hague Convention II of 1899 and the Regulations attached thereto,2 which had brought to fruition efforts to codify, relatively comprehensively (albeit not completely),3 the laws of land warfare for the first time. As such, Hague Convention II of 1899 and its attached Regulations had been one of the most striking achievements...