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Part II International Humanitarian Law, 3 Internment in Non-International Armed Conflict under IHL

From: Detention in Non-International Armed Conflict

Lawrence Hill-Cawthorne

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 30 March 2023

Detention — Armed conflict, non-international — Geneva Conventions 1949 — Geneva Conventions 1949 Additional Protocol 2

This chapter begins the examination of the central enquiry of the book, focusing on the procedural rules under international humanitarian law (IHL) that apply to internment in non-international armed conflict, to assess the claim that IHL is silent here. It begins by considering whether IHL contains a legal basis to detain in non-international armed conflict, concluding that no such basis exists (and must instead be located elsewhere, such as in domestic law). It then examines the treaty rules of IHL that apply in non-international conflicts showing that from these rules one can infer a basic prohibition of internment that is not actually necessary as a result of the conflict. It then considers whether customary international law has eliminated the distinction between the two categories of armed conflict regarding detention, as it has in other areas. It closes with a consideration of the binding nature of IHL for non-state armed groups.

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