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Another complementarity fight is brewing, this time between the ICC and Cote d'Ivoire concerning the fate of Simone Gbagbo. In 2012, the ICC issued a warrant for her arrest, claiming that there are reasonable grounds to believe she is responsible as an indirect co-perpetrator for the crimes against humanity of murder, rape, other forms of sexual violence, and persecution. Just yesterday, however,...

I'll one-up Julian's post below on Tom Cotton's letter to the leaders of Iran admonishing them that any agreement entered into today could be reversed by Obama's successor. It appears unprecedented for a group of opposition members of Congress to engage in such a communication. It may also be criminal. The 1799 Logan Act provides that: Any citizen of the United States, wherever he...

Most of the US Senate's Republican membership has signed an open letter to Iran's leaders "informing" them about the nature of the U.S. constitutional system with respect to international agreements.   It is actually a very accurate statement of US foreign relations law, even if it is a little strange and potentially intrusive into the President's foreign affairs power. It...

Japan has been slowly moving to modify its domestic law, both constitutional and legislative, restricting the use of its military forces outside of Japan.  In its latest political discussions, it is worth noting that Komeito, a partner to the ruling Liberal Democratic Party, has been insisting on the three "Kitagawa" principles as a basis for any new law governing the...

[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies in Geneva. Before joining the Geneva Academy of International Humanitarian Law and Human Rights, he worked in the Democratic Republic of Congo, Sudan and South Sudan.] Although international criminal law is increasingly assimilated with the International Criminal Court (ICC), hybrid justice remains surprisingly common thirteen...

[Jonathan Horowitz is writing in his personal capacity. He is a Legal Officer at the Open Society Justice Initiative’s National Security and Counterterrorism Program.] Ryan Goodman argues in a thoughtful new post at Just Security that IHL regulations pertaining to internment in international armed conflict (IAC) should apply to internment in non-international armed conflict (NIAC). This is a hotly debated issue. In this post, I look back on the drafting history of Additional Protocol II which, in my view, reveals that 1) IHL was not crafted to provide regulations (neither the grounds nor procedures) for NIAC internment and 2) IHL does not have a structure that permits its IAC internment regulations to apply to NIAC. That’s not to say States can’t intern; it’s to say that when they do, the sources of internment regulations are found not in IHL but primarily in domestic law and international human rights law. Lack of internment regulations in the IHL of NIAC is supported by the fact that Common Article 3 and Additional Protocol II, the two main sources of treaty law regulating NIAC, provide no such rules. This absence is both indisputable and in contrast to the Third and Fourth Geneva Conventions, which are replete with regulations on IAC internment. Protocol I also contains internment regulations. The absence of internment procedures in Additional Protocol II is also in contrast to numerous penal prosecution procedures found in Article 6 of Additional Protocol II and, to a lesser degree, Common Article 3. For these reasons, it’s clear that while the drafters of Protocol II explicitly recognized that parties to a NIAC are permitted to intern, the drafters also chose not to put in place internment regulations. But why was this the case, and what does it tell us about IHL? IHL’s relatively sparse rules for NIAC reflect States not wanting to provide legitimacy and legal status to non-state armed groups. This history heavily influenced U.K. High Court Justice Leggatt’s conclusion in ongoing litigation that IHL does not provide an implied power to detain in NIAC. He concluded, in part, that States did not wish to provide detention authority because, if they did, that authority would equally have to apply to rebel armed groups, which would in turn grant them unwelcomed legitimacy and force States into accepting that such groups have a right to “exercise a function which is a core aspect of state sovereignty.” (para. 245.) While I agree that States did not intend for IHL to grant non-state armed groups an authority to detain, I’d like to dive a bit deeper into a related, but slightly different and broader issue: the impact that sovereignty had on States not wanting IHL to infringe upon their domestic law. Romania’s delegate to the drafting process of the two Additional Protocols made a general remark that was illustrative of other State interventions, stating “The automatic application to internal conflicts of regulations applicable in international conflicts might have negative results and entail violation of international law and national sovereignty. Any future international regulations relating to non-international armed conflicts must be based on recognition of, and respect for, the sovereign rights of each State within its boundaries.” (p. 103.) Yugoslavia’s delegate similarly remarked, “When preparing the final version of draft Protocol II, account must be taken of the general principles of international law including those of non-interference in the domestic affairs of States and respect of the sovereignty and territorial integrity of States.” (p.105.) I noted, these were general remarks, not aimed directly at the issue of NIAC internment. Nonetheless, the remarks demonstrated that States sought to protect their sovereignty and their inherent right to manage their citizens as they chose; and this implicitly included applying their domestic laws as they deemed appropriate.  India, for example, made the concise point that proposed rules on penal prosecutions in Protocol II “would be in conflict with his country’s national laws and…would constitute interference in the sovereign right of States.” (p. 359.) Pakistan’s delegate made a similar point. (p. 360.)