'Enemy Controlled Battlespace': The Contemporary Meaning and Purpose of Additional Protocol I's Article 44(3) Exception

29 Pages Posted: 5 Oct 2018

See all articles by Kubo Mačák

Kubo Mačák

University of Exeter

Michael N. Schmitt

University of Reading School of Law; Lieber Institute, USMA at West Point; Naval War College - Stockton Center for the Study of International Law

Date Written: September 12, 2018

Abstract

The contemporary propensity for, and risk of, armed conflict taking place among the civilian population has cast a new light on a number of the long-standing challenges to the application of international humanitarian law (IHL) during modern warfare. One is the determination of combatant status and, more specifically, the question when the general requirement for the combatants to distinguish themselves from the civilian population may exceptionally be attenuated. In order to answer that question, the present Article re-examines Additional Protocol I’s oft-reviled Article 44(3) and adopts an interpretation thereof that better comports with the object and purpose of the provision than those previously in vogue. To lay the foundation for assessing the meaning of the key terms in the provision, the Article first introduces IHL’s extant standards for combatancy. The piece then turns to the travaux préparatoires of Article 44(3). This analysis exposes the limitations of relying solely on the provision’s drafting history to understand the scope of the exception. Therefore, and consistent with the interpretive approach set forth in the Vienna Convention on the Law of Treaties, the Article then considers the object and purpose of Article 44(3). Armed with an understanding of this telos of the provision, the Article proffers “enemy control of battlespace” as the appropriate standard for determining situations to which the exception applies. Finally, the Article highlights a number of legal safeguards that promote the protection of the civilian population whenever the exception is applicable.

Keywords: armed conflict, combatant status, distinction, enemy controlled battlespace, international humanitarian law, treaty interpretation

JEL Classification: K33

Suggested Citation

Mačák, Kubo and Schmitt, Michael N., 'Enemy Controlled Battlespace': The Contemporary Meaning and Purpose of Additional Protocol I's Article 44(3) Exception (September 12, 2018). Vanderbilt Journal of Transnational Law, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3248395

Kubo Mačák (Contact Author)

University of Exeter ( email )

Northcote House
The Queen's Drive
Exeter, Devon EX4 4QJ
United Kingdom
+44 1392 72 5607 (Phone)

HOME PAGE: http://www.kubomacak.org

Michael N. Schmitt

University of Reading School of Law ( email )

Whiteknights
Reading, Berkshire RG6 6AH
United Kingdom

Lieber Institute, USMA at West Point ( email )

600 Thayer Rd
West Point, NY 10996
United States

Naval War College - Stockton Center for the Study of International Law ( email )

686 Cushing Road
Newport, RI 02841
United States

HOME PAGE: http://www.usnwc.edu/Academics/Faculty/Michael-Schmitt.aspx

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