The regulation of non-international armed conflicts: Can a privilege of belligerency be envisioned in the law of non-international armed conflicts?

In: International review of the Red Cross: humanitarian debate, law, policy, action, Volume 96, Issue 893, p. 29-66

Abstract

TheDebatesection of theReviewaims to contribute to reflection on contemporary questions of humanitarian law, policy or action. In this issue of theReview, we invited two experts in international humanitarian law (IHL) –Claus KreβandFrédéric Mégret– to debate on how IHL applicable in non-international armed conflict (NIAC) should develop. In the two pieces that follow, Professor Kreβ submits for debate a new norm of international law outlawing NIACs – ajus contra bellum internum– with a corresponding set of rules applicable in NIACs – ajus in bello interno. Thejus in bello internowould give the "privilege of belligerency" – akin to combatants' privilege in international armed conflicts – to non-State actors in NIACs, providing an incentive for them to comply with these new rules of civil war. Frédéric Mégret critically examines the proposed privilege of belligerency, pointing out its problematic aspects and positing that the creation of such a privilege is, in fact, not desirable.