Melbourne Law School - Theses

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Start date: 1990 × End date: 1999 × Subject: Legal status, laws, etc × Author: Gardam, Judith Gail ×

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    Non-combatant immunity as a norm of international humanitarian law
    Gardam, Judith Gail ( 1990)
    This thesis examines the current status and content of non-combatant immunity, a fundamental principle of the international humanitarian law of armed conflict. It analyses both the customary and conventional status of the rule in international and non-international armed conflicts. The thesis first describes the evolution and jurisprudential basis of the principle of non-combatant immunity from the time of the development of the modern nation State through to its establishment as part of the emerging independent ius in bello. The thesis then examines a number of interrelated factors which in the period since the Second World War have combined to threaten the viability of the norm of non-combatant immunity. These factors include the development of the right to self-determination of peoples, the rise of guerilla warfare linked with but by no means confined to such conflicts, and most significantly, the allegations that wars of self-determination are "just" wars. Such wars are alleged to affect the independence of the lus in bello from the ius ad bellum. The impact of the use of force in such struggles is examined to see if there is any legal foundation for such a theory. In this context, the new developments in the law of armed conflict, in particular Article 1(4) of the 1977 Additional Protocol I to the Geneva Conventions of 1949, are assessed. The thesis argues that the independence of the ius in bello from the lus ad bellum, a fundamental premise of humanitarian law, has survived these new developments. Moreover, the principle of non-combatant immunity is not only a conventional rule but has acquired the status of a norm of customary international law equally applicable to all parties in traditional international armed conflicts. The thesis also examines the distinction that has traditionally been drawn by the law of armed conflict between international and non-international armed conflicts. The thesis argues that this rigid division is slowly being eroded and that non-combatant immunity is a customary rule in some large-scale non-international armed conflicts.