Unlawful confinement as a war crime: the jurisprudence of the Yugoslav Tribunal and the common core of international humanitarian law applicable to contemporary armed conflicts

Dingwall, J. (2004) Unlawful confinement as a war crime: the jurisprudence of the Yugoslav Tribunal and the common core of international humanitarian law applicable to contemporary armed conflicts. Journal of Conflict and Security Law, 9(2), pp. 133-179. (doi: 10.1093/jcsl/9.2.133)

Abstract

This article discusses the question whether unlawful confinement of civilians in the context of internal armed conflict constitutes a war crime, with a focus on the jurisprudence of the Yugoslav Tribunal. The traditional position that international humanitarian law provides civilians with no right to freedom from arbitrary confinement in internal armed conflict will be explored and critiqued. Drawing upon the Tadic Jurisdiction Decision rendered by the Appeals Chamber in 1995, it will be maintained that a common core of protection for all civilians from unlawful confinement has emerged, applicable in both international and internal armed conflicts. Consequently unlawful confinement can be charged as a war crime pursuant to the cruel treatment proscription in common article 3(1)(a) of the four Geneva Conventions, 1949 subsumed in article 3 of the ICTY Statute. The compatibility of this position with the fundamental principle ofnullum crime sine lege will be evaluated. The lineage of the prohibition of unlawful confinement of civilians in internal armed conflict will be traced. Examination will be undertaken of the elements of article 3, common article 3 and the prohibition of cruel treatment. In addition, it will be specifically considered whether imprisonment as a war crime in internal armed conflict is sufficiently well recognised as a customary prohibition, inter alia, by considering the scope of the common core developed by the Yugoslav Tribunal.

• Item Type: Articles
• Status: Published
• Refereed: Yes
• Glasgow Author(s) Enlighten ID: Dingwall, Dr Joanna
• Authors: Dingwall, J.
• College/School: College of Social Sciences > School of Law
• Journal Name: Journal of Conflict and Security Law
• Publisher: Oxford University Press
• ISSN: 1467-7954
• ISSN (Online): 1467-7962