Questioning the utility of the distinction between common articles 2 and 3 of the Geneva Conventions of 1949 since Tadić: A state sovereignty approach

Mikayla Brier-Mills

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Abstract

The distinction between common articles 2 and 3 of the Geneva Conventions of
1949 is unsupportable in the context of contemporary armed conflict. This
article argues that the distinction should be eliminated for policy and legal
reasons. The differing protection offered by common article 2, which applies in
international armed conflicts, compared to common article 3, which applies in
non-international armed conflicts, is outlined in Parts I and II. Part III
addresses the landmark Tadić Interlocutory Decision of the International
Criminal Tribunal of the Former Yugoslavia (‘ICTY’), which acknowledged that
there is a trend in international practice to diminish the distinction between
common articles 2 and 3. Although the ICTY reasoned on the correctness of the
distinction, it did not criticise its legality. Similarly, Sub-Part A of Part III
reasons that the distinction between common articles 2 and 3 is wrong in policy
as opposed to it being wrong in law. After analysing the International Court of
Justice’s (‘ICJ’) reasoning in the Genocide Case (2007), Sub-Part B goes a step
further than the Appeals Chamber did in Tadić (1999). It argues that, while the
distinction is right in law, it gives rise to an incorrect application of the overall
control test. Moreover, in order to apply the Geneva Conventions of 1949 to any
type of armed conflict, the distinction between common articles 2 and 3 should
be eliminated.
Original languageEnglish
Pages (from-to)17-37
Number of pages21
JournalMacquarie Law Journal
Volume17
Publication statusPublished - 2017

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