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