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26 Fordham Int'l L.J. 907 (2002-2003)
Punishment of Non-State Actors in Non-International Armed Conflict

handle is hein.journals/frdint26 and id is 927 raw text is: PUNISHMENT OF NON-STATE ACTORS IN NON-INTERNATIONAL ARMED CONFLICT William A. Schabas* INTRODUCTION Over the last half a century, international law has become increasingly involved in the regulation of non-international armed conflict or, as it is known more colloquially, civil war. In its landmark ruling on jurisdiction in the Tadic case, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) dated the origins of this phenomenon to the Spanish Civil War: As early as the Spanish Civil War (1936-39), State practice re- vealed a tendency to disregard the distinction between inter- national and internal wars and to apply certain general prin- ciples of humanitarian law, at least to those internal conflicts that constituted large-scale civil wars. The Spanish Civil War had elements of both an internal and an international armed conflict. Significantly, both the republican Government and third States refused to recognize the insurgents as belliger- ents. They nonetheless insisted that certain rules concerning international armed conflict applied. Among rules deemed applicable were the prohibition of the intentional bombing of civilians, the rule forbidding attacks on non-military objec- tives, and the rule regarding required precautions when at- tacking military objectives.' The Appeals Chamber went on to review the evolution of State practice with respect to the application of international law dur- ing internal conflicts - situations like the Chinese Civil War of the late 1940s. The judgment notes that such developments culminated in recognition by the International Court of Justice (ICJ), in the 1985 Nicaragua case, that certain minimum hu- manitarian standards apply during internal armed conflict.2 * Professor of Human Rights Law, National University of Ireland, Galway and Di- rector, Irish Centre for Human Rights. 1. See Prosecutor v. Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, at para. 100 (Oct. 2, 1995), reprinted in 35 I.L.M. 32 (1995). 2. See id, at paras. 101-02.

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