Book chapter
OA Policy
English

Proscription and group membership in counter-terrorism and armed conflict : areas of tensions between criminal law and international humanitarian law

Published inFortin, Katharine ; Heffes, Ezequiel (Ed.), Armed Groups and International Law : In The Shadowland of Legality And Illegality, p. 91-119
PublisherNorthampton : Edward Elgar Publishing
First online date2023-09-21
Abstract

The concept of ‘membership’ plays a key role in the contemporary practice of international humanitarian law (IHL) and counterterrorism law. Membership in a non-State armed group (NSAG), reflected in the function assumed by an individual within that entity, is considered to be a decisive criterion for the purpose of targeting under IHL. Membership in a proscribed/terrorist organisation is widely criminalised at the national level. In situations of armed conflict, both notions often apply to the same conduct, one that criminal law seeks to prevent and punish, and that IHL of non-international armed conflicts (NIACs) neither permits nor prohibits. This chapter discusses the notions of ‘membership’ in national proscription regimes and under IHL of NIACs, and addresses the possible and real areas of tensions that such regulatory overlap creates. It finds that many such tensions do not result from proper conflicts between norms but rather from diverging interests that are at times difficult – but not necessarily impossible – to reconcile.

Keywords
  • Proscription
  • Membership (offences)
  • Non-State armed groups
  • Counterterrorism
  • International humanitarian law
Citation (ISO format)
SOBOL, Ilya, GAGGIOLI GASTEYGER, Gloria. Proscription and group membership in counter-terrorism and armed conflict : areas of tensions between criminal law and international humanitarian law. In: Armed Groups and International Law : In The Shadowland of Legality And Illegality. Fortin, Katharine ; Heffes, Ezequiel (Ed.). Northampton : Edward Elgar Publishing, 2023. p. 91–119. doi: 10.4337/9781800888340.00011
Main files (1)
Book chapter (Published version)
Identifiers
ISBN978-1-80088-833-3
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76downloads

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Creation02/10/2023 3:03:00 PM
First validation02/10/2023 3:03:00 PM
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