
Contents
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Select Bibliography Select Bibliography
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A. Introduction A. Introduction
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B. Meaning and Application B. Meaning and Application
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I. The importance of the different sorts of territory referred to in GC IV I. The importance of the different sorts of territory referred to in GC IV
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a. Parts of the Convention a. Parts of the Convention
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b. Protected persons b. Protected persons
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c. Article 5 c. Article 5
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II. Own and occupied territory II. Own and occupied territory
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a. ‘In the territory of a Party to the conflict’ a. ‘In the territory of a Party to the conflict’
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b. Occupied territory b. Occupied territory
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III. Territory that is neither own nor occupied III. Territory that is neither own nor occupied
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a. Exercise of control over territory unrelated to the conflict a. Exercise of control over territory unrelated to the conflict
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b. Exercise of control related to the conflict b. Exercise of control related to the conflict
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i. Operations conducted on neutral states i. Operations conducted on neutral states
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ii. Invaded territory ii. Invaded territory
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C. Resulting Gaps and Possible Solutions C. Resulting Gaps and Possible Solutions
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I. Resulting gaps—civilians in neither own nor occupied territory with protection needs resembling those of protected civilians I. Resulting gaps—civilians in neither own nor occupied territory with protection needs resembling those of protected civilians
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a. Ill-treatment a. Ill-treatment
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b. Forcible deportation b. Forcible deportation
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c. Deprivation of liberty—internment or detention with a view to criminal proceedings c. Deprivation of liberty—internment or detention with a view to criminal proceedings
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II. Possible solutions—their merits and their inadequacies II. Possible solutions—their merits and their inadequacies
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a. Applying Section I of Part III to the invasion phase a. Applying Section I of Part III to the invasion phase
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b. Using an expanded understanding of ‘in the territory of a Party to the conflict’ b. Using an expanded understanding of ‘in the territory of a Party to the conflict’
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i. Legal basis for internment or detention with a view to criminal proceedings i. Legal basis for internment or detention with a view to criminal proceedings
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ii. Judicial guarantees, humane treatment, review of detention, and release ii. Judicial guarantees, humane treatment, review of detention, and release
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iii. Transfer iii. Transfer
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iv. Merits and inadequacies of using an expanded understanding of ‘in the territory of a Party to the conflict’ in Section II of Part III iv. Merits and inadequacies of using an expanded understanding of ‘in the territory of a Party to the conflict’ in Section II of Part III
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c. Using an expanded understanding of ‘occupied territory’ c. Using an expanded understanding of ‘occupied territory’
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i. Legal basis for detention i. Legal basis for detention
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ii. Criminal trials—acts for which a person may be tried ii. Criminal trials—acts for which a person may be tried
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iii. Criminal trials—courts iii. Criminal trials—courts
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iv. Transfers for the purposes of trial iv. Transfers for the purposes of trial
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v. Humane treatment and judicial guarantees v. Humane treatment and judicial guarantees
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vi. Merits and inadequacies of using an expanded understanding of ‘occupied territory’ vi. Merits and inadequacies of using an expanded understanding of ‘occupied territory’
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d. Common Article 3 and Article 75 AP I d. Common Article 3 and Article 75 AP I
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D. Relevance in Non-International Armed Conflicts D. Relevance in Non-International Armed Conflicts
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E. Critical Assessment E. Critical Assessment
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52. The Structure of Geneva Convention IV and the Resulting Gaps in that Convention
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Published:October 2015
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Abstract
This chapter examines the structure of Geneva Convention (GC) IV and the gaps resulting therefrom concerning the protection of civilians at the hands of a party to the conflict. In order to determine the relevance of GC IV to a particular civilian, it must first be determined how the territory that person is in is classified. A traditional reading of the Conventions shows that there are only two types of territory: a belligerent party’s own territory, or occupied territory. This binary classification, and its consequences for the way in which GC IV protection is applied, creates a lacuna in protection of civilians who fall into the power of an invading force before the territory is considered occupied. Fortunately, the most pressing protection need of such civilians—that they be treated humanely—is addressed by Article 75 of Additional Protocol (AP) I, which is now generally accepted as reflecting customary law.
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