Tesi etd-11072022-183439
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Tipo di tesi
Corso Ordinario Secondo Livello
Autore
BENAGLIA, MARIALUCIA
URN
etd-11072022-183439
Titolo
Security Detention by Non-State Armed Groups in Non-International Armed Conflicts: Unveiling Current Legal Challenges and Contemporary Practices
Struttura
Cl. Sc. Sociali - Scienze Politiche
Corso di studi
SCIENZE POLITICHE - SCIENZE POLITICHE
Commissione
Tutor Prof. STRAZZARI, FRANCESCO
Relatore Prof.ssa CAPONE, FRANCESCA
Presidente Prof.ssa LORETONI, ANNA
Membro Prof. BRESSANELLI, Edoardo
Membro Prof. NATALI, DAVID
Membro Prof. DE GUTTRY, ANDREAS M.T.
Membro Prof.ssa HENRY, BARBARA
Membro Prof.ssa ALABRESE, MARIAGRAZIA
Relatore Prof.ssa CAPONE, FRANCESCA
Presidente Prof.ssa LORETONI, ANNA
Membro Prof. BRESSANELLI, Edoardo
Membro Prof. NATALI, DAVID
Membro Prof. DE GUTTRY, ANDREAS M.T.
Membro Prof.ssa HENRY, BARBARA
Membro Prof.ssa ALABRESE, MARIAGRAZIA
Parole chiave
- international human rights law
- international humanitarian law
- internment
- non-State armed-groups
Data inizio appello
30/11/2022;
Disponibilità
parziale
Riassunto analitico
During non-international armed conflicts (NIACs) – which currently represent the vast majority of armed conflicts worldwide – the issue of security detention by non-State armed groups (NSAGs) often raises several legal dilemmas, although this activity occurs relatively routinely in practice. The present work, whose scope is to address the main legal challenges stemming from NSAGs’ detention and to contribute to identifying solutions that can render the existing framework more coherent and effective, intends to discuss the current legal regime both de lege lata and de lege ferenda in order to better respond to the manifold humanitarian problems derived from internment. Reference will be made in particular to the legality of detention by NSAGs, the related applicable legal standards of protection, and the corresponding international obligations for the actors involved.
In the absence of an explicit authorization for internment under the IHL applicable to NIACs, different views have been expressed with respect to the sources of NSAGs’ power to detain in NIACs. After providing a thorough analysis of alternative routes, it is ultimately submitted that said source should be found in IHL norms in the form of an “inherent power”. Nonetheless, reaching a conclusion on the legal basis of detention does not overcome the other, equally relevant, legal issues that will be addressed in the present work. In fact, while internment represents the preferable option in NIACs, in comparison to directly killing individuals who constitute a security threat, it continues to raise a number of humanitarian concerns related to the guarantees and protection standards for persons held in detention facilities, which frequently suffer from overcrowding, poor access to basic services, health risks and a range of security challenges. Therefore, the study will focus on the potential role of international human rights law (IHRL) in filling this legal gap and will reflect on whether it is possible to invoke the relevant norms and obligations vis-à-vis NSAGs. Based on cases studies of selected armed groups and a normative and doctrinal review, this study ultimately argues that, in order to fill the lack of procedural safeguards for internment under IHL, rather than resorting to IHRL, it would be more effective to advocate for the transposition by analogy and application to NIACs of humanitarian principles applicable in situations of IACs.
In the absence of an explicit authorization for internment under the IHL applicable to NIACs, different views have been expressed with respect to the sources of NSAGs’ power to detain in NIACs. After providing a thorough analysis of alternative routes, it is ultimately submitted that said source should be found in IHL norms in the form of an “inherent power”. Nonetheless, reaching a conclusion on the legal basis of detention does not overcome the other, equally relevant, legal issues that will be addressed in the present work. In fact, while internment represents the preferable option in NIACs, in comparison to directly killing individuals who constitute a security threat, it continues to raise a number of humanitarian concerns related to the guarantees and protection standards for persons held in detention facilities, which frequently suffer from overcrowding, poor access to basic services, health risks and a range of security challenges. Therefore, the study will focus on the potential role of international human rights law (IHRL) in filling this legal gap and will reflect on whether it is possible to invoke the relevant norms and obligations vis-à-vis NSAGs. Based on cases studies of selected armed groups and a normative and doctrinal review, this study ultimately argues that, in order to fill the lack of procedural safeguards for internment under IHL, rather than resorting to IHRL, it would be more effective to advocate for the transposition by analogy and application to NIACs of humanitarian principles applicable in situations of IACs.
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