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The Scope of the Obligation Not to Return Fighters under the Law of Armed Conflict

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Chapter Summary

This chapter considers a range of situations which arises in international armed conflicts (IACS) and non-international armed conflicts (NIACS), specifically in relation to whether fighters able to prevent their transfer to a particular State against their will. For example: State A is the potentially transferring State. In the build-up to an armed conflict, State A wishes to expel nationals of the State with which there will be an armed conflict who are members of its armed forces. It should be remembered that armed conflicts often do not come out of nowhere. The nationals of State B whom State A wishes to expel do not as yet have combatant/prisoner of war status. They are simply a sub-group within the group of nationals of State B. This potentially raises questions of discrimination but, if the conflict is sufficiently certain and imminent, it may be regarded as a justified difference in treatment.

Keywords: fighters; international armed conflicts (IACS); non-international armed conflicts (NIACS); war status



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