Parth S. Gejji

91 Texas L. Rev. 1525

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In this Note, Mr. Gejji argues that any interpretation of international humanitarian law (IHL) that seeks to legitimize insurgent courts leads to problematic solutions.  Part II identifies the goals motivating the project to legitimize insurgent courts, discusses why legitimizing insurgent courts within IHL could achieve these goals, notes some limiting principles of interpretation that should guide the discussion, and highlights the real dangers posed by insurgent courts.  Part III explores provisions in Common Article 3 of the Geneva Conventions 4 (CA3) and Additional Protocol II 5 (AP II) governing the passing of sentences in a non-international  armed  conflict (NIAC).  Part IV discusses the legal basis requirement found in CA3 and notes how a loose interpretation of this requirement allows for the existence of insurgent courts.  Part V, however, argues against a wholesale loosening of the legal basis requirement because of the impact such a loosening would have on state prosecution of insurgents and relates this discussion to the principle of the equality of belligerents.  Part VI examines the fair trial guarantees requirement in CA3, surveys the various methods of defining these guarantees, and proposes a definite list of guarantees that should apply in a NIAC.  Part VII disaggregates the analysis along the dimensions of the type of person to be tried in an insurgent court and the type of trial to occur in such a court, relates this disaggregation to the principle of the equality of belligerents, and argues that any interpretation of IHL that seeks to legitimize insurgent courts leads to problematic results.