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In this study, Heike Niebergall-Lackner discusses the classical military offence of desertion from the standpoint of international law.
Taking account of the three factual situations that might arise following a desertion in international armed conflicts - capture by the home country, capture or crossing over to the enemy party, and seeking refuge in a country not involved in the conflict – the examination offers a comprehensive overview of the treatment and the protection afforded to deserters under international human rights law, international humanitarian law and refugee law.
The examination is conducted against the background of the duties of soldiers under modern international law and shows that, depending on the legality of the conflict, desertion might represent the legitimate decision of the individual to act in accordance with these duties.
Dr. Heike Niebergall-Lackner, LL.M. is a Legal Advisor with the International Committee of the Red Cross in Geneva, Switzerland. Previously, she worked at the International Organization for Migration (IOM) where she provided legal and technical assistance on the delivery of reparations for victims of armed conflict.
Excerpt of table of contents:
Chapter 1: Defining desertion
A. When soldiers stop fighting;
B. Desertion in domestic military law;
I. Definitions of the military offence; II. Punishment ranges; III. Summary;
C. Desertion in the context of international law;
I. International and multinational forces; II. Desertion in international law literature; III. Summary;
D. The use and meaning of the term desertion in the present study;
Chapter 2: The deserter and his or her home country
A. Desertion in past conflicts – a history of severe punishment and reluctant forgiveness
I. Punishment of deserters; II. Acts of clemency; III. Legal rehabilitation; IV. Summary;
New standards of international law and their impact on the punishment of deserters
I. Procedural guarantees for criminal trials; II. The right to conscientious objection to military service; III. International criminal law; IV. Conclusion;
Chapter 3: The deserter and the enemy party
A. Treatment in past conflicts – contempt, strategic use and cautious solidarity
I. Prisoner of war status; II. Use of enemy deserters in the military forces; III. Repatriation of deserters; IV. Summary;
B. The protection of deserters under contemporary international humanitarian law;
I. The deserter’s legal status under international humanitarian law; II. Rights and obligations of the enemy party with regard to the deserter; III. Conclusion;
Chapter 4: The deserter in a country of refuge
A. The deserter as a beneficiary of international protection;
I. Territorial asylum; II. Refugee status according to the Geneva Refugee Convention; III. Refugee protection at a regional level – the European example; IV. Complementary or subsidiary protection; V. The prohibition of
refoulement; VI. Conclusion;
B. Obligations under the law of neutrality
I. Duty to intern foreign troops; II. Summary;
C. Extradition of a deserter to his home country;
I. Duty to extradite; II. Principles of extradition law; III. Conclusions regarding the obligation to extradite;
Chapter 5: Conclusion and outlook
Academics, students, military and other practitioners concerned with military desertion and interested in the treatment and protection that is stipulated for deserters under human rights law, humanitarian law and refugee law during an international armed conflict.