International Humanitarian Law is mainly designed to govern armed conflicts. As a result, it provides detailed provisions for regulating the means and methods of warfare and the protection of persons and objects having fallen into the power of a belligerent party.
Once an armed conflict exists, any action taken for reasons related to that conflict must comply with International Humanitarian Law. On the other hand, IHL is not applicable to inter-State confrontations that fall short of armed conflict, or to internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and similar acts not amounting to armed conflict.
In absence of an armed conflict, therefore, any difference between States and any question of individual protection must be resolved in accordance with the law applicable in peacetime. For example, nationals of one State who are detained in another State will be protected by human rights law and depending on the circumstances, may enjoy the diplomatic and consular protection of their State of origin or benefit from protection under international refugee law. However, they will not be entitled to the status and protection afforded by the 1949 Geneva Conventions, such as the right of prisoners of war or civilian internees to receive visits from the ICRC. Also in situations not reaching the threshold of armed conflict, any use of force or other exercise of authority by States against groups and individuals within their jurisdiction remains governed by human rights law, and any violence or other harm caused by such groups and individuals remains a matter of law enforcement governed primarily by national law.
Persons deprived of their liberty for reasons related to an armed conflict remain protected by IHL until they have been released and repatriated or their status has otherwise been normalized, if necessary even years after the end of the conflict. Likewise, IHL remains applicable in territories that remain occupied after the cessation of active hostilities until a political solution for their status has been found.
DIFFERENCE BETWEEN INTERNATIONAL AND NON-INTERNATIONAL ARMED CONFLICT
IHL treaties distinguish between two types of armed conflict:
- International armed conflict, which occur between two or more States, and
- Non-international armed conflicts, which take place between STates and non-Governmental armed groups, or between such groups only.
These distinctions between international and non-international armed conflicts are a result of political history rather than military necessity or humanitarian need.
Governments have long been reluctant to subject their efforts to maintain law and order and public security within their territorial borders to the purview of international law. The incorporation of the concept of non-international armed conflict in common Article 3 therefore constituted a landmark in the development and codification of IHL. From that moment on, organized armed groups were considered “parties” to an armed conflict with their own obligations under international law, irrespective of any formal recognition of belligerency by the opposing State. At the same time, the contracting States emphasized that the provisions of common Article 3 “shall not affect the legal status of the Parties to the conflict”. In other words, treaty recognition of organized armed groups as belligerent parties implies neither that they are legitimate nor that they have full legal personality under international law. This historical background has shaped the current body of treaty IHL, which is, as a result, much more extensive for international than for non-international armed conflicts, even though the humanitarian and military rationales are essentially the same for both types of conflict.
Despite the practical similarities, however, there are decisive differences between international and non-international armed conflicts, and this makes it indispensable to maintain the distinction between them.
As a consequence, the threshold of violence required to trigger a non-international armed conflict and, thereby, the applicability of IHL is significantly higher than for an international armed conflict. Another important reason for maintaining the distinction between international and non-international armed conflict is the position taken by many States that equating the two types of armed conflict could be perceived as providing armed opposition groups with international status and might therefore undermine State sovereignty and encourage rebellion.
The categories of international and non-international armed conflict are absolutely contemporary in that they cover all conceivable situations triggering the applicability of IHL. No other type of armed conflict exists. This does not preclude the two types of armed conflict from coexisting, or a situation from evolving from one type of armed conflict into another.
For law notes on other law subjects, click here