Non International Armed Conflicts in International Humanitarian Law

INTRODUCTION

The vast majority of contemporary armed conflicts are waged, not between States, but between States and organized armed groups or between such groups – they are non international in character. Treaty IHL governing non international armed conflicts consists, first and foremost, of common Article 3 and Additional Protocol II. A number of treaties on the regulation, prohibition or restriction of certain types of weapon also apply in non international armed conflicts.  Customary law is of great importance for the regulation of non international armed conflicts. Treaty law distinguishes between non-international armed conflicts within the meaning of common Article 3 and non international armed conflicts falling within the definition provided in Article 1 of Additional Protocol II.

ARTICLE 3 COMMON TO THE 1949 GENEVA CONVENTIONS

During the negotiations preceding the adoption of the 1949 Geneva Conventions, the proposal was made to extend the Conventions’ applicability in toto to non international armed conflicts. It soon became clear, however, that States would agree to fully apply all four Conventions to non international armed conflicts only at the price of a very narrow definition of non international armed conflict that was highly unlikely to be met in reality.

Common Article 3 identifies a number of key duties and prohibitions providing a minimum of protection to all persons who are not, or who are no longer, taking an active part in the hostilities. In return, this “miniature Convention” must be applied “as a minimum” by each party to any “armed conflict not of an international character”^[1].

Common Article 3 reads as follows:

“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
2. violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
3. taking of hostages;
4. outrages upon personal dignity, in particular, humiliating and degrading treatment;
5. the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

        2. The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

A non-international armed conflict within the meaning of common Article 3 does not necessarily have to involve a government; it can also take place entirely between organized armed groups, a scenario that is

particularly relevant in areas of weak governance, such as so-called “failed States.” In order for a non-State armed group to be considered a “party” to a conflict, common Article 3 does not require any recognition of belligerency by the opposing State, nor popular support, territorial control or political motivation. As will be shown, however, the concept of “party to an armed conflict” presupposes a minimum level of organization without which coordinated military operations and collective compliance with IHL would not be possible. Furthermore, in order to qualify as an “armed conflict,” non- international confrontations must always involve violence that reaches a certain threshold of intensity.

ARTICLE 1 OF ADDITIONAL PROTOCOL II

Additional Protocol II, which was adopted in 1977, develops and supplements common Article 3. The Protocol does not modify the conditions of application of common Article 3, but defines its own scope of application more restrictively and, therefore, cannot serve as a generic definition of non-international armed conflict. Article 1 of the Protocol reads:

“1. This Protocol (…) shall apply to all armed conflicts which are not (of international character) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”

Thus, in contrast to common Article 3, Additional Protocol II applies only to armed conflicts involving a contracting State as a party to the conflict and taking place in the territory of that State. Moreover, part of the State’s territory must be under the effective control of the opposition forces, thus assimilating their role to that of a de facto authority with direct obligations not only towards the opposing party, but also towards the inhabitants of the territory under their control. The Protocol’s high threshold of applicabil-

ity is indicative of the continuing reluctance of governments to expand the international regulation of internal armed conflicts unless they develop into situations comparable to international armed conflicts in many ways.

For the present purposes, the decisive advantages of Article 1 of Additional Protocol II are, first, that it provides an objective threshold of factual criteria at which the existence of a non-international armed conflict can no longer be denied and, second, that it stipulates that situations of “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature,” do not constitute armed conflicts.^[2]

THRESHOLD OF INTENSITY

In relations between States, the general prohibition on the threat or use of force established by the UN Charter means that essentially any use of force between States gives rise to an international armed conflict. By contrast, the domestic use of force by State authorities against private individuals, or the use of force between such private individuals, generally remains a matter of law enforcement governed primarily by human rights law and national criminal law. In order for such a non-international confrontation to amount to armed conflict, it must be clearly distinguishable from internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature. Apart from a sufficient level of military organization of each party to the conflict, this also requires that the confrontation reach a threshold of intensity that cannot be addressed through routine peacetime policing, but which requires the intervention of armed forces.

Accordingly, in order for a non-international armed conflict to exist, the ICTY requires a situation of “protracted armed violence” between a State and organized armed groups or between such groups, a criterion that in practice has been interpreted as referring more to the intensity of the armed violence than to its duration. Indicative factors for assessing “intensity” have included: “the number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the intensity of a conflict.”

TEMPORAL AND TERRITORIAL SCOPE OF NON-INTERNATIONAL ARMED CONFLICTS

Temporal scope of non international armed conflicts

In terms of temporal scope, non-international armed conflicts begin as soon as armed violence occurring between sufficiently organized parties reaches the required threshold of intensity. While these constitutive elements provide objective criteria for the identification of a situation of armed conflict, in political reality they are often interpreted with a certain latitude, particularly by the government involved. While, in some contexts, States refuse to recognize the applicability of IHL despite organized armed violence claiming thousands of victims every year, other confrontations are readily subjected to a legal paradigm of “war” although they appear to have more in common

with law enforcement operations than with full-blown armed conflict.

Once a non-international armed conflict has been initiated, IHL applies until “a peaceful settlement is achieved.” Various forms of settlement are conceivable, from formal peace agreements or declarations of surrender to the complete military defeat of either party or the gradual subsiding of armed violence until peace and public security have been firmly re-estab-

lished. In practice, the end of a non-international armed conflict requires not only the end of active hostilities but also the end of related military operations of a belligerent nature in circumstances in which the likelihood of their resumption can reasonably be excluded.

Territorial scope of non international armed conflicts

In terms of territorial scope, the applicability of both common Article 3 and Additional Protocol II is restricted to armed conflicts taking place “in the territory” of a High Contracting Party; the Protocol even requires that the territorial State be involved as a party to the conflict. The territorial requirement is rooted in the fact that both instruments introduced binding rules not only for the contracting States themselves, but also for non-State armed groups operating on their territory.

The legislative authority to do so derives from, and is limited to, the territorial sovereignty of each contracting State. It is therefore only logical that both instruments incorporate a territorial link between the conflict and the contracting State.

Today, the territorial restriction of the scope of applicability of common Article 3 and Additional Protocol II no longer serves its original purpose.

First, the four 1949 Geneva Conventions have been universally ratified, thus making the scenario of a non-international armed conflict occurring entirely outside the territory of a contracting State highly unlikely.

Second, even if such an armed conflict were to occur, it would still be governed by the humanitarian provisions of common Article 3 by virtue of their recognition as customary law and an expression of a general principle of law (“elementary considerations of humanity”) and, thus, as universally binding irrespective of treaty obligations.

Third, whenever non-international armed conflicts involved extraterritorial incursions with the consent of the neighboring State, they were considered as part of the original non-international armed conflict. Where such consent is absent, extraterritorial operations may provoke an international armed conflict with the territorial State.

In this regard, there is a continuing controversy as to whether the newly triggered international armed conflict coexists with the original non-international armed conflict or whether it subsumes the latter, at least to the extent that it occurs on foreign territory.

CONCLUSION

In situations of non-international armed conflict, not only does IHL apply in areas exposed to active hostilities, it governs essentially any act or operation carried out for reasons related to the conflict (nexus to the conflict), regardless of territorial location. This does not mean that military action against the enemy can lawfully be taken anytime and anywhere in the world (“global battlefield”). Rather, in order to be lawful, any extraterritorial military action must always comply not only with the rules and principles of IHL, but also with those of jus ad bellum, the law of neutrality and any other relevant bodies of international law.

Ultimately, non-international armed conflicts are not characterized by their limited or unlimited territorial scope, but by the nature and quality of the parties involved, and by the actual occurrence of hostilities and other acts or operations having a belligerent nexus.

FURTHER READINGS

1. https://casebook.icrc.org/case-study/icty-prosecutor-v-boskoski
2. https://casebook.icrc.org/case-study/icty-prosecutor-v-tadic
3. https://www.rulac.org/browse/conflicts/non-international-armed-conflict-in-india#collapseaccord

^[1] GC I–IV, common Art. 3(1).

^[2] Rome Statute, Article 8(2)(d) and (f).