Non-international armed conflict

From a humanitarian point of view, the victims of non-international armed conflicts should be protected by the same rules as the victims of international armed conflicts. They face similar problems and need similar protection. Indeed, in both situations, fighters and civilians are arrested and detained by “the enemy”; civilians are forcibly displaced; they have to flee, or the places where they live fall under enemy control. Attacks are launched against towns and villages, food supplies need to transit through front lines, and the same weapons are used. Furthermore, the application of different rules for protection in international and in non-international armed conflicts obliges humanitarian players and victims to classify the conflict before those rules can be invoked. This can be theoretically difficult and is always politically delicate. To classify a conflict may imply assessing questions of jus ad bellum. For instance, in a war of secession, for a humanitarian actor to invoke the law of non-international armed conflicts implies that the secession is not (yet) successful, which is not acceptable for the secessionist authorities fighting for independence. On the other hand, to invoke the law of international armed conflicts implies that the secessionists are a separate State, which is not acceptable for the central authorities.

However, States, in the international law they have made, have never agreed to treat international and non-international armed conflicts equally. Indeed, wars between States have until recently been considered a legitimate form of international relations and the use of force between States is still not totally prohibited today. Conversely, the monopoly on the legitimate use of force within its boundaries is inherent in the concept of the modern State, which precludes groups within that State from waging war against other factions or the government.

On the one hand, the protection of victims of international armed conflicts must necessarily be guaranteed through rules of international law. Such rules have long been accepted by States, even by those which have the most absolutist concept of their sovereignty. States have traditionally accepted that soldiers killing enemy soldiers on the battlefield may not be punished for their mere participation: in other words, they have a “right to participate” in the hostilities.[1]

On the other hand, the law of non-international armed conflicts is more recent. States have for a long time considered such conflicts as internal affairs governed by domestic law, and no State is ready to accept that its citizens would wage war against their own government. In other words, no government would renounce the right in advance to punish its own citizens for their participation in a rebellion. Such renunciation, however, is the essence of combatant status as defined in the law of international armed conflicts. To apply all the rules of the contemporary International Humanitarian Law (IHL) of international armed conflicts to non-international armed conflicts would be incompatible with the very concept of the contemporary international society being made up of sovereign States. Conversely, if ever the international community is organized as a world State, all armed conflicts would be “non-international” in nature and it would thus be inconceivable for combatants to have the right to participate in hostilities independently of the cause for which they fight, as foreseen in the law of international armed conflicts.

In recent years, however, the IHL of non-international armed conflicts has drawn closer to the IHL of international armed conflicts: through the jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda based on their assessment of customary international law;[2] in the crimes defined in the ICC Statute;[3] because States have accepted that recent treaties on weapons and on the protection of cultural objects are applicable to both categories of conflicts;[4] under the growing influence of International Human Rights Law; and according to the outcome of the ICRC Study on Customary International Humanitarian Law.[5] This study comes to the conclusion that 136 (and arguably even 141) out of 161 rules of customary humanitarian law, many of which run parallel to rules of Protocol I applicable as a treaty to international armed conflicts, apply equally to non-international armed conflicts.

Theoretically, the IHL of international armed conflicts and the IHL of non-international armed conflicts should be studied, interpreted and applied as two separate branches of law – the latter being codified mainly in Art. 3 common to the Conventions and in Protocol II. Furthermore, non-international armed conflicts occur much more frequently today and entail more suffering than international armed conflicts. Thus, it would be normal to study first the law of non-international armed conflicts, as being the most important.

However, because the IHL of non-international armed conflicts must provide solutions to problems similar to those arising in international armed conflicts, because it was developed after the law applicable to international armed conflicts, and because it involves the same principles, although elaborated in the applicable rules in less detail, it is best to start by studying the full regime of the law applicable to international armed conflicts in order to understand the similarities and differences between it and the law of non-international armed conflicts. The two branches of law share the same basic principles, and analogies have to be drawn between them to flesh out certain provisions or to fill logical gaps. Similarly, only by taking the law of international armed conflicts as a starting point can one identify which changes must result, for the protective regime in non-international armed conflicts, from the fundamental legal differences between international and non-international armed conflicts. Finally, from the perspective of the law of international armed conflicts, there is a grey area not affected by those fundamental differences but in which States have refused to provide the same answer in the treaties of IHL. The practitioner in a non-international armed conflict confronted with a question to which the treaty rules applicable to such situations fail to provide an answer will either look for a rule of customary IHL applicable to non-international armed conflicts or search for the answer applicable in international armed conflicts and then analyse whether the nature of non-international armed conflicts allows for the application of the same answers in such conflicts. In any event, soldiers are instructed and trained to comply with one set of rules and not with two different sets.

The ICRC Study on customary international humanitarian law[6] has confirmed the customary nature of most of the treaty rules applicable in non-international armed conflicts (Art. 3 common to the Conventions and Protocol II in particular). Additionally, the study demonstrates that many rules initially designed to apply only in international conflicts also apply – as customary rules – in non-international armed conflicts. They include the rules relating to the use of certain means of warfare, relief assistance, the principle of distinction between civilian objects and military objectives and the prohibition of certain methods of warfare.

The fact that the IHL of non-international armed conflicts continues to be developed is certainly a good thing for the victims of such conflicts, which are the most frequent in today’s world, but it should never be forgotten that these rules are equally binding on government forces and non-State armed groups.[7] Therefore, for all existing, claimed and newly suggested rules of the IHL of non-international armed conflicts, or whenever we interpret any of these rules, we should check whether an armed group willing to comply with the rule in question is able to do so without necessarily losing the conflict.

In addition, it should be borne in mind that if a given situation or issue is not regulated by the IHL of non-international armed conflicts applying as the lex specialis, international human rights law applies, although possibly limited by derogations.

To conclude, it should be stressed that even in cases in which the IHL of international armed conflicts contains no detailed provisions or to which no analogies with that law apply, and even without falling back on customary law, the plight of the victims of contemporary non-international armed conflicts would be incomparably improved if only the basic black-letter provisions of Art. 3 common to the Conventions and of Protocol II were respected. 

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 1. Traditional difference: protection not based on status (e.g. prisoner-of-war or protected civilian status) but on actual conduct (direct participation in hostilities)

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 2.   However, the regime is closer to that of international armed conflicts if fighters (members of an armed group with a continuous fighting function) are not considered to be civilians:

1. and may therefore be targeted not only while directly participating in hostilities through specific acts but also – like combatants in international armed conflicts – as long as they do not fall into the power of the enemy or are otherwise hors de combat;

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2. and may, in the view of some States and specialists, also be detained for the mere fact that they belong to the enemy (like prisoners of war in international armed conflicts).

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 3. Uncontroversial similarities and differences

1. protection of all those who do not or no longer directly participate in hostilities

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2. more absolute prohibition of forced displacements

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 1.   Who is covered by common Art. 3?

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 2.   Principles under common Art. 3 

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• United States, Jurisprudence Related to the Bombing of the U.S.S Cole

1. non discrimination

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   • Somalia, Traditional Law and IHL
   • Iraq: Situation of Internally Displaced Persons
   • Syria, Report by UN Commission of Inquiry (March 2017)
   • Iraq, Crimes by Militia Groups
2. humane treatment

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• does the prohibition of murder cover attacks in the conduct of hostilities?

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• United States, Jurisprudence Related to the Bombing of the U.S.S Cole

3. judicial guarantees

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4.  obligation to collect and care for the wounded and sick

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 3.   Additional rules under Protocol II

1. more precise rules on:
   aa)        fundamental guarantees of humane treatment
   P II, Arts 4 and 5 [CIHL, Rules 87-96, 103, 118, 119, 121, 125, 128]

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   cc)        wounded, sick and shipwrecked
    P II, Arts 7-8 [CIHL, Rules 109-111]

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2. specific rules on:
   aa)        protection of children
   P II, Art. 4(3) [CIHL, Rules 136 and 137]

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3. rules on the conduct of hostilities
   aa) protection of the civilian population against attacks
   P II, Art. 13 [CIHL, Rules 1 and 6]

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4. prohibition of forced movements of civilians
   P II, Art. 17 [CIHL, Rule 129 B]

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5. relief operations
   P II, Art. 18 [CIHL, Rules 55 and 56]

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 1.   Principle of distinction

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 2.   Principle of military necessity

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• International Criminal Court, Trial Judgment in the Case of the Prosecutor V. Jean-Pierre Bemba Gombo

 3.   Principle of proportionality

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 4.   Right to relief

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Introductory text

From the point of view of the law of treaties, Art. 3 common to the four Geneva Conventions and Protocol II are binding on the States party to those treaties. Even those rules of the IHL of non-international armed conflicts considered customary international law would normally be binding only on States. The obligations of the States parties include responsibility for all those who can be considered as their agents. IHL must, however, also be binding on non-State parties in a non-international armed conflict – which means not only those who fight against the government but also armed groups fighting each other – because victims must also be protected from rebel forces and because if IHL did not respect the principle of the equality of belligerents before it in non-international armed conflicts, it would have an even smaller chance of being respected by either the government forces, because they would not benefit from any protection under it, or by the opposing forces, because they could claim not to be bound by it.

A first possibility to explain why armed groups are bound by IHL is to consider that when the rules applicable to non-international armed conflicts, which include the provision that those rules be respected by “each Party to the conflict,”[12] are created by agreement or custom, States implicitly confer on the non-governmental forces involved in such conflicts the international legal personality necessary to have rights and obligations under those rules. According to this construction, the States have conferred on rebels – through the law of non-international armed conflicts – the status of subjects of IHL; otherwise their legislative effort would not have the desired effect, the effet utile. At the same time, the States explicitly stated that the application and applicability of IHL by and to rebels would not confer on the latter a legal status under rules of international law (other than those of IHL).[13]

A second theory is to consider that armed groups are bound because a State incurring treaty obligations has legislative jurisdiction over everyone found on its territory, including armed groups. Those obligations then become binding on the armed group via the implementation or transformation of international rules into national legislation or by the direct applicability of self-executing international rules. Under this construction, IHL is indirectly binding on the rebels. Only if they became the effective government would they be directly bound.

Other possible explanations for the binding effect of IHL on rebel armed groups are: third, that armed groups may be bound under the general rules on the binding nature of treaties on third parties (this presupposes, however, that those rules are the same for States and non-State actors and, more importantly, that a given armed group has actually expressed its consent to be bound); fourth, that the principle of effectiveness is said to imply that any effective power in the territory of a State is bound by the State’s obligations; fifth, armed groups often want to become the government of the State and such government is bound by the international obligations of that State.

The precise range of persons who are the addressees of the IHL of non-international armed conflicts has been discussed in the jurisprudence of the two ad hoc International Criminal Tribunals.[14] Certainly, not only members of armed forces or groups, but also others mandated to support the war effort of a party to the conflict are bound by IHL. Beyond that, all those acting for such a party, including all public officials on the government side, must comply with IHL in the performance of their functions. Otherwise judicial guarantees, which are essentially of concern to judges, rules on medical treatment, which are equally addressed to ordinary hospital staff, and rules on the treatment of detainees, which also apply to ordinary prison guards, could not have their desired effect because those groups could not be considered as “supporting the war effort”. On the other hand, acts and crimes unconnected to the armed conflict are not covered by IHL, even if they are committed during the conflict.

As for individuals who cannot be considered as connected to one party but who nevertheless commit acts of violence contributing to the armed conflict for reasons connected with it, those perpetrating such acts are bound by the criminalized rules of IHL. If such individuals were not considered addressees of IHL, most acts committed in anarchic conflicts would be neither covered by IHL nor consequently punishable as violations of IHL. What is unclear is whether the many rules of IHL that are not equally criminalized cover all individual acts having a link to the conflict.

 1.   Both parties

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 2.   All those belonging to one party

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 3.   All those affecting persons protected by IHL by an action linked to the armed conflict

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