Non-International Armed Conflicts

IHL is mainly intended to regulate International Armed Conflicts (IACs), however, the Geneva Conventions also includes NIACs albeit only in a single article, restated in all four GC’s, namely, Common Article 3 (CA 3). CA 3 prescribes a minimum of standards that must be adhered to in all armed conflicts not of an international character. What separates the legal regimes is that in NIACs at least one party to the conflict must be a non-state actor. The CA 3 was the first time a multilateral treaty addressed conflicts including non-state actors - an obvious challenge to the state-centred international legal system in itself. In 1977, two

protocols additional to the Geneva Conventions were concluded: Additional Protocol I (AP I) to strengthen protection of civilians, and Additional Protocol II (AP II), to specifically

82 AP I, supra note 23, art. 43(2).

83 Customary Law Study, International Committee of the Red Cross, December 2018, rule 6.

84 Customary Law Study, International Committee of the Red Cross, December 2018, rule 14.

address NIACs. Thereby, AP II became the first international treaty exclusively addressing situations of conflicts not of an international character.⁸⁵ At the diplomatic conference from 1974-1977, in which the two protocols were concluded, some delegates actually favoured a single additional protocol, addressing both IACs and NIACs to avoid a “selective

humanitarianism”, while others again did not see the need for an additional protocol addressing NIACs at all. Those against a protocol dedicated to NIACs argued that the inclusion of armed conflicts of self-determination in AP I,⁸⁶ and thereby, the elevation of their status to that of an international character, meant that all other armed conflicts taking place within the sovereignty of a territory of a state was an internal matter not in need of international regulation.⁸⁷ This view expresses the fundamental concern states have when it comes to international law: laws vis-a-vis other states based on reciprocity is much easier to accept than laws regulating the affairs between states and their citizens. Furthermore, the application of IHL to situations of non-international armed conflicts would be a tacit accept of non-state actors’ resort to violence, something states normally prefer to treat as crimes.⁸⁸ The result of the conference was a compromise which let to a much shorter and simpler version of AP II than first proposed, and some very significant states are still not parties to the AP II, here amongst the US, Israel, India, and Pakistan.⁸⁹ The challenges in the

application of IHL to NIACs are still very present, and two of the most fundamental considers the classification of NIACs and the categorisation in NIACs.

2.2.2.1. The Classification of NIACs

It is difficult to determine when a non-international armed conflict actually exists, i.e. when a situation within a state moves from being regulated through a domestic law-enforcement regime to a conflict regulated through IHL. Thus, it is a question of when a situation reaches a threshold of violence that amounts to a NIAC, triggering the application of IHL. Defining a threshold is complicated, and even the two treaty sources - CA 3 and AP II - have different

85 International Committee of the Red Cross, ”The Geneva Conventions of 1949 and their Additional Protocols”, 1 January 2014 (available at: https://www.icrc.org/en/document/geneva-conventions- 1949-additional-protocols).

86 AP I, supra note 23, art. 1(4).

87 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, 2012, 102.

88 David Kretzmer, “Rethinking the application of IHL in Non-International Armed Conflicts”, Israel Law Review, vol. 42, no. 1, 2009, 21.

89 International Committee of the Red Cross, “Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977” (available at: https://ihl-

databases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treat ySelected=475)

definitions. CA 3 applies “in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties”,⁹⁰ but gives no further definition of an armed conflict. In the Tadic case, the International Criminal Tribunal of the Former Yugoslavia (ICTY) provided a more specific interpretation of NIACs, as situations where there is: “protracted armed violence between governmental authorities and organised armed groups or between such groups within the State.”⁹¹ These principles ‘protracted armed violence’ and ‘organisation’ have also been adopted by the International Criminal Court to determine NIACs.⁹²Remaining is how ‘protracted armed violence’ and ‘organisation’ are to be defined. The level of organisation is what separates an armed group, able to conduct concerted military operations, from individuals gathered in riots and other forms of unorganised violence,⁹³ and organisation is considered a defining element throughout the Geneva Conventions and their Additional Protocols, in which both GC III article 4(A)2, AP I, article 43(1) and AP II, Art. 1(1) talks about organised armed groups/units. Referring back to the Tadic case, the ICTY elaborated on the level of organisation needed in order to become a party to an armed conflict in The Prosecutor v. Ramush Haradinaj et al. The criteria,

presented by the ICTY, counts among others: the existence of a command structure as well as disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, as well as its ability to plan, coordinate and carry out military operations.⁹⁴ Regarding the interpretation of ‘protracted armed violence’, the ICTY has applied the level of intensity, to distinguish between internal disturbances that can be addressed through policing, and conflicts in which the violence reach a level that triggers the application of IHL.⁹⁵ In The Prosecutor v. Ramush Haradinaj et al, the factors applied to assess the intensity of a conflict were among others: the number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones.⁹⁶

90 GC I-IV, supra note 23.

91 The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, International Criminal Tribunal of the former Yugoslavia, 2 October 1995, para. 70.

92 The Rome Statute of the International Criminal Court, 1998, art. 8(2)(f).

93 Melzer, supra note 60, 69.

94 The Prosecutor v. Ramush Haradinaj et al., Trial Chamber I, Judgment, International Criminal Tribunal of the former Yugoslavia, IT-04-84-T3 April 2008. para. 60.

95 Melzer, supra note 60, 70.

96 The Prosecutor v. Ramush Haradinaj et al., supra note 94, para. 49.

The scope of applicability of AP II is more restrictive than CA 3, and therefore AP II cannot be used to define NIACs in generic terms.⁹⁷ The protocol applies only to armed conflicts involving a contracting state party and only on the territory of that party, opposite CA 3, which also applies to armed conflicts entirely between non-state actors.⁹⁸ Furthermore, AP II has detailed requirements to an ‘armed group’, namely that it be organised, under responsible command, and exercising a certain degree of control over a territory that allows the group to carry out sustained and concerted military operations and to implement this protocol.⁹⁹ That AP II has a higher threshold than CA 3 is also a result of the difficult negotiations during its conclusion, and the participating states’ reluctance to expand international law to cover what had previously been considered an internal matter.¹⁰⁰

However, while the above treaty law and jurisprudence provides some guidance as to when the threshold of a NIAC is met, it is still very much a matter of interpretation, exposing the classification to a large degree of politicisation, in which actors can adjust their strategy accordingly.¹⁰¹ As discussed above, the negotiations of AP II seemed to imply that states would go a long way to avoid substantial application of IHL to non-international armed conflicts, because it would complicate matters and require them to restrict their means and measures when handling such conflicts. However, for some time now, this assumption does no longer seem to be valid. States actually seem to prefer to apply IHL because it gives them wider possibilities than domestic law-enforcement when it comes to the use of force.¹⁰² In for instance the Hassan v. UK case before the European Court of Human Rights, UK argued that its conduct was subject to the requirements of international humanitarian law and thereby not human rights law.¹⁰³ One of the most central points is that states are not required to afford non-state actors the combatant’s immunity for prosecution nor the status of Prisoner of War (POW) if apprehended in NIACs. This will elaborated in the following.

97 Melzer, supra note 60, 68.

98 Melzer, supra note 60, 67-68.

99 AP II, supra note 23, art. 1.

100 Melzer, supra note 60, 69.

101 Andrew J. Carswell, “Classifying the conflict: a soldier’s dilemma”, International Review of the Red Cross, vol. 91 no. 873 (2009), 152.

102 David Kretzmer, supra note 88, 22-23.

103 Hassan v. the United Kingdom, Judgement, European Court of Human Rights, 16 September 2014, para. 76.

2.2.2.2. Membership of non-state organised armed group

Combatants in IACs are members of the state’s armed forces and, as described above, have the combatant privilege. However, in NIACs there are no combatant privilege for non-state actors, as this would have required states to accept the legitimate right to form an armed group and the legality of carrying weapons and use them. Not very appealing to sovereign states which are defined by their monopoly on violence. Actually, one of the most

fundamental issues in NIACs is the discussion of what it means to be a member of an armed group, while not being granted combatant’s privilege. Meanwhile, that members of armed groups are not combatants, does not mean that they are merely civilians taking direct part in hostilities, because, as seen above, NIACs take place between ‘organised armed groups’.

Merely concluding that members of organised armed groups were civilians taking direct participation in hostilities and therefore only eligible to attack during such time, would in general undermine the concept of distinction in NIACs. ICRC Commentary to AP II also concludes, “those who belong to armed forces or armed groups may be attacked at any time.”¹⁰⁴ However, the conventions do not elaborate on how to characterise the individual member of an organised armed group. In 2010 ICRC published a guidance on direct participation in hostilities, in which it concludes that “the decisive criterion for individual membership in an organized armed group is whether a person assumes a continuous function for the group involving his or her direct participation in hostilities (hereafter: “continuous combat function”).”¹⁰⁵ By this definition, ICRC proposes to determine membership on function, instead of status as in IACs, and thereby, to recognize a category of people in conflicts that are more than “just” civilians sporadically taking up arms. The result is that when assuming a continuous combat function, and thereby, membership of an armed group, the individual will lose protection against direct attacks. ¹⁰⁶ It is not an acknowledgement of the legality of being a member of an armed group, i.e. they will still be liable to prosecution for illegal acts under national law.

As seen above, applying IHL to NIACs include a number of issues, and the framework for this category of conflict is both rather simple and undeveloped. The issues are all applicable

104 AP II, Commentary of 1987, Protection of the Civilian Population, International Committee of the Red Cross, 1987, art. 4789.

105 Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law, International Committee of the Red Cross, May, 2010, 33.

106 Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law, International Committee of the Red Cross, May 2010, 73.

to new wars, given that they often entail non-state actors. The next section will look further into the challenges, which arises when applying IHL to new wars.