Non-international armed conflicts

Welcome to this video on conflict

classification. Today, we will focus on non-
international armed conflicts. While wars
were mainly waged between independent
sovereign states at the inception of modern
IHL in the 19th century, this has changed
significantly since World War II. Most of
today's wars are non-international in
character and often take place within the
territory of a state. These so-called non-
international armed conflicts or NIACs are
often also referred to interchangeably as
civil wars or internal conflicts by non-
lawyers. NIACs are non-international in
character because they occur between on
the one hand the government forces of a
sovereign state, and on the other hand,
what are known as organized armed
groups. In addition in certain cases, a non-
international armed conflict can also exist
between two or more organized armed
groups without the involvement of the state
as we will explore later in this lecture. So,
why is this distinction between non-
international armed conflicts and
International armed conflicts so important?
The reason is that the treaty laws applicable
to NIACs are much more limited than those
applicable to international armed conflicts.
The behavior of the parties in a non-
international armed conflict is limited mainly
by the rules laid down in Common Article 3
of the 1949 Geneva Conventions and the
1977 Additional Protocol II. Compared to the
extensive regulations of international armed
conflicts, Common Article 3 and Additional
Protocol II are rather rudimentary. However,
this limited treaty framework is
supplemented by certain rules of customary
international law, which is of great
importance. The jurisprudence of the
International Criminal Tribunal for the former
Yugoslavia has confirmed that through the
development of customary international law,
the rules applicable to non-international
armed conflict are almost identical to those
applicable in international armed conflicts.
The commentary of the International
Committee of the Red Cross, which was first
published in 2005 has come to a similar
conclusion. Let us now look further into
Common Article 3 of the Geneva
Conventions. Common Article 3 is the
central norm for non-international armed
conflicts. Considering that until 1949, there
was no specific treaty law dealing with
internal armed conflicts. The inclusion of this
provision in the Geneva Conventions after
World War II was a major achievement. So,
which rights and duties can we find in
Common Article 3? This provision contains
a series of rights and duties, which ensure a
minimum level of protection to civilians and
other persons who are not or who are no
longer taking an active part in hostilities.
Common Article 3 also identifies certain
prohibitions relating to murder, the taking of
hostages, and humiliating and degrading
treatment. The International Court of Justice
has even held that Common Article 3
embodies elementary considerations of
humanity. Thereby, implying that respect for
Common Article 3 is supposed to make
situations of war more humane. While
Common Article 3 provided a minimum level
of protection in earlier years, the
international community wanted to create a
more detailed treaty regulating non-
international armed conflicts after the
terrible experiences of the wars against
colonial domination and the Vietnam War.
Play video starting at :3:42 and follow
transcript3:42
The result was the signing of the 1977
Additional Protocol II, which develops and
supplements Common Article 3. It
guarantees among other things the
fundamental protection of certain persons,
including detainees, the wounded and sick,
medical personnel and civilians. In some
respects, however, Additional Protocol II has
a more limited scope of application than
Common Article 3. Common Article 3
applies to any armed conflict not of an
international character occurring on the
territory of one of the high contracting
parties. As such, this also includes
protracted armed violence between non-
state actors. By contrast, Additional Protocol
II always requires government forces, in
other words a state to be involved in the
conflict. Moreover, under Additional Protocol
II, the organized armed group must have
control over territory. Accordingly, the more
detailed Additional Protocol II does not apply
to civil wars, which are fought exclusively
between rebel groups such as the
Lebanese Civil War in the 1970s, or the civil
war in Somalia after 1991. The reasoning
behind this higher threshold of application
was that it might encourage states to sign
up to such a treaty, which would set more
detailed limits to warfare in non-international
armed conflicts. Thus, we have now seen
that both Common Article 3 and Additional
Protocol II regulate civil wars. But, that
Additional Protocol II only applies to those
with a higher threshold. Does this mean,
however, the Common Article 3, applies to
internal disturbances, riots, or every short-
lived rebellion? The answer is no. It does
not. This is because there are two criteria
for the existence of a non-international
armed conflict triggering the application of
Common Article 3. First, the non-state
actors must have a minimum level of
organization. This is a necessary condition
for a rebel group to guarantee compliance
with IHL. We have to keep in mind, that
international humanitarian law was originally
designed for the armed forces of sovereign
states. Therefore, it's only applicable to non-
state actors if their structure is somehow
comparable to regular armed forces.
Second, in a non-international armed
conflict, violence must have a certain
minimum level of intensity. The reason for
this is that states want to be able to resort to
a certain low level use of force against non-
state groups or individuals, for the purposes
of law enforcement through its police forces,
which would then not be regulated by the
law of armed conflict. Taking both
considerations into account, the Appeals
Chamber of the International Criminal
Tribunal for the former Yugoslavia in its
famous 1995 Tadic decision on jurisdiction
affirmed the following: Common Article 3 is
only applicable to NIACs whenever there is
protracted armed violence between
governmental authorities and organized
armed groups, or between such groups
within a state. But, what does protracted
mean? How is the term organized, defined?
In the 2008 Haradinaj decision, the
respective ICTY Trial Chamber identified a
number of indicative factors to assess
whether an armed group satisfies the
organization criterion under Common Article
3. These indicators include among others:
the existence of a command structure of
disciplinary rules, headquarters for the
group, and territorial control, as well as the
ability to access weapons and other military
equipment, the capacity to recruit new
members, and the ability to provide training.
With regard to the intensity of violence
threshold, the judges in the Haradinaj
decision indicated that the following factors
were important to consider, although not
exclusive: the number, duration, and
intensity of individual confrontations, the
type of weapons and other military
equipment used, the number of persons
partaking in the fighting, the number of
casualties, and the extent of material
destruction. We've now reached our final
question. Until when does IHL apply in a
NIAC? Well, the answer is that the rules of
IHL continue to apply until the internal
armed conflict comes to an end. This is the
case for both non-international armed
conflicts regulated by Common Article 3 and
those falling under Additional Protocol II.
The end of the conflict can be marked by
the achievement of a peaceful settlement
between the warring parties. By way of
example, a peace agreement was
concluded between the government of
Colombia and the FARC rebel movement in
October 2016. To recap, in this video, we
have discussed the notion of non-
international armed conflicts. In particular,
we've seen the circumstances in which an
internal conflict triggers the protections
provided to civilians, detainees, and the sick
and wounded under both Common Article 3
and the Additional Protocol II.