This article has been written by Sushmita Choudhary, from New Law College, Bharati Vidyapeeth Deemed University, Pune. The article talks about Internal armed conflict under International Humanitarian Law in detail.
International Humanitarian Law is based on the concepts of jus in bello. It lays down the laws of warfare. This means that the laws involved should remain active during an ongoing armed conflict or war. International Humanitarian law seeks for humanitarian reasons to control the effects of armed conflict. International Humanitarian Law is a part of International law. It covers mainly two areas:
- The protection of those who are not taking part in the armed conflict or have ceased taking part in the armed conflict
- Restrictions on the means of warfare and specifically- weapons and the methods of warfare like military tactics.
International Humanitarian Law has recognized two types of armed conflicts which are International Armed conflict and Non-International Armed conflict.
According to the Geneva Conventions of 1949, Common Article 2 says that they apply to all cases of declared war or of any other armed conflict which may arise between two or more High Contracting Parties, even if the state of war is not declared by one of them. The Conventions shall also apply to all or any cases of partial or total occupation of the territory of a High Contracting Party even if the said occupation has not met with any armed resistance. This means that the occurrence of “international armed conflict” would mean to be a conflict between legal armed forces of two or more states. “High Contracting Parties’ ‘means the States that are party to the Conventions. A High Contracting Party is held to meet the obligations of the Conventions even if the other party involved in the armed conflict is not bound by the Geneva Conventions. An example of an International Armed conflict is North-Korean and South-Korean war in 1950.
According to Common Article 3 of the Geneva Conventions, non-international armed conflicts or internal armed conflicts are conflicts that are non-international in nature and are occurring in one of the High Contracting Parties. This means that at least one of the parties involved is not backed by the government. For a conflict to amount to an internal armed conflict, two variables should be present- first, protracted armed violence is taking place which has raised the hostility to a certain minimum level of intensity and second, the parties involved must exhibit a certain degree of organization. A good example of internal armed conflict would be the Syrian Civil War.
The term “armed conflict” has been used as a declaration of war is an explicit affirmation of a state of war between two parties and the use of such declarations of war has become rare mainly because of certain political agendas of parties involved.
We will be dealing with the second type of armed conflicts i.e. Non-international or internal armed conflicts.
Meaning of “internal armed conflicts”
Not all situations of armed violence within a state classifies as a non-international armed conflict or internal armed conflict. When a situation of violence is only civil unrest, banditry, riot, unorganized terrorist activity or any other sporadic act of violence, the 1949 Geneva Conventions are not applicable to it. The assessment of whether a situation amounts to internal armed conflict is based on a factual situation, not on characterization given by parties involved.
The concept of non-international armed conflict or internal armed conflict in international humanitarian law must be analysed on the basis of two main treaty texts: Article 1 of Additional Protocol II of 1977 and Common Article 3 to the Geneva Conventions of 1949.
Article 3 common to the 1949 Geneva Conventions
Article 3 common to the 1949 Geneva Conventions are applicable in the case of a non-international type of armed conflict. This provision starts with a negative expression, talking about the armed conflict of “not of an international character” and does not provide a definition. So, referring back to Article 2, armed conflicts that are not of an international character comprise those conflicts in which at least one of the parties involved is non-governmental. Common Article 3 also assumes that international humanitarian laws do not apply to a situation of violence until it has reached a distinguished level i.e. situations of internal disturbances and isolated acts of violence are not of a similar nature. The International Criminal Tribunal for the Former Yugoslavia stated that the threshold for an internal armed conflict reaches when the situation can be defined as “protracted armed violence”. There are thus two main elements constituting an internal armed conflict:
- A certain intensity of the armed violence
- A certain degree of organization of the parties
Both these components for the determination of internal armed conflict cannot be expressed in abstract terms rather they are to be evaluated on a case by case basis weighing up a collection of indicative data. Indicative factors to assess the intensity of a conflict used by international jurisprudence include the aggregate nature of the fighting or the fact that the State is prompted to resort to its army as a result of incapability of its police to deal with the situation on their own, prolongation of the conflict, recurrence of the acts of violence and operations, type of weapons used, displacement of civilians, extent of territorial control by rival forces, the number of victims, reaction and involvement of the international community and several more factors. These are just assessment factors to decide whether the threshold has been attained in each case. They are not explicit conditions that should exist concurrently.
As for the second factor, there must be a minimum level of organization of the parties involved. Government authorities are presumed to meet this requirement and it’s not necessary to carry out an evaluation in each case as they are having the armed forces already. As for non-governmental forces, international jurisprudence has come up with a series of indicative factors to evaluate their organization like the existence of an organizational chart specifying a command structure including general staff or spokespersons, operational capacity of the armed group, the capability of recruiting and training new fighters or the existence of internal rules. Though the criterion of the organization is necessary for ensuring the applicability of international humanitarian law, the armed groups need not carry a level of organization as that of the state’s armed forces. As long as these groups carry a capable structure to function over time, they may still meet the required criterion of organization. Usually, armed groups function illegally and in secrecy, so it is improbable to know their exact composition.
When any of these two criteria are not met, a situation involving violence may well be called as internal disturbances or internal tensions. Both these criteria which designate the types of social instability have never been defined in law, in spite of the fact that they are referred to explicitly in Additional Protocol II.
Article 1 of Additional Protocol II
Additional Protocol II is applicable to non-international armed conflicts which happen in the territory of a High Contracting Party between its armed forces and rival armed forces or between organized armed groups which by functioning under responsible command, exert such control over a portion of its territory as to enable them to execute sustained and concerted military operations. However, this does not apply to wars of national liberation because they are equated with international armed conflicts with reference to Article 1(4) of Additional Protocol I. Article 3 when combined with Additional Protocol II defines a more limited field of application of international humanitarian law by implying that a particularly high level of organization is required in the sense that they must operate ‘under responsible command’ and exercise territorial control, allowing them ‘to carry out sustained and concerted military operations and to implement this Protocol’. Although the Common Article also conveys that a certain degree of organization is required, it does not require that these groups should be able to exercise control of a part of a territory. Practically, a conflict may fall under Common Article 3 without fulfilling conditions determined by Additional Protocol II. All the armed conflicts covered by Additional Protocol II have been covered by Common Article 3. Generally, it is often difficult to determine situations that comply with the criteria of Additional Protocol II. The required degree of territorial control varies from case to case. If Article 1(1) is to be interpreted strictly, only those non-governmental parties would be covered which exercise similar control to that of a State, hence the nature of conflict would be similar to that of international armed conflict. The ICRC (International Committee of the Red Cross) seems to choose a middle path on the territorial issue. It comments that sometimes territorial control can be relative, for example, when rural areas escape the government hands while urban areas remain in their authority. Additional Protocol II restricts its field of application to armed conflicts between government forces and dissident armed forces unlike Common Article 3 which extends to conflicts solely between non-governmental groups. Lastly, Additional Protocol II repeats the criteria already given in Common Article 3 that they cover only non-international armed conflicts occurring in any one High Contracting Party.
Irrelevance of purpose
Taking into account the motives(e.g. terrorists or criminal gangs) of armed groups and characterizing them legally or politically is not relevant in determining whether there is an armed conflict under international humanitarian law or not. Similarly, in international armed conflicts, it is irrelevant whether the parties to a conflict have a particular motive or not for engaging in armed violence. In the current state of humanitarian law, this particular detail does not hold ground.
The ICTY had occasion to emphasize this while considering the nature of fighting that took place between Serbian forces and the Kosovo Liberation Army in 1998. In Prosecutor v. Limaj et al., the defence had challenged the idea of constituting the fighting into an armed conflict by arguing that the operations carried out by the Serbian forces were not intended to combat the rival army but to perform ethnic cleansing in Kosovo. That argument was declined by the tribunal stating that to determine the existence of armed conflict, only two criteria are there – the intensity of the conflict and organization of parties.
Therefore, the purpose or motive of the armed forces to indulge in acts of violence remains “irrelevant”. The motives of armed groups are not always uniform and cannot be clearly identified. Many armed groups usually carry out criminal activities along with pursuing a particular political objective. Sometimes, criminal organizations also exercise power pertaining to the political sphere.
Difference between non-international armed conflict and civil war
There is no real difference between civil war and non-international armed conflict or internal armed conflict. As such, the term “civil war” doesn’t have a legal meaning. For referring to a non-international armed conflict, it is used sometimes. Article 3 common to the Geneva Conventions are called “common” because it applies in a similar manner to each of the four Geneva Conventions. It does not use the term “civil war” anywhere but refers to the term ‘armed conflict, not of an international character’. The international tribunals and Red Cross Society speak “non-international” or “internal armed conflicts” instead of using the term “civil war” as those expressions reflect the terms used in Common Article 3.
What happens if the parties do not respect their obligations under IHL
Every party to an internal armed conflict is required to respect and ensure for Internal Humanitarian Laws (IHL) by acting on its instructions, directions or control. Each party must respect IHL even if its enemy does not. Hence, the obligation to respect IHL is not dependent on reciprocity. In regards to serious violations of International Humanitarian Laws occurring in an internal armed conflict, also known as war crimes, States must criminally prosecute persons charged with committing such violations. In certain cases, alleged war criminals can be referred to the International Criminal Court as well.
Are the captured enemy fighters considered prisoners of war
No, the term” prisoner of war” is conferred to enemy soldiers captured in international armed conflicts only under the Third Geneva Convention. Prisoners of war cannot be prosecuted under International Humanitarian Laws (for instance, for having attacked the enemy fighters). Whereas, in a non-international armed conflict, IHL encourages governments to grant the maximum possible amnesties to the rebel fighters at the end of armed conflict but persons suspected of, sentenced for or accused of war crimes are excluded from this. However, IHL does not prevent the prosecution of the captured rebel fighters.
Armed conflicts are not as clearly defined as in the legal categories in reality. Some of them may not exactly meet the criteria of any of these concepts envisaged in international humanitarian law. This begs a question of whether such armed conflicts end up in a legal vacuum. This section will analyse some dilemmas occurring in practice by referring to two types of situations: Control of territory without an apparent military presence on the ground and Foreign intervention in non-international armed conflict.
Control of territory without a military presence on the ground
Despite the fact that the Hague Regulations 1907 and 1949 Geneva Conventions give some clarifications to the concept of occupation, in reality, it is not that easy to identify the situations that fall under the concept. The example of the Gaza Strip after the Israeli withdrawal shows such difficulties that may arise in classification. On 12 September, the Israeli troops finished withdrawing from that region of Gaza Strip where they had maintained a continuous military presence since the Six-Day War in 1967. This was in the exercise of the Disengagement Plan that the Israeli government had endorsed in the parliament on 25 October of that same year. The intention of that plan was to put an end to their responsibilities regarding the people residing in that territory. So, the situation begs the question: Should it, therefore, be concluded that those measures marked the end of the occupation of that region? Was the physical withdrawal rendered enough to admit that the effective control of the territory no longer existed at that time?
Some observers are of a negative view. It was recalled that Israel retained control over the Gaza Strip even though its troops were no longer physically present in that area.
The Disengagement Plan expressly stated that Israel was to continue to exercise its control over the borders of that territory in addition to its air space and coastal region, even though it has retracted its troops. Israel had the advantage of accessing the Palestinian territory anytime to maintain public order. That interpretation is supported by Article 42(2) of the 1907 Hague Regulations, which clarifies that occupation exists when the authority of a hostile army has been established and it exercises its power. This interprets that potential authority is sufficient to confirm the reality of occupation. Thus, it was considered by the United Nations Secretary-General that the actions of the Israeli Defence Forces in respect to the Gaza Strip have clearly demonstrated that modern technology allows an occupying power without a military presence. Following that position, the occupation of the Gaza Strip would therefore not be considered to be ceased with the withdrawal of Israeli troops in 2005, as Israel was still exercising its power from a distance equivalent to “effective control” under the law of occupation.
However, other observers consider that the element of occupation i.e. ability of an occupier to exert its authority cannot be detached from its physical presence in the territory that’s under its control. Though Article 42 of the 1907 Hague Regulations says that occupation exists when the rival’s authority ‘can be exercised’, it clarifies that the authority must be ‘established’ first which forms an inseparable link between the establishment of authority and the ability to extend that authority to the whole territory. Establishment of authority, in this case, would be the deployment of a presence in the territory. The International Court of Justice recalled that effective control becomes apparent as a result of the substitution of powers. So, a similar threshold cannot be achieved if the powers are situated outside the region in a particular case. Also, it is not possible to implement most of the rules of occupation if there is not a presence in the territory. It is impossible to control and ensure public order and life in the territory from outside which is a prerequisite laid in Article 43 of the 1907 Hague Regulations.
The case of Gaza shows to what extent the concept of occupation exercises difficulties in interpreting it practically. It is thus not possible to deal with all the issues within the limited framework of this article.
Foreign intervention in a Non-International Armed Conflict
There are two different types of interventions:
- Where one or more States get involved in a non-international armed conflict in support of one or other off the parties to the conflict (that originally involved in the conflict)
- Where multinational forces in the course of a peacekeeping operation get involved in a non-international armed conflict.
The intervention of one or more third state in a Non-International Armed Conflict
It is sometimes referred to as “mixed conflict” as it is a combination of the characteristic of both International and Non-International Armed Conflict which upon the configuration of parties involved – i.e. whether the fighting in the field is between the forces of international state and intervening state, or between government forces and (of the territorial state or of the third state) and non-governmental armed groups or between armed groups only, or the third state fighting on both sides of the front line. This raises an issue of the legal definition of those situations that do not fall under any of the standard categories of the conflicts as defined by the international humanitarian law.
Therefore, the ICRC considers that depending upon the warring parties, the law applicable to each case will be different depending on the case. Inter-State relations are governed by the laws given under international armed conflict while other situations are governed by the laws of non-international armed conflict. Thus if a Foreign third State intervenes in support of a non-governmental armed group which is opposed to State forces, it results in the ‘internationalization’ of the existing internal conflict.
The International Court of Justice also favoured this fragmented application of international humanitarian law in the case related to military and paramilitary activities in and against Nicaragua: Analysing the conflict, the International Court of Justice distinguished between,
- the conflict between the Nicaraguan government and the rebels, and
- the conflict between the Nicaraguan government and the government of the United States separately.
However, this differentiated approach towards such application also raises certain practical problems. In various cases, it has been noticed that the difference between conflicts derived from any of the two types of armed conflict is not genuine and leads to results that are difficult to accept. For example, in a conflict where there is an alliance of foreign government forces and rebel groups, the following prominent questions are raised:
What shall be the status given to the civilians who had been held captive by foreign forces and then handed over to the local group? Should the rules of the Fourth Geneva Convention apply to them (considering that there is an armed conflict between the third foreign intervening State and the territorial State) or the rules from the law governing non-international armed conflict (as they are held by a non-governmental armed group) apply? In other words, the question is whether a different set of rules need to be applied or not considering those persons were arrested by the foreign forces and not directly by the local group? Regarding these difficulties, the question then arises whether it is sensible to intend an adaptation of international humanitarian law as applicable to non-international armed conflicts characterized by foreign military intervention. Some observers suggest applying the law of international armed conflict in every case where a power foreign to the territorial state operates on behalf of one or other of the parties. In one of the proposals made by the ICRC in its 1971 Report on the Protection of Victims of Non-International Armed Conflicts, this concept was supported. However, that proposal was rejected by the experts by whom the ICRC’s draft was studied. It was argued that it would make these conflicts even worse, as then the non-governmental groups would deliberately try to attract the Foreign States in conflicts in order to benefit from the International Armed Conflict law’s application.
The intervention of multinational forces in a Non-International Armed Conflict
This needs to be understood that a mere presence of international forces in the above context does not make them parties to the conflict. Usually, it has been seen that these troops are not in the territory to engage in the fighting, but are deployed mostly with the aim of conventional peace-keeping. Their powers or functions, in that case, does not authorize them to provide support for one or other parties but is quite limited to interposition or mere observation. Even if they engage in using armed force, they may only do so in case of an act of self-defence. But multinational forces should be considered parties to the conflict in the following two cases/situations:
- When they directly take part in the ongoing conflict by supporting one of the parties to the conflict. The following situation can be taken as an example- When The United Nations Organization Mission in the Democratic Republic of Congo extended military support to the government of the Democratic Republic of Congo to fight and defend the armed opposition.
- The case where International troops are deployed without supporting one of the Parties to the conflict, their status is determined according to the criteria that are normally used to evaluate whether a conflict is a non-international armed conflict or not. The troops so deployed should be deemed a party to the conflict if the degree of their involvement reaches or crosses the required degree of intensity. As mentioned earlier, in this case too, if the troops got engaged in armed force only as a means of self-defence shall not be considered as a party to the conflict.
Therefore the determination of the nature of the armed conflict considered here is a little controversial. Many authors consider that these situations should be treated as international armed conflicts because these operations were defined, decided and conducted by organisations that were international in nature irrespective of the fact that the opposing party is a State or Non-government group.
However, the application of the laws of the International Armed Conflict poses certain problems.
For example, a hypothesis where the conflict takes place between multinational forces and unstructured armed groups, it seems quite difficult for them to abide by the Third Geneva Convention of 1949. However, there is another approach which is also followed by the ICRC in which a differentiated application of humanitarian law is followed for different cases of conflicts and considering the behaviour of the parties in the field.
Therefore, the law of international armed conflict must be applicable where the international troops clash with government forces. But if the fighting is between those troops and non-government forces, the laws of non-international armed conflict must be applied.
Therefore the legal regime that will be applicable in a case varies depending who the adversaries are in each situation.
The politics behind the classification of armed conflicts has often resulted in the failure of the functioning of International Humanitarian Law. Conflicts continue to happen with breaching human rights and destruction of property because of states’ interests. For international humanitarian law to function properly, it needs to adapt and keep on evolving to cater to the changing dynamics of conflicts experienced today.
This discussion about internal armed conflict in international humanitarian law shows just how complicated it can be to classify situations of violence and therefore to determine the rules applicably. These complications and difficulties are partially related to the legal categories themselves because its content is often inapt in the treaty texts establishing them.
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