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The Law of Non-International Armed Conflict

(Reported by: Cañete and Decolongon) Comparisons: IAC vs. NIAC

History of NIAC Traditional difference: protection not based on status (e.g.


- IHL regulation of civil war in treaties: 1949 POW or protected civilian status) but on actual conduct (direct
 Rebellion, Insurgency, Belligerency participation in hostilities)
War against civilians
War on civilians IAC NIAC NIAC NIAC
War by civilians GC art3 APII API 1(4)
/attribut
When is there a NIAC? ion
A NIAC exists whenever there is an armed conflict between ==> IAC
two organized parties where at least one is NOT a State
Parties/ STATES ARMED ARMED ARMED
Several conflicts can exist side by side ( ICJ Nicaragua) organizati GC art2 GROUPS GROUPS GROUP
on « betwee GC art3 WITH associat
Each CONFLICT-DYAD (pair of enemy parties) must be n High Haradin TERRITO ed with
determined separately Contracti aj : RIAL STATE
ng organiza CONTRO
- In the Tadic case, a non-international armed conflict exists Parties » tion L
when there is a “protracted violence between Government APII1(1)
authorities and organized armed groups or between such / ICC
groups within a State.” [8(2)(f)]

- Non-state armed groups must carry out protracted Threshold LOW On On DEPEND
hostilities; and violence / GC art2 territori territory S
intensity « any y: :
- these groups must be organized of interventi HIGH HIGH
hostilities on by the [ICC APII art
- Treaty provisions that sets thresholds for identifying the law armed art8(2)( 1(2),
applicable to armed conflicts of a non-international character: forces » d) ] [ICC art
> Common Article 3 to the 1949 Geneva Conventions; «interna 8(2)(f)]
“In the case of an armed conflict not of an l «interna
international character occurring in the territory of disturba l
one of the High Contracting Parties, each Party to the nces disturba
conflict shall be bound to apply, as a minimum, the and nces
following provisions…” tensions and
» tensions
> Article 1 of 1977 Additional Protocol II to the 1949 »
Geneva Conventions

- The treaty-based law applicable to internal armed conflicts:


> Article 3 of the Geneva Conventions However, the regime is closer to that of international armed
> Additional Protocol II conflicts if fighters (members of an armed group with a
It develops and supplements Article 3 common to the continuous fighting function) are not considered to be
Geneva Conventions of 12 August 1949 civilians:
> shall apply to all armed conflicts which are not
covered by Article 1 of the Protocol Additional to a) and may therefore be targeted not only while directly
the Geneva Conventions of 12 August 1949, and participating in hostilities through specific acts but also – like
relating to the Protection of Victims of International combatants in international armed conflicts – as long as they
Armed Conflicts (Protocol I) and which take place in do not fall into the power of the enemy or are otherwise hors
the territory of a High Contracting Party between its de combat;
armed forces and dissident armed forces or other
organized armed groups. b) and may, in the view of some States and specialists, also be
- This Protocol shall not apply to situations of internal detained for the mere fact that they belong to the enemy (like
disturbances and tensions, such as riots, isolated and POW in IAC)
sporadic acts of violence and other acts of a similar
nature, as not being armed conflicts.
- A confrontation between the armed forces of the Uncontroversial similarities and differences:
government and opposing “dissident” armed forces; - protection of all those who do not or no longer directly
- That the dissident armed forces are under a participate in hostilities
responsible command; and a. Protected persons ("persons taking no active part
- That they control a part of the territory as to enable in the hostilities”)
them to “carry out sustained and concerted military b. Prohibition of rape and other sexual violence
operations” and to implement the Protocol. c. Treatment of detainees
d. Judicial guarantees - That the de jure government has recognized the
- more absolute prohibition of forced displacements insurgents as belligerents; or
- That it has claimed for itself the rights of a
IAC – jus ad bellum: why you fight does not affect your rights belligerent; or
and duties in fighting - That it has accorded the insurgents recognition as
International law: belligerents for the purposes only of the present
- Prohibition against the resort to threat or use of Convention; or
armed force in international relations - That the dispute has been admitted to the agenda
- Except self-defense and collective action under UN of the Security Council or the General Assembly of
SC. the United Nations as being a threat to international
peace, a breach of the peace, or an act of aggression.
Municipal law:
- Normally no prohibition against resort to use of 2. Conflicts covered by Common Art. 3 and Art. 8(2)(e) of the
armed force in international relations (provided ICC Statute, which states:
internal rules are followed) “Other serious violations of the laws and customs
applicable in armed conflicts not of an international
- Reciprocity character, within the established frameworks of
- Equality of belligerents international law…”
- Absence of IHL : very little protection
- IHL gives more protection than default regime (’no 3. Conflicts to which, in addition, Protocol II is applicable
rules’) • The parties to the conflict: either be the government
confronting dissident armed forces, or the
General rule: jus ad bellum is kept separate from jus in bello in government fighting insurgent organized armed
IAC groups
• The armed forces opposing the government under a
NIAC – why you fight, can influence which rules are applicable. responsible command, which entails a degree of
International law: organization within the armed group or dissident
- No general prohibition against civil war, insurgency armed forces.
or secession • The concerted military operations must be
continuous and planned.
Municipal law: • These armed forces must be able to dominate a
- Normally strictly prohibited to start or to be sufficient part of the territory
involved in any way in civil war, insurgency or
secession 4. Material field of application of the customary IHL of non-
- ”High treason” etc. often subject to capital international armed conflicts
punishment. ICTY, The Prosecutor v. Boskoski:
“…it is established that Common Article 3 forms part
- Asymmetry of customary international law and that violation of
- No equality of belligerents this provision entails criminal liability.”
- Absence of IHL : IHRL is default regime 5. Conflicts to which IHL as a whole is applicable
IHL provides ’less protection’ than default a) recognition of belligerency by the government b)
regime (human rights regime) special agreements between the parties
General rule: there is no jus ad bellum in NIAC c) meaning of declarations of intention

3 Main Principles of IHL in NIAC (also in IAC) Problems of qualification


1. Principle of humane treatment without adverse -traditional internationalized internal conflicts
distinction (because of external support)
2. Principle of “unnecessary suffering” – prohibition of -conflicts of secession
superfluous injury or unnecessary suffering -foreign intervention not directed against
3. Principle of distinction between ‘fighters and civilians, governmental forces
and between military objectives and civilian objects’ -non-international armed conflicts that spread into a
neighboring country
Types of NIAC -UN peacekeeping and peace-enforcement
operations in a NIAC
1. Conflicts to which common Art. 3 is applicable -UN operations to restore or maintain law and order
Criteria: -The “global ware on terror”
- That the Party in revolt against the de jure
government possesses an organized military force, an Rules of Common Art. 3 and Additional Protocol II
authority responsible for its acts, acting within a
determinate territory and having the means of Who is covered by Art. 3?
respecting and ensuring respect for the Convention Article 3 offers an international minimum protection to
- That the legal Government is obliged to have persons taking no active part in hostilities, including members
recourse to the regular military forces against of armed forces who have laid down their arms and those
insurgents organized as military and in possession of placed ' hors de combat ' by sickness, wounds, detention.
a part of the national territory
Principles under Common Art. 3
- non-discrimination ICTY, The Prosecutor v. Tadic:
- humane treatment - The emergence of the aforementioned general rules on
- judicial guarantees internal armed conflicts does not imply that internal strife is
- obligation to collect and care for the wounded and the sick regulated by general international law in all its aspects.

Additional rules under Protocol II - Two particular limitations may be noted:


(i) only a number of rules and principles governing
More precise rules on: international armed conflicts have gradually
fundamental guarantees of humane treatment (Arts. 4 and 5, been extended to apply to internal conflicts; and
APII) (ii) this extension has not taken place in the form
judicial guarantees (Art. 6, APII) of a full and mechanical transplant of those rules
wounded, sick, and shipwrecked (Art. 7 and 8, APII) to internal conflicts; rather, the general essence
use of the emblem (Art. 12, APII) of those rules, and not the detailed regulation
they may contain, has become applicable to
Specific rules on: internal conflicts.
protection of children (Art. 4(3) AP II)
protection of medical personnel and units, duties of medical - “Combatants” must distinguish themselves from the civilian
personnel (Art. 9-12, AP II) population

- Respect for IHL must be rewarded


Rules on the conduct of hostilities
> Internment, not imprisonment for those captures
Protection of the civilian population against attacks (Art. 13,
bearing arms
AP II)
> Encouragement of amnesty at the end of the
Protection of objects indispensable for the survival of the
conflict (Art. 6(5), AP II)
civilian population (Art. 14, AP II)
For the mere fact of having taken part in
Protection of works and installations containing dangerous
hostilities
forces (Art. 15, AP II)
But not for war crimes and other violations
Protection of cultural objects (Art. 16, AP II)

- Prohibition of the use of certain weapons


Prohibition of forced movements of civilians (Art. 17, AP II)
“The displacement of the civilian population shall not be
- Limits to analogies
ordered for reasons related to the conflict unless the security of
> No combatant status (but members of armed
the civilians involved or imperative military reasons so demand.”
groups with a continuous fighting function are argued
to have the same disadvantages – but not privileges
Relief operations (Art. 18, AP II)
– as combatants in international armed conflicts)
“If the civilian population is suffering undue hardship owing to
> No occupied territories
a lack of the supplies essential for its survival, such as
foodstuffs and medical supplies, relief actions for the civilian
Who is bound by the law of NIAC?
population which are of an exclusively humanitarian and
- both parties
impartial nature and which are conducted without any
- all those belonging to one party
adverse distinction shall be undertaken subject to the consent
- all those affecting persons protected by IHL by an action
of the High Contracting Party concerned.”
linked to the armed conflict
Customary International Humanitarian Law
Consequences of NIAC on legal status
- protect civilians or civilian objects from the hostilities or,
more generally,
- Protocol contains a provision clarifying that nothing it
- protect those who do not (or no longer) take active part in
contains shall affect the sovereignty of the State or the
hostilities
responsibility of the government, by all legitimate means,
- gradual extension to internal armed conflict of rules and
legitimate in particular under the obligations foreseen by IHL,
principles concerning international wars has also occurred as
to maintain or reestablish law and order or defend national
regards means and methods of warfare
unity or territorial integrity
- limiting the right of the parties to conflicts "to adopt means
- The application of IHL to a NIAC therefore never
of injuring the enemy."
internationalizes the conflict or confers any status other than
the international legal personality necessary to have rights and
Application of General Principles
obligations under IHL to a party to that conflict.
- Nor do the rebels, by applying the IHL of NIAC, affect their
- Principle of Distinction
possibility to become the effective government of the State or
- Principle of military necessity
to create a separate subject of international law, if they are
- Principle of proportionality
successful.
- Right to relief
- Need to look into the law of international armed conflicts –
and sometimes International Human Rights Law – for the
precise meaning of principles

Necessity and Limits