The Relevance of Armed Conflict Conventions

In light of developments in customary law, treaty law and challenges posed by contemporary armed conflicts, is the current legal dichotomy between international armed conflict and non international armed conflict as embodied in the Geneva Conventions of 1949 and their two Additional Protocols still relevant?

Monday, 1st March, 2010

Introduction

The current century has seen a rise of conflicts that have not been conclusively classified as either International Armed Conflicts or Non-International Armed Conflicts. [1] Confusion as to the applicable legal regime has been created in some current conflicts such as the Israel and Lebanon war and the conflict at the former Republic of Yugoslavia.

The International Criminal Tribunal for the former Yugoslavia (ICTY) while delivering it’s decision in the Tadic case, [2] stated that the conflicts in the former Yugoslavia could have been characterized as both internal and international, or alternatively, as an internal conflict alongside an international one, or as an internal conflict that had become internationalized because of external support, or as an international conflict that had subsequently been replaced by one or more internal conflicts, or combination thereof. [3]

The court addressed the issue of the legal distinction of the two types of conflicts as pertains to its growing irrelevance. In handling its decision, the tribunal stated that the practical nature of armed conflict has almost rendered irrelevant the legal distinction between types of armed conflict. [4] It further stated that there are compelling, humanitarian reasons for reducing if not eliminating such distinctions. [5] In so doing the Tribunal suggested that the law of armed conflict could and should be applied uniformly to all armed conflict. This has drawn a lot of debate focused on the increasing similarity of the types of armed conflict, the inability to distinguish the two in certain situations of war and the changing nature of armed conflict which has seen a new trend of armed conflict namely internationalised armed conflict.

This essay will look at the definition of armed conflict as well as the types of armed conflict. It will be aimed at providing a solution as to whether the dichotomy should be eliminated, reformed or maintained as it is.

Definition of Armed Conflict

An armed conflict can be defined as any difference arising between two or more states leading to the intervention of the members of the armed forces. [6] According to the Geneva Conventions, cases of declared war are some examples of armed conflicts.

The four Geneva conventions and the Additional Protocols have defined armed conflicts in the sense of international armed conflict and non-international armed conflict. [7] Armed conflict is defined in Article 2 common to the four Geneva conventions as incorporating all instances of declared war, as well as any and all other engagements between states where armed forces are used. [8]

Additional Protocol 1 to the four Geneva conventions gives some light to armed conflicts were it provides for its application in situations that are deemed to be ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in exercise of their right of self determination as enshrined in the Charter of the United Nations and the declaration of principles of International Law concerning Friendly relations and Co-operation among states in accordance with the Charter of the United Nations. [9]

Resort to armed force between states or protracted armed violence between armed governmental authorities and organized armed groups or such groups within a state is to be considered an armed conflict. [10] It is in these circumstances that International Humanitarian Law applies and extends beyond the cessation of the conflicts to see that the parties involved reach an agreement for peace. [11]

From the above definition it would be worth noting that, an armed conflict may arise within a state in as much as it may arise between states. Thus Pictet’s definition of armed conflict would be disregarding the fact that armed conflicts may arise within a state between it and other organised armed groups within the state.

Types of armed conflict under international humanitarian Law as embodied in the four Geneva conventions and the two Additional Protocols.

International law recognises two types of armed conflict: international and non-international armed conflict. International conflict is defined in Common article 2 to the four conventions as a case of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, [12] even if a state of war is not recognized by any of them. [13] It includes total or partial occupation of the territory of a High Contracting Party, even if the said occupation is met with no armed resistance. [14]

On a similar note, Additional protocol II to the four Geneva conventions in setting out the conditions for its application defines non-international armed conflicts as conflicts which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement the protocol. [15]

Non-international conflicts do not include situations of internal disturbances and tensions such as riots and isolated and sporadic acts of violence. [16] These are not recognized. It is worth noting that, not all non-international armed conflicts are internal in nature. These two terms may not be used synonymously. [17]

Historical background of the legal dichotomy of armed conflict

In the late nineteenth century, international law recognised two types of armed conflict. [18] The first type was war which was understood as an armed conflict between two states. [19] In this, the laws of war automatically applied; the laws of neutrality would also come into effect between the belligerents [20] and any third states. [21]

The other type of conflict was civil war. [22] This is the type of conflict between a state and an internally located insurgent (rebel) movement that had taken up arms against its own state. This was considered to be a matter of domestic concern and involved no external regulation whatsoever. [23]

In the early twentieth century, due to the atrocities of the First and the Second World War and the Spanish Civil War, the further codification and clarification of the laws of armed conflict was inevitable. [24] Due to the gross violations to civilians, non-combatants and hors de combat, who are supposed to be treated humanely, attention was focused on the distinction between them and combatants. [25]

The Geneva Conventions of 1949 redefined the concepts war and civil war as international armed conflict and non-international armed conflict, that is, armed conflict not of an international character. [26] This can be said to have brought up a new concept of armed conflict in International Humanitarian Law.

International armed conflict as defined in the Conventions is more similar to the traditional concept of war which had the idea of belligerency [27] in existence between two or more states. [28] The common Article 2, international armed conflict envisages all situations of declared war as well as any other engagements between states where armed forces are used. [29] Thus, the scope of the law applicable in international armed conflicts was widened by the Geneva Conventions.

A discussion arose during the negotiations of the Geneva Conventions as to the law of war in its entirety for its application in non-international armed conflicts. [30] This suggestion was rejected as states were not prepared to accept an obligation to apply the fullness of the detailed and complicated provisions of the Conventions in such internal situations. [31] Civil wars had for a long time been recognised as matters of an internal nature save in the very rare circumstances of belligerency. Thus states were reluctant to accept international involvement in matters that were internal in nature citing the idea of state sovereignty. [32]

For this reason the Geneva Conventions introduced the Common Article 3, which set down some fundamental principles governing conduct in non-international armed conflicts. Thus non-international armed conflicts were partially brought to the ambit of international law unlike the traditional concept of civil war. [33]

Later in the twentieth century, internal and non-international armed conflicts were becoming more frequent especially in African states largely due to decolonisation. [34] The conflicts were marked with brutality and the vast numbers of casualties were the civilian population and non combatants. [35] There was also the emergence of conflicts that were both non-international and international in nature. [36] The de minimis rules provided for under the Common Article 3 were proving to be insufficient to regulate such conflicts.

For the purpose of revising the laws, the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts was convened in Geneva. This conference led to the adoption of the Protocols Additional to the Geneva Conventions.

Relevance of the legal distinction of armed conflict in modern armed conflict

When delivering its decision in the Tadic case, the International Criminal Tribunal for the former Yugoslavia addressed the issue of the growing irrelevance of the legal distinction between international armed conflict and non-international armed conflict to modern armed conflict. [37] The nature of modern armed conflict has almost rendered irrelevant the legal distinction between types of armed conflict. [38] It further stated that there are compelling, humanitarian reasons for reducing, if not eliminating such distinctions. [39]

Of great concern were the increasing widespread and brutal internal and non-international armed conflicts that had occurred in the post-second World War which brought about a fundamental change in the nature of modern armed conflict. [40] For this reason, the continued use of the legal distinction is becoming less tenable as the categories of armed conflict are multiplying and becoming more blurred. [41]

The tribunal felt that there was the need for the recognition of a type of mixed armed conflict. [42] This is the type of conflict that could have started as an internal conflict but later developed to an international armed conflict. [43] Internationalised armed conflicts have continuously blurred the relevance of the legal distinction of the types of conflict because of the difficult met in classifying them. [44] This is because state practise has blurred the traditional boundaries that have for long separated the legal norms prescribed for international and non international armed conflicts. [45]

As regards humanitarian grounds, the distinction between interstate wars and civil wars is losing its value as far as human beings are concerned. [46] The question of major concern here is, why should law protect civilian from belligerent violence, or ban rape, torture or the wanton destruction of hospitals, churches, museums, or private property, as well as proscribe weapons causing unnecessary suffering when two states are at war, and yet refrain from enacting the same bans or providing the same protection when armed violence has erupted only within the territory of a sovereign state? [47]

If international law is to protect human beings while at the same time duly safeguarding the legitimate interests of a state, then it would be natural that the dichotomy should gradually lose its weight. [48]

The evolution of the law has illustrated the growing tendency of applying basic humanitarian norms regardless of whether the individuals to be protected are combatants or non-combatants, or whether the conflict is essentially international or intra-state. [49] Increasingly, factors such as the level of violence, the threat to regional and international stability and the importance of the international humanitarian norm to be protected trigger international humanitarian interventions. [50] By this, if the international community is to take effective action in situations of armed conflict, new operating definitions of international and non-international conflicts are needed. [51]

The distinction between international war and internal conflicts is no longer factually tenable or compatible with the thrust of humanitarian law. [52] The dichotomy of armed conflict imports a bipartite universe that authorises only two reference points on the spectrum of factual possibilities and comes out as an unacceptable policy error in need of rectification. [53] The dichotomy is based on a policy decision that some conflicts will be insulated from the plenary application of the law of armed conflict, even though such conflicts may be more violent, extensive and consumptive of life and value than other international ones. [54]

The dichotomy is in effect, a sweeping exclusion device that permits the bulk of armed conflict to evade full international regulation. [55] This exclusion does not comfort easily with the manifest policy of the contemporary law of armed conflict, which seeks to introduce as many humanitarian restraints as possible into conflict, without judgement into its provenance, its locus, or about the justice of either sides cause. [56]

As regards training of the armed forces basic rules of international law, the finer points of legal classification can be absorbed through appropriate training. However there are significant challenges to be overcome before armed forces can be expected to respect the legal framework objectively applicable to their operations. [57] One is where the military leadership has to identify and assimilate the blurred and controversial line between mere internal disturbances and tensions and non-international armed conflict. These are largely governed by a combination of domestic law, International Human Rights Law and International Humanitarian law. [58] The other challenge is to overcome the potential politicisation of legal classification of the armed conflict. [59]

As regards wars of independence, Carswell expresses concern that the two classifications of armed conflict may cross paths. International armed conflict as defined in both treaty and customary law must engage two internationally recognized states which call for the application of the two types of armed conflict together. [60] This is because engaging only one of the classifications may not provide any solution to the conflict.

Huyghe is of the opinion that, war is supposed to be just one form of violence among others and one that has merged with all the great tragedies of humanity, including environmental disasters, and that it is more urgent to diagnose than classify. [61] International law while duly safeguarding the legitimate interests of States, must gradually turn to the protection of human beings, it is only natural that the aforementioned dichotomy should gradually lose its weight. [62]

Conclusion

The different standards for the regulation of armed conflict that are applicable within the Geneva Conventions and their Additional Protocols have failed to adequately address the changing nature of armed conflict. The law inadequately gives provisions that fail to draw a clear distinction between the two types of conflicts while at the same time failing to accommodate new and emerging trends of armed conflict.

It is worth noting that, in order to safe guard the human rights of individuals, International Humanitarian Law must apply with the same vim to all forms of conflict that endanger the very existence of the civilian population, whether they occur within a state or between states.

Direct military intervention is sufficient to internationalize an otherwise internal conflict. This carries with itself the rules and regulations imposed by International Humanitarian law to situations of armed conflicts. However, it is not prudent enough to await the internationalization of a conflict so as to make rules of International Humanitarian Law as applied in international armed conflicts apply to an internationalised armed conflict.

It has also become difficult to identify the law applicable in modern conflicts due to the changing nature of the conflicts. Moreover, the international and non-international dichotomy in international humanitarian law has proved susceptible to incredible political manipulation, particularly when conflicts involve international and internal elements.

Therefore, the distinction is artificial, undesirable and difficult to justify its existence. The distinction further frustrates humanitarian law efforts in the protection of civilians during an internal conflict. With the classification of an armed conflict becoming irrelevant, a further consideration of a single law of armed conflict will be inevitable for the development of greater humanitarian protection during armed conflict.