Juan Carlos Gomez. 109GCIII Commentary, 32; Elder (1979), 43; for in-depth examination of the discussions in the Joint Committee, see Cullen (2010), 2936. i>x2'us|]KK6wS4v{PA1\1,4 }J1Jxasov=C-?6sg'755$GO#@C 7/:mC9N+- 0%,nGd~]^. Vormbaum, Moritz 203 See Article 31(1) of the Vienna Convention on the Law of Treaties (signed 23 May 1969, entered into force 27 January 1980) 1155 UNTS 113 (A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose). But the full significance of it was that it referred to the over-all status of the conflict as such, not merely to the character of the rebel faction alone). Therefore, as we examine various doctrines in the next chapters, we should bear in mind that it is reasonable to assume that territorial states would be reluctant to support any legal doctrine which would undermine their right to prosecute non-state entities or their members who fought against them. Any such proposals giving insurgents a legal status, and consequently support, would hamper the Government in its measures of legitimate repression.110. The first group of objections was based on arguments that classifying conflicts according to their motives or according to the notion of just war would undermine the principles of equality and non-discrimination that underpinned the Geneva Conventions.171 The second group of objections focused on the vagueness of the Article, which might lead to its misuse by insurgents.172 The third objection was based on the argument that IHL should not be interpreted according to UN resolutions.173 The fourth objection was based on the argument that attaching the application of the Protocol to the political cause of the insurgents would result in hampering the protection of war victims.174, The fifth objection reveals another reason why states thought the distinction between IAC and NIAC to be important: it has been argued that non-state group members as such cannot comply with the law of IAC. The New Geneva Protocols: A Step Forward or Backward? uploads/2013.05.23_fact_sheet_on_ppg.pdf (setting out standards for the use of force "outside areas of active hostilities"). Treatment is also given to the conflict resolution stage, where the legal issues concern peace agreements, post-conflict rebuilding (jus post-bellum), territory, compensation and disarmament. Export citation. Furthermore, it would put a premium on foreign intervention on the side of rebels. 53 Neff (2005), 266268 (citing the 1900 resolution of the Institute of International Law). It has been shaped and gradually moulded by military experience. That was a false distinction: the material conditions of national liberation struggles were similar to those of resistance movements against foreign occupation, which were specifically mentioned in the Conventions and were classified as international conflicts, it had not been considered that the special conditions of the struggles of such movements would prevent them from applying the Conventions (vol. viii, CDDH/I/SR.5, 33); see also the statement of the Mozambique Liberation Front: [c]ases were known where States had departed from the established rules far more grossly than the liberation movements. The theoretical justifications for the distinction between the two conflicts ranged from religious-based justifications of the right to govern and quell rebellion to the international law principle of sovereignty and security-based justifications. At the beginning of the 1970s, in the run-up to the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (19741977) in which the 1977 Additional Protocols were discussed and drafted,142 the ICRC suggested that the law of IAC should apply to NIAC in toto in cases where foreign states intervene with their armed forces in NIAC. The basic text for the discussions of the Joint Committee with regard to CA3 was the Stockholm Proposal.108 From the beginning, a large number of delegates opposed the idea that the law of IAC should apply in toto to NIAC.109 The reasons behind this objection were summarised in the ICRC Commentary: It was said that it [the Article] would cover all forms of insurrections, rebellion, and the break-up of States, and even plain brigandage. Authors: Gloria Gaggioli. 4 "The 'distinction' between international wars and internal conflicts is no longer factually tenable or compatible with the thrust of humanitarian law, as the contemporary law of armed conflict has come to be known. The 1974 Diplomatic Conference on Humanitarian Law: Some Observations, The Legal Management of Internal War: The 1977 Protocol of Non-International Armed Conflicts, The UN Security Council: From the Cold War to the Twenty-First Century, International Law and Internal Armed Conflicts: Clarifying the Interplay between Human Rights and Humanitarian Protections, Applicability of International Law to Internal Armed Conflicts: Old Problems, Current Endeavors, Trial at Halfway Stage: Judgement for the Motion of Acquittal. Can Civil Wars Be Brought under the Control of International Law? For the summary of objections of the government experts to the ICRC proposal, see ibid., [2.342][2.347]. Nevertheless, throughout the bloody experiences of states with internal wars, the aspiration to extend humanitarian norms to these wars has become dominant. 27 Johnson (2010), 159; Cellini (1997), 847; the other side of the coin was the use of this theory in justifying rebellions in cases where the sovereign did not fulfil his duties towards the civilians, see Tate (1965), 375. ii, CDDH/51/Rev.1, 671). It is defined as an armed conflict that is not international. v, CDDH/SR.13, 137138). Source: The British Yearbook of International Law. 1The distinction between international and non-international armed conflict is firmly rooted in today's law of armed conflict (Humanitarian Law, International). v, CDDH/SR.1, 1314. 0000003136 00000 n 31 Zick (2005), 257258. vi, CDDH/SR.36, 51) and Poland (ibid., vol. viii, CDDH/I/SR.2, 1314. 0000001662 00000 n Thus, we can understand that under this proposal, non-state group members would not be entitled to POW status. Ethiopia. State responsibility 8. 67 US Supreme Court, US v. The Three Friends 166 US 1 (1897), 63 (emphasis added). This consent entails the waiver of individuals rights to use force and the legitimisation of the states exclusive right to use force.27 Second, all individuals have rights that the sovereign must respect.28 Translating these ideas to the context of armed conflict means that only the sovereign has a right to use force and that the use of force by non-state groups is considered a criminal offence. This article attempts to contribute to this process by focussing more. It is interesting to note that Burmas fear of foreign ideologies and rebellions became a self-fulfilling prophecy when the democratic government was brought down by a military coup dtat led by General Ne Win who formed a military socialist dictatorship in 1962. The application of the Convention in these circumstances shall in nowise depend on the legal status of the parties to the conflict and shall have no effect on that status.100, The 1948 proposal incorporated two important modifications derived from the 1947 proposal: first, the rules of IAC were not to apply in toto but only as principles; second, the legal status of the parties to the conflict was to remain the same. 115 Final Record, vol. View. But see discussion regarding the doctrine of belligerency in Section 1.1.3. by granting them belligerency rights or prisoner-of-war (POW) status).52 A third state could recognise belligerency by a formal announcement of some kind, or implicitly by way of a series of acts which leaves no doubt as to [the] intention of the recognising state.53 Recognition of belligerency by a third state entailed the application of customary rules of neutrality between the third state and the parties to the conflict.54 Although recognition by the third state did not change the legal rights between the territorial state and the non-state group,55 widespread recognition of third states could induce the territorial state to grant recognition.56. ', Wolfgang S. Heinz regulating the recourse to armed force in non-international armed conflicts, although those rules are still rudimentary and state practice is not always consistent. 0000009121 00000 n 124 Final Record, vol. 13 St. Paul, The Holy Bible, passage from Romans 13:1. ', Claus Kre 191Official Records (19741977), vol. General Overviews. Three different arguments were raised against the participation of national liberation movements: first, as non-state groups, they lacked locus standi and therefore could not participate in a diplomatic conference which aimed to codify IHL;157 second, some non-state groups were involved in terror against civilians and therefore could not attend an IHL conference;158 third, the Geneva Conventions and the draft Protocols were not intended to confer legitimacy upon non-state groups and therefore these groups should not be invited.159 These objections continued the same line of thought that was described above: according to the states perspective, non-state groups did not have belligerency rights and international law should not grant any legitimacy to non-state groups. 73Prosecutor v. Tadi (Jurisdiction Appeal) IT-94-1-AR72 (2 October 1995), [96]. Request PDF | D - International and Non-International Armed Conflicts | This book examines the law relating to the possession, threat or use of nuclear weapons. 121 Final Record, vol. Indeed, as we shall see below, these two sides of the same coin the application of humanitarian norms without acknowledging the non-state groups belligerency rights will remain the main reason behind the creation and expansion of applicable law to internal wars on the one hand, and the continuation of the distinction between NIAC and IAC on the other hand. Until the adoption of the 1949 Geneva Conventions, then, internal wars were classified into three groups: (a) rebellion; (b) insurgency; (c) belligerency. Raymundo B. Ferrer and Randolph G. Cabangbang. For discussion with regard to Islam and IHL in general, see Cockayne (2002). viii, CDDH/I/SR.22, 202. 157 This was the opinion stated by the Portuguese delegation, Official Records (19741977), vol. See also Neff (2005), 264 (stating that the prevailing view, however, came to be that a set of objective criteria for recognition of belligerency did exist but with the key proviso that, if they were satisfied, then foreign states were permitted to recognise belligerency, but not compelled to do so). Consequently all that would be needed to legitimize the activities of the rebels and to qualify them as prisoners of war, should they be taken, would be a perfect synchronization of the activities of the foreign State with those of the rebel movement or even simply the despatch of a small detachment of its troops over the border. Despite these objections, there was a clear majority of states favouring inviting the national liberation movements. Request Permissions. The notion that rebellions are an offence to God and rebels should be treated as heathens was echoed even in the sixteenth century in the works of the Spanish international jurist Balthazar Ayala (15481584), see discussion in Perna (2006), 1516. Legally speaking, no other type of armed conflict exists. The former were regulated by religious constraints and then by international law while the latter were not regulated and were considered an internal matter of the sovereign. There are a number of important differences between the Stockholm Proposal and the original ICRC proposal of 1948. Moreover, the resolution was adopted in the midst of the Spanish civil war, which was highly intense and involved international intervention.92 Thus, it was suggested that it is possible that states regarded this decision as applicable only to those types of conflict.93. 140 Final Record, vol. Internal Conflict and the International Community: Wars Without End? Geiss, Robin If the rules had to be adapted, that might be due to the special conditions of guerrilla warfare and not to the fact that the parties were or were not States (ibid., vol. viii, CDDH/I/SR.2, 14). viii, CDDH/I/SR.23, 221). Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity, Hors de logique: Contemporary Issues in International Humanitarian Law as Applied to Internal Armed Conflict, American University International Law Review, The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts, The Geneva Protocols of 1977 and Customary International Law, Countering Terrorism and the Law of Armed Conflict: The Turkish Experience, The First Trial of Former Members of the Kosovo Liberation Army: Prosecutor v. Fatmir Limaj, Haradin Bala and Isak Musliu, A United Nations Role in Ending Civil Wars, The Concept and the Determination of the Existence of Armed Conflict not of an International Character, Human Rights Obligations of Non-State Actors in Conflict Situations, The Fine Line between Policy and Custom: Prosecutor v. Tadi and the Customary International Law of Internal Armed Conflict, Unequal Before the Law: The Case for the Elimination of the Distribution between International and Non-International Armed Conflicts, Strengthening Legal Protection in Internal Conflicts, ILSA Journal of International & Comparative Law, The Parameters of Internal Armed Conflict in International Humanitarian Law, University of Miami International and Comparative Law Review, Key Developments Affecting the Scope of Internal Armed Conflict in International Humanitarian Law, The Definition of Non-International Armed Conflict in the Rome Statute of the International Criminal Court: An Analysis of the Threshold of Application Contained in Article 8(2)(f), Terrorism and Wars of Liberation Applied to the Arab. Thresholds and interaction of armed conflicts 4. 46 Cullen (2010), 13; Lauterpacht (1947), 277; Castrn (1966), 207223. The position that states took with regard to non-state groups was mainly based on the principle of state sovereignty and the perception that non-state groups do not have belligerency rights. For terms and use, please refer to our Terms and Conditions pp 5-6. It might be advisable, in order to protect the rights of the State, to forgo the eventual recourse to a Protecting Power; but in this case the role of the Protecting Power should devolve on some international body such as the International Red Cross in order to place the question on a humanitarian plan (emphasis added)). 29 E.g., ibid. Read your article online and download the PDF from your email or your account. As noted by Elder, the history of CA3 is tortuous.83 As early as 1912, at the Ninth International Conference of the Red Cross, the International Committee of the Red Cross (ICRC) tried to introduce a proposal that would allow National Societies of the Red Cross to offer humanitarian aid for both belligerent sides during civil war and insurrections.84 States, however, rejected this initiative.85 The Russian delegate articulated the reason for rejecting this initiative quite simply: the Red Cross Societies should have no duty towards insurgents or bands of revolutionaries whom the laws of my country regard as criminals.86 This perspective towards non-state group members as criminals was neither new nor surprising. of your Kindle email address below. An argument is advanced in support of a particular approach to the application of this threshold in the characterisation of non-international armed conflict. 128 Final Record, vol. Non-international armed conflicts now far outnumber international ones, but the protection afforded by international law to combatants and civilian is not always clear. Finally, it should be also noted that Aquinas did not formulate any rules that should be applied during such rebellions. II-B, the Special Committee of the Joint Committee, 3rd Meeting, 45. Such fighters would never renounce their rights. Foreign intervention in a NIAC 6. To conclude, APII symbolised the clear reaffirmation of the distinction between IAC and NIAC by states and the ICRC. But in any case, the rights of the State should not be placed above all humanitarian considerations). PDF. For example, the Israeli delegate argued that by applying the law of IAC to non-state groups, the Conference was faced with a Protocol which obligated non-State entities but could not be applied by them. The imperfections of the doctrine of belligerency explain the creation of the law of NIAC, which is not dependent on recognition and is clearer in terms of its scope of application. Internationalized Non-International Armed Conflicts: Case Studies of Afghanistan, Kampuchea and Lebanon, Code of Conduct in the Event of Internal Disturbances and Tensions, Wars of National Liberation and the Modern Law of Nations, Angola: Violations of the Laws of War by Both Sides, International Humanitarian Law: Americas Watch's Experience in Monitoring Internal Armed Conflicts, American University Journal of International Law and Policy, International Law Governing Aid to Opposition Groups in Civil War: Resurrecting the Standards of Belligerency, A New Achievement in the Codification of the International Law Applicable in Armed Conflicts, Individual Criminal Responsibility for Violations of International Humanitarian Law Committed in Non-International Conflicts, War Crime Issues Before the Rome Diplomatic Conference on the Establishment of an International Criminal Court, UC Davis Journal of International Law & Policy, Bosnia and Herzegovina: Civil War or Interstate Conflict? Examines the legal status under international humanitarian law of opposition fighters during a non-international armed conflict. II-B, Summary Records, Joint Committee, 2nd Meeting, 12). Full PDF Package Download Full PDF Package. 118 Final Record, vol. 172 See, e.g., the statement of the Irish delegation in Official Records (19741977), vol. Introduction Characterising an armed conflict as international or non-international is the first, preliminary step in determining the applicable humanitarian treaty law framework. Applicable conventional IHL, and to a lesser extent customary IHL, varies depending on each situation. 178 See, e.g., the statement of the Palestinian Liberation Organization: [t]he argument that national liberation movements would be incapable of carrying out certain humanitarian obligations was not borne out by the facts. startxref The question whether to allow and invite national liberation movements to participate in the proceedings of the Conference was dealt with in the first session of the Conference (20 February29 March).154 The deliberations on that question provide another glimpse into states opinions regarding non-state groups.155 The foremost palpable point is that states that supported the invitation of non-state groups focused only on national liberation movements which, conveniently enough, did not operate in their territory or against them.156 On the other hand, the core of states objections to the invitation of national liberation movements stemmed from their status as non-state groups. The Journal of Conflict & Security Law (JCSL) is a thrice yearly peer-reviewed journal aimed at academics, government officials, military lawyers, and lawyers working in the area, as well as individuals interested in the areas of arms control law, armed conflict law and collective security law, and the interfaces between It examines in detail the historical But see Lowe (2007), 910. II-B, Summary Records, Joint Committee, 7th Meeting, 26). 123 Final Record, vol. A similar opinion was articulated by the Romanian delegate who stated that his delegation attached considerable importance to the field of application of draft Protocol II, since the sovereignty of States was involved. It shows how states have insisted on the distinction between internal wars and international wars since the origins of international humanitarian law. 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