Laws Governing Non-International Armed Conflict

International humanitarian law defines and regulates only two categories of armed conflict: international armed conflict and non-international armed conflict. The latter is used to denote very diverse situations, both in terms of form and objective, ranging from civil war to insurrection.

The definition of a non-international armed conflict poses political and legal questions. Such conflicts feature a strong political, legal, and military asymmetry, with confrontations taking place between a state's army and law enforcement apparatus, and individuals and dissident or non-state armed groups.

The applicable rules of international humanitarian law for non-international armed conflict are contained in Common Article 3 of the four Geneva Conventions of 1949, the Second Additional Protocol to the Geneva Conventions of 1977, and customary international humanitarian law.

The classification of a conflict as non-international is based on a factual situation, not on the characterisation given by states involved or the international community. There are two core elements constituting a non-international armed conflict: protracted armed violence and the involvement of an organised armed group.

The majority of today's armed conflicts are non-international, and the reluctance of states to accept international legal oversight means the threshold of violence and organisation required to define a situation as an armed conflict is often higher than for an international conflict.

International humanitarian law

IHL defines and regulates only two categories of armed conflict: international armed conflict and non-international armed conflict. Non-international armed conflict is used to denote diverse situations, both in terms of form and objective of armed confrontations. This term is used in opposition to the category of international armed conflict and to the category of internal disturbances and tensions, which are excluded from the definition of armed conflicts. The definition of a non-international armed conflict poses political and legal questions. Such conflicts feature a strong political, legal, and military asymmetry. Confrontations bring into opposition, on one side, the army and national law enforcement apparatus and, on the other, individuals and dissident or non-state armed groups, who are more or less organized and considered criminals by national law.

The qualification of conflict does not belong to the parties to the conflict but rather depends on objective criteria set by the Geneva Conventions and their Additional Protocols. A non-international armed conflict can be internationalized if a non-state armed group acts under the control or on behalf of a foreign state.

The rules foreseen for non-international conflict are less numerous and detailed than those relating to international armed conflict. Common Article 3 is supplemented by Additional Protocol II, which totals only twenty-eight articles. However, the development of rules of customary international humanitarian law shows a clear tendency toward the harmonization of the content of the rules applicable to these two types of conflicts.

IHL requires, among other things:

• The rapid and unimpeded passage for humanitarian aid during armed conflicts
• The freedom of movement for humanitarian workers in conflict areas
• The protection of civilians (including medical and humanitarian workers)
• The protection of refugees, prisoners, and the wounded and sick

IHL is traditionally seen as distinct from international human rights law, although the two branches of law are complementary and overlap in some ways.

International human rights law

• Universal instruments, such as the Convention on the Prevention and Punishment of the Crime of Genocide (1948) and the International Covenant on Civil and Political Rights (1966).
• Regional instruments, such as the European Convention on Human Rights (1950) and the African Charter on Human and Peoples' Rights (1981).

Human rights law is a more recent body of law than international humanitarian law, emerging under the auspices of the United Nations as a branch of international law after the Second World War. While humanitarian law applies only in armed conflict, human rights law applies at all times, including during peacetime and armed conflict. However, human rights law allows governments to derogate from certain obligations during public emergencies that threaten the life of the nation.

Human rights law applies to all persons within the jurisdiction of a State, and does not distinguish between combatants and civilians. It binds States, and does not create legal obligations for non-State armed groups.

Human rights law and international humanitarian law share common substantive rules, such as the prohibition of torture, but they also contain very different provisions. Human rights law deals with aspects of life that are not regulated by humanitarian law, such as the freedom of the press, the right to assembly, to vote, and to strike.

In situations of internal disturbances and tensions, such as riots and isolated and sporadic acts of violence, the fundamental guarantees contained in the fundamental principles of human rights and in the Geneva Conventions remain applicable.

International criminal law

The rulings of International Criminal Tribunals have unified rules for international and non-international conflicts, especially in crime repression. The Tadic Case of 1995 was an important jurisprudential development, where the ICTY Appeals Chamber listed provisions of a customary character applicable to non-international conflicts. The tribunal stated that "what is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife".

International humanitarian law (IHL) applies to both types of conflicts, with certain rules and regimes from international armed conflict also applying to NIAC. IHL limits the means and methods of warfare during non-international armed conflicts and provides protection and relief for civilians. Common Article 3 of the four Geneva Conventions of 1949, the second Additional Protocol to the Geneva Conventions of 1977, and customary international humanitarian law are all applicable in NIAC.

The Rome Statute of the International Criminal Court and the work of the International Criminal Court (ICC) are also key considerations in this area. The Rome Conference did not intend to create a new threshold for NIAC, and the threshold in Article 8(2)(f) is regarded as the same as that for paragraph (c). The classification of armed conflicts is a critical issue, as a mistake can impact the scope of application of IHL and the rights of the accused under international criminal law.

International armed conflict

IACs are traditionally considered legitimate forms of international relations, and the use of force between States is still not totally prohibited. The monopoly on the legitimate use of force within a State's boundaries is inherent in the concept of the modern State, which precludes groups within that State from waging war against other factions or the government.

IACs are governed by rules of international law, which have long been accepted by States. These rules include the right to participate in hostilities and the combatant status of those taking part.

IACs are distinct from non-international armed conflicts (NIAC) in that the latter are more recent and are considered internal affairs governed by domestic law. NIACs are also characterised by a strong political, legal, and military asymmetry. They feature confrontations between the army and national law enforcement apparatus on one side, and individuals and dissident or non-state armed groups on the other.

The law of IACs is more substantial than that of NIACs, and the victims of both types of conflict face similar problems and require similar protection. However, the application of different rules for protection in IACs and NIACs can create difficulties for humanitarian players and victims, who must classify the conflict before the relevant rules can be invoked.

Non-international armed conflict

The definition of NIAC is a significant political and legal issue, as it triggers the implementation of humanitarian law, which establishes limits on a state's use of force and opens the right to assistance and protection for victims. It also mitigates the strong legal asymmetry that characterises such situations.

NIAC is defined by the intensity of combat and the organisation of the armed groups involved. It is distinct from situations of internal disturbance and tension, such as riots, isolated and sporadic acts of violence, and other analogous acts, which are not considered armed conflicts.

The applicable rules of international humanitarian law in NIAC are contained in Common Article 3 of the four Geneva Conventions of 1949, the Second Additional Protocol to the Geneva Conventions of 1977 (Additional Protocol II), and customary international humanitarian law.

The majority of today's armed conflicts are NIACs. The reluctance of states to accept international legal oversight into their internal affairs often means that the threshold of violence and organisation required to define a situation as an armed conflict is significantly higher than what would be needed for an international armed conflict.

The rules for NIAC are generally less numerous and detailed than those for international armed conflict. However, there is a clear tendency towards the harmonisation of the content of the rules applicable to both types of conflict.

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