Laws Governing Non-International Armed Conflict: Understanding The Legal Framework

Non-international armed conflict (NIAC) is a term used to denote diverse situations, both in terms of form and objective, that fall outside the category of international armed conflict and internal disturbances and tensions. NIACs are protracted armed confrontations that occur between governmental armed forces and one or more armed groups, or between such groups within a state. To be classified as a NIAC, the hostilities must reach a minimum level of intensity, and the non-governmental groups involved must be considered parties to the conflict, meaning they possess organised armed forces with a certain command structure. The applicable rules of international humanitarian law to NIACs are contained in Common Article 3 of the four Geneva Conventions of 1949, the Second Additional Protocol of 1977, and customary international humanitarian law.

Minimum intensity requirements

To be classified as a non-international armed conflict, the hostilities must reach a minimum level of intensity. This means that the armed violence must be protracted, with a certain intensity. This is distinct from situations of internal strife or civil disturbance, which do not meet the threshold of a non-international armed conflict.

The following factors are used to assess the intensity of violence:

• Number, duration, and intensity of individual confrontations, including occupations, besieging or blocking of towns, closure of roads, and the existence of front lines.
• Type of military equipment and weapons used, including the number and calibre of munitions fired.
• Number of persons and types of forces partaking in the fighting.
• Number of casualties and the extent of material destruction caused.
• Number of civilians fleeing the zone of hostilities.
• Frequency of fighting over time and the spread over territory.
• Reaction by the government, such as an increase in the number of government forces, general mobilisation, use of armed forces instead of police, claiming of rights of a belligerent, recognition of an armed group as a belligerent, labelling of the situation as "civil war", declaration of a state of emergency, or reliance on rules of international humanitarian law.
• Reaction and involvement of the international community, including whether the situation is on the agenda of the Security Council or the General Assembly, the deployment of peacekeeping missions, calls for the respect of international humanitarian law, or attempts to broker ceasefire agreements.

The presence of intense armed confrontations between groups or between state forces and an armed group may indicate that these groups have reached the required degree of organisation to be considered a non-international armed conflict.

Non-state armed groups

Definition and Criteria

Additional Protocol II to the 1949 Geneva Conventions defines non-state armed groups in Article 1.1 as "dissident armed forces or other organized armed groups" fighting regular armed forces or against each other on the territory of one or several states. To be considered parties to the conflict, these groups must fulfil specific conditions:

• Be under a responsible command
• Exercise control over a part of its territory
• Be able to carry out sustained and concerted military operations and implement the Protocol

These criteria aim to distinguish armed conflicts from situations of internal disturbances or tensions, where confrontations are not organized, structured, or planned by identifiable commands. The criteria also emphasize the obligations of non-state armed groups to respect humanitarian law and the rules of conduct in combat.

The UN Office for the Coordination of Humanitarian Affairs (OCHA) further clarifies the definition, stating that non-state armed groups:

• Have the potential to employ arms to achieve political, ideological, or economic objectives
• Are not within formal military structures of states, state alliances, or intergovernmental organizations
• Are not under the control of the state(s) in which they operate
• Have a group identity and are subject to a chain of command

Rights and Obligations in IHL

International humanitarian law (IHL) does not provide a particular status to members of non-state armed groups in non-international conflicts. They cannot enjoy prisoner-of-war status if captured, unlike members of national liberation movements in international conflicts. However, they are protected by provisions in Additional Protocol II concerning civilians and persons hors de combat.

The content of the obligations imposed on non-state armed groups varies depending on the conflict's qualification, the group's level of organization, and its capacity for territorial control. At a minimum, they must respect the guarantees provided by Common Article 3 of the Geneva Conventions. If their level of organization and territorial control is sufficient, they must also abide by the rules provided by Additional Protocol II.

Criminal Responsibility

The criminal responsibility of commanders in non-state armed groups is evaluated based on the group's level of organization, control, and territorial control capabilities. International criminal law holds individuals and their superiors criminally responsible for war crimes committed during non-international armed conflicts.

Obligations under International Human Rights Law

Territorial control

According to Article 1.1 of Additional Protocol II to the Geneva Conventions of 12 August 1949, non-governmental parties must exercise territorial control "to enable them to carry out sustained and concerted military operations and to implement this Protocol". This means that non-state armed groups must have a degree of control over a specific geographic area to be considered parties to a non-international armed conflict.

The level of territorial control can vary and does not necessarily imply complete dominance over an area. However, it indicates the ability to conduct organised and sustained military operations within that territory. This control can be exercised by a single non-state armed group or multiple groups working in coordination.

The territorial aspect of non-international armed conflicts is crucial because it determines the applicability of international humanitarian law. As per the Geneva Conventions and Additional Protocol II, these conflicts occur "in the territory of a High Contracting Party". This means that the conflict takes place within the borders of a state that is party to the Conventions.

The territorial control of non-state armed groups can also lead to the internationalisation of a non-international armed conflict. If a non-state armed group acts under the control or on behalf of a foreign state, the conflict may be considered internationalised, triggering different legal frameworks and obligations.

It is important to note that the concept of territorial control in non-international armed conflicts is complex and subject to interpretation. The exact extent and nature of territorial control required for a group to be considered a party to the conflict may vary depending on the specific context and the interpretation of applicable laws.

In summary, territorial control is a critical factor in non-international armed conflicts, impacting the legal framework, the rights and obligations of the parties involved, and the potential for internationalisation of the conflict. The interpretation of territorial control can be nuanced, and it is assessed on a case-by-case basis, taking into account the specific dynamics of each conflict.

Humanitarian law

International humanitarian law (IHL) is a set of rules that seek to limit the effects of armed conflict and define the responsibilities of states and non-state armed groups during an armed conflict. It is inspired by humanitarian considerations and the mitigation of human suffering. IHL is based on the 1949 Fourth Geneva Convention on protecting civilians in conflict and the 1977 and 2005 Additional Protocols.

IHL defines and regulates only two categories of armed conflict: international armed conflict and non-international armed conflict. The latter is used to denote diverse situations, both in terms of the form and the objective of armed confrontations. It includes civil war, rebellion, and insurrection, which are not specific categories defined and recognized by humanitarian law.

Non-international armed conflict features 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 national state whose authority and sovereignty are being attacked from within is reluctant to acknowledge the status of the adversary to those who threaten its power.

The definition of non-international armed conflict is crucial as it triggers the implementation of humanitarian law, allowing for the establishment of limits in the recourse to force by the state and the right to assistance and protection for the victims. It also mitigates the strong legal asymmetry that characterizes such situations.

Criteria for Non-International Armed Conflict

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. According to the ICTY Trial Chamber, an armed conflict exists whenever there is a resort to armed force between states, protracted armed conflict between governmental authorities and organized armed groups, or between such groups within a state.

To determine the existence of a non-international armed conflict, two elements of the conflict must be examined: its intensity and the organization of the parties to the conflict. The intensity of the fighting establishes the distinction between a situation of conflict and one of internal disturbance or tension. The organization of the armed groups marks the distinction between a conflict and a situation of internal disturbances or tensions.

The following criteria are considered to determine the intensity of the conflict:

• The seriousness of attacks and whether there has been an increase in armed clashes
• The spread of clashes over territory and over a period of time
• Any increase in the number of governmental forces and mobilization and the distribution of weapons among both parties to the conflict
• The number of civilians forced to flee from the combat zones
• The type of weapons used, in particular the use of heavy weapons, and other military equipment, such as tanks and other heavy vehicles
• The blocking or besieging of towns and the heavy shelling of these towns
• The extent of destruction and the number of casualties caused by shelling or fighting
• The quantity of troops and units deployed
• The existence and change of front lines between the parties
• The occupation of territory, towns, and villages
• The deployment of government forces to the crisis area
• The closure of roads
• Cease-fire orders and agreements
• The attempt of representatives from international organizations to negotiate and enforce cease-fire agreements

The following criteria are considered to determine the organization of an armed group:

• The presence of a command structure, such as the establishment of a general staff or high command, which appoints and gives directions to commanders, disseminates internal regulations, organizes the supply of weapons, authorizes military action, assigns tasks, issues political statements and communiqués, and is informed by the operational units of all developments within the unit’s area of responsibility
• The ability to carry out military operations in an organized manner, including the ability to determine a unified military strategy and to conduct large-scale military operations, the capacity to control a part of the national territory, and the capacity of operational units to coordinate their actions
• The level of logistics, such as the ability to recruit new members and to provide military training, the supply of weapons, the supply and use of uniforms, and the existence of communications equipment for linking headquarters with units or between units
• The level of discipline and the ability to implement the basic obligations of Common Article 3, such as the establishment of disciplinary rules and codes of conduct
• The ability to speak with one voice, such as the capacity to act on behalf of its members in political negotiations with representatives of international organizations and foreign countries, and the ability to negotiate and conclude agreements such as cease-fires or peace accords

Rules and Protections Under IHL

IHL emphasizes the concept of formal equality and non-discrimination. It provides that protected persons shall be treated with the same consideration by parties to the conflict, without distinction based on race, religion, sex, or political opinion. Civilians, including non-nationals and refugees, are protected under IHL, although it is accepted that operations may cause civilian casualties.

The provisions and principles of IHL that seek to protect civilians include:

• The principle of distinction, which requires parties to an armed conflict to distinguish at all times, and under all circumstances, between combatants and military objectives on the one hand, and civilians and civilian objects on the other, and to target only the former
• The principles of necessity and proportionality, which provide that a belligerent may apply only the amount and kind of force necessary to defeat the enemy, and that attacks on military objects must not cause loss of civilian life considered excessive in relation to the direct military advantage anticipated
• The principle of humane treatment, which requires that civilians be treated humanely at all times and prohibits violence to life and person (including cruel treatment and torture), the taking of hostages, humiliating and degrading treatment, and execution without a regular trial against non-combatants, including persons hors de combat (wounded, sick, and shipwrecked)
• The principle of non-discrimination, which prohibits adverse distinction based on race, sex, nationality, religious belief, or political opinion in the treatment of prisoners of war, civilians, and persons hors de combat

Criminal law

Defining Non-International Armed Conflict

Before delving into the criminal law aspects, it's imperative to understand the definition of a non-international armed conflict. This term encompasses diverse situations, ranging from civil wars to rebellions, that occur within a single state's territory. It is distinct from international armed conflict, which involves hostilities between two or more nations. The threshold that distinguishes non-international armed conflict from mere internal disturbances or tensions is crucial, as it triggers the application of humanitarian law. This law imposes limitations on the use of force by states and affords protection to victims.

Common Article 3 and Additional Protocol II

The legal framework governing non-international armed conflict comprises Common Article 3 of the four Geneva Conventions of 1949 and the Additional Protocol II of 1977. Common Article 3 establishes the minimum guarantees applicable in non-international armed conflicts, while Additional Protocol II elaborates on these guarantees and provides more detailed regulations. However, there is a lack of consensus on the definition of non-international armed conflict between these two sources, leading to legal debates and technical commentaries.

The criminal law applicable in non-international armed conflict encompasses both conventional and customary international law. It is essential to distinguish criminal acts from mere violations of humanitarian law, as the former entails individual criminal responsibility. War crimes, which include grave breaches of Common Article 3, are punishable under international criminal law. These crimes encompass acts such as torture, rape, and other inhumane treatment, which are prohibited regardless of the type of conflict.

Jurisdiction and Enforcement

The enforcement of criminal law in non-international armed conflict is a complex issue. While international criminal tribunals, such as the International Criminal Court, play a pivotal role in prosecuting war crimes, domestic courts also have jurisdiction in their respective countries. The principle of complementarity, enshrined in the Rome Statute, allows national courts to take precedence in prosecuting these crimes. However, if a state is unwilling or unable to genuinely carry out investigations and prosecutions, the International Criminal Court can step in.

Challenges and Controversies

One of the challenges in non-international armed conflict is the legal status of combatants belonging to non-state armed groups. Unlike in international armed conflict, there is no clear combatant status in this context, and individuals or groups fighting against their own state are often considered criminals under domestic law. This blurs the lines of accountability and can hinder the effective enforcement of criminal law.

Another controversy arises from the concept of a "global war on terror." Some argue that the conflict with terrorist organizations transcends national boundaries and constitutes a global non-international armed conflict. However, this notion has been rejected by prominent judicial bodies, which emphasize a case-by-case analysis of specific situations of violence.

Frequently asked questions