International Armed Conflict
In a general legal sense, there is no fixed international definition of armed conflict. However, armed conflict in the realm of international humanitarian law has to do with disagreements between two states which leads to the intervention of members of the armed forces. The timeframe of the hostility, number of military forces, causalities, and death is irrelevant. The scope of international armed conflicts is not limited to just states, but also encompasses rifts between non-state actors as well as international military forces.
While the direct military involvement of several states is easy to establish, it doesn’t account for the reality of the contemporary armed conflicts, which defy formal legal criteria. Others occur on one national territory but involve non-state armed groups operating from the territory of a neighboring state, with or without the control of the latter.
Armed conflicts which fall within this category include the inhuman acts of terrorism which have constituted a lot of domestic and transnational mayhem across the globe since the wake of the 21st century. Finally, some armed conflicts occur outside the national territory of one party to the conflict. A practical example of this shade of international armed conflict can be seen in the numerous military campaigns of the US in the crisis ridden region of the Middle East.
Read also: Origin of International Humanitarian Law
The legal position regarding international armed conflict is laid down in Article 2 common to all the four 1949 Geneva Conventions. Article 2 categorically states the three instances where the conventions can be applied. These instances are: when war is declared (it’s immaterial if whether there is hostility or not); inter-state armed conflict; the situation of territory occupation. In extension, the provisions of the convention shall also apply to all cases of confirmed wars and other hostile confrontations between contracting parties across national borders.
The 1977 Additional Protocol 1 augmented the scope of situations covered by Article 2 common to the four 1949 Geneva Conventions. This supplementary provision can be found under Article 1(4) of the Additional Protocol 1 (AP 1). The provision states thus:
…armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.
The inclusion of armed conflicts stemming from the quest for national independence resulted from the widespread clamor by colonies to break-loose from the fetters of colonialism. The veracity of this inclusion was questioned in some quarters, on the grounds that such crisis was exclusively within the confines of domestic hostilities, and as such did not merit being categorized under the scope of international humanitarian law. However, its inclusion was justified on the footing that Article 1(4) of AP aims at guiding against violence on Prisoners of War (POW) and forceful occupation of territories.
Non-International Armed Conflict
Under Article 3 common to the Geneva Conventions of 12 August 1949, non-international armed conflicts are armed conflicts in which one or more non-state armed groups are involved. Depending on the situation, hostilities may occur between governmental armed forces and non-state armed groups or between such groups only. It replaces and includes the notions of internal armed conflict, civil war, rebellion, and insurrection, which are not specific categories defined and recognized by humanitarian law.
Prior to the 1949 Geneva Conventions, internal conflicts were not included in the domain of International Humanitarian Law. It was considered a purely domestic law affair. This legal standing was governed by the principles of state sovereignty and non-interference. Exceptions to these two principles were still a matter of debate among legal jurists, hence, weren’t concrete enough to legitimize intervention in conflicts that were totally domestic.
This arguments stills spans within the spectrum of international humanitarian law. However, an internal conflict of protracted duration and some intensity might affect other States: their nationals might find themselves in territory controlled by an insurgent group, a contiguous State might wish to prevent its territory from being used in the fighting, and if the conflict was conducted at sea as well on land, the ships and ports of other maritime States would be affected.
Article 3 common to the four Geneva Conventions of 1949 was the first provision of its kind to deal specifically with humanitarian protection in situations of non-international armed conflict; it consisted of the following provisions:
- Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
- a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
- b) Taking of hostages;
- c) Outrages upon personal dignity, in particular humiliating and degrading treatment;
- d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
- The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The provision of Article 3 common to the four Geneva Conventions of 1949 is supplemented by Article 1 of the 1977 Additional Protocols II. The Protocol II provides for the requirement of territorial control. It provides that non-governmental parties must exercise such territorial control as to enable them to carry out sustained and concerted military operations and to implement this protocol.
This provision of the Additional Protocol II can only apply in armed crisis between heretical armed groups and the government; it is however not applicable in hostilities between non-state armed groups, that is provided for by Article 3 common to the four Geneva Conventions of 1949.
The International Criminal Tribunal for the Former Yugoslavia also solidified the criteria warranting the classification of a situation as a non-international armed conflict. It held that the intensity of the violence must be such that it could be easily differentiated from mere internal disturbances such as riots and other rare incidents of violence. It was also added that the level of organization of a conflict by the parties too is a determinant factor underlying the categorization of a conflict as a non-international armed conflict or otherwise.