The rules of the law of non-international armed conflicts
|Cours||International humanitarian law|
It may seem singular and perhaps even scandalous that Prof. Kolb is concerned so little time with non-international armed conflicts when these conflicts ravage the world, which are much more numerous than international conflicts, that we now have examples of them everywhere, whether in the context of Western and American drone attacks in Yemen, in Afghanistan, Pakistan or elsewhere, whether we are talking about Syria, whether we are talking about different African conflicts, including those elsewhere where foreign powers are engaged, in particular in French engagement in Mali where a State is fighting against armed groups, we are therefore entirely in favour of a non-international armed conflict. So, all this together, could make it seem strange to talk so little about non-international armed conflicts.
That being said, obviously some things seem analogous to the law of international armed conflict, and as we have already learned, we benefit from it here. Secondly, the difficulty of non-international armed conflict is that there is less applicable law than one might wish. The law of non-international armed conflicts is in a chaotic state and it must be said that it has always been an erratic block within the law of armed conflict.
It was introduced into it only in 1949, there was no law of non-international armed conflict before 1949, there was recognition of belligerency, but to transform the whole conflict into a non-international armed conflict between those who recognized belligerency and the groups concerned. And, in 1949, this provision, Article 3, was indeed introduced into the Geneva Conventions under mainly humanitarian pressure.
With examples such as the Russian civil war and in particular the Spanish Civil War in mind, and thinking that given the brutality of these conflicts, it was still impossible not to do anything at all. The law of non-international armed conflicts has been adopted mainly for humanitarian reasons.
States have never liked this right and have never wanted to commit themselves and have always fought as hard as possible to contain it within narrow limits. As a result, we have non-international armed conflict law flanges today and a whole series of gaps.
The ICRC’s study on customary law is quite generous, as it considers that a whole series of rules applicable in the law of international armed conflict are also applicable in the law of non-international armed conflict. This study, on this particular point, was nevertheless challenged. There is a whole series of States that consider that much less than what the ICRC considers applicable is indeed applicable under customary law.
What is ultimately involved is a truncated application of certain treaty obligations. So there are some conventions, some treaty provisions applicable to non-international armed conflicts, but there are by far not as many as there are for international armed conflict, the ratio is about 1 to 10 if not less. And, in addition, there are customary rules of law that are often difficult to determine as to their entity.
The reality on the ground is obviously that fratricidal struggles are the bloodiest and the most hateful, let us look at Syria, but it is also found everywhere else, it is easier to fight against another State and its nationals for international political causes than to accept civil war.
Common Article 3 of the 1949 Geneva Conventions[edit | edit source]
What is available from the conventional point of view, first of all, for the non-international conflict is, first of all, the common article 3 of the 1949 Geneva Conventions. This is a kind of humanitarian minimum and we will appreciate relatively quickly that it is really a minimum, the word is not overused for once.
If we read common Article 3, we will see that there are four normative circles, four layers of regulation. First of all, there is the principle of humanity without discrimination, it is, first of all, the main general rule in the Geneva Conventions and it was quite logical to find it also miniaturized in the CANI field. It means that all non-combatants, i.e. civilians and military personnel hors de combat, must be treated with humanity, without adverse distinction based on criteria such as race, colour, religion or creed, or sex, or birth or property.
These are therefore people who are under the control of the opposing belligerent. We are not talking about hostilities, but about situations in which people are in the hands of control, under the control of, in the power of, formulas that the Geneva Conventions use in other provisions.
If we read the list on the criteria on the basis of which we must not discriminate, we will see that one is missing, which is nationality. It was not completely illogical not to mention nationality in the sense that the traditional non-international armed conflicts that we had seen so much in 1949 regularly bring people of the same nationality into conflict. Nevertheless, the issue had been discussed during the preparatory work and the nationality criterion had been deliberately omitted at the time. States that were relatively unwilling to extend or develop the law of non-international armed conflict had excluded persons of another nationality who would become involved in a civil war. It was considered in a way that this kind of mercenary would deserve unpriviledged, therefore that they somehow deserved to be excluded from the protection regime.
That is no longer the way we see things today. We are now interpreting the text without this reference to the preparatory work. Article 3 has changed function, in the case law it is considered as a humanitarian minimum always applicable, therefore as a provision of great importance and even of jus cogens, and therefore the end of paragraph 1 or any other similar criterion that nationality is also covered is interpreted. Thus, persons who would not have the nationality of the territory facing civil war would also be protected by article 3, as is any other person.
The second normative layer of Article 3 is specific prohibitions that are very incomplete if we look at the text and deeply imprint the experience of the Second World War, that is to say, an experience that is now a little bit old.
What do you find there? There is a prohibition on the following specific acts: attacks on life and physical integrity, including murder, torture and mutilation, and so on – Professor Kolb reminding that this only concerns persons hors de combat who are therefore in the control of someone else, the other party, that here does not necessarily have to be a State. Then, the hostage-taking, the link with the Second World War is obvious here; the attacks on the dignity of persons and in particular humiliating and degrading treatment and sentences handed down without a fair trial. What a fair trial implies has been achieved for many years, moreover, also on the basis of human rights case law – it would be Article 6 of the European Convention on Human Rights, Article 14 of the Covenant on Civil and Political Rights.
We’d appreciate it if the list were short. Of course, these are the most abominable acts, but it is still very short.
The third layer of standards is even more disappointing and concerns the obligation to collect and care for the wounded and sick, which is obviously a strong point of the Geneva Convention regime. The aim here is to miniaturize Conventions I and II. But this is particularly disappointing because in the end, what we have in numbers 2 is a simple sentence in an excessive nakedness. We wish she had at least one panty, she doesn’t even have it. The wounded and sick will be collected and cared for, it is written, nothing else.
So, it may already be that, but we must appreciate that nothing is said about the installation of medical services and medical personnel, that nothing is said about the protection of sanitary and medical facilities, that nothing is said about the emblems. Ultimately, all this is supposed to be solved or in limbo, and then we just throw away the sentence, but without taking care of everything that is necessary logistics even from a legal point of view. It is in this sense that Professor Kolb says that miniaturization is still excessive, which is disappointing.
Finally, there is a fourth circle that acknowledges all the shortcomings that have just been mentioned and therefore stipulates that an impartial humanitarian organization such as the International Committee of the Red Cross can offer its services to the parties to the conflict. And in the next paragraph, it is recalled that the parties will endeavour to conclude special agreements to improve the protection of the persons concerned. In short, this fourth normative circle is the result of an acknowledgement of the inadequacy of the work that has been accomplished, so that humanitarian organizations such as the ICRC must be called upon to intervene to try to fill the gaps and the goodwill of the parties to try to conclude special agreements under which the regime could be increased. So, for example, in a non-international armed conflict, one could easily agree to treat certain persons detained under the prisoner-of-war regime by a special agreement. One could say that the treatment is provided as if they were prisoners of war of the persons being detained or a certain category of these persons on a reciprocal basis. At that point, of course, the guarantees of these people are significantly improved, but we are not obliged to do so.
Additional Protocol II of 1977 to the Geneva Conventions [edit | edit source]
The protection regime in Additional Protocol II has been extended in treaty law. The purpose of Additional Protocol II was precisely to extend, strengthen and expand the protection provided by common Article 3 where it had been most inadequate, most lacking.
There are thus three additional normative layers, an entirely new one, which is a volcanic eruption that brings new basalt, and which only tinker and repair what in a previous insufficient eruption could have been obtained.
In the first tinkering circle, this is the principle of humane treatment. So what we saw at the very beginning of Article 3. Obviously, it is not a question of recalling the principle of humane treatment, which is already well anchored in Article 3, but the acts specifically prohibited, the four acts specifically prohibited in Article 3, the list was nevertheless a little short. Here, in Protocol II, there is an extension that Professor Kolb will refrain from calling notable, but which is not entirely negligible either.
There are above all the guarantees contained in Article 4 of Additional Protocol II. A provision with strong human rights overtones, a fundamental guarantee moreover, is written, it is a whole programme and the counterpart to Article 75 of Additional Protocol I, except that Article 75 is otherwise nourished.
What does it have in addition to what had already been included in common Article 3? There are some things. There is the prohibition of collective punishment. However, something that had been practised in the Second World War, for example in occupied Greece, and now it is in Additional Protocol II. Acts of terrorism, therefore, the practice of terror, particularly against civilians. In the attacks, the dignity of the person, rape, forced prostitution, indecent assault are now particularly mentioned, all of which were absent in 1949. Slavery and therefore the prohibition of slavery are also mentioned. We mention the prohibition of looting and what is interesting is that we also mention the threat of committing one of these prohibited acts and we therefore also prohibit the threat of committing one of these acts. In addition, there are a series of guarantees for detained persons as in Article 5. And then, in Article 6, there are notable clarifications on what a fair trial implies. All this in total nevertheless adds significant substance to the specific prohibitions in Article 3.
Then there is a second normative layer in Protocol II, which is still tinkering, but on a larger scale. These are the treatment of the wounded, sick and shipwrecked. What had been summarized in a short sentence in Article 3, in what Professor Kolb defines in full and complete nullity, here, at least one pair of panties is brought in. We can discuss whether these are old women’s underwear or panties, Professor Kolb lets you choose. By that, he means that the panties are more or less large.
In this respect, there are Articles 7 to 13 of the Protocol and everything that had not been done in the common Article 3, i.e. beyond the duty to care for the wounded and sick, the necessary conditions, the fact of having staff, the fact of having facilities, the protection of these facilities, the emblems, all this is introduced into the game by provisions that are certainly brief, but nevertheless very important. The contribution here is not only not negligible, but it is simply not important.
Article 8 requires the search for the wounded, sick and shipwrecked, by analogy with what is done in international armed conflicts. And then there is the protection of staff and the emblem in the following articles up to 12.
The third and entirely new normative circle is the protection of the civilian population during hostilities. This is not a common article 3, we are no longer in the realm of people hors de combat, we are in the midst of hostilities and this part, which is found in articles 13 to 18 of the protocol, parallels the very important part of Additional Protocol I, article 48 and following, which is analysed at some length, in particular the principle of distinction and the protection of certain installations, localities or objects against attack.
What is in Additional Protocol II? There are some of the protections of Additional Protocol I that are included. But if we compare the provisions in the first protocol and the corresponding provision in the second protocol, we will see relatively quickly that in Protocol I the regulations are precise and detailed and that in Protocol II, protection has been left at a much higher level of abstraction and generality. In other words, the provisions were significantly shortened, the details removed, and they were coagulated around general ideas without technical precision. It is therefore much more vague, less restrictive and less certain from a legal point of view, and that is exactly what the States wanted at the conference, according to Professor Kolb, it ‘pisses them off’ very much to have a law of non-international armed conflict vis-à-vis persons whom they consider criminals when these persons rise up against the legitimate government.
What we have in Protocol II in this regard is, on the one hand, Article 13. Article 13 is the principle of distinction. Obviously, here, we cannot say that we must distinguish between civilians and combatants because there are no combatants, but there are convolutions. The aim, of course, is always to protect the civilian population.
Article 14 is complementary to Article 54 and 13 is complementary to Articles 50, 51 and up to a certain point 52. 54 It is here in Protocol II Article 14. The aim is to protect against attack items essential to the survival of the civilian population and to prohibit famine as a method of combat.
Then there is section 15, which is the protection of structures and facilities containing dangerous forces. The corresponding article was 56 in Additional Protocol I.
There are 16 cultural properties and places of worship at disposal. This is mirrored in Article 53, which is also relatively brief.
Then there is the prohibition of forced displacement in article 17. We already had it for the Geneva Convention.
The right of relief societies to offer their services is extended to Article 18, knowing once again that the provisions contained in the Protocol are insufficient in any case from a humanitarian point of view.
These are the two major texts, common article 3, protocol II. Of course, since these are treaty texts, we still have to see who are bound, who are the bound States. For the Geneva Conventions this is not really a problem, for Additional Protocol II, not all States and by far not all States are parties to this protocol, so that it cannot simply be considered applicable, but the status of ratifications and accessions must always be checked anyway.
Other texts [edit | edit source]
Apart from these two texts which deal specifically with non-international armed conflict, there are other applicable treaty sources. There are the special agreements that the belligerents conclude, of course, and there are many in non-international armed conflicts, where we agree on one thing or another. François Bugnion mentions these agreements until the early 1990s. Obviously, after that, we should look at the ICRC’s reports, the annual reports, which has since been done.
Apart from special agreements, there are other specific texts that are applicable in all circumstances, i.e. international armed conflict and non-international armed conflict, or even peacetime; and other texts that specify which are applicable in both types of conflicts, international and non-international.
A few examples. For conventions applicable in all circumstances, this is contained at the very beginning and each of these conventions in Article 1 § 1: they were conventions against weapons of mass destruction where it is clear that their use and even their net production and storage are prohibited in all circumstances. This also covers non-international armed conflict. This is the case with the 1972 Biological Weapons Convention and the 1993 Chemical Weapons Convention. This is also the case with the 1997 Oslo-Ottawa Convention on Anti-Personnel Mines.
There are then other conventions that either specify that they are applicable in both types of conflicts, or are originally applicable to one type of conflict and then are extended to the other type of conflict as well. This is the case with the 1980 Convention on Conventional Weapons and its protocols. In 2001, there was a protocol to this 1980 Convention which extends its content to non-international armed conflicts. What we have is a 1980 convention with protocols that apply to non-international armed conflicts. Then there is a special 2001 protocol which states that for those who accept this 2001 protocol, the 1980 convention, including its protocols, will also be applicable in non-international armed conflicts.
Professor Kolb added that there were already some protocols to the 1980 Convention which applied to both types of conflicts according to their texts themselves. This was the case with Protocol II on mines and booby traps.
Thus, there are specific regulations in a series of conventions that provide that some or all of their provisions are also applicable in a non-international armed conflict. Another example would be the 1999 Second Protocol to the 1954 Hague Convention on the Protection of Cultural Property, which also specifies that certain provisions of the 1954 Convention will apply in a non-international armed conflict for States that have ratified the 1999 Protocol.
That is the state of conventional law.
In short, there are three things to check. First, we take the texts that are directly applicable to non-international armed conflicts and this is common Article 3 and Protocol II, indirectly also international criminal law, which contains relevant provisions on war crimes, but this is not strictly IHL and therefore Professor Kolb does not mention it here either. Secondly, we will have to look at other texts and some of them have been mentioned on weapons and cultural property, to what extent they apply in a non-international armed conflict and it is very varied. This varies from full to partial application, but each time according to conventional regulations and therefore according to ratifications and accessions. Third, it will be verified that there are or are not special agreements between the belligerents.
That leaves customary law. Here, the professor cannot really offer much because the analysis of customary law in a course of this kind would be very difficult to do. The ICRC has studied the matter for more than ten years to produce a study and it is only a question of the rules of protocol, protocol I, protocol II. Obviously, this was not limited to non-international armed conflicts, it was also for international armed conflicts and Professor Kolb cannot summarize this here in a few pen strokes.
Let’s say there’s a whole series of customary rules. Thus, for example, it would appear from the ICRC’s study that the prohibition of perfidy in no text is the word for non-international conflict applicable to it, that there would therefore be a counterpart to Article 37 of Additional Protocol I, but not under any text, simply under customary law. Where did this customary law come from, from a whole series of sources, but of course the ICRC also placed a lot of emphasis on military manuals. If in the military manuals that instruct the armed forces of the State, it is written that certain things must be respected without specifying that this applies only to a particular type of conflict, this is an argument on which the ICRC has based itself to say that the prohibition of perfidy had a general virtue or value. It is true that armies do not necessarily always make a very clear distinction between the type of conflict. Staff are trained in a standard type of behaviour.
Therefore, an analysis must be made on a case-by-case, disposition-by-disposition basis, using the available sources, including the ICRC’s study on customary law in the course outline. Matter is subject to many uncertainties.
The major chaotic aspect of the law of non-international armed conflict is linked to the uncertain state of customary law on a whole series of provisions. For example, as far as we do not know about armed reprisals, we do not even know whether the concept applies in a non-international armed conflict. If the conceptual place is to say how much uncertainty sometimes reigns there.
Fundamental differences between the law of international armed conflicts and the law of non-international armed conflicts[edit | edit source]
However, there remain three areas in which it is quite clear that non-international armed conflicts are distinct from the law of international armed conflict and therefore there is no customary parallelism. Three subjects in which this is clear, in the others it is necessary to analyse on a case-by-case basis.
First, there is no occupied territory in a non-international armed conflict and therefore all the regulations that go with occupied territories do not exist at all. In a non-international armed conflict, let us take the most classic one, government versus rebels, it is quite obvious that if the rebels push back government forces do not occupy government territory and that the government if it takes back its national territory from the rebels is not going to be in an occupied territory. It would still be rather strange if a state could consider that by taking over a plot or small territory that the rebels controlled at some point, it would be on occupied territory that is not its own. It is unimaginable, of course.
The second obvious and clear-cut difference is the status of combatant and prisoner of war. It only exists in international armed conflicts. In non-international armed conflicts, there is only strictly speaking to civilians and a distinction must be made at that time between civilians who take a direct part in hostilities and those who do not, and there are civilians who participate with a continuous function, with armed forces of the State that States like to call armed forces even in non-international armed conflicts, of course, but from an analytical point of view it is civilians who participate on a continuous basis in hostilities in this case.
Why is there no combatant status in non-international armed conflicts? For the simple reason that when there is a combatant status, it implies a combatant’s privilege. The fighter has certain privileges and the greatest privilege he has is not to be prosecuted for the acts of violence he commits because he is under an obligation to serve and therefore to commit these acts of violence. This is true in an international armed conflict for the armed forces.
In a non-international armed conflict, States simply do not accept that rebels who break the constitutional order and commit acts of violence once captured could not be tried for the acts they have committed. However, this is obviously what a combatant status would result in, at least if it were modelled on what was being held in the international armed conflict and this is simply unacceptable. On the contrary, States continue to believe that such persons once captured can and should be treated as criminals subject to the local Criminal Code without being given international status and rights under international law. At most, humane treatment and a fair trial, but really no more than that and that is why we have no combatant status. This has certain harmful effects, because we understand that in a non-international armed conflict, a ‘combatant’, fighter, in English we can very well say combatant fighter because we can make a difference and in French we can’t, that this person, a rebel who is therefore fighting, has no real incentive to surrender or moderate his attitude or not to commit war crimes.
Why? Because he commits war crimes or does not commit them, whether he acts in accordance with IHL or does not act in accordance with IHL, he remains a criminal and his head can be cut off for the acts of violence he has committed. This does not give a very strong incentive to respect the law of armed conflict, whereas in international armed conflict it makes a difference. Because for lawful acts there is no accountability for these acts, but for unauthorized acts one can be convicted of war crimes if the conditions for war crimes are met. There, then, it makes a difference and there is an incentive to moderate oneself, if necessary also to surrender, because there is a guarantee of a certain regime – a prisoner of war. In a non-international armed conflict, there is neither one nor the other, so there is no propensity to realize and no propensity to moderate one’s attitude and it is enough to simply look at non-international armed conflicts in the world to realize that this is the way we act. It’s all the way to the end and the rules are not respected too much.
There remains a third area in which there is a clear difference, which is the law of maritime warfare. A whole series of institutions of maritime warfare law exist only for the international armed conflict. Professor Kolb is thinking in particular of smuggling institutions, particularly maritime catches, the capture of vessels, all this is done only for the international armed conflict, that is to say for confrontations between warships, there must be States here, for the moment no extension has taken place for non-international armed conflicts or, moreover, there are very few maritime wars. There have been a few in Sri Lanka, in operations, the rebels on the sea, but it is still quite rare for rebels to have a maritime capacity. That’s very limited, let’s say. The States obviously have a maritime capacity, even Switzerland has one, although it is modest.
Professor Kolb thus closes non-international armed conflicts.