Primacy of Common Article 3 to the Four Geneva Conventions of 1949:

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Primacy of Common Article 3 to the Four Geneva Conventions of 1949:

Measuring the Ambit of Non-International Armed Conflict in International Humanitarian Law

 

Abstract:

From the beginning of earth, conflicts and wars have been a part of human life. At present, armed conflicts become very terrible to us. The majority of armed conflicts that have been occurred since the Second World War may be characterized as non-international. Non-international armed conflicts have become the most widespread armed conflicts in the contemporary world. Common Article 3 of the four Geneva Conventions is a milestone to the development of the law of war. This article marked a breakthrough, as it covered, for the first time, situations of non-international armed conflicts. This paper provides a typology of non-international armed conflicts governed by Common Article 3 of the 1949 Geneva Conventions, and examines the application, as well as the enforceability and binding force to contemporary forms of non-international armed conflict. Finally, this study tries to explore and depict the ambit of Common Article 3. The relevant cases have, therefore, been discussed and analyzed.

 

Keywords: Non-international armed conflict (NIAC); Common Article 3 (CA3); Additional Protocol II (AP2); Minimum protections; Customary law.

 

 

“Lost to the clan, lost to the hearth, lost to the old ways,

that one who lusts for all the horrors of war with his own people.”[1]

 

  1. Introduction:

 

One thing that the human kind was doing from the beginning of time is fighting with each other. Many times the fighting got out of hand and consumed the innocent people. Fight against own people has always been considered one of the worst. Most armed conflicts today are non-international in nature.[2] They take place within the borders of states, and are waged between a state and organized non-state armed groups or among such groups themselves.[3] International Humanitarian Law (hereinafter IHL) is a branch of Public International Law which is intended to alleviate human pain and suffering resulting from armed conflicts[4] deals with humanitarian problems which arise directly or indirectly from international or non-international armed conflicts (hereinafter NIAC).[5] Humanitarian law, as a distinct body of law aiming at the protection of the individual in times of war, finds written expression in the four Geneva Conventions[6] and Additional Protocol I,[7] the law concerning NIAC is specifically found in Common Article 3 (hereinafter CA3) of the four Geneva Conventions and Additional Protocol II (hereinafter APII).[8] IHL is a body of law that provides essential protection for those directly affected by an armed conflict, if it is respected by the parties to that conflict.[9] Prior to the formulation of the four Geneva Conventions of 1949, there existed no substantive provision of IHL specific to situations of NIAC.[10] CA3 to the four Geneva Conventions of 1949 was the first provision of its kind to deal specifically with humanitarian protection in situations of NIACs.[11] CA3 to all four Geneva Conventions makes a new era in the unceasing development of the idea on which the Red Cross is based, and in the embodiment of that idea in international obligations. Before the 1990s the law of NIAC was poorly developed. In the 1990s, under the impulsion of the growing amount of human rights law and the practice of international organs as the Security Council and the International Criminal Tribunal for the former Yugoslavia (hereinafter ICTY),[12] the law of NIAC quickly developed, on a case-by-case basis.[13] It now tends to largely merge into the law of international armed conflicts (Hereinafter IAC).[14] CA3, widely considered to reflect customary international law,[15] governs NIAC between a state and armed groups, as well as those conflicts between armed groups.[16]

 

In this paper the legal and academic dispute and a matter of arguments and discussions that typology of NIAC governed by CA3 of the 1949 Geneva Conventions. In dealing with these issues, both primary and secondary sources have been taken into account. As primary sources relevant International Instruments, case-laws have been taken. Additionally secondary sources including books, journals, articles, online resources, statements, presented papers, documents of relevant international and non-governmental organizations and other materials have been taken into account for proper analysis, comprehensive understanding and consistent conclusion. Accordingly the research is Analytical method and doctrinal in nature as no field work or empirical research has been undertaken.

 

  1. The Notion of Non-International Armed Conflict:

 

Armed conflict means open armed conflict between two or more parties, nations, or states. As a rule, the applicability of the law of armed conflict (hereinafter LOAC) is dependent on the existence of an armed conflict.[17] & [18] IHL recognizes two different categories of armed conflict.[19] The reference point for distinguishing between the two is the state border: wars between two or more States are considered to be IAC, and warlike clashes occurring on the territory of a single state are non-international or internal armed conflicts (usually known as civil wars).[20] In a NIAC the existing government is fighting against a faction within its own territory or different factions are fighting against each other without the involvement of governmental power.[21] NIACs are armed confrontations occurring within the territory of a single state and in which the armed forces of no other state are engaged against the central government.[22] Internal disturbances and tensions (such as riots, isolated and sporadic acts of violence, or other acts of a similar nature) do not amount to a NIAC.[23]

 

According to H. P. Gasser, it is generally admitted that "non-international armed conflicts are armed confrontations that take place within the territory of a state between the governments on the one hand and armed insurgent groups on the other hand. […] Another case is the crumbling of all government authority in the country, as a result of which various groups fight each other in the struggle for power"[24]

 

NIAC are covered by CA3, APII, several other treaties,[25] as well as by customary law. Two main legal sources must be examined in order to determine what a NIAC under IHL is: CA3 to the Geneva Conventions of 1949 and Article 1 of APII. CA3 does not define NIAC it refers to "armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties"[26] as having the same meaning as ‘civil war.’[27] It implies that even some armed conflicts which are not restricted to inter-state hostilities can be deemed as international armed conflicts if they contain an international element.[28] In order to distinguish an armed conflict, in the meaning of CA3, from less serious forms of violence, such as internal disturbances and tensions, riots or acts of banditry, the situation must reach a certain threshold of confrontation. It has been generally accepted that the lower threshold found in Article 1(2) of APII, which excludes internal disturbances and tensions from the definition of NIAC, also applies to CA3. Two criteria are usually used in this regard:[29] First, the hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces.[30] Second, non-governmental groups involved in the conflict must be considered as "parties to the conflict", meaning that they possess organized armed forces. Article 1(2) of APII identifies situations of violence that do not meet the ‘armed conflict’ threshold and includes in that category ‘internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature’.[31] As elaborated in the Commentary to Article 1(2), even if the government is forced to deploy armed units, to the extent that the purpose is to restore law and order, such violence is considered not to constitute armed conflict in the legal sense.[32] This threshold also applies to CA3. The ICTY has deemed there to be a NIAC in the sense of CA3 ‘whenever there is …protracted armed violence between governmental authorities and organized armed groups or between such groups within a state’.[33] The ICTY thus confirmed that the definition of NIAC in the sense of CA3 encompasses situations where "several factions [confront] each other without involvement of the government's armed forces"[34] Though there are no specific definitions on NIAC but above discussion we can make distinction between the two types’ armed conflict between IAC and NIAC.

 

  1. Scope and Application of Common Article 3 to the four Geneva Conventions:

 

All four Geneva Conventions contain an identical CA3 extending general coverage to NIAC. CA3 of the 1949 Geneva Conventions is virtually a convention within a convention[35] was the first attempt to legally regulate NIAC in treaty law. When CA3 was first adopted, it was considered a major step in the right direction in the development of the IHL[36] Significantly, CA3 is the only provision of the four Geneva Conventions that directly applies to internal armed conflicts. The article states that:

 

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

  1. 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.

2. 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 application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

 

Under the legal regime contemporary to the formulation of CA3, the application of IHL to a situation of NIAC depended upon it being fundamentally akin to an international armed conflict.[37] In order to apply CA3, one should ask if a certain intensity of violence has been reached within the conflict.[38] According to the Inter-American Commission on Human Rights, the threshold is reached in armed confrontation of low intensity and does not require large-scale and general hostilities to exist.[39] CA3 simply established a few basic rules of humane treatment, and set forth certain minimal judicial guarantees. Article 3 protected those classes of people deems most vulnerable when conflict occurs.[40] Despite the undisputed significance of CA3, as an improvement of the traditional international law approach to internal conflicts, it barely employs the most basic principles preserved in the Conventions into NIAC.[41] In theory, CA3 should be applied automatically and without discretion. CA3 applies in the case of a classic civil war when the state’s armed forces are confronted with armed opposition groups within the state’s territory. Moreover, this provision is applicable when two dissident groups fight against each other within the territory of one state which may, or may not, be a party to the armed conflict. It also applies to a situation where the conflict is within the state, between the Government and the rebel forces or between the rebel forces themselves.[42] The International Court of Justice (hereinafter ICJ) held that this provision is a minimum yardstick, which also applies in IAC besides the more elaborate rules governing these conflicts, and is to be considered as part of the elemental considerations of mankind.[43] Some authors even conclude that CA3 is part of jus cogens.[44] However, CA3 is applicable to the situation of NIAC in a limited way as circumscribed in the provision itself. CA3 was first applied in Guatemala in 1954.[45] Since then it has been explicitly accepted and applied in a number of situations including Lebanon (1958), Cuba (1959), Vietnam (1964), and Chile (1973).[46] Several judicial developments also point to the applicability of CA3 extraterritorially. The International Criminal Tribunal for Rwanda (hereinafter ICTR) Statute, for example, includes jurisdiction over crimes committed across the Rwandan border in neighboring countries.[47]

 

  1. Relationship between Common Article 3 and Additional Protocol II:

 

APII of 1977 supplements and develops CA3[48] of the Geneva Conventions of 1949, dealing with NIAC. Before the adoption of APII, CA3 was the only source of law that applies explicitly to NIAC. It provided basic rules on methods of warfare applicable by both states and Non-state Actors involved in NIAC.[49] According to Christopher Greenwood, ‘APII goes a long way to putting flesh on the bare bones of CA3 of the 1949 Geneva Conventions.[50] In particular, APII contains the first attempt to regulate by treaty the methods and means of warfare in internal conflicts.’[51] As a reflection of the historical bias in IHL towards the regulation of inter-state warfare, the 1949 Geneva Conventions and the 1977 Protocols contain close to 600 articles, of which only Article 3 common to the 1949 Geneva Conventions and the 28 articles of AP II apply to internal conflicts.[52] Therefore, unlike CA3 of the Geneva Conventions, APII will not apply to conflicts between two warring dissident groups.[53] It will also only apply in conflicts that in fact approximate to traditional conceptions of inter-state warfare, namely where an organized dissident armed force exercises military control over a part of the territory of a state Party. Like CA3, APII provides for the humane and non-discriminatory treatment of all those who are not, or who are no longer, taking a direct part in hostilities. The relationship between the two conventional instruments is, thus, of great importance when considering which one prevails? Pursuant to the general rules of international law and notably the lex posterior[54] and lex specialis[55] APII should contain the universal rules applicable to conflicts of non-international nature.[56] In the case where states are parties to both treaties and unless otherwise provided for in a treaty, the earlier instrument applies only to the extent its provisions are compatible with the later treaty (in conformity with the latin maxim lex posterior derogat legi priori).[57] Since APII, regulates the scope of application of both instruments, both treaties are simultaneously applicable and, therefore, two thresholds of applicability of norms relating to NIAC exist.[58] APII clearly indicates that it develops and supplements CA3 so that means CA3 and APII exist autonomously. That APII and CA3 should have the same scope of application was the original intention of the ICRC.[59] Treaty law as envisaged in the Geneva Conventions and the APII knows of two types of NIAC, granting individuals different kinds of protection from the ghastly effects of armed conflicts.

 

  1. Protection of Civilians under Common Article 3:

 

During armed conflict, civilians often pay a heavy price. They may face daily threats of violence and death as they find themselves inadvertently caught up in the middle of a conflict. CA3 to the four Geneva Conventions of 1949 establishes the minimum standards that all parties involved in a NIAC should observe concerning the treatment and protection of civilians, those no longer actively participating in the hostilities, and civilian objects.[60] CA3 protects civilians through the explicit prohibition of violence to life and person (in particular murder, mutilation, cruel treatment or torture) taking of hostages, outrages upon personal dignity (in particular humiliating or degrading treatment) and the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.[61] These acts are prohibited at any time and in any place whatsoever.[62] CA3 to the four Geneva Conventions of 1949 establishes minimum standards that parties, including State and non-State actors shall respect in NIAC. The civilian population as such, as well as individual civilians, shall not be the object of attack.[63] An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited.[64]And also civilians shall enjoy general protection against the dangers arising from military operations”.[65] In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects” and that all feasible precautions must be taken with the “view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.”[66] And also APII: Article 14 ensures the protection of objects indispensable to the survival of the civilian population. Particularly APII is more specific than CA3 for the protection of civilian population in the situation of NIAC.

 

  1.  The Binding force of Common Article 3:
  2.  

Unlike human rights law, which restrains violations inflicted only by a government and its agents, the obligatory provisions of CA3 expressly bind both parties to the conflict, i.e., government and dissident forces.[67] Moreover, the obligation to apply CA3 is absolute for both parties and independent of the obligation of the other party.[68] United Nations General Assembly Resolution 2444, Respect for Human Rights in Armed Conflicts (United Nations Resolution 2444),[69] adopted by unanimous vote on December 19, 1969, expressly recognized this customary principle of civilian immunity and its complementary principle requiring the warring parties to distinguish civilians from combatants at all times. Furthermore, the ICRC has long regarded these principles as basic rules of the laws of war that apply in all armed conflicts. By way of reminder, the ICJ affirmed in the Nicaragua case that:

 

Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain rules to be applied in the armed conflicts of a non-international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court’s opinion, reflect what the Court in 1949 called ‘elementary considerations of humanity…’[70]

 

The US government also has expressly recognized these principles as declaratory of existing customary international law."[71] ICTR has likewise affirmed the customary law nature of CA3.[72]  In 1967 the parties to the conflict in Yemen brought about an agreement to respect the provisions of the Geneva Conventions and in 1988 the FMLN movement in El Salvador agreed to adhere to the provisions of CA3 and APII.[73] And also the ICRC’s Customary Law Study also confirmed that the substantive provisions of CA3 are binding as customary law. So, there is no doubt that the substantive provisions of CA3 apply as a matter of customary law to all parties to an armed conflict, regardless of its formal classification or geographical reach. In that case, CA3 would apply as customary law.

 

  1. Problems of Implementation of Common Article 3:

 

Most important problem is that, implementation of CA3 in NIAC. IHL does not contain real implementation mechanisms for situations of NIAC. States, by becoming parties to the 1949 Geneva Conventions, have undertaken ‘to respect and to ensure respect’ for the main conventions on the laws of war.[74] There is no supervisory body to oversee the implementation of CA3. Neither CA3 nor APII contains provisions governing their enforcement. Moreover, the nature of the CA3 is that it is only a general principle[75] and it can be applied by the state party with a margin of appreciation as reflected in their legislations.[76] For the implementation of CA3 broadly, the amendment to US War Crimes Act of 1996 extends the jurisdiction of national courts to violations of article 3 common to Geneva Conventions.[77] However, the courts did not consider violation of CA3 as a grave breach.[78] Certain courts consider the violation of CA3 as crime against humanity without precisely delimiting the concept.[79] The confusion of this kind has not been confounded despite there are efforts to create ad hoc international criminal tribunals, such as ICTY, ICTR and ICC, which provides for detailed provisions on the jurisdiction, applicable law and the pre-trial procedure. The main shortcoming of this tribunal is that they are lacking an effective mechanism to enforce arrest warrants and to execute judgments [80] and also it may look even weaker if it reaches a decision which is then not fully implemented; in some cases it could be very difficult to secure implementation of the court's decisions. The great problem is states tend to show an unwillingness to acknowledge a situation as an internal armed conflict within the meaning of CA3 and/or APII so it becomes difficult to implement of CA3 in a state. While the final clause of CA3 states that its application ‘shall not affect the legal status of the Parties to the conflict’,[81] state authorities engaged with NIAC have a tendency not to recognize its applicability.

 

  1. The Ambit of Common Article 3:

 

There are many criticisms to be made of CA3. As Wilson points out 'article 3 does not prevent the established government from punishing the rebels under municipal law, nor does it change their status in law.'[82] One of the biggest failings of CA3 is the uncertainty surrounding its application. Because this application of the provision is automatic, no 'recognition' is necessary and therefore, 'target conflicts' are not easily identifiable.  CA3 does not provide for a competent authority that can decide if a particular conflict constitutes a 'CA3 conflict'. Also quite controversial regarding CA3 is the lack of special provisions for guerrilla warfare. The problem with this article is that it is applicable only to a situation, which is an ‘armed conflict’. However, the term “armed conflict” has not been defined in the Convention and also with the term of 'armed conflict not of an international character' not being defined.[83] There is much uncertainty concerning the threshold of violence necessary before a conflict can be regarded as being a NIAC under the Geneva Convention for the purposes of CA3.  CA3 also fails to define elaborate rules of distinction between military and civilian targets[84] and makes no mention of the principle of proportionality in target selection.[85] Although the substance of CA3 defines principles of the Conventions and stipulates certain imperative rules, the article does not contain specific provisions.[86] In Hamdan v. Rumsfeld[87], the Court erroneously applied CA3, which applies to conflicts not international in scope; more specifically, CA3 is intended to be used in cases of civil war, rebellion, and the like, not in conflicts against an international terrorist group.[88] The procedures for enforcing CA3 are not specified within the article itself.[89] While some parties may apply prisoner of war laws in internal conflicts, under both APII and CA3 these privileges do not cover captured combatants in a civil war.[90]

 

 

 

Conclusion:

 

The world has witnessed many human rights violations which have also constituted violations of IHL throughout the twentieth century. The fundamental principle of the Geneva Conventions, which is the protection of the individual in times of armed conflict, is gradually asserting itself without acknowledging artificial legal distinctions as to the nature of those conflicts. Most victims in NIAC are civilians which do not take part to the hostilities.  Undoubtedly CA3 applied as a treaty law matter only to internal armed conflicts. CA3 is revolutionary because it purported to regulate as a matter of IHL wholly internal matters. CA3 establishes fundamental rules from which no derogation is permitted. This paper has argued that CA3 may today be given a different geographical reading as a matter of treaty law and that it applies to all situations of violence that can be classified as NIAC, based on the quality of the parties involved. The violence need not be confined within the borders of single state can be reached through a different line of reasoning. They include traditional civil wars, internal armed conflicts that spill over into other states or internal conflicts in which third states or a multinational force intervenes alongside the government. And also NIAC that spills outside territorial boundaries, and a conflict that is fought on territorial waters but which extends to the high sea, would both remain covered by the CA3, even that part of the fighting that takes place outside state territory? It should be specific. This study also observes that the main problem with the implementation of CA3 is in the recognition of situations as constituting armed conflict. Traditionally it was very difficult to enforce the law of NIAC. Moreover language of the provision limiting its application to the “territory of one of the High Contracting Parties” It should be widen enough and provision should be more specific. The above analysis shows the the problems surrounding the implementation and enforcement of IHL in NIAC and not easily dealt with under the current regulations so uniform regulation applicable to all armed conflicts could be produced. In the meantime, customary international law can help to partially bridge the existing gaps in protection, as well as a strong encouragement of parties in NIAC to apply the rules regulating IAC to their conflict. In the end the international community, including the Human Rights Council, should remain engaged in closely following the situation with a view to ensuring that perpetrators of gross violations of human rights law or serious violations of international humanitarian law are held accountable.

 

 

 

[1] Homer, The Iliad, Book IX.

[2] Michelle Mack, Increasing Respect for International Humanitarian Law in Non-International Armed Conflicts (ICRC, Geneva 2008) Pp. 5.

[3] Ibid.

[4] F. Kalshoven, Constraints on the Waging of War (ICRC, Geneva, 1987) pp. 1.

[5] The first collective government effort to codify the rules began with a diplomatic conference convened at Geneva in 1864, which set up the Red Cross Organisation with the aim of providing for amelioration of the fate of members of the armed forces wounded on the battlefields. That conference adopted 1864 Convention on the subject. Three names, will always remain linked with this humanitarian work and the genesis of the Red Cross Organization viz., those of the English Nurse Florence Nightingale, the Swiss Writer J. H. Duant and his countryman Gustava Mornier, President of the Soci'et'e d' Utilite' Publique of Geneva, which convoked an international congress in that town in 1863. Sec. J. H. W. Verzijl, International Law in Historical Perspective (Vol.ix), Pp.125. Cited from B. C. Nirmal, ‘International Humanitarian Law: Its Nature and Scope’ (2002) 31 Ban. L. J. 66-86.

[6] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3362, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; and Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 287. The international armed conflicts to which these treaties apply include armed conflicts between states and the belligerent occupation of one state’s territory by another.

[7] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter API]. API applies to conflicts between states, the belligerent occupation of one state’s territory by another, and self-determination conflicts of national liberation.

[8] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609 [hereinafter APII]. The non-international armed conflicts that Common Article 3 addresses include a state engaging in armed violence against organized non-state armed groups, or organized non-state armed groups fighting each other.

[9] Michelle Mack, Increasing Respect for International Humanitarian Law in Non-International Armed Conflicts (ICRC, Geneva 2008) Pp. 5.

[10] Anthony Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law (eds), (Cambridge University Press; 1st edition 2010). Pp. 25.

[11] Ibid.

[12] ICTY, Prosecutor v. Tadic, IT-94-1-AR72 (2 October 1995) paras [96]-[127]; Proscutor v. Galic (Judgement) IT-98-29-A (30 November 2006) paras [79]-[90];  prosecutor v. Furundzija, IT-95-17/1-T (10 December 1998); and Prosecutor v. Krstic, IT-98-33-T (2 August 2001). Cited from Robert Kolb and Richard Hyde, ‘An Introduction to the International Law of Armed Conflict’, (2010/2008) USA, Rep. Oxford-Portland Oregion, Pp. 258.

[13] Ibid.

[14] Ibid.

[15] Jean Pictet, Commentary to Geneva Convention III Relevant to the Treatment of Prisoners of War (eds), (2006) pp. 23.  

[16] Dieter Fleck , The Hand Book of International Humantarian Law (eds), (2d ed. 2010) pp. 618.

[17] Louise Arimatsu and Mohbuba Choudhury, The Legal Classification of the Armed Conflicts in Syria, Yemen and Libya, (International Law, PP. 2014/01) Chatham House, London, pp. 3<www. Chathamhouse.org> accessed on 4 April 2015.

[18] 1949 Geneva Conventions and the 1977 Additional Protocols thereto, distinguish between international and non-international armed conflicts by specifically prescribing which rules apply in which type of armed conflict. However, neither the Geneva Conventions nor Protocol I contain a real definition of the expression ‘armed conflict’. The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (API), includes an article on ‘Definitions’ (Article 2), as well as one on ‘Terminology’ (Article 8), but the term ‘armed conflict’ is not defined therein. An important definition of an armed conflict comes from the ICTY judgment in Prosecutor v. Dusko Tadic´, Case No. IT-94-1-A, 2 October 1995, para 67, the tribunal held that ‘for there to be a violation of IHL, there must be armed conflict.

[19] Dietrich Schindler, ‘The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols’ (1979) RCDAI, Vol. 163 II, pp. 117-163.

[20] Ibid.

[21] Sandoz Yves, Swinarski Christophe and Zimmermann Bruno, Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of NIAC (APII) (Martinus Nijhoff Publishers, Geneva, 1987).

[22] International Institute of Humanitarian Law, The Manual on the Law of Non-International Armed Conflict, International Institute of Humanitarian Law (San Remo, 2006) pp. 2,<http:// www.michaelschmitt.org/images/Manual%5B1%5D.Final.Brill..pdf>Accessed on 4 April 2015.

[23] Ibid.

[24] H.P. Gasser, International Humanitarian Law: an Introduction, in: Humanity for All: the International Red Cross and Red Crescent Movement, H. Haug (eds.), (Paul Haupt Publishers, Berne, 1993) pp. 555.

[25] Such as the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict; the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, and its Protocols.

[26] The assertion in the text that a NIAC occurs ‘in the territory of one of the High Contracting Parties’ has generated debate about the geographical scope of this type of NIAC. Although some commentators suggest that NIACs are confined to those that take place within the territorial boundaries of a single state, the dominant view is that ‘one’ is a reference to the territory of any of the Contracting Parties. The phrase imposes no territorial limitations so long as the relevant states are party to the 1949 Geneva Conventions. In Hamdan v. Rumsfeld, 548 U.S. 557 (2006) the U.S. Supreme Court held that the “term ‘conflict not of an international character’ is used here in contradistinction to a conflict between nations.”   

[27] Final Record, Report drawn up by the Joint Committee and presented to the Plenary Assembly, Vol. II-B, pp. 129. Cited from, cf Cullen (n10).

[28] H. Meyrowitz, ‘The Law of War in the Vietnamese Conflict, in R. A. Falk’ (eds), The Vietnam War and International Law. Vol. 2. (Princeton, 1969) pp. 533.

[29] ICTY, The Prosecutor v. Dusko Tadic, IT-94-1-T, 7 May 1997, para. 561-568; ICTY, The Prosecutor v. Fatmir Limaj, IT-03-66-T, 30 November 2005, para. 84. Cited from how is the Term "Armed Conflict" Defined in International Humanitarian Law? International Committee of the Red Cross (ICRC) Opinion Paper, March 2008, pp. 3

[30] For a detailed analysis of this criteria, see ICTY, The Prosecutor v. Fatmir Limaj, IT-03- 66-T, 30 November 2005, para. 135-170.

[31] Further insight is provided in the Commentary to Article 1 of APII, which adds ‘riots, such as demonstrations without a concerted plan from the outset; isolated and sporadic acts of violence, as opposed to military operations carried out by armed forces or armed groups; other acts of a similar nature, including, in particular, large scale arrests of people for their activities or opinions.’ Cited from, cf  Arimatsu and Choudhury (n 17) 14.

[32] Commentary to Article 1of APII. Id.

[33] ICTY, The Prosecutor v. Dusko Tadic, IT-94-1-A, 2 October 1995, para. 70.

[34] Y. Sandoz/C. Swinarski and B. Zimmermann, ‘Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949’ (eds), (ICRC, Geneva, 1987) para. 4461.

[35] Jean Pictet, ‘Commentary on the Geneva Conventions of 12 August 1949’ (eds), Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Volume I, (ICRC 1952) Pp. 32. ; Junod, ‘Additional Protocol II: History and Scope’ (1983) 33 AM. U.L. REV. 29, 30.

[36] Heather A Wilson, International Law and the Use of Force by National Liberation Movements, (Oxford, 1988) pp. 43.

[37] Cullen (note 10) 26.

[38] Jon Romer, Killing in a Gray Area between Humanitarian Law and Human Rights: How Can the National Police of Colombia overcome the Uncertainty of which Branch of International Law to Apply? (2010) Springer, pp.8.

[39] IACiHR, Abella v. Argentina, Case No. 11.137, Report No. 55/97. 18.11.1997 para 152; ICTY, Tadic Case, Case No. IT-94-1, Decision o2. 10. 1995, para 70. Cited from Ibid.

[40] Oren Gross and Fionnuale Ni Aolain, Law in Time of Crisis: Emergency Powers in Theory and Practice (2006) pp. 356.

[41] Higgins Noelle, ‘The application of international humanitarian law to wars of national liberation’ (2004) Journal of Humanitarian Assistance, Pp. 28<www. jha.ac/articles/a132.pdf>Accessed on 4 April 2015.

[42] Fleck, The Handbook of Humanitarian Armed Conflicts, (1995), pp. 221.

[43] Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, 27 June 1986, I.C.J. Rep. 1986, § 218. 

[44] C. Zorgbibe, ‘Pour une affirmation du droit humanitaire dans les conflits armés internes’ (1970) JDI, 676. 

[45] M. Veutheyv, ‘Implementation and Enforcement of Humanitarian Law and Human Rights in Non-International Armed Conflicts: The Role of the International Committee of the Red Cross’ (1983) 33 Am U L R 83, at 87.

[46] D. Forsythe, ‘Legal Management of Internal War: The 1977 Protocol on Non-International Armed Conflicts’ (1978) 72 Am J Int'l L 272, at 275.

[47] Prosecutor v. Hadžihasanović, Case No. IT-01-47-T, Para, 93, 179 (ICTY, Mar. 15, 2006). See also Statute of the ICTR art. 6(3), S.C. Res. 955, Annex, U.N. Doc. S/RES/955 (Nov. 8, 1994); Statute of the Special Court for Sierra Leone (SCSL) art. 6(3), annexed to Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a SCSL, Jan. 16, 2002, 2178 U.N.T.S. 138; Prosecutor v. Limaj, Case No. IT-03-66-T, Para, 87 (ICTY,  Nov. 30, 2005); Dino Kritsiotis, ‘The Tremors of Tadić’ (2010) 43 Israel Law Review, 262, 288; Theodor Meron, ‘The Humanization of Humanitarian Law’ (2000) 94 American Journal of International Law 239, 260–61; Anthony Cullen, ‘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)’ (2007) 12 Journal of Conflict and Security, 419.

[48] Article 1(1) state that the Protocol ‘develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application’.

[49] Dayana Jadarian, International Humanitarian Law´s Applicability to Armed Non-State Actors (Graduate Paper, Faculty of Law, University of Stockholm, 2007), Pp. 39.

[50] Cullen (note 10) 87.

[51] Greenwood, ‘Critique of the Additional Protocols’, p. 14. Cited from, Ibid.

[52] S. Boelaert-Suominen, ‘Grave breaches, universal jurisdiction and internal armed conflict: Is customary

law moving towards a uniform enforcement mechanism for all armed conflicts?’ (2000)  Journal of Conflict and

Security Law, Vol. 5, No. 63, at section 5.

[53] James G. Stewart, ‘Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict’ (June 2003) IRRC, Vol. 85 No 850, pp. 319.

[54] The full sentence is ‘lex posterior derogat legi priori’ and means that the newer norm is preferred over the elder one.

[55] The full sentence is ‘lex specialis derogat legi generali’ and means that ‘whenever two or more norms deal with the same subject matter, priority should be given to the norm that is more specific.’ United Nations General Assembly (International Law Commission) 2006, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc A/CN.4/L.702, 18 July 2006, para. 14.2(5).

[56] Applicability Test of Additional Protocol. II and Common Article 3 for Crimes in Internal Armed Conflict. Noëlle Quénivet, pp. 36< file:///C:/Users/User/Downloads/9789462650077-c2% 20(6).pdf>Accessed on 4 April 2015.

[57] Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331, 23 May 1969, Article 30(3).

[58] Ibid 38.

[59] Abi-Saab R, ‘Humanitarian law and internal conflicts: the evolution of legal concern, in: Delissen AJM, Tanja GT’ (eds), Humanitarian law of armed conflict: Challenges ahead (Martinus Nijhoff, Dordrecht, 1991) pp. 209–223.

[60] Uhler et al., The Geneva Conventions of 12 August 1949 - Commentary: IV Geneva Convention Relative to

the Protection of Civilian Persons in Time of War, pp.35.

[61] Report on the Protection of Civilians in the Armed Conflict in Iraq: 5 June to 5 July 2014, United Nations Assistance Mission for Iraq (UNAMI), pp. 5; CA3 of the Geneva Conventions of 12 August 1949.

[62] Ibid.

[63] APII, article 13(2)

[64] Jean-Marie Henckaerts and Louise, ‘Customary International Humanitarian Law’ (eds), Volume 1, (CU P/ICRC, Cambridge 2005).

[65] APII, article 13(1).

[66] Rules 15 to 21, ICRC Study on Customary International Human Rights Law.

[67] The International Committee of the Red Cross (ICRC) has stated that the provisions of article 3 now possess the character of jus cogens, a peremptory norm of international law, and thus are binding on all authorities claiming to exist in international law. Speech by Jacques Moreillon, Director for General Affairs and Directorate Member, ICRC, Inter-American Seminar on State Security, Human Rights and Humanitarian Law, San Jose, Costa Rica (Sept. 1982); see also Military and Paramilitary Activities In and Against Nicaragua (Nicar. v. U.S.) 1986 ICJ. 14, Para. 220 (indicating that CA3 reflects general principles of humanitarian law or customary international law).

[68] Junod, ‘Additional Protocol II: History and Scope’ (1983) 33 AM. U.L. REV, pp. 29, 30.

[69] G.A. Res. 2444, 23 U.N. GAOR Supp. (No. 18) at 164, U.N. Doc. A/7433 (1968).

[70] ICJ, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 27 June 1986, para. 218.

[71] Rovine, ‘Contemporary Practice of the United States Relating to International Law(1973) 67 Am, J. INT'L L. 118, pp. 122-25.

[72] ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, September 2, 1998, paras. 608–609.

[73] Prosecutor v. Duško Tadić , Case No. IT-94-1-AR72, 2 October 1995, para. 124.

[74] Adma Roberts, The Law of War: Problems of Implementation in Contemporary Conflict, pp.11http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1358&context... on 5 April 2015.

[75] W.Michael Reisman and James Silk, ‘Which Law Applies to the Afghan Conflict?’ (1988),  American Journal of International Law, vol.82, pp.463-464.

[76] Geza Herczegh, Development of International Humanitarian Law (1984) pp.64.

[77] This act prohibits certain violations of CA3 of the 1949 Geneva Conventions, which sets out minimum standards for the treatment of detainees in armed conflicts of a non-international character. In the 2006 case of Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), the Supreme Court rejected the Bush Administration’s long-standing position that CA3 was inapplicable to the present armed conflict with Al Qaeda. As a result, questions have arisen regarding the scope of the War Crimes Act as it relates to violations of CA3 and the possibility that U.S. personnel may be prosecuted for the pre-Hamdan treatment of Al Qaeda detainees.

[78] A detailed analysis of the legislation and case laws covering CA3; Thomas Graditzky, ‘Individual Criminal Responsibility for Violations of International Humanitarian Law Committed in Non-International Armed Conflicts’ (1998) No 322, International Review of the Red Cross, pp. 29-56.

[79] Ibid 47.

[80] Antonnio Cassese, ‘On the Current Trend Towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) European Journal of International Law, vol.9, pp.17.

[81] According to the ICRC Commentary on the first Geneva Convention, this clause ‘makes it absolutely clear that the object of the Convention is a purely humanitarian one, that it is in no way concerned with the internal affairs of States, and that it merely ensures respect for the few essential rules of humanity which all civilized nations consider as valid everywhere and under all circumstances and as being above and outside war itself’. Pictet (ed.), Commentary I, p. 60.

[82] cf Wilson (note 36).

[83] Suter Keith,  An International Law of Guerrilla Warfare:  The Global Politics of Law-Making, (Frances Pinter Publishers, London, 1984).

[84] Article 48 of API.

[85] API, Articles 51(5)(b), 57(2) (iii) and 85(3).

[86] J. Pictet, Commentaries on the Geneva Conventions of 12 August 1949, Vol. III: Geneva Convention relative to the Treatment of Prisoners of War (eds), (ICRC, Geneva, 1960) pp. 31.

[87] Hamdi v. Rumsfeld, 542 U.S. 507, 510 (2004),

[88] Matthew Sonn,  Hamdan v. Rumsfeld: A Bad Decision with the Best Intentions - Why the Court Was Wrong in Interpreting the Geneva Conventions and What Should Be Done, (2007) 19 Pace Int'l L. Rev. 143.

[89] C Lysaght, ‘The Scope of Protocol II and its Relation to Common Article 3 of the Geneva Conventions of 1949 and Other Human Rights Instruments’ (1983) 33 Am UL R 9, 12.

[90] George Mousourakis, Applying Humanitarian Law to Non-international Armed Conflicts, Pp. 314<http://dadun.unav.edu/bitstream/10171/21626/1/ADI_XIV_1998_06.pdf>accessed on 5 April 2015. 

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