Aligning Policy Considerations with IHL in NIACs

When armed conflict erupts within a nation’s borders, the international community faces a complex challenge: how to protect civilians and combatants while respecting state sovereignty. This tension shapes the ongoing debate about applying international humanitarian law to non-international armed conflicts. While states have historically resisted treating internal conflicts under the same rules as wars between nations, evolving practice and policy considerations increasingly support a unified humanitarian framework across all types of armed conflict.

The historical reluctance of states 🔗

For decades, governments viewed internal armed conflicts as domestic matters beyond the reach of international law. States have traditionally considered such conflicts as internal affairs governed by domestic law, with no government willing to accept that its citizens could wage war against their own state. This reluctance stems from a fundamental principle: no government would renounce its right to punish citizens for participating in rebellion.

The distinction matters because in international conflicts, combatants enjoy what is known as combatant privilege, meaning they cannot be prosecuted simply for participating in hostilities. Applying this framework to internal conflicts would be incompatible with the concept of sovereign states, which maintain a monopoly on the legitimate use of force within their territories.

Beyond legal theory, political realities compound this resistance. States often deny the existence of a conflict and invoke instead a situation of disturbance that allows them to criminalize armed opposition groups and mobilize law enforcement in the name of public order. Acknowledging a non-international armed conflict exists is often perceived as conferring legitimacy to armed groups operating on their territory, something governments understandably want to avoid.

The humanitarian case for unified standards 🔗

Despite these political sensitivities, a compelling humanitarian argument supports applying similar rules to both international and non-international armed conflicts. Victims of internal conflicts face the same dangers as those in wars between states. In both situations, fighters and civilians are detained by opposing forces, populations are displaced, communities fall under enemy control, and attacks devastate towns and villages.

From a humanitarian perspective, victims of non-international armed conflicts should be protected by the same rules as victims of international armed conflicts. They face similar problems and need similar protection. The weapons used, the tactics employed, and the suffering inflicted differ little based on whether the conflict crosses international borders.

The development of customary international law reflects this reality. The customary international humanitarian law study published by the ICRC in 2005 identifies 161 rules of customary international humanitarian law, of which 147 are common to international and non-international armed conflicts. This harmonization demonstrates growing consensus that protective standards should not depend on conflict classification.

Operational benefits of IHL compliance 🔗

Beyond moral imperatives, adhering to international humanitarian law serves practical military objectives. Military operations conducted in a way that respects IHL can reduce civilian harm dramatically. This is not merely a humanitarian concern but a strategic one.

Compliance with humanitarian law enhances military effectiveness in several ways. Training forces to apply one consistent set of rules across all conflicts simplifies command decisions and reduces legal uncertainty. Soldiers are instructed and trained to comply with one set of rules and not with two different sets, making operational planning more efficient.

Moreover, respect for humanitarian norms can facilitate post-conflict reconciliation. When all parties to a conflict adhere to basic protections for those no longer participating in hostilities, it creates a foundation for eventual peace negotiations. Excessive violence and violations of fundamental guarantees, by contrast, deepen grievances and prolong conflicts.

Building IHL into military doctrine 🔗

Armed forces increasingly recognize that integrating humanitarian law throughout military doctrine, education, training, and decision-making processes strengthens operational capabilities. Understanding the legal frameworks enables commanders to make informed decisions about the use of force, protection of civilians, and application of relevant regulations.

The challenge lies in ensuring that organized armed groups, which may lack the resources and institutional capacity of state militaries, can also comply with these obligations. Non-state armed groups conducting military operations have organizational obligations that must include discipline and respect for IHL, though they may dispose of very different capabilities than the state. This asymmetry requires flexible approaches to implementation while maintaining core protective standards.

Bridging the gap between policy and practice 🔗

The evolution toward unified humanitarian standards reflects a strategic balancing act. States must weigh their legitimate sovereignty concerns against the operational benefits and humanitarian imperatives of comprehensive IHL application. Several developments facilitate this balance.

First, Common Article 3 clearly provides that the application of its provisions shall not affect the legal status of the parties to the conflict. This safeguard addresses state concerns that applying IHL rules would confer political legitimacy on armed opposition groups.

Second, the development of international criminal law has created accountability mechanisms that apply equally in non-international armed conflicts. War crimes can be prosecuted regardless of whether they occur in internal or international conflicts, creating deterrence across conflict types.

Third, special agreements between parties to internal conflicts can expand applicable protections without changing the legal status of armed groups. These agreements allow parties to commit to humanitarian standards while avoiding political recognition issues.

The complexity of modern conflicts 🔗

Contemporary armed conflicts often defy simple classification. Internal conflicts frequently involve foreign intervention, creating situations where both international and non-international humanitarian law may apply simultaneously. Conflicts spill across borders, involve multiple armed groups with shifting allegiances, and blur traditional distinctions.

These complexities strengthen the case for comprehensive application of humanitarian protections. When legal frameworks vary based on contested classifications, protection gaps emerge that leave vulnerable populations at risk. A unified approach grounded in core humanitarian principles provides more reliable protection across diverse conflict scenarios.

The path forward 🔗

Aligning policy considerations with humanitarian law in non-international armed conflicts requires acknowledging both the legitimate concerns of states and the undeniable humanitarian needs of affected populations. The growing convergence between international and non-international armed conflict law reflects evolving state practice and the recognition that modern warfare demands comprehensive protective frameworks.

States need not abandon sovereignty concerns to embrace this convergence. Rather, they can recognize that protecting civilians and ensuring humane treatment during internal conflicts serves both humanitarian objectives and long-term strategic interests. Conflicts governed by clear legal standards are more likely to end through negotiated settlement, and post-conflict societies that experienced less severe humanitarian violations recover more quickly.

The ultimate goal is not legal uniformity for its own sake but effective protection for all persons affected by armed conflict. Whether that conflict crosses international borders or remains within a single state should not determine whether fundamental humanitarian protections apply. The suffering of victims demands no less.

What do you think? Should states be required to grant some form of protected status to members of organized armed groups who comply with international humanitarian law in internal conflicts? How can the international community encourage both states and non-state armed groups to uphold humanitarian standards without appearing to legitimize rebellion?

References

1. https://casebook.icrc.org/law/non-international-armed-conflict
2. https://www.dlpforum.org/2023/11/08/law-of-non-international-armed-conflict/
3. https://www.diakonia.se/ihl/resources/international-humanitarian-law/when-does-ihl-apply/
4. https://guide-humanitarian-law.org/content/article/3/non-international-armed-conflict-niac/
5. https://www.icrc.org/en/article/swirmo-building-ihl-military-planning-operational-practices