When it comes to applying international humanitarian law to internal conflicts, not all situations are treated equally. The law sets different standards for determining when IHL kicks in during non-international armed conflicts, creating a tiered system of protection. These varying thresholds aren’t just legal technicalities-they fundamentally shape what protections are available to victims caught in the violence.
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The foundational threshold: Common Article 3
The most basic level of protection comes from Common Article 3 of the Geneva Conventions, which establishes the lowest threshold for IHL application in internal conflicts. This provision applies to armed conflicts not of an international character, deliberately using broad language to ensure humanitarian protection reaches as many situations as possible.
For Common Article 3 to apply, two key conditions must be met. First, the violence must demonstrate minimum intensity that exceeds mere internal disturbances or tensions, such as riots or isolated acts of violence. Second, non-state armed groups must show basic organization, though this requirement is relatively minimal compared to other legal instruments.
The International Criminal Tribunal for the former Yugoslavia helped clarify these requirements in the landmark Tadiฤ case, establishing that a non-international armed conflict exists when there is protracted armed violence between governmental authorities and organized armed groups or between such groups within a state. The indicators of intensity include factors like the number and duration of confrontations, types of weapons used, casualties, material destruction, and civilian displacement.
Additional Protocol II: A higher bar
Additional Protocol II sets a significantly higher threshold than Common Article 3. While it develops and supplements the basic protections of Common Article 3, its application is limited to a subset of non-international armed conflicts that meet more stringent criteria.
The Protocol applies only to armed conflicts between state armed forces and dissident armed forces or other organized armed groups. Critically, it requires that non-state armed groups exercise territorial control over part of the state’s territory sufficient to enable them to carry out sustained and concerted military operations and implement the Protocol itself.
What territorial control means
The territorial control requirement represents a practical recognition that Additional Protocol II contains more detailed obligations than Common Article 3. Armed groups must have responsible command and exercise such control over territory as to enable sustained and concerted military operations. This doesn’t necessarily mean permanent occupation, but the group must demonstrate sufficient stability and organization to implement the Protocol’s provisions.
Additional Protocol II also explicitly excludes conflicts occurring solely between non-state armed groups, applying only when state armed forces are involved as one party. This restriction further narrows its scope compared to Common Article 3, which covers conflicts between armed groups even without state involvement.
The Rome Statute’s middle ground
The Rome Statute of the International Criminal Court establishes yet another threshold for criminalizing serious violations during non-international armed conflicts. Article 8(2)(f) defines the applicable conflict as one involving protracted armed conflict between governmental authorities and organized armed groups or between such groups.
Scholars have debated whether the Rome Statute threshold differs from Common Article 3. The better view suggests that the Rome Statute uses the same threshold as Common Article 3, not requiring territorial control like Additional Protocol II. However, it does emphasize the protracted nature of the violence, potentially demanding a longer duration than the minimum required for Common Article 3.
Individual criminal responsibility
The Rome Statute criminalizes a wide range of acts in non-international armed conflicts, including serious violations of Common Article 3 such as murder, cruel treatment, and torture. It also criminalizes additional violations like intentionally directing attacks against civilians, pillaging, and recruiting child soldiers. This framework establishes individual criminal responsibility for serious violations of IHL in internal conflicts, providing another mechanism for enforcement beyond state responsibility.
Why these differences matter
The varying thresholds create a spectrum of applicability for IHL in internal conflicts. Common Article 3 applies to most situations of internal armed violence exceeding riots and disturbances, providing fundamental humanitarian protections. The Rome Statute occupies middle ground, requiring protracted armed conflict and organization but not territorial control. Additional Protocol II sets the highest threshold, requiring territorial control and capacity to implement the Protocol.
This tiered system has important practical implications. Conflicts meeting only the Common Article 3 threshold lack the detailed protections of Additional Protocol II, creating potential protection gaps. Lower-intensity conflicts may escape international scrutiny and accountability mechanisms. The precise point at which a situation transitions from internal disturbance to armed conflict also remains subject to interpretation.
Assessing intensity and organization
Courts and tribunals have developed several indicators to assess conflict intensity. The duration of hostilities matters-the longer the conflict persists, the more likely it exceeds the threshold. The types of weapons used, particularly heavy weaponry, suggest higher intensity. Casualties, material destruction, and the number of civilians fleeing combat zones all provide evidence of intensity levels.
For organization, indicators include the existence of a command structure and disciplinary rules, the ability to plan and launch coordinated military operations, capacity to recruit and train combatants, and the group’s ability to speak with one voice and negotiate agreements such as ceasefires. No single indicator is dispositive; rather, a contextual examination of the totality of circumstances determines whether the threshold is met.
Addressing the protection gaps
The different thresholds have prompted some scholars and practitioners to advocate for more consistent application of IHL principles across the spectrum of conflicts. The ICRC’s 2005 customary international humanitarian law study identified 161 rules of customary IHL, of which 147 are common to both international and non-international armed conflicts. This harmonization trend limits the significance of textual distinctions between different conflict definitions.
States often resist classifying situations as armed conflicts due to sovereignty concerns. They may prefer to characterize violence as internal disturbances that allow them to criminalize opposition groups under domestic law rather than recognize a conflict that triggers international humanitarian obligations. This political dimension makes the threshold question particularly sensitive.
What do you think? Should there be a single, unified threshold for applying IHL to all non-international armed conflicts, or do the current varying thresholds serve important practical purposes? How can the international community ensure adequate protection for victims in conflicts that fall below the Additional Protocol II threshold while still meeting Common Article 3 requirements?
References
- https://www.icrc.org/sites/default/files/document_new/file_list/armed_conflict_defined_in_ihl.pdf
- https://www.diakonia.se/ihl/resources/international-humanitarian-law/when-does-ihl-apply/
- https://guide-humanitarian-law.org/content/article/3/non-international-armed-conflict-niac/
- https://international-review.icrc.org/articles/additional-protocol-ii-elevating-the-minimum-threshold-of-intensity-915
- https://academic.oup.com/jcsl/article/12/3/419/769635
- https://www.dlpforum.org/2023/11/15/threshold-criteria-for-non-international-armed-conflict-under-ihl/
- https://www.ejiltalk.org/icrc-commentary-of-common-article-3-some-questions-relating-to-organized-armed-groups-and-the-applicability-of-ihl/
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