Expanding the Reach of IHL in Non-international Armed Conflicts

When armed conflicts occur within a nation’s borders, international humanitarian law still applies, but through a framework that has evolved significantly beyond the basic provisions of common Article 3 of the Geneva Conventions. This evolution reflects an important recognition that internal wars demand the same humanitarian protections as international conflicts, even as the legal mechanisms remain distinct.

Beyond common Article 3: building a stronger framework 🔗

The foundation of IHL in non-international armed conflicts rests on common Article 3 of the Geneva Conventions, which establishes minimum standards for humane treatment during internal conflicts. However, recognizing that these basic provisions were insufficient for the complex realities of civil wars, states adopted Additional Protocol II in 1977 to develop and supplement these protections.

Additional Protocol II introduced more detailed rules covering the treatment of detainees, judicial guarantees, protection of civilians, and protection of medical personnel and facilities. Importantly, it applies when non-state armed groups exercise territorial control sufficient to enable them to carry out sustained military operations and implement the Protocol. This higher threshold means that common Article 3 continues to apply to many conflicts that fall below the Protocol’s requirements.

The customary law revolution in NIACs 🔗

The most significant expansion of IHL applicable to non-international armed conflicts has come through the development of customary international law. In 2005, the ICRC published a comprehensive study identifying 161 rules of customary IHL binding on all parties to all armed conflicts. Remarkably, 148 of these rules apply equally to non-international armed conflicts.

This development is crucial because customary law applies regardless of whether states have ratified treaties. As the development of customary rules shows, many principles from Additional Protocol I governing international armed conflicts now apply equally to internal conflicts. This harmonization limits concerns about technical definitions and strengthens protection for all victims of armed conflict.

What customary law adds to NIACs 🔗

Customary IHL addresses critical gaps in treaty law for internal conflicts. For example, while treaty law covering internal armed conflict does not expressly prohibit attacks on civilian objects, customary international humanitarian law closes this gap. The customary rules also provide detailed guidance on the conduct of hostilities, protection of the wounded and sick, and treatment of persons deprived of liberty.

This broader application means that parties to non-international armed conflicts must respect principles such as distinction between civilians and combatants, prohibition of indiscriminate attacks, and proportionality in warfare. These obligations exist independent of whether the parties have formally accepted Additional Protocol II.

War crimes prosecution under the Rome Statute 🔗

A parallel development has strengthened accountability for violations in non-international armed conflicts. The Rome Statute of the International Criminal Court established individual criminal responsibility for serious violations of IHL in both international and non-international conflicts.

Under Article 8 of the Rome Statute, war crimes in non-international armed conflicts include violations of common Article 3 as well as other serious violations of the laws and customs applicable to such conflicts. These encompass intentionally directing attacks against civilians, attacking humanitarian personnel, recruiting child soldiers, and committing sexual violence, among other prohibited acts.

This framework has been reinforced by international tribunals. The International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda confirmed that violations of common Article 3 and certain other IHL rules in internal conflicts constitute war crimes subject to individual criminal responsibility. These precedents have been incorporated into the jurisprudence of the International Criminal Court.

Obligations of non-state actors 🔗

One distinctive aspect of IHL in non-international armed conflicts is that it binds both state and non-state parties to the conflict. Non-state armed groups conducting military operations have organizational obligations that include maintaining discipline and ensuring respect for IHL in their combat actions.

This creates a legal framework where armed groups are subject to the same fundamental obligations as states, though they may have different capacities to implement them. For instance, obligations relating to detention depend partly on whether the non-state group controls territory where it can establish detention facilities that meet IHL standards.

Challenges in ensuring compliance 🔗

Despite this robust legal framework, ensuring compliance by all parties to non-international armed conflicts remains challenging. States sometimes deny that an armed conflict exists within their territory, preferring to characterize the situation as internal disturbance requiring only law enforcement responses. This denial can prevent the application of IHL protections.

Additionally, non-state armed groups may lack knowledge of their IHL obligations or the organizational capacity to implement them. They may also fear that acknowledging IHL obligations implies political recognition. However, the application of IHL does not affect the legal status of parties to the conflict or constitute recognition of belligerency.

The role of international actors in promoting compliance 🔗

Various actors play important roles in promoting respect for IHL in non-international armed conflicts. The ICRC, as guardian of IHL, engages confidentially with all parties to conflicts to promote compliance. It provides training, disseminates knowledge of IHL, and offers its services to facilitate humanitarian operations.

The United Nations Security Council has increasingly addressed IHL compliance in internal conflicts through resolutions and fact-finding missions. Regional organizations and individual states also contribute through diplomatic pressure, technical assistance, and support for capacity-building among armed actors.

Civil society organizations document violations, advocate for accountability, and support victims. Their work has been instrumental in developing the evidence base for prosecutions before international and hybrid tribunals addressing crimes committed in non-international armed conflicts.

Toward universal humanitarian standards 🔗

The expansion of IHL applicable to non-international armed conflicts reflects a fundamental principle that all victims of armed conflict deserve protection regardless of the conflict’s legal classification. The convergence between the rules governing international and non-international armed conflicts through customary law development demonstrates the international community’s commitment to universal humanitarian standards.

This evolution has not eliminated all distinctions between the two types of conflict. Treaty law still provides more detailed rules for international armed conflicts, and certain institutions like prisoner of war status remain specific to international conflicts. However, the core humanitarian protections have been substantially harmonized.

Looking forward, the challenge lies not in developing new rules but in ensuring that existing protections are respected. This requires sustained effort by states, international organizations, and civil society to promote knowledge of IHL, build capacity for implementation, and ensure accountability for violations.

What do you think? How can the international community better support non-state armed groups in understanding and implementing their IHL obligations? What mechanisms might be most effective in bridging the gap between the robust legal framework for NIACs and actual compliance on the ground?

References

1. https://casebook.icrc.org/a_to_z/glossary/non-international-armed-conflict
2. https://www.ohchr.org/en/instruments-mechanisms/instruments/protocol-additional-geneva-conventions-12-august-1949-and-0
3. https://www.icrc.org/en/document/customary-international-humanitarian-law-0
4. https://guide-humanitarian-law.org/content/article/3/non-international-armed-conflict-niac/
5. https://www.public.law/world/rome_statute/article_8_war_crimes