Bridging Gaps in IHL: Non-International Armed Conflicts and Their Challenges

When armed conflict erupts within a nation’s borders, the rules of war don’t simply vanish. International Humanitarian Law (IHL) recognizes that even in civil wars, insurgencies, and internal conflicts, fundamental human rights must be protected. Yet implementing these protections during non-international armed conflicts presents unique legal and practical challenges that test the boundaries of international law and state sovereignty.

The legal framework for internal conflicts 🔗

Common Article 3 of the Geneva Conventions, often called a “mini-Convention” within the larger Geneva framework, marked a revolutionary development in 1949. For the first time, international law explicitly regulated conflicts occurring within state borders. This provision appears identically in all four Geneva Conventions and establishes minimum standards of humane treatment that apply regardless of the conflict’s nature.

Common Article 3 requires humane treatment for all persons not actively participating in hostilities, including wounded combatants and detained individuals. It prohibits violence to life and person, torture, cruel treatment, hostage-taking, and executions without proper judicial process. These protections apply to armed conflicts between governmental forces and non-state armed groups, or between such groups themselves.

Additional Protocol II: expanding protections 🔗

In 1977, states adopted Additional Protocol II to provide more detailed regulations for non-international armed conflicts. This protocol develops and supplements Common Article 3 without modifying its existing conditions of application. However, it sets a higher threshold for application, requiring that non-governmental groups must exercise territorial control sufficient to carry out sustained military operations and implement the Protocol’s provisions.

Despite being adopted nearly five decades ago, Additional Protocol II has achieved less universal acceptance than the Geneva Conventions themselves. As of recent data, approximately 169 states are party to the Protocol, compared to the near-universal ratification of the 1949 Conventions. This gap in ratification creates inconsistencies in the legal protections available during internal conflicts.

The sovereignty dilemma 🔗

One of the most significant obstacles to implementing IHL in non-international armed conflicts stems from the tension between international humanitarian norms and state sovereignty. States have historically viewed internal conflicts as domestic matters, falling exclusively within their jurisdiction. Accepting international regulation of these conflicts can be perceived as undermining national sovereignty.

This reluctance manifests in several ways. States often resist classifying internal violence as an “armed conflict” to avoid triggering IHL obligations. By characterizing situations as mere internal disturbances, riots, or counter-terrorism operations, governments can maintain that only domestic law applies, not international humanitarian law.

The structural asymmetry of non-international armed conflicts compounds this challenge. International law is primarily drafted by states, making it difficult to maintain legal balance between state rights and those of non-state armed groups challenging governmental authority. No government willingly grants its own citizens the right to take up arms against it, yet IHL seeks to regulate such situations.

The absence of combatant status 🔗

Unlike international armed conflicts where soldiers enjoy combatant status and cannot be prosecuted merely for participating in hostilities, no such status exists in non-international armed conflicts. Members of non-state armed groups remain subject to domestic criminal law for their participation in rebellion or insurgency, even while bound by IHL’s restrictions on means and methods of warfare.

This legal reality creates a fundamental imbalance. Governmental forces operate under both domestic and international law, while members of armed groups face prosecution under domestic law regardless of whether they comply with IHL. This situation provides little incentive for non-state actors to respect humanitarian norms when doing so offers no legal protection.

Limited legal framework compared to international conflicts 🔗

The rules governing non-international armed conflicts remain considerably less detailed than those for international armed conflicts. Common Article 3 contains only basic humanitarian provisions, while Additional Protocol II comprises just 28 articles compared to the 102 articles in Additional Protocol I for international conflicts.

This gap leaves many situations unregulated by treaty law. Questions about detention, targeting, occupation, and means and methods of warfare that have clear answers in international armed conflicts often lack explicit treaty regulation for internal conflicts. While customary international law has evolved to fill some gaps, uncertainty and debate persist about which rules apply.

The role of customary law 🔗

The International Committee of the Red Cross’s 2005 study on customary international humanitarian law identified 161 rules, of which 147 apply to both international and non-international armed conflicts. This development represents significant progress toward harmonizing protections across conflict types, yet it relies heavily on state practice and legal interpretation rather than explicit treaty provisions.

Challenges with non-state armed groups 🔗

Ensuring that non-state armed groups understand, accept, and comply with IHL presents distinct difficulties. These groups often lack formal training in international law, may not have participated in treaty negotiations, and might reject the legitimacy of rules they had no role in creating.

The diversity of non-state actors further complicates implementation. Some groups maintain hierarchical command structures and exercise territorial control, while others operate more loosely. Some seek political legitimacy and may view IHL compliance as enhancing their standing, while others prioritize military effectiveness over legal constraints.

Additionally, the designation of certain groups as terrorist organizations can complicate humanitarian engagement. When states label armed groups as terrorists, dialogue aimed at promoting IHL compliance becomes politically sensitive or legally prohibited, undermining efforts to secure humanitarian access and protection for civilians.

Enforcement mechanisms and accountability gaps 🔗

Non-international armed conflicts suffer from weaker enforcement mechanisms compared to international conflicts. The Geneva Conventions establish grave breaches regimes for international conflicts, creating universal jurisdiction for serious violations. No equivalent system exists for internal conflicts under treaty law, though customary law and the statutes of international criminal tribunals have partially filled this gap.

National courts bear primary responsibility for prosecuting violations occurring in non-international armed conflicts. However, states engaged in such conflicts may lack the political will to prosecute their own forces or may selectively enforce the law. In the absence of effective domestic accountability, violations can go unpunished.

While international tribunals like the International Criminal Court can prosecute war crimes committed in non-international armed conflicts, jurisdictional limitations and political considerations often restrict their reach. The result is an accountability gap that undermines deterrence and allows humanitarian violations to continue with limited consequences.

The role of national implementation 🔗

The effectiveness of IHL in non-international armed conflicts ultimately depends on states incorporating these rules into domestic law and military doctrine. Without national legislation criminalizing violations and military training on applicable rules, IHL remains theoretical rather than operational.

Many states have been slow to adopt comprehensive domestic legislation implementing IHL for internal conflicts. Some lack the technical capacity to draft appropriate laws, while others face political obstacles when legislating rules that would apply to their own forces during internal security operations. International support and technical assistance remain essential to strengthen national implementation.

Contemporary complexities 🔗

Modern armed conflicts blur traditional categories, creating additional implementation challenges. Transnational conflicts involving non-state actors operating across multiple countries, interventions by foreign states in internal conflicts, and overlapping international and non-international elements complicate the legal classification that determines which rules apply.

The global response to terrorism has further muddied these waters. Some states have claimed that conflicts with terrorist organizations fall outside traditional IHL categories, while others argue that terrorism merely describes tactics rather than defining a separate type of conflict. These definitional disputes affect which protections apply and undermine consistent IHL implementation.

Pathways toward better protection 🔗

Despite these challenges, progress remains possible. Continued development of customary international law helps bridge gaps in treaty law. International criminal tribunals have clarified ambiguous provisions and extended protections through their jurisprudence. Civil society organizations and the International Committee of the Red Cross work to promote IHL knowledge among all parties to conflicts.

Special agreements between parties to internal conflicts, encouraged by Common Article 3, offer opportunities to expand applicable protections beyond minimum standards. While politically sensitive, such agreements can enhance civilian protection without requiring formal recognition of armed groups’ political status.

International support for national implementation, including legislative assistance and military training, strengthens domestic capacity to apply IHL. Regional organizations and bilateral partnerships can facilitate knowledge-sharing and promote best practices in integrating IHL into national legal frameworks.

What do you think? How can the international community better balance respect for state sovereignty with the need to protect civilians in internal conflicts? What mechanisms could improve compliance by non-state armed groups with international humanitarian law without granting them political legitimacy?

References

1. https://www.law.cornell.edu/wex/geneva_conventions_and_their_additional_protocols
2. https://casebook.icrc.org/a_to_z/glossary/non-international-armed-conflict
3. https://www.ohchr.org/en/instruments-mechanisms/instruments/protocol-additional-geneva-conventions-12-august-1949-and-0
4. https://guide-humanitarian-law.org/content/article/3/non-international-armed-conflict-niac/
5. https://www.onlinelibrary.iihl.org/wp-content/uploads/2021/06/IHL-Q-A.pdf
6. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5147510