In the summer of 2006, the world witnessed a situation that undoubtedly reached the threshold of armed conflict. As yet, however, the conflict between Israel and Hezbollah (or according to some, the conflict between Israel and Lebanon) has not conclusively been identified as one of the two (existing) types of conflict under international humanitarian law (IHL): as either an international armed conflict (IAC) or a non-international armed conflict (NIAC).Footnote 1 Nor have the incursions by Turkish armed forces into northern Iraqi territory to carry out raids on Kurdish strongholds been defined as one of the two types of conflict.
Whilst calls have been made in recent years for the legal distinction between international and non-international armed conflicts to be removed,Footnote 2 confusion as to the applicable legal regime has been created even more recently by the type of conflict situation referred to above, i.e. against non-state entities that operate beyond the borders of a single state. These so-called transnational armed conflicts do not fit naturally into the two traditional types of armed conflict recognized by IHL. In Hamdan v. Rumsfeld, the Supreme Court of the United States ruled that the fight against Al Qaeda, which is not limited to Afghanistan or Iraq but is conducted in essence outside the United States, is covered by Common Article 3 that applies to NIACs.Footnote 3 This case is a striking example of the problems the present classification poses not only for lawyers but also for policymakers and potentially for members of the military.Footnote 4
The present article aims to explain the legal divide that (still) exists between international and non-international armed conflict. How did this division come about, and was it meant to be exclusive? Did it not take into account situations now seen as problematic in terms of the legal regime applicable? This analysis is intended to further the discussion on whether such a distinction is still needed, and which situations should be classified as which (existing) types of conflict under IHL.
It starts with a short overview of what constitutes armed conflict, and more specifically what constitutes an international and a non-international armed conflict in present-day treaty law, and examines whether this distinction between the two can nowadays still be considered relevant. The discussion then centres on how this distinction can be explained historically and in particular whether, as Malcolm Shaw notes, it is historically ‘founded upon the difference between inter-state relations, which was the proper focus for international law, and intra-state matters which traditionally fell within the domestic jurisdiction of states and were thus in principle impervious to international legal regulation.’Footnote 5
The logical point of departure in this regard obviously seems to be the emergence of the nation-state with the Peace of Westphalia. First, however, a look is taken at the period before 1648 and the influence of religion on the determination of types of armed conflict at that time. The various stages of NIAC prior to 1949, namely rebellion, insurgency and belligerency, are discussed next, followed by a survey of the practical implications of the non-regulation of non-international conflict situations by international law (except in situations in which belligerency was recognized), with reference to the American, Finnish and Spanish civil wars.
An in-depth overview is then given of the drafting history of Common Article 3, including negotiation of it at the 1949 Diplomatic Conference which illustrates what the drafters at that time understood as being an armed conflict not of an international character, and thus the difference between international and non-international armed conflicts. Finally, the relevance of state sovereignty in the distinction between international and non-international armed conflicts is put into perspective.
What is an armed conflict?
The key instruments of IHL, i.e. the 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. According to Common Article 2 of the Geneva Conventions, the provisions relating to international armed conflicts apply to ‘all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties’ and to ‘all cases of partial or total occupation’. Article 1 of Additional Protocol I further specifies that the said provisions also apply to ‘conflicts in which peoples are fighting against colonial domination […] alien occupation and […] racist regimes’; thus to situations that may seem to be of a non-international nature and were indeed regarded as such until 1977. However, neither the Geneva Conventions nor Protocol I contain a real definition of the expression ‘armed conflict’.Footnote 6
Pictet provides some guidance by explaining in the Commentary on the Geneva Conventions that ‘any difference arising between States and leading to the intervention of members of armed forces is an armed conflict’.Footnote 7 However, this phrase applies to international armed conflicts only. The International Criminal Tribunal for the former Yugoslavia (ICTY) furthermore established, in its Tadić ruling, that ‘resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’ is to be considered an armed conflict.Footnote 8 This wording does address both IACs and NIACs and has been used by many as a definition when qualifying a situation as an armed conflict. It does not distinguish clearly, however, between the two types of conflict.
For its part, Common Article 3 lays down minimum humanitarian standards that apply in the case of ‘armed conflict not of an international character’, but without defining what is to be understood by this term.Footnote 9 The minimum standards of this ‘convention within a convention’, or ‘mini-convention’,Footnote 10 were later developed in greater detail by Protocol II because of the need to ensure better protection for victims of NIACs.Footnote 11 Although it deals specifically with NIACs,Footnote 12 Protocol II does not define the term ‘non-international armed conflict’ either, but it limits the scope of application to conflicts:
which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement [Additional Protocol II].Footnote 13
The San Remo Manual on NIACs, a document compiled to clarify the rules applicable to NIACs, implicitly acknowledges the ambiguity resulting from a general lack of definition of such conflicts by first and foremost providing one. It seems to be a combination of the various ‘definitions’ discussed above:
Non-international armed conflicts 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. …Footnote 14
The diverse ways in which the said type of conflict is defined above, using the terms ‘within a State’, ‘in the territory of one of the High Contracting Parties’, ‘in the territory of a High Contracting Party’ and ‘within the territory of a single State’, all create a restriction;Footnote 15 some seem more restrictive (e.g. ‘a single State’) than others (‘a State’).Footnote 16 In Haradinaj, the ICTY Trial Chamber elucidated the definition of NIAC used by the Tribunal since Tadić.Footnote 17 In Boskoski, the Trial Chamber spelt it out further by giving a detailed overview of what constitutes an NIAC and reviewing how the relevant elements of Common Article 3 recognized in Tadić, namely ‘intensity’ and ‘organisation of the armed group’ are to be understood.Footnote 18 These clarifications by the Tribunal help to determine when a situation reaches the threshold of NIAC and has to be considered a situation of armed conflict instead of e.g. internal disturbances. Despite the lack of a formal treaty-given definition, it seems reasonably clear nowadays what is to be considered an IAC or an NIAC, and thus what constitutes the distinction between the two types.
Is the distinction between the two categories still relevant?
Some authors have commented that the distinction between IAC and NIAC is ‘truly artificial’,Footnote 19 ‘arbitrary’, ‘undesirable’ and ‘difficult to justify’, and that it ‘frustrates the humanitarian purpose of the law of war in most of the instances in which war now occurs’.Footnote 20 It can in fact be argued that the determination of an armed conflict as international or non-international is less important today. For example, almost all war crimes in both IAC and NIAC are included in the ICRC study of customary international humanitarian lawFootnote 21 and in the Rome Statute. The jurisprudence of the international tribunals and courts also seems to lessen the need for a distinction between the two types of armed conflict. Liesbeth Zegveld explains that:
… it is common practice for international bodies to read substantive norms of Protocol I and the Geneva Conventions into Common Article 3 and Protocol II. Common Article 3 and Protocol II contain few and simple provisions, which are not always suited to the complex realities of internal conflicts. International bodies have therefore resorted to Protocol I and the Geneva Conventions, which serve as a standard of interpretation of Common Article 3 and Additional Protocol II.Footnote 22
She concludes that international practice ‘thus demonstrates a trend to diminish the relevance of the distinction between the law applicable to international and internal armed conflicts’.Footnote 23
Some scholars also see proof of a convergence between the two types of armed conflict in the international agreements on weapon regulation and disarmament.Footnote 24 Such practice and writings, together with what is often referred to as the changing nature of armed conflicts, have led a number of authors to call for the distinction between IAC and NIAC to be removed altogether.Footnote 25
At present, however, it remains in place. Some authors, including Jelena Pejic, note that ‘the distinction between international and non-international armed conflicts remains relevant’.Footnote 26 The treaty rules applicable to IACs are vastly more developed than those that govern NIACs. Moreover, she notes, the status of the fighting parties is different.Footnote 27 The ICRC's customary IHL study does not discuss the definition of armed conflict, and whilst many rules were found to be applicable in times of both international and non-international armed conflict, the progressive development of customary law as laid down in the study ‘has not led to a complete amalgamation’Footnote 28 of the rules for both types of conflict. Specific distinctions between the two still remain.Footnote 29
A similar argument can be advanced with regard to the weapons and disarmament conventions: stating specifically that a certain weapon is also inhumane in times of non-international armed conflict says more about the weapon than it does about the status of the conflict. If anything, this last observation seems to confirm that the distinction in question still remains.Footnote 30 Moreover, whilst some have argued that there should be only one type of armed conflict, others have even proposed a third, new type of armed conflict.Footnote 31 Clearly, the distinction remains relevant today, but is not only of recent date. Inter alia religion created distinctions between various types of war and the ensuing application of rules or norms, as examined below.
Before 1648 – the influence of religion
Religion was not just a reason to wage warFootnote 32 – it was also influential in regulating the way that wars were to be waged. The Christian Church sought to impose limitations on wars – the Pax Dei movement, for example, can be seen as representing ‘an attempt to make sure that the treatment meted out to Christians would not resemble that reserved for heretics or heathens.’Footnote 33 This led to the Church taking an interest in the type of weapons used; indeed, it was ‘the Second Lateran Council, not some court of chivalry, that in 1139 banned the crossbow as suitable for use only against heathens.’Footnote 34
The power believed to be vested in the rulers by God, together with the belief in the inequality between Christians and heathens, structured the types of war identified by the scholars of that day and age. The Italian canonist Henricus de Segusio, better known by the name Hostiensis, wrote between 1239 and 1253 about the various types of war in his commentary Summa aurea. The section ‘De treuga et pace’ (On Truce and Peace) distinguishes seven types of war that can be divided into external wars, i.e. those fought by the Christians against ‘infidels’, and internal wars, i.e. those fought by Christian princes against each other. External wars were considered legitimate by Hostiensis, whilst internal wars would be legitimate only if waged to uphold the decision of a judge or, more generally, the authority of the law, or in self-defence against unwarranted attacks.Footnote 35
In the years that followed, the Christian tradition remained instrumental in developing rules for situations that could be qualified as international armed conflict; such a contribution was less apparent, however, for non-international armed conflicts.Footnote 36 The theory of just war imposed some constraints on the conduct of international wars,Footnote 37 but these could not easily be extended to non-international armed conflicts, as it was difficult for such situations to meet the conditions laid down by the just war theory. Furthermore, the interpretation of Biblical texts that served to justify support for an unlimited fight, or for constraints placed only upon rebels in situations of non-international violence, were also used for political purposes. A difference thus has to be made between a genuine Christian belief and a political reading of the relevant passages from the Bible.Footnote 38
Whilst Protestantism caused a shift in the way the Scriptures were interpreted, owing to the changing political context, the distinction between war (i.e. the use of force at the international level) and what was not to be considered a war and thus not subject to constraints (i.e. the use of force in internal situations, such as suppressing rebellion) was similar to that of earlier Christian times.Footnote 39 Martin Luther wrote in his Open Letter on the Harsh Book against Peasants that a ‘rebel is not worth rational arguments’ and that it is ‘God's will that the king be honored and the rebels destroyed’.Footnote 40 He refused to consider the possibility of establishing rules, and even suggested conduct against rebels that at present would be considered as extrajudicial and as summary executions.Footnote 41 Similarly, John Calvin held that rebellion could be justified as an extreme measure, and one of his followers, John Knox, further developed a theory that allowed the persecuted to wage war against their oppressors. It did not, however, lead to the development of any rules for this non-international conflict situation; the rebellion was, ‘at least on the part of the “justified” rebels […] subject to no limitations.’Footnote 42
Further east, a view similar to that of Hostiensis prevailed (i.e. relating to the distinction between believers and non-believers). Islam was initially meant to spread until the whole of the earth was under Muslim rule. Consequently jihad was the only kind of relationship that could exist between those who believed in Islam and those who did not. However, as time passed, it became clear that the Muslim world would have to accept that non-Muslim states and empires would remain as neighbours, resulting in the appearance of other forms of war.Footnote 43 From the twelfth century on, an entire body of literature (partly religious, partly legal) that attempted ‘to define what Muslims might do to non-Muslims under what circumstances’Footnote 44 came into being.
When the Muslim world broke up into states that often professed different versions of Islam and fought each another, it became necessary to distinguish not only between war against unbelievers and war against fellow Muslims, but also between Muslims themselves. In the tenth century, a scholar from Baghdad, al-Mawardi, divided war against Muslims into three categories: first, war against those who had abandoned faith (ahl al ridda); second, against rebels (ahl al baghi); and third, war against those who had renounced the authority of the spiritual leader (al muharabin). In each of these categories of war, different methods of warfare and a different set of obligations towards the enemy were prescribed. In the third category, for example, which concerned people considered to be part of the House of Islam (dar al Islam), the prisoners were not to be executed; nor were their houses to be burnt.Footnote 45
Religion thus created a distinction between wars fought against those of the same religion (e.g. Christian or Muslim) and against those of a different one. Wars fought within Christendom or within the Muslim world were subject to certain rules, whereas situations that were not considered to be wars lacked such rules. Quite remarkably, this much can also be learned from someone who was neither a theologian nor a lawyer, but for whom the distinction was quite apparent. The quotation from Shakespeare's Richard III reproduced at the outsetFootnote 46 is an interesting demonstration of the fact that:
both at the time of the events Shakespeare described and at the time he wrote, the normative and legal rules in force recognized and highlighted the dichotomy between [internal and international] conflicts.Footnote 47
The famous playwright often dealt with armed violence in his various historical works, and produced:
an elaborate and well-defined enunciation of the legal distinctions between internal and international conflict and the different normative principles and chivalric obligations, or lack thereof, involved.Footnote 48
The words of Richard III encapsulate these differences: in international wars, one ‘fights’ against ‘enemies’ that are ‘foreign’. In internal ‘wars’ that take place ‘at home’, one ‘beats down’ the ‘rebels’.Footnote 49
The view that theologians should deal with moral questions rather than with legal and political ones emerged along with the nascent concept of state sovereignty at the end of the sixteenth century.Footnote 50 This is aptly illustrated by words used by a contemporary of Shakespeare, the Italian legal scholar and writer Alberico Gentili, who played a crucial part in the emergence of international law as an independent legal discipline:Footnote 51Silete theologi in munere alieno.Footnote 52
The Peace of Westphalia – the emergence of state sovereignty
The influence of religious ideas further declined after the Peace of Westphalia in 1648, the point in time that is generally considered to mark the inception of the modern sovereign nation-state.Footnote 53 Once the treaties were signed, the European rulers ‘mostly abandoned religion in favour of more enlightened reasons for slaughtering each other.’Footnote 54 Samuel von Pufendorf was one of the first post-Westphalian writers of his time to address war-related matters, and quickly became one of the most influential.Footnote 55 In his work On the Duty of Man and Citizen, he drew attention to the need for ‘prudential limits to what one should do in war’Footnote 56 by stressing that humanity requiresFootnote 57 that ‘[o]ne should limit acts of violence to those that are actually necessary’.Footnote 58 Von Pufendorf determines that wars can normally be divided in two forms: declared and undeclared wars. While he does not denounce the latter category as unjust, he specifies that an ‘[u]ndeclared war is either war waged without formal declaration or war against private citizens. Civil wars also are in this category.’Footnote 59 He classified non-international situations as undeclared wars, but left open the option that the limits should also extend to this type of fighting.
That the Peace of Westphalia did not constitute a dramatic change in the way wars were perceived by international scholars is illustrated by comparing what Gentili wrote at the end of the sixteenth century with the writings of Hugo Grotius shortly before the Peace of Westphalia and those of Emmerich de Vattel during the eighteen century.
Alberico Gentili, who taught at Oxford, observed in 1589 that the applications of the norms of international law stemmed from the presence of a sovereign power on each side. A legitimate ‘enemy’ had to meet requirements that are similar to those for today's statehood or the criteria for United Nations membership.Footnote 60 Those who did not meet the requirements were not proper enemies, and thus ‘such men [did] not come under the laws of war’.Footnote 61 He wrote in his De Iure Belli Libri Tres that:
those who do not have a [public cause] are not properly enemies, even although they conduct themselves as soldiers and commanders and meet the attack of commanders of opposing legions. He is an enemy who has a state, a senate, a treasury, united and harmonious citizens, and some basis for a treaty of peace. […] For the word hostis, ‘enemy’, while it implies equality, like the word ‘war’ […] is sometimes extended to those who are not equal, namely, to pirates, proscribed persons and rebels; nevertheless it cannot confer the rights due to enemies, properly called so, and the privileges of regular warfare.Footnote 62
Similarly, the Dutch scholar Hugo Grotius discussed the old division between public and private wars in his seminal work De Jure Belli ac Pacis in 1625.Footnote 63 Public wars (i.e. between sovereign powers) were to be fought in accordance with the constraints imposed by the laws of war:
The name of lawful war is commonly given to what is here called formal [war]. […] Now to give a war the formality required by the law of nations, two things are necessary. In the first place it must be made on both sides, by the sovereign power of the state, and in the next place it must be accompanied with certain formalities. Both of which are so essential that one is insufficient without the other.Footnote 64
He went on to say that a war against private people ‘may be made without those formalities.’Footnote 65 One author observes that Grotius did not see the emerging theory of state sovereignty as precluding the possibility of regulation of situations of non-international armed conflict by international law. Grotius thus left open the possibility for the doctrine of natural law to shape the evolution of norms relating to non-international armed conflicts.Footnote 66
For his part, Emmerich de Vattel, a Swiss scholar who lived in the eighteenth century, held that an internal uprising that challenged the sovereignty of the state was the worst evil for an independent body. Thus when engaged in fighting the rebels, the sovereign did not have to respect the laws of war.Footnote 67 He wrote in his work Droit des Gens ou Principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains, that those ‘who rise up against their prince without cause deserve the severest punishment.’Footnote 68 The influence of the doctrine of natural law resulted in his advice not to conduct unlimited repression of rebels and to refrain from excessive and cruel punishments.Footnote 69 He furthermore recognized that in situations of such an intensity that it resembled an international war, the laws of war were to apply. In his chapter titled ‘Civil wars’, Vattel writes that:
When the nation is divided into two absolutely independent parties, who acknowledge no common superior, the State is broken up and war between the two parties falls, in all respects, in the class of public war between two different Nations. […] The obligation upon the two parties to observe towards each other the customary laws of war is therefore absolute and indispensable, and the same which the natural law imposes upon all Nations in contests between State and State. […] [I]t is perfectly clear that the common laws of war, those principles of humanity, forbearance, truthfulness, and honor […] should be observed by both sides in a civil war.Footnote 70
The situation described above is similar to those that led about a hundred years later to recognition of the non-state party to conflict as a belligerent. The doctrine of belligerency may be seen as an encroachment on state sovereignty, because it would place a non-state party on the same level as a state if the conflict were sustained enough to resemble an international war. In essence, however, it seems to strengthen the concept of state sovereignty when the criteria that the enemy had to fulfil (as explained earlier by Gentili) are taken into account. Indeed, in the years after Vattel further developments in international law led to the doctrine of belligerency.Footnote 71
This is further illustrated by the writings of Lassa Oppenheim, who at the beginning of the twentieth century still distinguished clearly between international wars and non-international conflict situations. Whilst the former were wars, Oppenheim did not consider the latter as such (unless the non-state party was recognized as a belligerent). His definition of war is often quoted and reads as follows:
War is the contention between two or more States through their armed forces for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases.Footnote 72
He stated that neither a civil warFootnote 73 nor a guerrilla war were ‘real war[s] in the strict sense of the term in International Law’Footnote 74 because ‘[t]o be considered war, the contention must be going on between States.’Footnote 75 As such:
a civil war need not be from the beginning, nor become at all, war in the technical sense of the term. But it may become war through the recognition of each of the contending parties or of the insurgents, as the case may be, as a belligerent Power.Footnote 76
The state-centric approach explains that a conflict between a state and a non-state entity (that nowadays could qualify as a non-international armed conflict) was not considered to constitute a war. This phenomenon, which according to Oppenheim did not exist in his time, did not qualify as a war in his view. He says that:
in the Middle Ages wars were known between private individuals, so-called private wars, and wars between corporations, as the Hansa for instance, and between States.Footnote 77 But such wars have totally disappeared in modern times. It may, of course, happen that a contention arises between the armed forces of a State and a body of armed individuals, but such contention is not war.Footnote 78
Before the adoption of Common Article 3 (and later the Additional Protocols) as part of international law, a non-international contention could thus only come within the scope of international (humanitarian) law if the insurgents were recognized as belligerents.Footnote 79 The recognition of belligerency and the preceding stages of civil strife will be discussed in the following section.
Various stages of non-international armed conflict prior to 1949Footnote 80
As mentioned above, a non-international armed conflict prior to the adoption of the 1949 Geneva Conventions only came within the scope of international law if those taking up arms against the government were recognized as belligerents. Before reaching the stage of belligerency, the law and practice distinguished two other stages in civil strife: rebellion and insurgency.Footnote 81
Rebellion
In traditional international law, rebellion (or upheaval) was considered to be a situation of domestic violence in which only a sporadic challenge to the legitimate government was noticeable.Footnote 82 The situation was only a short-lived insurrection against the authority of the stateFootnote 83 and within the ability of its police force to ‘reduce the seditious party to respect the municipal legal order’.Footnote 84 If the government was rapidly able to suppress the rebel faction ‘by normal procedures of internal security’,Footnote 85 the situation did not fall within the scope of international law.Footnote 86 The rebels challenging the de jure government had no legal rights or protection under traditional international law,Footnote 87 and whilst foreign States were entitled to assist the government in its efforts to suppress the rebels, they were to refrain from giving support to the rebel party, for to do so would constitute illegal intervention.Footnote 88
The ICTY observed in Tadić that States:
preferred to regard internal strife as rebellion, mutiny and treason coming within the purview of national criminal law and, by the same token, to exclude any possible intrusion by other States into their own domestic jurisdiction. This dichotomy was clearly sovereignty-oriented and reflected the traditional configuration of the international community, based on the coexistence of sovereign States more inclined to look after their own interests than community concerns or humanitarian demands.Footnote 89
So under traditional international law ‘a rebellion within the borders of a sovereign State is the exclusive concern of that State’Footnote 90 and was not considered subject to the laws of war.Footnote 91
Insurgency
Whereas a rebellion is ‘a sporadic challenge to the legitimate government, […] insurgency and belligerency are intended to apply to situations of sustained conflict’.Footnote 92 Consequently, when a rebellion is able to ‘survive’ suppression and cause longer-lasting and more substantial intrastate violence, its status duly changes into that of an insurgency.Footnote 93 The recognition of insurgency can be seen as an indication that the government granting it ‘regards the insurgents as legal contestants, and not as mere lawbreakers’.Footnote 94 In traditional international law, the recognition of insurgency did not require the application of humanitarian norms unless these were expressly conceded by the legitimate government.Footnote 95 The state concerned was free to determine the consequences of this acknowledgement.Footnote 96 As such, it seems that the recognition of insurgency was more relevant to states than to the insurgents themselves.
During the Spanish Civil War, for example, the major European powers demonstrated the limitations that are meant to be set by the recognition of insurgency. On the high seas, both sides were barred from exercising belligerent rights against foreign ships and an international convention prohibited the export of war-related materials to either side.Footnote 97 Foreign states also played a role in the Spanish Civil War. This can be explained by Richard Falk's observation that:
the recognition of insurgency serves as a partial internationalisation of the conflict, without bringing the state of belligerency into being. This permits third states to participate in an internal war without finding themselves ‘at war’, which would be the consequence of intervention on either side once the internal war had been identified as a state of belligerency.Footnote 98
Whereas a recognition of insurgency served as a partial internationalization of the conflict, recognition of that same party as a belligerent would lead to a full internationalization of it.
Belligerency
When a non-international armed conflict reached such a sustained level that both sides should be treated alike as belligerents, the parent government or a third state could, by declaration, grant the insurgents recognition as a belligerent party.Footnote 99 Oppenheim notes that whilst insurgents might not legally be able to wage a war, their actual ability to do so explains why insurgents may become belligerents. He goes on to say that any state can recognize insurgents as a belligerent power as long as the following three criteria are met: (1) the insurgents have taken possession of part of the territory of the (legitimate) government; (2) they have set up a government (system) of their own; (3) they fight in accordance with the laws of war.Footnote 100 Lauterpacht held that four criteria existed, the fourth of which stated that ‘there must exist circumstances which make it necessary for outside States to define their attitude by means of recognition of belligerency’, and was a real additional requirement to those just mentioned.Footnote 101
International law treated an internal war with the status of belligerency in essentially the same way as a war between sovereign states. When recognized as a belligerent, the non-state party to a non-international conflict was consequently under traditional international law, to be treated essentially like a state at war,Footnote 102 and had the same rights and duties. The obligation to ensure respect for the humanitarian norms was then equally binding for the non-state party (i.e. the insurgents). The laws of war were applicable both to the authorities of the de jure government and to the insurgents. So the legitimate government's recognition of belligerency brought the entire body of the laws of war into effect between the government and the insurgents,Footnote 103 and not only the rules governing the conduct of hostilities but also those for all other war-related activities, such as care for the sick and wounded and respect for prisoners of war.Footnote 104
The doctrine of belligerency thus extended the humanitarian norms of international law to a situation of non-international conflict. Anthony Cullen comments that there appears to have been little consensus among scholars as to whether the recognition of belligerency, and hence of the application of the international humanitarian norms, constituted a duty when certain objective conditions (such as the above-mentioned criteria) were fulfilled, or whether it was purely up to the discretion of the state authorities concerned.Footnote 105
Recognition of belligerency by the United States and the United Kingdom occurred on a number of occasions in relation to (former) Spanish colonies in South and Central America. A famous situation in which belligerency was recognized is of course, the American Civil War. In the twentieth century, however, the doctrine seemed to have become obsolete. For example, the non-recognition of the insurgents in the Spanish Civil War as belligerents is proof to many of the demise of the concept of belligerency.Footnote 106 There were some situations that came close to recognition of the insurgents as belligerents, for instance the Nigeria-Biafra conflict in 1967 or the Algerian War, but the states concerned held that these were not formal recognitions.Footnote 107 As will be shown below, the doctrine of belligerency and the accompanying criteria nevertheless proved to be of great importance during the negotiations on the 1949 Conventions.
Civil wars
The following three civil wars show how the stages of non-international armed conflict set forth above were applied in practice before 1949. These and other civil wars in the latter half of the nineteenth and the first half of the twentieth century helped shape the law governing such conflicts.
The American Civil War
The American Civil War (1861–1865) began after first seven and then another four states declared their secession from the Union, the federal state, to form the Confederate States of America. The Federal government opposed the secession and a large army was mobilized to suppress the rebellion.Footnote 108 The conflict that followed undeniably had features of an international war.Footnote 109 Oppenheim held that although according to the constitution of a federal state, a war between member states or between one or more member states and the federal state would be illegal (and from the constitutional standpoint, a rebellion), these conflicts were nevertheless wars for the purposes of international law.Footnote 110 He also considered that the ‘War of Secession within the United States between Northern and Southern member-States in 1861–1865 was [a] real war’.Footnote 111 However, David Turns explains that in using the term ‘civil war’ in the designation most widely given to the conflict, i.e. the American Civil War, history and the English language ‘have unequivocally confirmed it as a conflict that was fundamentally non-international in nature.’Footnote 112
Soon after the outbreak of hostilities, President Lincoln imposed a naval blockade on the entire Southern coast; this was seen as an implied recognition of belligerency vis-à-vis the South.Footnote 113 It was followed by proclamations of neutrality and recognitions of the Confederate States by the United Kingdom and a number of other countries. During a discussion some months later the British government voiced the opinion that ‘[a]n insurrection extending over nine States in space, and ten months in duration, can only be considered as a civil war, and that persons taken prisoners on either side should be regarded as prisoners of war.’Footnote 114 By virtue of the recognition of belligerency during the Civil War, both parties were bound to respect the laws of war,Footnote 115 and they were in fact generally observed.Footnote 116 Members of both armies were given prisoner-of-war status and distinction was made between military objectives and civilian objects.Footnote 117
Besides the effect the conflict had on world politics and issues such as slavery, it also helped to shape the laws of war. It is even affirmed that ‘[t]his war was unquestionably the critical incident for the development of a full and complete law of civil conflict.’Footnote 118 The recognition of the Confederate States as belligerents led to numerous court cases, thereby contributing to the doctrine of belligerency; it has also been widely discussed in legal doctrine and state practice, which in turn contributed to the development of the law of non-international armed conflict.Footnote 119
It was moreover during the American Civil War that Professor Francis Lieber drew up the famous Lieber Code, which is regarded as a foundation of contemporary international humanitarian law.Footnote 120 Together with a board of Union officers he prepared a set of rules concerning the conduct of hostilities on land, the Instructions for the Government of Armies of the United States in the Field – General Orders No. 100,Footnote 121 which were issued to the Union's armed forces by President Lincoln. The Code has served as a basis for later treaties dealing with international conflicts, such as the Hague Regulations, the wording of which sometimes closely follows the articles of the Lieber Code. It is often called ironic that the first set of rules of modern IHL was drafted for a non-international armed conflict,Footnote 122 but the Code was essentially drafted for an international situation, or at least a situation rendered ‘international’ by the recognition of belligerency. Lieber was hesitant to include the nine articles of Section X entitled ‘Insurrection – civil war – rebellion’, wanting to avoid giving the impression that the Code was applicable only to such situations rather than to international wars.Footnote 123 In that section it is stated that applicability of the rules of war to rebels in times of war within a state is induced by humanity,Footnote 124 as opposed to obligations under international law.Footnote 125
The Finnish Civil War
On 6 December 1917 Finland, until then part of Russia, declared its independence. In the weeks that followed it was recognized as an independent state by the Bolshevik government of Russia and by Sweden, Germany, France, Norway and Denmark.Footnote 126 The political situation in Finland was tense: the revolutionary Reds, representing the lower classes, opposed the Whites, representing the bourgeois political forces.Footnote 127 The Red rebellion succeeded in taking over power in the urban south (including the capital Helsinki) and the White government and army withdrew north. Finland – and its population – were divided, with both regimes enjoying considerable support.Footnote 128
The Finnish Civil War certainly reached the modern threshold for an armed conflict. Essentially non-international in nature, Germany's intervention on the side of the government, and – more importantly – that of Russia on the rebel side would by present-day standards have internationalized the conflict.Footnote 129 However, the White government did not recognize the Reds as insurgents or belligerents; instead it ‘treated them merely as criminals and traitors’ and viewed the situation as a purely internal matter.Footnote 130 Although the term ‘civil war’ would thus not have been applicable officially, this was de facto clearly a situation that would have met the criteria.Footnote 131
There was great loss of life during the conflict, but only partly at the front: a large number of people were either executed or died in prison camps.Footnote 132 The crimes committed during the civil war are referred to as the ‘White terror’ and ‘Red terror’, respectively. Most of the crimes committed by the Whites were out of revenge and feelings of hatred for those who had ‘betrayed’ Finland. Dubious orders were issued by the military staff, including orders on many occasions that no quarter be given.Footnote 133 It is, however, also reported that both parties sometimes referred to international law when condemning acts by the adversary, for instance when both the Whites and the Reds alleged that the other side had violated the 1868 St Petersburg Declaration by using a prohibited type of explosive bullet.Footnote 134 In addition, some of the prisoners (on both sides) were granted prisoner-of-war status, and ambulances, field hospitals and Red Cross workers seemed to be respected by both parties.Footnote 135 As a young nation, Finland had not yet ratified any of the relevant law of war treaties, but the reference to provisions dealing with protection and means and methods of warfare shows that the parties felt a certain need for regulation of the conflict. As with most conflicts in which a government fights against an opposition group, the refusal to see the opponent as entitled to protection under the laws of war showed the heart of the problem of non-international armed conflicts occurring before 1949.Footnote 136
The Spanish Civil War
The Spanish Civil War (1936–1939) was fought between the Republican government and the Nationalists under the command of General Franco. Like the Finnish Civil War, it can be considered internationalized by present-day standards because of foreign involvement.Footnote 137 It was a bitter and savage ‘non-international conflict’, in which no recognition of belligerency was given to the Nationalist rebels. However, while not legally obliged to do so, both parties claimed that they would respect the laws of war.Footnote 138 The Republican government stated, for example, that it would treat the captured opponents according to the military code for prisoners of war,Footnote 139 and the Nationalists declared that they would respect the laws and customs of war ‘with the utmost scrupulousness’.Footnote 140
It should be noted that a few years earlier Spain had signed and ratified the 1929 Geneva Convention relative to the Treatment of Prisoners of War.Footnote 141 During the war the American scholar Padelford remarked that the announcements made by the government with regard to prisoners, as well as the designation of certain areas as zones of war and subject to blockades, constituted a recognition of belligerency of the Nationalists.Footnote 142 If that was so, the 1929 Geneva Convention would have been applicable to the prisoners.
The use of safety or demilitarized zones, which was later codified in international humanitarian law in Articles 23 and 14, respectively, of the First and Fourth Geneva Conventions of 1949, first occurred during the Spanish Civil War.Footnote 143 Yet there were ‘only a few bright spots’ as regards compliance with humanitarian law.Footnote 144 In 1938, the League of Nations passed a resolution condemning the bombing of open towns and described this conduct as contrary to international law,Footnote 145 and Nationalist air raids on the civilian population were denounced by the League as contrary ‘to the conscience of mankind and to the principles of international law.’ Notwithstanding the ‘uncivilized and inhuman practices’ that were the order of the day, the references made by the parties and the League of Nations show an emerging concept of international rules being applicable to a non-international conflict despite the lack of recognition of belligerency.Footnote 146
These three civil wars illustrate the problems surrounding the recognition of belligerency and the resulting absence of any formal application of international rules regulating such wars. The de facto situation showed a need for the laws of war to be applied, and at the same time the statements by and agreements between the parties (and with international and humanitarian organizations) showed an understanding that extension of the rules to the situations discussed above was indeed necessary.
From formal to factual application
The applicability of the laws of war was subject to formal declarations, e.g. declarations of war and belligerency. Situations in dire need of application of these rules were not regulated by treaty law unless formally recognized by such declarations as being within the scope of the laws of war, thus as an (international) war. This system was replaced by inclusion of the notion of ‘armed conflict’ in the 1949 Geneva Conventions, which addressed the actual situation on the ground. Humanitarian law thus became applicable on the basis of material aspects of conflict instead of formalities.
Prior to the adoption of the 1949 Geneva Conventions, no substantive provision specifically dealing with situations of non-international armed conflict existed in IHL.Footnote 147 This changed in 1949 with ‘the embodiment of [the idea on which the Red Cross is based] in international obligations’.Footnote 148 The inclusion – primarily in response to the brutal civil wars in the years between the two world wars, such as that in Spain,Footnote 149 – of Common Article 3 ‘in which the whole of the rules applying to non-international conflicts are concentrated’ was ‘almost unhoped-for’.Footnote 150 This important development, not only for the protection of people affected by armed conflict but also for the legal distinction between the two types of armed conflict, is discussed in the following section.
The drafting history of Common Article 3
As Pictet points out in his Commentary, until 1949 the Conventions were designed ‘to assist only the victims of wars between States.’ In 1864, for example, the first-ever Geneva Convention for the protection of wounded or sick soldiers was brought into being on the initiative of the Geneva Committee, the future International Committee of the Red Cross. ‘[I]n logical application of its fundamental principle’, the Red Cross later called for the law to be extended to other categories of victims of war, i.e. prisoners of war and civilians,Footnote 151 for ‘[t]he same logical process could not fail to lead to the idea of applying the principle to all cases of armed conflicts, including those of an internal character.’Footnote 152
The Red Cross had long before tried to help ‘the victims of internal conflicts, the horrors of which sometimes surpass the horrors of international wars by reason of the fratricidal hatred which they engender.’Footnote 153 However, its work was often hampered by domestic politics: in non-international conflicts the lawful government sometimes viewed the relief it gave to victims on the insurgents' side as aid to criminals. Indeed, applications by a foreign Red Cross Society or by the ICRC were more than once treated as interference in the internal affairs of the state concerned.Footnote 154 At the 9th International Conference of the Red Cross, held in 1912, a draft convention on the role of the Red Cross in times of civil war or insurgencies was submitted, but the subject eluded any discussion whatsoever.Footnote 155
The ICRC was more successful in this regard after World War I. In 1921 it was able to include the issue on the agenda of the 10th International Conference of the Red Cross, and this time a resolution was passed ‘affirming the right to relief of all victims of civil wars or social or revolutionary disturbances in accordance with the general principles of the Red Cross.’Footnote 156 In the uprising that followed the plebiscite in Upper Silesia that same year and during the Spanish Civil War, this resolution enabled the ICRC ‘to induce both sides to undertake more or less to respect the principles of the Geneva Convention.’Footnote 157
At the 14th International Conference of the Red Cross in 1938, a resolution was passed that supplemented and strengthened the resolution of 1921. By adopting the 1938 resolution, the International Conference ‘was […] envisaging, explicitly and for the first time, the application to a civil war, if not of all the provisions of the Geneva Conventions, at any rate of their essential principles.’Footnote 158 This development, together with the results achieved in the non-international armed conflicts in Upper Silesia and Spain, encouraged reconsideration by the ICRC of possibly inserting into the Conventions provisions relating to civil war.Footnote 159
At various conferences leading up to the 1949 Conference, the Red Cross Movement tried to have the provisions of the proposed new conventions applied to armed conflicts ‘within the borders of a State’,Footnote 160 but there proved to be a divergence of interests between the Movement, which advocated individual rights and protections, and the states that wanted to protect their sovereign rights.Footnote 161 As was feared by the ICRC, the latter objected to the imposition on states of international obligations relating to their internal affairs.Footnote 162 After a proposal by the Conference of Government Experts,Footnote 163 the ICRC then submitted to the 17th International Conference of the Red Cross, held in Stockholm in 1948, a revised version of the article in question of the Draft Conventions for the Protection of War Victims. Interestingly, Pictet's Commentary states that the text submitted by the ICRC was as follows:
In all cases of armed conflict which are not of an international character, especially cases of civil war, colonial conflicts, or wars of religion, which may occur in the territory of one or more of the High Contracting Parties, the implementing of the principles of the present Convention shall be obligatory on each of the adversaries. The application of the Convention in these circumstances shall in no wise depend on the legal status of the Parties to the conflict and shall have no effect on that status.Footnote 164
The revised text was approved at the Stockholm Conference with the omission of the words ‘especially cases of civil war, colonial conflicts, or wars of religion’.
However, rather then weakening the text, the said omission actually enlarged its scope.Footnote 165 Whilst Pictet notes that ‘[i]t was in this form that the proposal came before the Diplomatic Conference of 1949,’Footnote 166 the text of the Final Record reveals that the wording of the proposal actually read:
In all cases of armed conflict which are not of an international character which may occur in the territory of one or more of the High Contracting Parties, each of the adversaries shall be bound to implement the provisions of the present Convention. The Convention shall be applicable in these circumstances, whatever the legal status of the Parties to the conflict and without prejudice thereto.Footnote 167
The Commentary fails to mention that ‘important change’,Footnote 168 which would entail a more elaborate protection in conflicts not of an international character. This latter proposal – in line with the Movement's earlier view – thus suggests a full application of the Conventions to such conflicts.Footnote 169 For the present analysis it is relevant to observe that up to the convening of the Diplomatic Conference, the aim of those taking part in it (i.e. the Red Cross Movement and importantly, states) was for the new Conventions as a whole to extend to non-international armed conflicts. Essentially, this would have meant that the distinction that existed between the two types of conflict prior to 1949 would (in effect) have been eliminated. Whereas before the distinction lay not so much in the legal framework (since the latter did not officially apply to non-international armed conflicts), this meant de facto that a clear distinction did exist: between those conflicts that were governed by IHL, namely real wars – international armed conflicts; and those that were not, namely non-international armed conflicts. Extending the application of IHL to the latter would create a single category: situations to which IHL applied, i.e. armed conflicts, be they international or non-international in nature.
In light of the contemporary challenges to IHL, another phrase also becomes relevant.Footnote 170 Both the wording of the Commentary and that of the Final Record contain the phrase ‘in the territory of one or more of the High Contracting Parties’.Footnote 171 Common Article 3, as it finally appeared in the Geneva Conventions of 1949, uses the well-known wording ‘[i]n case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties’. The meaning of ‘one’ in this phrase of Common Article 3 is rather ambiguous and was a subject of the debate surrounding the ‘war’ waged by the United States against Al Qaeda.
In Hamdan v. Rumsfeld the US Supreme Court considered whether ‘one’ should be read in its literal sense (which was the then view of the Bush administration) and ruled that it should not. In agreeing with this finding by the Court, Marco Sassòli explains that ‘[i]f such wording meant that conflicts opposing states and organized armed groups and spreading over the territory of several states were not “non-international armed conflicts”, there would be a gap in protection.’Footnote 172 The present prevailing view seems to be that ‘one’ should be read as ‘a’.Footnote 173 The question as to whether the difference between the draft that was submitted and the final article was in fact intentional is dealt with below.
The Diplomatic Conference (1949)
The Diplomatic Conference convened in 1949 to revise the existing Geneva Conventions and established four primary committees, each of which focused on a different issue. One of these issues was ‘Provisions common to all four Conventions’. As this phrase suggests, the relevant committee (the so-called Joint Committee) also dealt with what was to become Common Article 3.Footnote 174 The text of that article was one of the most controversial sections of the draft prepared by the ICRC.Footnote 175 The content of the debate in Geneva shows what type of conflict the drafters understood to be an ‘armed conflict not of an international character’.
The Joint Committee was composed of delegates from all states present at the Diplomatic Conference. A divergence of views immediately became apparent.Footnote 176 The United Kingdom delegation was strongly against the adoption of draft Article 2 as it stood, because it would ‘strike at the root of national sovereignty’ and pose a threat to national security. The UK also held that Article 2(4) would extend the application of the Conventions to situations that ‘were not war’.Footnote 177 In similar fashion, the French delegation feared that it would be possible for ‘forms of disorder, anarchy, or brigandage to claim protection under the Convention’Footnote 178 and thus proposed an amendment to protect the rights of the state. In particular, it tabled the following alternative to the fourth paragraph of Article 2:
In all cases of armed conflict not of an international character which may occur on the territory of one or more High Contracting Parties, each of the Parties to the conflict shall be bound to implement the provisions of the present Convention, if the adverse Party possesses an organized military force, an authority responsible for its acts acting within a defined territory and having the means of observing and enforcing the Convention.Footnote 179
This French proposal still made use of the wording ‘on the territory of one or more High Contracting Parties’, and was supported by Spain, Italy and Monaco.Footnote 180
However, the ICRC was of the opinion that it set too high a threshold: on earlier occasions the total or partial application of the Conventions had been achieved, but those same situations would not have reached the threshold set by the amendment.Footnote 181 It considered that the most practical and straightforward approach would be to have uniform application of the Conventions to all types of armed conflict and not to set an additional threshold.Footnote 182
Whilst the French proposal implicitly stated the condition for recognition of belligerency, the American, Australian and Greek delegations felt that this did not go far enough and proposed (in various forms) that the material conditions warranting the recognition of belligerency and thus the application of IHL be specifically stated.Footnote 183 The Greek proposal went so far as to say that the majority of the UN Security Council would need to recognize the belligerency.Footnote 184
Canada agreed that recognition of belligerency should be the criterion, while a second group accepted that the draft article might be less than perfect, but supported its inclusion on the basis of humanitarian considerations.Footnote 185 Norway (backed by the Soviet Union, Romania, Mexico, Denmark and Hungary) expressed its support for draft Article 2 because it would constitute a step forward in international law. It commented, too, that the term ‘armed conflict in a situation of civil war'should not be understood as ‘individual conflict’ or ‘uprising’, but as ‘a form of conflict resembling international war, but taking place inside the territory of a State.’Footnote 186 It furthermore hoped for agreement at that Conference ‘that purely humanitarian rules should be applied in armed conflicts independently of any recognition of belligerency.’Footnote 187
It became clear in the Joint Committee that no easy conclusion could be reached. Pursuant to the Swiss delegation's proposal, a sub-committee (the ‘Special Committee’) was therefore created to deal with the definition of armed conflict and the provision on non-international armed conflicts. Its meetings lasted for eleven weeks, but ended without any real agreement.Footnote 188
Given the clear divergence of views on draft Article 2, the Special Committee took two votes before starting its discussions. These showed that the delegations were in favour: (1) of extending the application of the Conventions to armed conflicts not of an international character; and (2) of rejecting the Stockholm draft of Article 2 and determining more clearly the non-international cases to which the Conventions were to apply.Footnote 189 The Committee felt that it had two options: it could either limit the situations of non-international violence to which the Conventions were to apply, or it could limit the amount or extent of the provisions that would be applicable to conflicts not of an international character.Footnote 190
Over the weeks that followed, smaller working groups (so-called Working Parties) were formed from the delegations taking part in the Special Committee. A total of three proposals for what was meanwhile called Article 2A were put forward, but none of them gained enough support, so all three were submitted to the Joint Committee.
While the French proposal before the Joint Committee at the end of April still contained the wording ‘one or more High Contracting Parties’, by May and June the three aforesaid proposals drafted during the Special Committee meetings all used the wording ‘one of the High Contracting Parties’ (or, in the case of the Soviet proposal, ‘one of the States Parties’).Footnote 191 The records do not show any deliberation on this subject and no mention is made of the reason for omitting ‘or more’. It is possible that so-called off-the-record ‘hallway diplomacy’ gave rise to this change, but it seems more plausible, in view of the recorded discussion in the Special Committee, that at some point the words ‘or more’ were felt to be void because everyone seemed to agree that the type of armed conflict being discussed was purely internal in character.
The draft Article 2A completed by the second Working Party, consisting of the exact wording of the present Common Article 3, received the most support in the Joint Committee and was then submitted to the Plenary Assembly. This latest draft text did not include any reference to the criteria for recognition of belligerency; delegations previously wanting these criteria included thus either underwent a radical change of opinion, or the recognition of belligerency was deemed to be an implicit condition for the provision's application to non-international armed conflicts.Footnote 192
The report on the work of the Joint Committee, submitted together with the draft articles to the Plenary Assembly, gives a good overview of what the delegations considered to be the type of conflict mentioned in this draft Article 2A. As for what was to be understood by ‘armed conflict not of an international character’, the report states that:
It was clear that this referred to civil war, and not to a mere riot or disturbances caused by bandits. States could not be obliged, as soon as a rebellion arose within their frontiers, to consider the rebels as regular belligerents to whose benefit the Conventions had to be applied.Footnote 193
Anthony Cullen notes that the terms ‘civil war’ and ‘armed conflict not of an international character’ were thus understood by the drafters as having an equivalent threshold. The former presupposes the existence of hostilities that are similar to an international conflict and, for the purposes of applicability of the Conventions, thus requires the same scale and intensity.Footnote 194 If the report submitted to the Plenary Assembly accurately describes the views held by the delegates, there must then have been broad agreement that the threshold required for the application of IHL (as laid down in the Conventions) was similar to the level that was traditionally set for recognition of belligerency.Footnote 195
The debate on Article 2A continued at the Plenary Assembly, but it was finally adopted unchanged as Common Article 3 by 34 votes to 12 (with one abstention). According to the Swiss delegation, the text represented the only possible balance between the claims of idealism and the rights of realism,Footnote 196 and was a compromise between the Asian bloc (represented by Burma), which was still opposed to the inclusion of a provision on non-international situations, and the Soviet view that the humanitarian protection afforded by this article was too limited.Footnote 197
The ICRC would have preferred the more extensive protection of the Stockholm draft, but accepted that a compromise was inevitable. It gave its full support to the article, which contained a simple and clear text and ‘has the merit of ensuring, in the case of a civil war, at least the application of the humanitarian rules which are recognized by all civilized peoples’, provides at least a minimum of protection and at the same time gives humanitarian organizations, such as the ICRC, the means for intervention.Footnote 198
After several years in preparation and many weeks of negotiation, the extension of treaty law to non-international armed conflicts was thus accomplished. While this was a great achievement insofar as it extended a number of provisions to such conflicts and – as the ICRC noted – allowed humanitarian agency bodies to offer their services, it also created a legal distinction between those conflicts and the situations referred to in Common Article 2, i.e. international armed conflicts, to which the Conventions applied in their entirety.Footnote 199
Concluding remarks
Differences between situations of armed conflict existed even before the rise of the nation-state as a concept in international law. Religion was a reason to treat enemies of another religion differently, and also to accord those daring to challenge the power of the sovereign a treatment outside the confines of any law. Wars against other sovereigns belonging to the same religion i.e. wars between equals, were the only ‘real wars’ and therefore the only situations subject to regulation.Footnote 200
With the rise of the nation-state, war came to be characterized as an inherent sovereign right. Indeed, the right to wage war was even believed to be the main characteristic of sovereignty. Yoram Dinstein comments in this regard that:
When observed through the lens of legal theory, the freedom to indulge in war without thereby violating international law seemed to create an egregious anomaly. It did not make sense for the international legal system to be based on respect for the sovereignty of States, while each State had a sovereign right to destroy the sovereignty of others.Footnote 201
He explains, too, that the states (and statesmen concerned) did not consider the freedom of waging war to constitute a problem in relation to international law; nor did they find it inconceivable that each state could – in the name of sovereignty – legitimately challenge the sovereignty of other states.Footnote 202 The ambiguity of sovereignty is also illustrated by the doctrine of belligerency. Since only sovereign States could wage war, a non-international armed conflict was considered to fall within the realm of international law (and thus the laws of war) only in cases where it actually resembled an international war. The recognition of belligerency was thus the only way to make the laws of war applicable to non-international situations, but if such was the case, the fighting parties were placed on an equal footing – the sovereign state and the insurgents who received recognition as belligerents.
Similarly, the Geneva Conventions were only meant to apply in non-international situations that closely resembled international armed conflicts. The 1949 Geneva Conventions expanded the frontiers of IHL: the first three Conventions updated existing treaties and the fourth broke new ground by making detailed provisions for the treatment of civilians, but ‘[t]he major novelty was Article 3 common to all four Conventions, which for the first time introduced the principles of the Geneva Conventions into the domain of non-international conflicts.’Footnote 203 While it is also said that the Geneva Conventions marginalize non-international armed conflicts,Footnote 204 they did break ‘through the obstacle posed by considerations of national sovereignty to impose a legal framework on internal conflicts.’Footnote 205
However, this divergence from the original scope of application has not created a completely new distinction between international and non-international armed conflicts. As mentioned above, this distinction existed long before 1949. The non-regulation of situations of a non-international nature in itself creates a distinction: between situations that fall under the protection of humanitarian law and situations outside the scope of that body of law. The international community had a chance to nullify this distinction in 1949, but rather than making the whole of IHL applicable to all types of armed conflict (international and non-international), the states that negotiated the Conventions not only decided to retain the previously existing distinction by creating two separate regimes instead, but also – given the fact that the situations to be governed by Common Article 3 were similar to those that could previously have received a recognition of belligerency – inadvertently created a situation in which less protection and fewer laws would be in place than before.
In addition, a fundamental difficulty that arose after creation of that distinction was how to classify conflicts into one of the two categories, since a new dimension was added to simply differentiating prior to 1949 between ‘wartime’ and ‘peacetime’.Footnote 206
On the one hand, situations that in earlier times fell short of belligerency (which required a party to be able to engage in sustained violence), and would thus probably have been called rebellion, today come under headings such as internal disturbances and tensions and isolated and sporadic acts of violence and are still considered to be outside the scope of IHL protection.Footnote 207 Article 1(2) of Additional Protocol II and Article 8(2)(d) of the Rome Statute of the International Criminal Court have adopted wording that is very similar to how rebellion falling short of insurgency or belligerency could be described.
Situations not clearly coming within one of the two categories, e.g. transnational situations, were never discussed when the distinction between international and non-international armed conflicts came into being. Because non-state groups were not a sovereign power and would never be able to meet the criteria for recognition of belligerency,Footnote 208 those situations were outside the scope of traditional international law. During the drafting process of Common Article 3, at no time was reference made to a potential transnational situation. The only reference that could have indicated that the drafters had considered the possibility of such a situation, namely ‘or more’, was omitted without explanation. The drafting and negotiations dealt exclusively with the use of internal armed force within a State.Footnote 209
Conversely, the scope of application of Common Article 3 has nowadays been extended. As one author notes, that article is being distorted and applied in direct contradiction to what the drafters anticipated and agreed upon in 1949,Footnote 210 for whereas it was meant to apply in situations that were similar to the other type of conflict referred to in the Conventions, i.e. international armed conflicts, it now applies as a minimum yardstick to all situations of armed conflict that are not international in character.Footnote 211
The sensitivity of states to third-party interference in matters to do with their internal security and sovereignty is cited as the reason why the law of non-international armed conflict has been neglected and under-regulated for so long.Footnote 212 The sovereignty of states remains an important international value, but at the same time the prerogatives it confers have been limited. Insistence upon a traditional concept of state sovereignty would thus be anachronistic. Sovereignty has been redefined to accommodate newly recognized values of international human rightsFootnote 213 and a number of international legal developments, including the appearance of international tribunals and courts.Footnote 214 In its first case of one of these tribunals, the ICTY showed its desire to extend humanitarian protection in like measure to victims of non-international armed conflicts,Footnote 215 but in its subsequent case-law it has time and again confirmed the existence of a legal distinction between non-international and international armed conflicts. In order to make this distinction, it has developed criteria to assess whether a given situation corresponds to one type of conflict or the other.
At present, the distinction between the two types of conflict still forms part of positive law, for the states negotiating the 1949 Geneva Conventions (and later the 1977 Additional Protocols) were not willing to place a situation that concerned their internal affairs, and thus their sovereignty, on an equal footing with international armed conflicts. The willingness of judicial bodies to extend the scope of application of the law of non-international armed conflicts can hence be viewed as a promising development. However, for international humanitarian law to achieve its aim of providing the best possible protection for those affected by armed conflict, the desired outcome in resolving the question of application of this branch of law is naturally the one that brings into play the largest set of rules – those related to international armed conflict – that protect all victims of war.
