What constitutes a Non International Armed Conflict (NIAC) ?
With this brief, we’ll cover the definition of NIAC and try to determine what is the range and scope of application of this concept.
We’ll go through some general and historical perspective about conflicts, We’ll then enter into what can be said about NIACs and how to define them: we’ll go trough their typology, which is an evolving and debated one and we’ll conclude with definitions provided by treaty and case law. Why do we pay special attention to this matter? The characterization of the situation as that of a NIAC is extremely important as it governs the applicable law and may open operational/legal venues for legitimizing offensive lethal action and administrative detention, without prejudice to the implementation of Human Righs Law and domestic constitutional and criminal Law.
Until the Geneva Conventions (GC) of 1949, War and Peace, and then conflicts, were considered exclusively a matter for States. States were, if not the the only subjects of international law, by far the most important. Jus ad Bellum consisted exclusively of the right to use force between States, and Jus in Bello was only a law for combatants on behalf of States.
Internal armed conflicts or civil wars were then exclusively governed by domestic law (But see Emmer Vattel 1758,
“When a numerous party believes at any time it is its right to resist the sovereign, and sees itself able to take up arms, the war has to be made between them in the same way as between two different nations …“.)
From the Hague Conventions 1907 to AP I et II 1977, that is in less than a century, we went from a Wetsphalian system, where the law of war was understood as the law regarding wars conducted between States, to a situation where ninety per cent of the conflicts in the world are NIAC, and we have an emerging body of law covering NIAC.
Things started to change with the UN Charter of 1945 which was largely built as a tool to promote self determination, and dismantle old colonial empires. A new wave of creation of Nation States ensued and to this day has not ended.
With regard to Jus ad Bellum, the new balance achieved with the UN Charter and the powers conferred to the UNSC “To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace” is still though marked by an apparent respect for States sovereignty regarding their domestic affairs as shown in Art 2 (7).
A closer look shows though that this respect for States sovereignty for their domestic affairs is clearly subordinated to the collective risk for peace and security. Under very general terms, the SC at art 34 Chapter VI may seize itself of “any dispute or situation” which potentially covers and has covered NIACs.
WRT Jus in Bello, the GC of 1949 contain provisions regarding NIAC which are of a limited scope at common article 3. Those provisions are rather novel and we’ll look into it further later.
Finally, Human Rights Law (HRL) instruments, like the Universal Declaration of Human Rights, of 1948, the European Convention on Human Rights, of 1950, and other HRL also significantly changed the international legal landscape applicable to NIAC, with a number of non derogable provisions at time of conflict, and the path for individual remedy in front of courts was later opened.
To enter more precisely into the matter at hand (NIAC), we need to remember that, even though a vast majority of conflicts are NIAC, NIAC are but an exception, against the background of conflicts as covered by the GC.
What the GC aim primarily at is to regulate international armed conflicts (IAC).
The GC start by defining their own scope of application in the most general terms without being stopped by any formal consideration. Any conflict is covered, war declared or not, recognized or not by the Parties to it. It also covers Belligerent Occupation, regardless of the fact that Occupation is met or not with armed resistance.
All in all, under GC, an armed conflict of international character is a matter of fact, more than a matter of legal form and every form of armed violence even at a very low level between armed forces of two High Contracting Parties is to be regarded as such. What the GC does not do though is defining what a conflict is.
GC Common Article 3 states:
“In case of an armed conflict not of an international character occurring in the territory of one of the High Contracting Parties (…)”
Those provisions are regarded as Minimum “Geneva”, that is, exclusively “protection of victims” provisions.
NIAC now are covered by GC common art 3. But they are defined in a very general manner, again against the background of IAC, as conflicts which do not have an international character.
Read though in conjunction with GC C art 2, it means that a NIAC may be defined as a conflict where only one State Party to the GC is engaged in the conflict at hand. No other element of definition is to be found. We will have to wait for the Additional Protocol II to obtain a definition for a specific kind of internal armed conflict.
Of course, some precautions had to be taken with regard to States sovereignty which could only accept this intrusion in their legal space if they obtained sufficient guarantees. GC Common art 3 carries on then to say :
“(…) the application of the preceding provisions shall not affect the legal status of the Parties to the conflict”
The last sentence of common article 3 is drafted to ensure that the recognition of the existence of a NIAC and the implementation of such minimal provisions as contained in GC common art 3 do not lead to international recognition for rebels per se.
We can keep in mind at this stage that it is the requirement of the protection of victims that drove the emergence of the regulating effort in NIAC.
Additional protocols changed the game in many ways..
Since World War II, most conflicts had been of a non international nature. The implementation of GC Common Art 3 is difficult, if anything because it does not comprise of a defined threshold for its implementation.
It does not say when violence amounts to a NIAC. It then leaves that recognition to the discretion of States. The ICRC has in this regard an advisory role which it plays well. Some went as far as to saying that GC Common Art 3 was never implemented. ICRC does not agree with this view and says it was implemented particularly when developing conflicts found a state of equilibrium as for example in Colombia.
At any rate, those limitations, the lack of mention of relief actions in NIAC etc…, as well as the need to adress other concerns WRT to the protection of the civilian population under Jus in Bello in IAC led to organising conferences where the matter of NIAC was raised.
Three proposals were made to deal with NIACs.
- The global approach consisting in no longer distinguishing IACs from NIACs was disregarded almost immediately.
- Using Model Agreements for large scale NIACs was found unsufficient.
- Developping a LOAC corpus specific to NIACs with a clear definition of what a NIAC is, with objective criteria, seemed the way ahead.
Because of debates related to wars of national liberations, or to the role of States WRT the starting point of the implementation of the new instrument, and also debates regarding the status of fighters in NIAC, it was decided finally to keep GC Common art 3 as a separate instrument, and to move liberation wars to AP I in line with UN political orientations.
The final draft of AP II recognized the concern of States by suppressing provisions related to the equality of rights of parties to a NIAC. Of note it specifically suppressed that term of “parties to the conflict” throughout the draft, clearly refusing this status to Organised Armed Groups or other forces opposed to that of the GVT in place. The draft was then adopted by consensus with a high threshold for the implementation.
Now time to enter into a more detailed analysis. And as we have seen, the very notion of NIAC is understood by contrasting it with that of an IAC .
So let’s start with IAC...
It is indisputable that an armed conflict is international if it takes place between two or more States. The ICRC commentary on the provision explains that:
“Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place. The respect due to the human person as such is not measured by the number of victims.”
Thus, it is generally agreed that a single incident involving the armed forces of two states may be sufficient to be considered an international armed conflict.
Now in case of an internal armed conflict breaking out on the territory of a State, it may become international if:
(i) another State intervenes in that conflict through its troops,
or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of another State. Where a state intervenes indirectly without the use of its armed forces in a NIAC on the side of the rebels, as in the Tadić case, the International Criminal Tribunal for the former Yugoslavia (ICTY) decided that “overall control” of a rebel group is sufficient to internationalize the conflict. The standard set by the Tribunal does not require the “issuing of specific orders by the State, or its direction of each individual operation”; it is enough that a state “has a role in organizing, coordinating or planning the military actions” of a given non-state armed group.
This standard differs from that of the ICJ «Nicaragua case» where the test for internationalization of the conflict resided in «effective control» which is more demanding but the ICJ decision standard may be, in fact, limited in effect to deciding State responsibility matters. WRT NIAC, we will look immediately after this at a precise typology. Suffice to say for now that most courts, doctrine, ICRC and most States Practice accept the idea that a NIAC happens within the boundaries of a State and that there is no such thing as a «transnational NIAC». Conversely, nobody seriously opposes the idea that parallel and separate NIACs may take place in neighbouring countries. They may be linked by some element which might be of political or military importance. But that remains immaterial WRT the classification of the conflict or the applicable legal frame. But significantly, most scholars nowadays admit that there are situations where a spillover (over borders) effect may take place and that in this case, the situation is regulated by IHL as applicable to NIAC.
Let’s now look at a typology of non-international armed conflicts: NIAC falling within the Common Article 3 threshold take different forms.
First, there are traditional Common Article 3 NIACs. In this case the government armed forces are fighting against one or more organized armed groups within the territory of a single state. This type of situation and the ensuing classification does not depend on the existence or absence of a political agenda for the armed groups, We will see that armed banditry when reaching a certain degree of organization and where at the origin of a high level of violence can lead to qualifying the situation as a NIAC (Mexico, Colombia). These armed conflicts are governed by Common Article 3, as well as by rules of customary international humanitarian law and depending on how the fighting goes, the AP II threshold might be reached.
Second, an armed conflict taking place between two or more organized armed groups against each other may be considered a subcategory of the aforementioned ‘classical’ NIAC when it takes place within the territory of a single state. Examples include :
- situations where there is no state authority to speak of (i.e. the ‘failed’ state scenario) and
- situations where there is the parallel occurrence of a NIAC between two or more organized armed groups alongside an international armed conflict within the confines of a single state.
Here, too, Common Article 3, customary IHL constitute the relevant legal regime.
Third, certain NIACs originating within the territory of a single state between government armed forces and one or more organized armed groups may also ‘spill over’ into the territory of neighbouring states.
Leaving aside Jus ad Bellum considerations, it is believed that the relations between parties whose conflict has spilled over remain at a minimum governed by Common Article 3 and customary IHL. The spill over of a NIAC into adjacent territory cannot have the effect of absolving the parties of their IHL obligations because an international border has been crossed. Now a matter of peculiar importance consists in determining whether this spill over effect and the applicability of IHL may extend to non adjacent States or to States separated by a geographical barrier. For example France recognizes it is engaged in a NIAC against Daesch in Irak (but surprisingly enough not in Syria where the legal reasoning took the form of a use of the right ot State Self defense under Art 51 UN Charter). Should the fact that Daesch issues operational orders for terrorist actions in France lead to believe (and to act upon) that the France /Daesch NIAC has spilled over into France territory?
Fourth, the last decade has seen the emergence of what may be called “multinational NIAC”. These are armed conflicts in which multinational armed forces are fighting alongside the armed forces of a ‘host’ state – in its territory – against one or more organized armed groups. As the armed conflict does not oppose two or more states and all the state actors are on the same side, the conflict must be classified as a NIAC, regardless of the international component, which can be significant. A current example is the situation in Afghanistan (that armed conflict was initially international in nature, but the applicable legal framework is now Common Article 3 and customary IHL, plus Afghanistan has ratified AP II and the control of territory criterium is satisfied...). Mali in 2013 is another one.
Fifth, a subcategory of multinational NIACs is one in which UN forces, or forces under the supervision of a regional organization such as the African Union, are sent to help stabilize a ‘Host’ government involved in hostilities against one or more organized armed groups in its territory.There are cases in which it may be argued that the international force has become a party to the NIAC. If and when such forces become a party to a NIAC, they are bound by the rules of IHL.
Sixth, it is believed by some that a ‘cross border’ NIAC exists when the forces of a state are engaged in hostilities with a non-state party operating from the territory of a neighbouring host state without that State’s control or support. The 2006 war between Israel and Hezbollah is an example in kind. There was three different opinions WRT the legal classification of the hostilities :
- an international armed conflict,
a non-international armed conflict, or
a parallel armed conflict going on between the different parties at the same time: that is to say an IAC between Israel and Lebanon and a NIAC between Israel and Hezbollah.
This last, “double classification” approach takes into account the fact that hostilities for the most part involved an organized armed group whose actions could not be attributed to the Host state fighting across an international border with another State.
This situation may also describe the situation of hostilities in Syria between some States and Daesch, those States being already engaged in a NIAC against Daecsh in Irak; This is not the way though France and the UK have chosen to describe their involvement, again, referring instead to an Ad Bellum legal frame and their right to self defense under art 51 of the UN Charter.
A final, seventh type of NIAC (this time ‘transnational’) is believed by some – almost exclusively in the US – to currently exist between ‘Al Qaeda and its affiliates’ and the United States.The Bush Administration had designated this conflict a ‘global war on terror’ a term which the Obama administration no longer favors.It had determined that it was neither an international armed conflict governed by the Geneva Conventions – because Al Qaeda was not a State – nor a non-international armed conflict – because it exceeded the territory of one state.The US Supreme Court, ruled in the 2006 Hamdan case that the armed conflict in question was at least governed by Common Article 3 as a matter of US treaty obligation, thus implying but not as such saying that it was non-international in nature.
Now time to look into what Additonal Protocol II brought WRT the matter at hand. It comprises of positive and negative elements of definition.
The test of AP II Art 1 demands that rebels controlled a portion of the territory.
It in turns allows them to conduct concerted operations, under responsible command, and enables them to conduct those operations under the LOAC (meaning they should, not that they are). This specific type of NIAC calls then for the reunion of a number of circumstances. Again, the most important one is the control of a portion of the territory. All other conditions are also likely to be found in that case. It is all things considered doubtful that a portion of the territory can be seized lacking some degree of organization, concerted operations and a responsible command. Opposedly it is not unconceivable to have a INSURGENT responsible command, carrying out sustained and concerted operations, and able to implement AP2 without control of a territory. Absent the territory control criterium, AP 2 would not be applicable. Then AP II art 1 Treaty Law defines what a NIAC is not.
It explicitly mentions that riots, internal disturbances and tensions, sporadic acts of violence are not NIAC.
We have seen what the black letter of the law has to say about NIACs definition. It is not much by all accounts, now time to look into case law contribution.
International criminal courts have been instrumental in bringing new perspective on the definition of what constitutes a NIAC.
And to begin with, the Tadic foundation case has spelled the basics, absent in the black letter of the law, except for the AP II definition and actually drawing from that definition.Two main indications of the existence of a NIAC are to be found in this famous definition, that of a specific situation of violence and that of the level of organization behind that use of force or violence. “70. On the basis of the foregoing, we find that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.“
PROSECUTOR v.DUSKO TADIC a/k/a "DULE" DECISION ON THE DEFENCE MOTION FOR INTERLOCUTORY APPEAL ON JURISDICTION, October, 2nd 1995.
Those criteria of violence level and degree of organization have then been subdivided into sub categories or indicators in Tadic and other cases. The Tadic case test serves to distinguish armed conflicts from banditry, riots, isolated acts of terrorism, or similar situations.
An excellent and comprehensive sum-up can be found in the Haradinaj case from April, 3rd, 2008, also from ICTY (Trial Chamber) or even better Jul 10, 2008, Prosecutor v. Boskoski and Tarculovski (Trial Chamber). To be clear, the Tadic case test applies to all kind of NIACs.
With regard to the required level of violence, how do State organs, such as police and military, use force against armed groups ? Are military means used to begin with? Do they apply exlusively a police type of paradigm governed by Human Rights/national law, and use lethal force restrictively? Or do they interpret their own actions according to IHL and use lethal, direct, offensive attacks?
Protracted Armed Violence”, What is the number of incidents, what is their level, length and duration (Halilovic, Limaj and al) what is the geographical spread of violence, the number of deaths, injuries and damage, etc..?
This organization criterium highlights the principle that an armed conflict can exist only between parties that are sufficiently organized to confront each other with military means. State governmental authorities are presumed to dispose of armed forces that meet this criterium. As for armed groups, International Tribunals have relied on several indicative factors, none of which are, in themselves, essential or per se sufficient to establish whether the “organization” criterium is satisfied. Such indicative factors include the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords.
Where does IHL apply when the situation at hand is characterized as a NIAC?
On July, 4th 2012, Rupert Colville, the spokesperson for Navi Pillay, the High Commissioner for Human Rights, reported that the High Commissioner was of the view that “With regard to the issue of whether or not it is a conflict, the High Commissioner said there are indications that the situation in Syria – at least in certain areas – may amount to “a non-international armed conflict”…..thus entailing obligations on both parties under International Humanitarian Law. We believe that the number of places where this can be said to be the case is on the increase. The legal obligations of all parties under International Human Rights Law continue to apply throughout Syria, including conflict areas”.
This position seemingly restricts the applicability of IHL to those places where hostilities are taking place.
After some hesitations, the ICRC confirmed its position in a 17/07/2012 ICRC press release : “The ICRC concludes that there is currently a non-international (internal) armed conflict occurring in Syria opposing Government Forces and a number of organised armed opposition groups operating in several parts of the country (including, but not limited to, Homs, Idlib and Hama). Thus, hostilities between these parties wherever they may occur in Syria are subject to the rules of International Humanitarian Law”.
The International Courts have affirmed in a number of cases that IHL as applicable to NIACs applies throughout the country concerned, but have clearly associated this position to the protective aspects of IHL, Tadic, para 69 and 70 Defence Motion for Interlocutory Appeal on Jurisdiction and Kunarac, Appeal, para 67.
We may at this stage conclude that there are some temptations to geographically limit the scope of IHL. This could from an operational perspective be understood as limiting the right of States to initiate hostilities e.g; offensive operations anywhere, or to use an IHL frame in operations such as check points for example, where opposedly, INSURGENTS would simply be not thus constrained.
In conclusion, with regard to the legal matters and issues encountered, we can conclude that IHL as applicable to NIAC is an emerging body of International Law, that should be understood as an additional layer of Law, regulating hostilities in a territory where other bodies of Law like National criminal law or Human Rights Law fail at regulating violence or the use of force by armed groups or State authorities.
It is more and more important to find an agreement as to whether a given situation of violence is in fact a NIAC, as ninety per cent of situations deemed to be actual conflicts are NIAC. In every case though, a thorough analysis is required using internationnaly accepted standards, and “terrorism, acts of terror” for example may or may not amount to a NIAC situation.
With this brief, we’ll cover the definition of NIAC and try to determine what is the range and scope of application of this concept.
We’ll go through some general and historical perspective about conflicts, We’ll then enter into what can be said about NIACs and how to define them: we’ll go trough their typology, which is an evolving and debated one and we’ll conclude with definitions provided by treaty and case law. Why do we pay special attention to this matter? The characterization of the situation as that of a NIAC is extremely important as it governs the applicable law and may open operational/legal venues for legitimizing offensive lethal action and administrative detention, without prejudice to the implementation of Human Righs Law and domestic constitutional and criminal Law.
Until the Geneva Conventions (GC) of 1949, War and Peace, and then conflicts, were considered exclusively a matter for States. States were, if not the the only subjects of international law, by far the most important. Jus ad Bellum consisted exclusively of the right to use force between States, and Jus in Bello was only a law for combatants on behalf of States.
Internal armed conflicts or civil wars were then exclusively governed by domestic law (But see Emmer Vattel 1758,
“When a numerous party believes at any time it is its right to resist the sovereign, and sees itself able to take up arms, the war has to be made between them in the same way as between two different nations …“.)
From the Hague Conventions 1907 to AP I et II 1977, that is in less than a century, we went from a Wetsphalian system, where the law of war was understood as the law regarding wars conducted between States, to a situation where ninety per cent of the conflicts in the world are NIAC, and we have an emerging body of law covering NIAC.
Things started to change with the UN Charter of 1945 which was largely built as a tool to promote self determination, and dismantle old colonial empires. A new wave of creation of Nation States ensued and to this day has not ended.
With regard to Jus ad Bellum, the new balance achieved with the UN Charter and the powers conferred to the UNSC “To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace” is still though marked by an apparent respect for States sovereignty regarding their domestic affairs as shown in Art 2 (7).
A closer look shows though that this respect for States sovereignty for their domestic affairs is clearly subordinated to the collective risk for peace and security. Under very general terms, the SC at art 34 Chapter VI may seize itself of “any dispute or situation” which potentially covers and has covered NIACs.
WRT Jus in Bello, the GC of 1949 contain provisions regarding NIAC which are of a limited scope at common article 3. Those provisions are rather novel and we’ll look into it further later.
Finally, Human Rights Law (HRL) instruments, like the Universal Declaration of Human Rights, of 1948, the European Convention on Human Rights, of 1950, and other HRL also significantly changed the international legal landscape applicable to NIAC, with a number of non derogable provisions at time of conflict, and the path for individual remedy in front of courts was later opened.
To enter more precisely into the matter at hand (NIAC), we need to remember that, even though a vast majority of conflicts are NIAC, NIAC are but an exception, against the background of conflicts as covered by the GC.
What the GC aim primarily at is to regulate international armed conflicts (IAC).
The GC start by defining their own scope of application in the most general terms without being stopped by any formal consideration. Any conflict is covered, war declared or not, recognized or not by the Parties to it. It also covers Belligerent Occupation, regardless of the fact that Occupation is met or not with armed resistance.
All in all, under GC, an armed conflict of international character is a matter of fact, more than a matter of legal form and every form of armed violence even at a very low level between armed forces of two High Contracting Parties is to be regarded as such. What the GC does not do though is defining what a conflict is.
GC Common Article 3 states:
“In case of an armed conflict not of an international character occurring in the territory of one of the High Contracting Parties (…)”
Those provisions are regarded as Minimum “Geneva”, that is, exclusively “protection of victims” provisions.
NIAC now are covered by GC common art 3. But they are defined in a very general manner, again against the background of IAC, as conflicts which do not have an international character.
Read though in conjunction with GC C art 2, it means that a NIAC may be defined as a conflict where only one State Party to the GC is engaged in the conflict at hand. No other element of definition is to be found. We will have to wait for the Additional Protocol II to obtain a definition for a specific kind of internal armed conflict.
Of course, some precautions had to be taken with regard to States sovereignty which could only accept this intrusion in their legal space if they obtained sufficient guarantees. GC Common art 3 carries on then to say :
“(…) the application of the preceding provisions shall not affect the legal status of the Parties to the conflict”
The last sentence of common article 3 is drafted to ensure that the recognition of the existence of a NIAC and the implementation of such minimal provisions as contained in GC common art 3 do not lead to international recognition for rebels per se.
We can keep in mind at this stage that it is the requirement of the protection of victims that drove the emergence of the regulating effort in NIAC.
Additional protocols changed the game in many ways..
Since World War II, most conflicts had been of a non international nature. The implementation of GC Common Art 3 is difficult, if anything because it does not comprise of a defined threshold for its implementation.
It does not say when violence amounts to a NIAC. It then leaves that recognition to the discretion of States. The ICRC has in this regard an advisory role which it plays well. Some went as far as to saying that GC Common Art 3 was never implemented. ICRC does not agree with this view and says it was implemented particularly when developing conflicts found a state of equilibrium as for example in Colombia.
At any rate, those limitations, the lack of mention of relief actions in NIAC etc…, as well as the need to adress other concerns WRT to the protection of the civilian population under Jus in Bello in IAC led to organising conferences where the matter of NIAC was raised.
Three proposals were made to deal with NIACs.
- The global approach consisting in no longer distinguishing IACs from NIACs was disregarded almost immediately.
- Using Model Agreements for large scale NIACs was found unsufficient.
- Developping a LOAC corpus specific to NIACs with a clear definition of what a NIAC is, with objective criteria, seemed the way ahead.
Because of debates related to wars of national liberations, or to the role of States WRT the starting point of the implementation of the new instrument, and also debates regarding the status of fighters in NIAC, it was decided finally to keep GC Common art 3 as a separate instrument, and to move liberation wars to AP I in line with UN political orientations.
The final draft of AP II recognized the concern of States by suppressing provisions related to the equality of rights of parties to a NIAC. Of note it specifically suppressed that term of “parties to the conflict” throughout the draft, clearly refusing this status to Organised Armed Groups or other forces opposed to that of the GVT in place. The draft was then adopted by consensus with a high threshold for the implementation.
Now time to enter into a more detailed analysis. And as we have seen, the very notion of NIAC is understood by contrasting it with that of an IAC .
So let’s start with IAC...
It is indisputable that an armed conflict is international if it takes place between two or more States. The ICRC commentary on the provision explains that:
“Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place. The respect due to the human person as such is not measured by the number of victims.”
Thus, it is generally agreed that a single incident involving the armed forces of two states may be sufficient to be considered an international armed conflict.
Now in case of an internal armed conflict breaking out on the territory of a State, it may become international if:
(i) another State intervenes in that conflict through its troops,
or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of another State. Where a state intervenes indirectly without the use of its armed forces in a NIAC on the side of the rebels, as in the Tadić case, the International Criminal Tribunal for the former Yugoslavia (ICTY) decided that “overall control” of a rebel group is sufficient to internationalize the conflict. The standard set by the Tribunal does not require the “issuing of specific orders by the State, or its direction of each individual operation”; it is enough that a state “has a role in organizing, coordinating or planning the military actions” of a given non-state armed group.
This standard differs from that of the ICJ «Nicaragua case» where the test for internationalization of the conflict resided in «effective control» which is more demanding but the ICJ decision standard may be, in fact, limited in effect to deciding State responsibility matters. WRT NIAC, we will look immediately after this at a precise typology. Suffice to say for now that most courts, doctrine, ICRC and most States Practice accept the idea that a NIAC happens within the boundaries of a State and that there is no such thing as a «transnational NIAC». Conversely, nobody seriously opposes the idea that parallel and separate NIACs may take place in neighbouring countries. They may be linked by some element which might be of political or military importance. But that remains immaterial WRT the classification of the conflict or the applicable legal frame. But significantly, most scholars nowadays admit that there are situations where a spillover (over borders) effect may take place and that in this case, the situation is regulated by IHL as applicable to NIAC.
Let’s now look at a typology of non-international armed conflicts: NIAC falling within the Common Article 3 threshold take different forms.
First, there are traditional Common Article 3 NIACs. In this case the government armed forces are fighting against one or more organized armed groups within the territory of a single state. This type of situation and the ensuing classification does not depend on the existence or absence of a political agenda for the armed groups, We will see that armed banditry when reaching a certain degree of organization and where at the origin of a high level of violence can lead to qualifying the situation as a NIAC (Mexico, Colombia). These armed conflicts are governed by Common Article 3, as well as by rules of customary international humanitarian law and depending on how the fighting goes, the AP II threshold might be reached.
Second, an armed conflict taking place between two or more organized armed groups against each other may be considered a subcategory of the aforementioned ‘classical’ NIAC when it takes place within the territory of a single state. Examples include :
- situations where there is no state authority to speak of (i.e. the ‘failed’ state scenario) and
- situations where there is the parallel occurrence of a NIAC between two or more organized armed groups alongside an international armed conflict within the confines of a single state.
Here, too, Common Article 3, customary IHL constitute the relevant legal regime.
Third, certain NIACs originating within the territory of a single state between government armed forces and one or more organized armed groups may also ‘spill over’ into the territory of neighbouring states.
Leaving aside Jus ad Bellum considerations, it is believed that the relations between parties whose conflict has spilled over remain at a minimum governed by Common Article 3 and customary IHL. The spill over of a NIAC into adjacent territory cannot have the effect of absolving the parties of their IHL obligations because an international border has been crossed. Now a matter of peculiar importance consists in determining whether this spill over effect and the applicability of IHL may extend to non adjacent States or to States separated by a geographical barrier. For example France recognizes it is engaged in a NIAC against Daesch in Irak (but surprisingly enough not in Syria where the legal reasoning took the form of a use of the right ot State Self defense under Art 51 UN Charter). Should the fact that Daesch issues operational orders for terrorist actions in France lead to believe (and to act upon) that the France /Daesch NIAC has spilled over into France territory?
Fourth, the last decade has seen the emergence of what may be called “multinational NIAC”. These are armed conflicts in which multinational armed forces are fighting alongside the armed forces of a ‘host’ state – in its territory – against one or more organized armed groups. As the armed conflict does not oppose two or more states and all the state actors are on the same side, the conflict must be classified as a NIAC, regardless of the international component, which can be significant. A current example is the situation in Afghanistan (that armed conflict was initially international in nature, but the applicable legal framework is now Common Article 3 and customary IHL, plus Afghanistan has ratified AP II and the control of territory criterium is satisfied...). Mali in 2013 is another one.
Fifth, a subcategory of multinational NIACs is one in which UN forces, or forces under the supervision of a regional organization such as the African Union, are sent to help stabilize a ‘Host’ government involved in hostilities against one or more organized armed groups in its territory.There are cases in which it may be argued that the international force has become a party to the NIAC. If and when such forces become a party to a NIAC, they are bound by the rules of IHL.
Sixth, it is believed by some that a ‘cross border’ NIAC exists when the forces of a state are engaged in hostilities with a non-state party operating from the territory of a neighbouring host state without that State’s control or support. The 2006 war between Israel and Hezbollah is an example in kind. There was three different opinions WRT the legal classification of the hostilities :
- an international armed conflict,
a non-international armed conflict, or
a parallel armed conflict going on between the different parties at the same time: that is to say an IAC between Israel and Lebanon and a NIAC between Israel and Hezbollah.
This last, “double classification” approach takes into account the fact that hostilities for the most part involved an organized armed group whose actions could not be attributed to the Host state fighting across an international border with another State.
This situation may also describe the situation of hostilities in Syria between some States and Daesch, those States being already engaged in a NIAC against Daecsh in Irak; This is not the way though France and the UK have chosen to describe their involvement, again, referring instead to an Ad Bellum legal frame and their right to self defense under art 51 of the UN Charter.
A final, seventh type of NIAC (this time ‘transnational’) is believed by some – almost exclusively in the US – to currently exist between ‘Al Qaeda and its affiliates’ and the United States.The Bush Administration had designated this conflict a ‘global war on terror’ a term which the Obama administration no longer favors.It had determined that it was neither an international armed conflict governed by the Geneva Conventions – because Al Qaeda was not a State – nor a non-international armed conflict – because it exceeded the territory of one state.The US Supreme Court, ruled in the 2006 Hamdan case that the armed conflict in question was at least governed by Common Article 3 as a matter of US treaty obligation, thus implying but not as such saying that it was non-international in nature.
Now time to look into what Additonal Protocol II brought WRT the matter at hand. It comprises of positive and negative elements of definition.
The test of AP II Art 1 demands that rebels controlled a portion of the territory.
It in turns allows them to conduct concerted operations, under responsible command, and enables them to conduct those operations under the LOAC (meaning they should, not that they are). This specific type of NIAC calls then for the reunion of a number of circumstances. Again, the most important one is the control of a portion of the territory. All other conditions are also likely to be found in that case. It is all things considered doubtful that a portion of the territory can be seized lacking some degree of organization, concerted operations and a responsible command. Opposedly it is not unconceivable to have a INSURGENT responsible command, carrying out sustained and concerted operations, and able to implement AP2 without control of a territory. Absent the territory control criterium, AP 2 would not be applicable. Then AP II art 1 Treaty Law defines what a NIAC is not.
It explicitly mentions that riots, internal disturbances and tensions, sporadic acts of violence are not NIAC.
We have seen what the black letter of the law has to say about NIACs definition. It is not much by all accounts, now time to look into case law contribution.
International criminal courts have been instrumental in bringing new perspective on the definition of what constitutes a NIAC.
And to begin with, the Tadic foundation case has spelled the basics, absent in the black letter of the law, except for the AP II definition and actually drawing from that definition.Two main indications of the existence of a NIAC are to be found in this famous definition, that of a specific situation of violence and that of the level of organization behind that use of force or violence. “70. On the basis of the foregoing, we find that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.“
PROSECUTOR v.DUSKO TADIC a/k/a "DULE" DECISION ON THE DEFENCE MOTION FOR INTERLOCUTORY APPEAL ON JURISDICTION, October, 2nd 1995.
Those criteria of violence level and degree of organization have then been subdivided into sub categories or indicators in Tadic and other cases. The Tadic case test serves to distinguish armed conflicts from banditry, riots, isolated acts of terrorism, or similar situations.
An excellent and comprehensive sum-up can be found in the Haradinaj case from April, 3rd, 2008, also from ICTY (Trial Chamber) or even better Jul 10, 2008, Prosecutor v. Boskoski and Tarculovski (Trial Chamber). To be clear, the Tadic case test applies to all kind of NIACs.
With regard to the required level of violence, how do State organs, such as police and military, use force against armed groups ? Are military means used to begin with? Do they apply exlusively a police type of paradigm governed by Human Rights/national law, and use lethal force restrictively? Or do they interpret their own actions according to IHL and use lethal, direct, offensive attacks?
Protracted Armed Violence”, What is the number of incidents, what is their level, length and duration (Halilovic, Limaj and al) what is the geographical spread of violence, the number of deaths, injuries and damage, etc..?
This organization criterium highlights the principle that an armed conflict can exist only between parties that are sufficiently organized to confront each other with military means. State governmental authorities are presumed to dispose of armed forces that meet this criterium. As for armed groups, International Tribunals have relied on several indicative factors, none of which are, in themselves, essential or per se sufficient to establish whether the “organization” criterium is satisfied. Such indicative factors include the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords.
Where does IHL apply when the situation at hand is characterized as a NIAC?
On July, 4th 2012, Rupert Colville, the spokesperson for Navi Pillay, the High Commissioner for Human Rights, reported that the High Commissioner was of the view that “With regard to the issue of whether or not it is a conflict, the High Commissioner said there are indications that the situation in Syria – at least in certain areas – may amount to “a non-international armed conflict”…..thus entailing obligations on both parties under International Humanitarian Law. We believe that the number of places where this can be said to be the case is on the increase. The legal obligations of all parties under International Human Rights Law continue to apply throughout Syria, including conflict areas”.
This position seemingly restricts the applicability of IHL to those places where hostilities are taking place.
After some hesitations, the ICRC confirmed its position in a 17/07/2012 ICRC press release : “The ICRC concludes that there is currently a non-international (internal) armed conflict occurring in Syria opposing Government Forces and a number of organised armed opposition groups operating in several parts of the country (including, but not limited to, Homs, Idlib and Hama). Thus, hostilities between these parties wherever they may occur in Syria are subject to the rules of International Humanitarian Law”.
The International Courts have affirmed in a number of cases that IHL as applicable to NIACs applies throughout the country concerned, but have clearly associated this position to the protective aspects of IHL, Tadic, para 69 and 70 Defence Motion for Interlocutory Appeal on Jurisdiction and Kunarac, Appeal, para 67.
We may at this stage conclude that there are some temptations to geographically limit the scope of IHL. This could from an operational perspective be understood as limiting the right of States to initiate hostilities e.g; offensive operations anywhere, or to use an IHL frame in operations such as check points for example, where opposedly, INSURGENTS would simply be not thus constrained.
In conclusion, with regard to the legal matters and issues encountered, we can conclude that IHL as applicable to NIAC is an emerging body of International Law, that should be understood as an additional layer of Law, regulating hostilities in a territory where other bodies of Law like National criminal law or Human Rights Law fail at regulating violence or the use of force by armed groups or State authorities.
It is more and more important to find an agreement as to whether a given situation of violence is in fact a NIAC, as ninety per cent of situations deemed to be actual conflicts are NIAC. In every case though, a thorough analysis is required using internationnaly accepted standards, and “terrorism, acts of terror” for example may or may not amount to a NIAC situation.