Primacy of Common Article 3 to the Four Geneva Conventions of 1949:
Measuring the Ambit of Non-International Armed Conflict in International Humanitarian Law
Abstract:
From the beginning of earth, conflicts and wars have been a part of human life. At present, armed conflicts become very terrible to us. The majority of armed conflicts that have been occurred since the Second World War may be characterized as non-international. Non-international armed conflicts have become the most widespread armed conflicts in the contemporary world. Common Article 3 of the four Geneva Conventions is a milestone to the development of the law of war. This article marked a breakthrough, as it covered, for the first time, situations of non-international armed conflicts. This paper provides a typology of non-international armed conflicts governed by Common Article 3 of the 1949 Geneva Conventions, and examines the application, as well as the enforceability and binding force to contemporary forms of non-international armed conflict. Finally, this study tries to explore and depict the ambit of Common Article 3. The relevant cases have, therefore, been discussed and analyzed.
Keywords: Non-international armed conflict (NIAC); Common Article 3 (CA3); Additional Protocol II (AP2); Minimum protections; Customary law.
“Lost to the clan, lost to the hearth, lost to the old ways,
that one who lusts for all the horrors of war with his own people.”[1]
I. Introduction:
One thing that the human kind was doing from the beginning of time is fighting with each other. Many times the fighting got out of hand and consumed the innocent people. Fight against own people has always been considered one of the worst. Most armed conflicts today are non-international in nature.[2] They take place within the borders of states, and are waged between a state and organized non-state armed groups or among such groups themselves.[3] International Humanitarian Law (hereinafter IHL) is a branch of Public International Law which is intended to alleviate human pain and suffering resulting from armed conflicts[4] deals with humanitarian problems which arise directly or indirectly from international or non-international armed conflicts (hereinafter NIAC).[5] Humanitarian law, as a distinct body of law aiming at the protection of the individual in times of war, finds written expression in the four Geneva Conventions[6] and Additional Protocol I,[7] the law concerning NIAC is specifically found in Common Article 3 (hereinafter CA3) of the four Geneva Conventions and Additional Protocol II (hereinafter APII).[8] IHL is a body of law that provides essential protection for those directly affected by an armed conflict, if it is respected by the parties to that conflict.[9] Prior to the formulation of the four Geneva Conventions of 1949, there existed no substantive provision of IHL specific to situations of NIAC.[10] CA3 to the four Geneva Conventions of 1949 was the first provision of its kind to deal specifically with humanitarian protection in situations of NIACs.[11] CA3 to all four Geneva Conventions makes a new era in the unceasing development of the idea on which the Red Cross is based, and in the embodiment of that idea in international obligations. Before the 1990s the law of NIAC was poorly developed. In the 1990s, under the impulsion of the growing amount of human rights law and the practice of international organs as the Security Council and the International Criminal Tribunal for the former Yugoslavia (hereinafter ICTY),[12] the law of NIAC quickly developed, on a case-by-case basis.[13] It now tends to largely merge into the law of international armed conflicts (Hereinafter IAC).[14] CA3, widely considered to reflect customary international law,[15] governs NIAC between a state and armed groups, as well as those conflicts between armed groups.[16]
In this paper the legal and academic dispute and a matter of arguments and discussions that typology of NIAC governed by CA3 of the 1949 Geneva Conventions. In dealing with these issues, both primary and secondary sources have been taken into account. As primary sources relevant International Instruments, case-laws have been taken. Additionally secondary sources including books, journals, articles, online resources, statements, presented papers, documents of relevant international and non-governmental organizations and other materials have been taken into account for proper analysis, comprehensive understanding and consistent conclusion. Accordingly the research is Analytical method and doctrinal in nature as no field work or empirical research has been undertaken.
II. The Notion of Non-International Armed Conflict:
Armed conflict means open armed conflict between two or more parties, nations, or states. As a rule, the applicability of the law of armed conflict (hereinafter LOAC) is dependent on the existence of an armed conflict.[17] & [18] IHL recognizes two different categories of armed conflict.[19] The reference point for distinguishing between the two is the state border: wars between two or more States are considered to be IAC, and warlike clashes occurring on the territory of a single state are non-international or internal armed conflicts (usually known as civil wars).[20] In a NIAC the existing government is fighting against a faction within its own territory or different factions are fighting against each other without the involvement of governmental power.[21] NIACs 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.[22] Internal disturbances and tensions (such as riots, isolated and sporadic acts of violence, or other acts of a similar nature) do not amount to a NIAC.[23]
According to H. P. Gasser, it is generally admitted that "non-international armed conflicts are armed confrontations that take place within the territory of a state between the governments on the one hand and armed insurgent groups on the other hand. […] Another case is the crumbling of all government authority in the country, as a result of which various groups fight each other in the struggle for power"[24]
NIAC are covered by CA3, APII, several other treaties,[25] as well as by customary law. Two main legal sources must be examined in order to determine what a NIAC under IHL is: CA3 to the Geneva Conventions of 1949 and Article 1 of APII. CA3 does not define NIAC it refers to "armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties"[26] as having the same meaning as ‘civil war.’[27] It implies that even some armed conflicts which are not restricted to inter-state hostilities can be deemed as international armed conflicts if they contain an international element.[28] In order to distinguish an armed conflict, in the meaning of CA3, from less serious forms of violence, such as internal disturbances and tensions, riots or acts of banditry, the situation must reach a certain threshold of confrontation. It has been generally accepted that the lower threshold found in Article 1(2) of APII, which excludes internal disturbances and tensions from the definition of NIAC, also applies to CA3. Two criteria are usually used in this regard:[29] First, the hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces.[30] Second, non-governmental groups involved in the conflict must be considered as "parties to the conflict", meaning that they possess organized armed forces. Article 1(2) of APII identifies situations of violence that do not meet the ‘armed conflict’ threshold and includes in that category ‘internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature’.[31] As elaborated in the Commentary to Article 1(2), even if the government is forced to deploy armed units, to the extent that the purpose is to restore law and order, such violence is considered not to constitute armed conflict in the legal sense.[32] This threshold also applies to CA3. The ICTY has deemed there to be a NIAC in the sense of CA3 ‘whenever there is …protracted armed violence between governmental authorities and organized armed groups or between such groups within a state’.[33] The ICTY thus confirmed that the definition of NIAC in the sense of CA3 encompasses situations where "several factions [confront] each other without involvement of the government's armed forces"[34] Though there are no specific definitions on NIAC but above discussion we can make distinction between the two types’ armed conflict between IAC and NIAC.
III. Scope and Application of Common Article 3 to the four Geneva Conventions:
All four Geneva Conventions contain an identical CA3 extending general coverage to NIAC. CA3 of the 1949 Geneva Conventions is virtually a convention within a convention[35] was the first attempt to legally regulate NIAC in treaty law. When CA3 was first adopted, it was considered a major step in the right direction in the development of the IHL[36] Significantly, CA3 is the only provision of the four Geneva Conventions that directly applies to internal armed conflicts. The article states that:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
b) taking of hostages;
c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
2. The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
Under the legal regime contemporary to the formulation of CA3, the application of IHL to a situation of NIAC depended upon it being fundamentally akin to an international armed conflict.[37] In order to apply CA3, one should ask if a certain intensity of violence has been reached within the conflict.[38] According to the Inter-American Commission on Human Rights, the threshold is reached in armed confrontation of low intensity and does not require large-scale and general hostilities to exist.[39] CA3 simply established a few basic rules of humane treatment, and set forth certain minimal judicial guarantees. Article 3 protected those classes of people deems most vulnerable when conflict occurs.[40] Despite the undisputed significance of CA3, as an improvement of the traditional international law approach to internal conflicts, it barely employs the most basic principles preserved in the Conventions into NIAC.[41] In theory, CA3 should be applied automatically and without discretion. CA3 applies in the case of a classic civil war when the state’s armed forces are confronted with armed opposition groups within the state’s territory. Moreover, this provision is applicable when two dissident groups fight against each other within the territory of one state which may, or may not, be a party to the armed conflict. It also applies to a situation where the conflict is within the state, between the Government and the rebel forces or between the rebel forces themselves.[42] The International Court of Justice (hereinafter ICJ) held that this provision is a minimum yardstick, which also applies in IAC besides the more elaborate rules governing these conflicts, and is to be considered as part of the elemental considerations of mankind.[43] Some authors even conclude that CA3 is part of jus cogens.[44] However, CA3 is applicable to the situation of NIAC in a limited way as circumscribed in the provision itself. CA3 was first applied in Guatemala in 1954.[45] Since then it has been explicitly accepted and applied in a number of situations including Lebanon (1958), Cuba (1959), Vietnam (1964), and Chile (1973).[46] Several judicial developments also point to the applicability of CA3 extraterritorially. The International Criminal Tribunal for Rwanda (hereinafter ICTR) Statute, for example, includes jurisdiction over crimes committed across the Rwandan border in neighboring countries.[47]
IV. Relationship between Common Article 3 and Additional Protocol II:
APII of 1977 supplements and develops CA3[48] of the Geneva Conventions of 1949, dealing with NIAC. Before the adoption of APII, CA3 was the only source of law that applies explicitly to NIAC. It provided basic rules on methods of warfare applicable by both states and Non-state Actors involved in NIAC.[49] According to Christopher Greenwood, ‘APII goes a long way to putting flesh on the bare bones of CA3 of the 1949 Geneva Conventions.[50] In particular, APII contains the first attempt to regulate by treaty the methods and means of warfare in internal conflicts.’[51] As a reflection of the historical bias in IHL towards the regulation of inter-state warfare, the 1949 Geneva Conventions and the 1977 Protocols contain close to 600 articles, of which only Article 3 common to the 1949 Geneva Conventions and the 28 articles of AP II apply to internal conflicts.[52] Therefore, unlike CA3 of the Geneva Conventions, APII will not apply to conflicts between two warring dissident groups.[53] It will also only apply in conflicts that in fact approximate to traditional conceptions of inter-state warfare, namely where an organized dissident armed force exercises military control over a part of the territory of a state Party. Like CA3, APII provides for the humane and non-discriminatory treatment of all those who are not, or who are no longer, taking a direct part in hostilities. The relationship between the two conventional instruments is, thus, of great importance when considering which one prevails? Pursuant to the general rules of international law and notably the lex posterior[54] and lex specialis[55] APII should contain the universal rules applicable to conflicts of non-international nature.[56] In the case where states are parties to both treaties and unless otherwise provided for in a treaty, the earlier instrument applies only to the extent its provisions are compatible with the later treaty (in conformity with the latin maxim lex posterior derogat legi priori).[57] Since APII, regulates the scope of application of both instruments, both treaties are simultaneously applicable and, therefore, two thresholds of applicability of norms relating to NIAC exist.[58] APII clearly indicates that it develops and supplements CA3 so that means CA3 and APII exist autonomously. That APII and CA3 should have the same scope of application was the original intention of the ICRC.[59] Treaty law as envisaged in the Geneva Conventions and the APII knows of two types of NIAC, granting individuals different kinds of protection from the ghastly effects of armed conflicts.