Key Developments Affecting the Scope of Internal Armed Conflict in International Humanitarian Law

• Author: Anthony Cullen
• Pages: 03

KEY DEVELOPMENTS AFFECTING THE SCOPE OF INTERNAL ARMED CONFLICT IN INTERNATIONAL

HUMANITARIAN LAW

ANTHONY CULLEN1

1. Introduction

   This article's objective is to examine the concept of internal armed conflict,2 focusing on four stages of its development in international humanitarian law. Specifically, this article analyzes the areas of continuity and divergence between each stage, highlighting changes in the scope of the concept and in the threshold for the application of international humanitarian law.

   The first section of this article outlines the concepts of rebellion, insurgency, and belligerency in traditional international law. Here, the doctrine of recognition is examined, focusing on the grounds for acknowledging the existence of internal armed conflict. While the application of international humanitarian law is required in the case of belligerency, situations of insurgency are governed by the laws of war only when explicitly provided for in an act of recognition by either a third state or the de jure government. The concept of internal armed conflict in traditional international law signifies a situation governed exclusively by municipal law except in cases in which the recognition of belligerency has occurred.

   The second section focuses on the effect of Article 3 common to the four Geneva Conventions of 19493 and explains the significance of

   Common Article 3 as the first provision of international humanitarian law relating specifically to situations of non-international armed conflict. As customary international law, it is held to embody a set of standards universally applicable in all situations of armed conflict. Problems surrounding its application, such as the lack of a formula for its implementation, are also discussed.

   The third section examines the influence of Additional Protocols I and II on the concept of internal armed conflict in international humanitarian law.4 Additional Protocol II has effectively created another category of internal armed conflict, similar in certain respects to the concept of civil war in traditional international law. Additional Protocol I is shown to have removed wars of national liberation from the remit of international humanitarian law relating to situations of internal armed conflict.

   The fourth section explicates the definition of internal armed conflict provided by the Tadic case,5 reproduced in the Rome Statute of the International Criminal Court.6 The application of the concept is scrutinized in the case law of the International Criminal Tribunals for Rwanda and the former Yugoslavia. Its adaptation in Article 8(2)(f) of the Rome Statute is then studied. This represents a positive development of international humanitarian law, distinguishing with a greater degree of clarity the applicability of Common Article 3 in situations of low-intensity armed conflict.

   The aim of the above approach is to critically appraise a number of key developments in the area of international humanitarian law relating to situations of internal armed conflict. Conditions determining the

   internationalization of internal armed conflicts are not discussed.7 The issue of distinguishing situations of terrorism from ones constituting de facto armed conflict is also not considered.8 The sole purpose of this work is to examine the development of internal armed conflict as a concept, concentrating on changes in its scope and also changes in the grounds for application of international humanitarian law.

2. The Practice of Recognition and the Application of Humanitarian Norms in Traditional International Law

   The relevance of traditional international law to the concept of internal armed conflict is an area that is frequently overlooked.9 It merits attention to the present discussion as the starting point for the development of internal armed conflict in international humanitarian law. The doctrine of recognition in traditional international law is studied in this section as a means of investigating the application of international

   humanitarian norms to situations of non-international armed conflicts prior to the formulation of the Geneva Conventions. The purpose is to indicate the origins of the contemporary concept in traditional international law. Three discernible stages in the development of non-international armed conflict in traditional international law are examined: rebellion, insurgency, and belligerency. Particular attention is paid to the grounds for recognizing the existence of armed conflict in the second and third stages of its development. In doing so, the scope of internal armed conflict in traditional international law is shown to be limited to situations in which the belligerency of insurgents is recognized.

   1. The Non-application of the Laws of War to Situations of Rebellion

      The concept of rebellion in traditional international law refers to situations of short-lived insurrection against the authority of a state.10 In part due to their brevity, situations of rebellion are considered to be completely beyond the remit of international humanitarian concern.11

      Rebels challenging the de jure government during a rebellion are afforded no protection under traditional international law. According to Professor Richard A. Falk, a situation of rebellion may be distinguished as "a sporadic challenge to the legitimate government, whereas insurgency and belligerency are intended to apply to situations of sustained conflict."12 He states that situations qualify as rebellion "if the faction seeking to seize the power of the state seems susceptible to rapid suppression by normal procedures of internal security."13 Lothar Kotzsch supports a similar position, stating that "domestic violence is called rebellion or upheaval so long as there is sufficient evidence that the police force of the parent state will reduce the seditious party to respect the municipal legal order."14 Hence, provided the situation is quickly suppressed and does not develop into one of insurgency, the

      treatment of rebels by the state authorities is beyond the remit of international law.

      In traditional international law, a situation of rebellion may thus be characterized as a short-lived, sporadic threat to the authority of a state. Such situations may manifest as a "violent protest involving a single issue . . . or an uprising that is so rapidly suppressed as to warrant no acknowledgement of its existence on a[n] external level."15 According to the International Criminal Tribunal for the former Yugoslavia (ICTY), the lack of a provision in traditional international law relating situations of rebellion was due in part to the fact that states preferred to regard it as "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."16 Falk comments that in situations of rebellion,

      external help to the rebels constitutes illegal intervention. Furthermore, the incumbent government can demand that foreign states accept the inconvenience of domestic regulations designed to suppress rebellion, such as the closing of ports or interference with normal commerce. . . . There is also the duty to prevent domestic territory from being used as an organizing base for hostile activities overseas. . . . Thus if an internal war is a "rebellion," foreign states are forbidden to help the rebels and are permitted to help the incumbent, whereas the incumbent is entitled to impose domestic restrictions upon commerce and normal alien activity in order to suppress the rebellion.17

      As a matter of exclusive concern for the de jure government, a situation of rebellion is not considered to be subject to the laws of war.18 Hence, Heather A. Wilson, states that where a rebellion takes place,

      the rebels have no rights or duties in international law. A third State might recognize that a rebellion exists, but under traditional international law a rebellion within the

      borders of a sovereign State is the exclusive concern of that State. Rebels may be punished under municipal law and there is no obligation to treat them as prisoners of war. . . . Because rebels have no legal rights, and may not legitimately be assisted by outside powers, traditional international law clearly favours the established government in the case of rebellion, regardless of the cause for which the rebels are fighting.19

   2. The Concept of Insurgency

      When a rebellion survives suppression, it duly changes in status to a situation of insurgency.20 The concept of insurgency in traditional international law is, however, ambiguous in the sense that its broad parameters are ill-defined. Falk describes it as a "catch-all designation" stating, "On a factual level, almost all that can be said about insurgency is that it is supposed to constitute more sustained and substantial intrastate violence than is encountered if the internal war is treated as a 'rebellion.'"21 Wilson notes that

      there seems to be general agreement that recognition of insurgency is recognition of a "factual relation" or acknowledgement of the fact that an internal war exists. Beyond that, there is little explanation of the characteristics of the "fact." There are no requirements for the degree of intensity of violence, the extent of control over territory, the establishment of a quasi-governmental authority, or the conduct of operations in accordance with any humanitarian principles which would indicate recognition of insurgency is appropriate.

      Indeed, the only criterion for recognition, if one could call it that, is necessity.22

      Recognition of insurgency occurs out of necessity when the interests either of the de jure government or a third state are affected by the conflict, requiring the establishment of relations with the insurgent party. This vague criterion of necessity referred to by Wilson abbreviates much of the ambiguity surrounding the concept of insurgency in traditional international law. As the...