Current regulation of internal armed conflict

15.7.1 General features of the legal regulation of civil strife

· Approach of int’l law to civil strife rests on inherent clash of interests between the lawful government on one side (who wish to regard insurgents as criminals) and rebels (eager to be internationally legitimized).

· Third states may and do side with either side, which further complicates matters.

· All rules governing struggle between lawful government and insurgents do not grants rebels status of lawful belligerents.

· For both governments and third parties, rebels are common criminals breaking domestic penal law.

· If captured, they are not prisoners of war but can tried for having taken up arms against central government.

· Insurgents can become lawful combatants only if the incumbent government decides to grant them status of belligerency – very rare, it would mean admitting there was a civil war going on.

· Thus most insurgents have no international legal standing.

· BUT if insurrectional government gains international rights and obligations, it might entail acquisition of status of lawful combatants for its armed forces.

· Most rules on internal armed conflict aim at protecting non-combatants only.

· Methods of combat are not regulated, except to extent that it must spare civilians.

· This becoming more problematic as third states help insurgents, often in military ways.

15.7.2 Customary law

· Traditional dichotomy between inter-state conflicts and civil strife has becoming increasingly blurred since 1930s (Spanish Civil War, v. bloody).

· As a result, internal armed conflicts are governed less by state sovereignty and more by international rules.

· Why?

o Growing frequency of these conflicts

o Conflicts becoming more cruel and protracted

o Difficulty for third states to remain aloof

o Propagation in int’l community of human rights doctrine

Ш ICTY, 1995, Tadic

· Rules developed after Spanish Civil War about conduct in internal armed conflict:

o Ban on deliberate bombing of civilians

o Prohibition on attacking non-military objectives

o Rule concerning precautions which must be taken when attacking military objects

o Rule authorizing reprisals against enemy civilians and consequently submitting them to general conditions exacted for reprisals

а v. similar to rules for international armed conflict

· These rules apply to any internal armed conflict in which insurgents:

o Have an organized administration effectively controlling portion of territory of state

o Have organized armed forces capable of abiding by international law

· Minor rebellions, uprisings, and other internal strife which aren’t full civil war are not covered by these rules.

· Formation of general norms on civilians – born out by unanimous adoption of UN GA Resolution 2444 (XXIII, 1968) and Resolution No. 2675 (XXV, 1970).

Practice does not live up to law.

· Neither government nor insurgents protect non-combatants.

e.g. Nicaragua, El Salvador, former Yugoslavia, Colombia, Chechnya

· Why?

o b/c civilians often take sides and contribute at various levels to struggle

o b/c in many states, population is split into conflicting ethnic, cultural or religious groups which do not feel that they belong to same country

Elementary consideration of humanity

· Customary rule has evolved out of 1949 Geneva Convention, Art. 3 (stressed by ICJ in Nicaragua)

· Applies to any internal armed conflict, not just civil wars

· Means to protect only victims of hostilities

· Provisions:

o Non-combatants must not be attacked

o Contending parties must not resort to measures intended to intimidate or terrorize civilian populations (like My Lai massacre)

o Taking of hostages is prohibited

o Prohibition of all reprisals involving violence to the life and persons of non-combatants, or outrages upon their personal dignity

o If members of the armed forces of the adversary or civilians belong the opposing party are arrested and detained or put in interment camps, they must be treated humanely

o No discriminatory treatment, no torture, cruel humiliating or degrading treatment

o Wounded and sick, including those of adversary, must be collected and cared for

· State practice after 1949 – Art. 3 invoked, reaffirmed and relied upon in a number of occasions.

· Even when disregarded in practice, no state admitted to violating art. 3.

· However, it more honoured in breach – but this lack of state practice has not been enough to erode the customary rule.

· Some rules on conduct of hostilities have also seeped into internal armed conflicts – for example, prohibition of use of chemical weapons, on grounds that what is inhumane at int’l level would surely be inhumane at national level.

Ш ICTY, Tadic

· Trend further strengthened by idea that war crimes can only be committed in inter-state wars. Serious violations of customary or treaty rules governing internal conflicts may also amount to war crimes in certain conditions.

Ш ICTY, Tadic; ICTR, Art. 4, ICC Statute, Art. 8.2

15.7.3 Treaty law

· A number of treaties agreed upon since 1949 also regulate internal armed conflicts.

· BUT they have not turned into customary law (unlike rules on elementary considerations of humanity). Therefore, they are only binding on contracting parties.

Some treaties on internal armed conflicts:

· Second Additional Protocol, 1977

· 1954 Hague Convention on Cultural Property (art. 19), updated by second convention in 1999 (art. 22)

· 1996 Amended Protocol II to 1980 UN Convention on conventional weapons (prohibition on land mines, booby traps, etc)

· 1997 Ottawa Convention on Prohibition of Use, Stockpiling, Production and transfer of anti-personnel mines (art. 1)

· 1995 Protocol IV to UN 1980 Convention on laser weapons

Second Additional Protocol 1977

· Much weaker than originally proposed due to objections from some Third World countries

· Covers only large-scale armed conflicts, not smaller internal uprisings

· Despite this weakness, it does represent maximum which states participating in 1977 conference were willing to agree.