International and Non-international Armed Conflicts

INTRODUCTION:

Today, the presence of non-international armed conflicts are much more than international armed conflicts. These conflicts can appropriately be found within the territorial jurisdiction of a state and its governance but is a conflict essentially between an armed group and state authority, which is not functioning under the direction of the state. Even though its functioning within a particular territory but the idea is refrained to be limited to just minor disturbances and acts like riots or so. The primary distinction drawn between the international conflict and a non-international conflict is definitely the participants of the actors which takes place internationally or between two different states in the first case whereas, in internal conflicts, the actors are in conflict within a state. However, not much development was seen in this area since the question of independence of sovereignty were raised and it could give rise to an unnecessary interference within the domestic affairs of a particular state.

In 1949, Article 3 of the Geneva Conventions regulated laws pertaining to non-international armed conflicts which could be categorized as an act of belligerency or an act of insurgency and many others which were not explored as much but later, these armed conflicts were studied and broadened, the concepts were explored even more until late 1990s. This difference between the two kinds of conflicts emerges out of the historical backdrop of the guideline of wars and equipped conflicts as per the international law. In the period following the tranquility of Westphalia and until the finish of the Second World War, the global laws of war applied distinctly to wars between States. This was a result of the way that international law overall was concerned distinctly with relations between States also, shunned guideline of issues viewed as inside the local purview of States. Inside equipped clashes, or common wars, were not viewed as 'genuine wars in the exacting feeling of the term in International Law', since that term was saved for clashes between States. During the period of 1949, there was extreme uncertainty in understanding and developing laws around the questions of armed conflicts but after 1990s, laws were developed. There was a substantial and clear legislation that governs both the kinds of armed conflict. It was feasible for the laws of war to apply to common wars however just in cases where there was acknowledgment, either by the State associated with the common war or by a third State, of the belligerency of the extremist party. The legislative framework was mostly remodeled on long borne international armed conflict along with the integration of the International Criminal law which was coupled with International Humanitarian Law.

Earlier, there were prejudices that disabled the usage and identification of non-international armed conflicts and had to constantly borrow from the International Criminal law or International Humanitarian Law but such a situation is not in existence anymore since it is a worldwide issue that has been affecting the nation as a whole, therefore with the global human rights issues in rise where the International law serves on binding on internal matters as well.

International Legislative Framework

Article 3, Geneva Convention, 1949 has a very limited scope for non-international conflict and has referred to the situations where armed conflicts arise to have a international character operating within the territorial jurisdiction of a state. The definition provided is extremely narrow and does not suffice the explanation of the concept but the armed conflict had to be in between an armed group in rebellion with the government of the state but such a hostile relationship can be found outside the territorial jurisdiction also. This clause must be interpreted as per the context may arise in future to adequately put Article 3 to use. No further deliberation was made to provide a clearer concept for the same since the application could bring about some inconsistency or raise multiple questions. The phrase used in Article 3 “armed conflict not of an international character” has laid much light on the definitions and trajectories of war and its impact, that has been changing continuously. The concept of non-international armed conflict was interpreted in the Tadic case as “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”. The International Criminal court also has explored the concept in its legislation where the internal conflicts being acts of silent violence or riots or other hostile acts of the same haracter were excluded purely.

The Additional Protocol II was the only way to fill in the loopholes introduced by the Common Article 3 of the Geneva Convention. This protocol was drafted to remove the ambiguity and bring about a more advanced and wider understanding of armed conflicts. The Geneva Convention addressed the rapidly changing character of the term armed conflict and realized the need to address the concept due to the increase brutality of the non-international armed conflicts and a more transparent legislation that wouldn’t consist of any ambiguity. The only catch that still exist was that this protocol still did not address the issues relating to internal conflicts but it did embrace the possibility of situations arising wherein the parties in conflict is between the armed forces and the rebellion armed forces having a more strong application. It establishes the need to address the inconsistency regarding the control of territories and the onus thereof.

Non-International Armed conflicts and International armed conflict: A distinction

As discussed above, Rules of international laws were not so easily applied in cases of conflicts but it had to be coming from a state that had passed the test of recognition and initiated an insurgent act. It was mandatory for the attacking state to have features that a recognized state have, only then would it be brought under the wings of international law. There was not much interpretation involved, it was either applied in cases of international belligerencies or other conflcits or it was absolutely out of the acting territory. The international laws applied in cases of wars initiated in between states but such was later broadened through the Geneva Convention and the Additional Protocol II. Even the Hague convention had rules laid down covering international armed conflicts but with the case of non-international armed conflicts the opportunities were restricted to Common Article 3 of Additional Protocol II. Other legislations like the International Criminal Court had also established the non-international armed conflicts. There was an urgent need to expand the authority of the International laws given its position in the global state and that emergence arose very much after the second world war obliging and recognizing actors that were not just limited to a recognized state. World War II saw horrors that were entrenched in the minds of the people so much so that a new strict legislation avoiding the possibility of any future war was looked into, therefore more prosecution of crimes increased two fold. The Universal Declaration of Human Rights in 1948 was an inclusive measure that was looking to restore the peace lost in the worldwide war and required the need to have a constructive international human rights law which helped in furtherance of the armed conflicts that were still implicitly prevalent within state and non-state boundaries.

The Tadic Case had put forward the position of the international presence in these areas of concern wherein it was held that if a furnished clash happens between at least two States, it is undeniably global. Nonetheless, an interior outfitted clash inside the domain of a State may likewise become worldwide relying on the conditions like those situations where another State intercedes in that contention through its soldiers or those situations where a few members in the inward.

Even though with changing times the rigid concept of both the kinds of armed conflicts are revisited and the differences are being spotted by scholars from different fields, also the eager urge to have a body of law governing both international and non-international armed conflicts or have separate frameworks like International Criminal Law and human rights law. It draws largely from both the legislations. It has been a constant effort to integrate both the nature of armed conflicts which has been evident through the practices carried out by the state. It cannot be ignored that some scholars have raised an issue that the differences created between the two were merely erroneous decisions on the part of the policy makers. It has been said that, “The evolution of the law points to the fact that basichumanitarian norms are to be applied regardless of whether individuals to be protected are combatants or non-combatants, or whether the conflict is international or non-international in character. New operating definitions of international and non-international conflicts are to be evolved keeping in mind factors such as the level of violence and the threat to regional and international stability.” If at all such is a erred decision, then such a distinction must be resolved since it has created obstacles in the application the International Humanitarian law.

International Humanitarian law as Lex Specialis

The International Humanitarian law is a special branch of law that is adequately known to govern the laws arising due to the incumbrance of war like situations and mostly known to govern “Armed conflicts”. It is a section of Public International Law, which is an expansive arrangement of deals, standard law, norms and rules. The system generally controls connections just between part states, yet it perceives commitments for the two states and non-state furnished gatherings that are gatherings to “armed conflict”. The International Court of Justice ahs put forward an extreme clear standpoint that with respect to legality of Nuclear weapons and has opined that the guidelines or principles declared in the IPCCR must be followed even during times of wars and crisis.

The term Lex Specialis, also known as “law governing a specific subject matter”, wherein the treaties that are in direct relation to wars have a superior effect in conflict with Humanitarian laws. If any law or arrangement identifying with fighting is in struggle Humanitarian laws supplant. In war there are different nations included and some of them may not be involved with the arrangement restricting them. The question that emerges is whether the issue will fall under the purview of the European Union Regions. The improvement of such laws will be furnished with the assistance of certain case laws. Article 1 of the European Convention on Human Rights has given protection to all forms of rights within its territorial jurisdiction and that is mostly because ECHR is considered to be a regional treaty. Even the Human Rights Act, 1998 of UK ahs given recognition to the ECHR but it still has certain deformities. The precedents formed over the years have helped clear the space for the law. The international laws have framed the international humanitarian law in such a way that it can participate in the significance of the use of the international humanitarian law during equipped clash, which is principally controlled by the International human rights law. Customarily, the guidelines of the worldwide common liberties law were created to address the issues people looked during peacetime and on occasion when they stood up to their own State. On the other hand, global philanthropic laws are the laws of war, which direct the lead of gatherings during outfitted conflicts. Even however basic freedoms law began as an inward issue of States and humanitarian law began as a law between two States regarding war, with the progression of time and advancement of lawful law the use of human rights law was seen in equipped clashes which in this manner brought up issues on the interaction of these two parts of worldwide law.

Jurisdiction was interpreted in the case of E Cyprus v. Turkey (1975) wherein if any diplomatic relation was extended by a state which led them to have an appropriate amount of control over a certain property, the terms of jurisdiction changes and extends to the representative state as well as the property undertaken by them. Primarily to help provide the jurisdictional facilities to the state representing. Jurisdiction on an international level could not be restricted or limited to the geographical territory rather, it had to be decided by the diplomats of a state or the time when the diplomat is in occupation of the territory of the state. This interpretation was reached by the court in the case of Loizidou v. Turkey 1995.

However, the two branches seem to converge, also have left an unclear space for the legislation where the overlaps emerge the concept of lex specialis comes into being. The Nuclear weapons case had indulged the International Court of Justice to resort to this adage. The idea is to make a clear way for a particular legislation to be preferred wherein with respect to case basis, which rule will prevail and be applied in a particular case. The rule that has more specialized laws pertaining to the subject matter shall be applied. This could be a difficult task since each and every case has to be studied and analyzed objectively which was held in the Nuclear weapons case that this inter-relationship is important and lex specialis of the international humanitarian law was upheld. This application is to be monitored parallelly acknowledging the violation and gross infringement of human rights law but due to its subject matter being deeply focused on armed conflicts, the preferential treatment was forwarded to the international humanitarian law. This interrelationship was again upheldin the case of Israeli Walls where the courts had comprehensively discussed the matter and the interconnectedness between the three disciplines and came to the solution that there could be matters which exclusively pertains to one branch or the other or some may be such that both the branches; the International humanitarian law and the International human rights law may be referred to. If such take place then lex specialis will be given much more importance and the subject matter shall prevail and the court may incline towards that. The only problem that arise with lex specialis that this concept is emerging and has not been researched much which gives birth to the massive dearth in literature, so the judge plays an important role and their opinions are the guiding rule in this matter. Since the human rights law is an all pervading law, along with breach in armed conflicts or other parallel violations, the human rights law is always functional, therefore, in circumstances of armed conflicts, to understand and judge on the nature and intent of the action of the rebellion party, the judge may refer to the international humanitarian law which does not mean that the human rights law will be secondary.

The question of importance of both the branches of law has been debated and discussed and in no way can one prevail over the other. There was an initiative provided by the courts to have a firm and jurisprudential ground on why is one branch preferred over the other but such has clearly failed to provide a full proof guide pertaining to future cases. The idea to have a clear cut answer on which law to rely on, the courts could not give substantial ideological justification, thereby losing the initiative. However, the best that can be done is to not undermine the magnamity of both the branches, rather utilize lex specialize as a medium to help bring an interplay and interpretative mechanism which may make a plausible way to resort to rather than deciding one from the other. Much debate has been formed by scholar intending that this tool could be the only way to bear the conflicts but it may degenerate legi generali wherein a special rule may gain acceptance over a more generic rule. There isn’t any ground set to differentiate between the two tools as well wherein the most widely recognized model used to show the pertinence of lex specialis is the infringement of right to life during an equipped clash. While this model is adept, the rule is of less help with regards to numerous different issues where both worldwide philanthropic law and the global common liberties law must be applied together but in a non-international armed conflict there is no concurred status of warrior and there is an expected infringement of the privilege to life, in that case, the international humanitarian law does not play much part. This poses a confusion, making it difficult to specifically have the differences in application of either lex specialis or les generali.

There could be a harmonious construction to avoid this confusion or be interpreted complementarily since the ground principles in both the branches aren’t too much. Their principles might be able to co-exist and utilize the mutual strengths in such a way that it strengthens the purpose of both the law rather than standing contradictory to each other. The primary notion is to make a coherent and strong body of international law where the laws may var from range, nature and its implementation which must be dealt in a cohesive manner. This importance of having a coherent system was upheld in a case where the ECHR rejected the idea that the international humanitarian law should only be available to fill in the gaps left void by the international human rights law and not be given the place of a specialized law in general.

Conclusion

The position of international humanitarian law as well as international human rights law was deciphered, analyzed and examined through case laws, precedents and opinion of judges to understand the application of the laws. Scholars have put forward the idea to differentiate both the branches and study them individually and apply with respect to the cases individually whereas some scholars on the other hand has emphasized on the mutual congruence of both the international humanitarian law as well as the international human rights law, in order to study them in unison along with a harmonious interpretation to effectively utilize the strong framework on international armed conflicts or non-international or internal armed conflicts. The need to analyze them distinctly has been upheld by the court in many instances. This could emphasize the equation of international armed conflict as well as non-international armed conflict without compromising the sovereign status of the state. States have been extremely concerned and were hesitant in killing the qualification since as indicated by them treating non-global equipped clashes similarly as worldwide outfitted clashes would empower secessionist developments by giving them status under global law and furthermore limit the forces of the State in looking to put down the uprisings. For example, if the standard of warrior resistance, which forestalls arraignments of soldiers only for partaking in outfitted clash, which is pertinent in global equipped clashes, is made material to non-worldwide furnished clashes at that point States would not ready to condemn acts, which are customarily viewed as establishing injustice. These worries of the States have been reflected in settlements too, similar to the consideration of Article 3 in Additional Protocol II as indicated by which nothing in the Protocol confines the duty of the State 'by every single real mean, to keep up or restore law and order.Apart from these worries, the paper has likewise managed certain issues that may emerge if there is an end of the qualification among worldwide and non-global outfitted clashes.

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BIBLIOGRAPHY

ARTICLES

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BOOKS

• F. Bugnion,‘Jus Ad Bellum, Jus in Bello and Non-International Armed Conflicts’ (2003) 6 Yearbook of International Humanitarian Law p. 167-168, available at https://www.icrc.org/eng/resources/documents/article/other/francois-bugnion-article-150306.htm accessed on 19th November 2016.
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• Sandesh Sivakumaran (2011), Re-envisaging the International Law of Internal Armed Conflicts European Journal of International Law, 22 (1) 219-219; Yoram Dinstein (2014), Non-International Armed Conflicts in International Law (1stedn., Cambridge University Press) 1
• Dieter Fleck (ed) (2013), The Handbook of International Humanitarian Law (3ndedn, Oxford University Press) 585.

CASE LAWS

• Hassan v United Kingdom, [2014] ECHR 29750/09 [77]
• Prosecutor v. DuskoTadic [ IT-94-1-T]
• Loizidou v. Turkey 40/1993/435/514)
• E Cyprus v. Turkey (1975