To what extent the definition of an international armed conflict and the definition of a non-international armed conflict as provided in treaty law and jurisprudence can facilitate the application of international humanitarian law?
International humanitarian law is defined as a set of rules seeking humanitarian reasons to decrease armed conflict (Solis, 2016). It is also known as the law of armed conflict or the law of war. There are two types of armed conflicts distinguished by international humanitarian law: non-international armed conflict and the international armed conflict. International armed conflict is an armed conflict between two or more states. It is an armed conflict opposing two or more states. A non-international armed conflict refers to a conflict between the non-governmental armed groups and non-governmental forces or between groups only (Sassoli and Olson, 2008). In this essay, I will look at the extent to which the application of humanitarian law can be facilitated by the international armed conflict and the non-international armed conflict as provided in treaty law and jurisprudence. Because international Humanitarian Law has two branches, the law of Geneva and Hague’s law, I will base my definitions at the law on Geneva, which is the body of rules protecting armed conflict victims.
There are 4 Geneva Conventions of 1949 and their protocols, which are international treaties containing very significant rules that limit war barbarity (Bugnion, 2000). They are responsible for protecting the people who are not involved in fighting (aid workers, medics, civilians) and those who cannot fight again (prisoners of war, shipwrecked troops and sick, wounded). The first Geneva Convention is responsible for protecting the sick and the wounded soldiers on land during the war. The second Geneva Convention is responsible for protecting the sick, wounded, and shipwrecked military persons at sea. The third Geneva Convention is responsible for the prisoners of war. The fourth Geneva Convention responsible for affording protection to civilians, including in occupied territory (Nwanolue and Lwouha, 2012). Then there are additional protocols to the Geneva Conventions: Additional protocol I dealing with international conflicts, Additional Protocol II dealing with non-international conflicts, and Additional Protocol III dealing with other distinctive emblems.
International humanitarian law is applicable only in armed conflict situations (Vite, 2009). It allows two protection systems: one for non-international armed conflict and one for international armed conflict. Therefore, the applied rules in a particular situation will be dependent on the armed conflict classification (Akande, 2012). Despite the two types of conflicts, there is no other legally recognized type of armed conflict. The categorization of the armed conflict is crucial as it helps determine the set of rules applying to a contest. However, whether the armed conflict is an international armed conflict of a non-international armed conflict has implications (Kretzmer, 2009).
International Armed Conflict
Under international humanitarian law, the most regulated type of conflict is the global armed conflict (Cameron, 2006). There are four Geneva conventions of 1949 that can be applied in international armed conflict (Levie, 1987).
International Humanitarian Law Treaties
The Geneva Conventions and the additional protocols are international treaties containing the most significant rules that limit war barbarity (jinks, 2005). The General Conventions of 1949 Common article 2 states clarifies that adding to the provisions awaiting implementation in peacetime; there shall be the application of the present Convention to all declared war cases or of any other armed conflict arising between two or more of the High contracting parties, not considering their recognition by the state of war. It also states that the Conventions shall apply to all cases of total or partial occupation of a High Contracting party’s territory, even if with no armed resistance, the said occupation meets.
The provision shows that international armed conflicts cause opposition to the High Contracting Parties, i.e., the states. A global armed conflict occurs when one or more states a quarrel involving armed force against another country (Wimmer, Cederman and Min, 2009). Even without the hostilities, the international humanitarian laws are applicable, and there is no recognition of a situation required or any formal declaration of war. Suppose the global armed conflict exists, and there is a possibility to apply international law applicable to this situation as a consequence. In that case, it will depend on the things happening on the ground. It is usually based on logical conditions. For instance, there might exist an international armed conflict, even with the failure to recognize the adverse party government by one of the belligerents. The General Conventions of 1949 Commentary also indicates that the arise of any difference between two states and causing intervention of armed forces is recognized as an armed conflict enclosed in the meaning of article 2, regardless of the existence of the state of war denial by the other parties. There is no significant difference in how much slaughter takes or how long the conflict lasts.
Also, inter-state armed conflicts apart from regular, protocol one addition give more definition of international armed conflict to comprise the armed conflicts where there are people who fight against an alien occupation, colonial domination, or racist regimes in the exercise of their self-determination rights i.e., the war of national liberation (Cassese, 1918).
International Humanitarian Law Jurisprudence
Jurisprudence is the science, knowledge, or study of law. Generally, it is the philosophy of law (Kant, 2001). There was a general definition of international armed conflict proposed by the International Criminal Tribunal for the former Yugoslavia. The tribunal confirmed that an armed conflict is noted when there is a resort o armed force between states. Since then, international bodies have adopted this definition (Moser and Clark, 2001).
Non-International Armed Conflicts
The number and the scope of international humanitarian law treaty rules governing international armed conflict are more extensive than those applicable to non-international armed conflicts—the article 3 of the Geneva Conventions that covers the non-international armed conflicts (Wijesinghe, 2016).
International Humanitarian Law Treaties
Two main legal sources must be examined to help in determining what a non-international armed conflict under international humanitarian law is. The first one is common to article 3 to the Geneva Conventions of 1949, and the other is article 1 of additional protocol II (Lysaght, 1983).
Non-International Armed Conflict Within The Meaning of Common Article 3
The typical article three applies to armed conflicts that are not international happening in the High contracting parties (Meron, 1983). This comprises of armed conflicts where there is the involvement of one or more non-governmental armed groups. The might be hostilities between non-governmental armed groups and government armed forces or between such groups depending on the current situation. With the ratification of the 4 Geneva Conventions, the mandatory condition of the occurrence of the armed conflict has reduced its significance in implementation. Any armed conflict between governmental groups and governmental armed forces or among such groups cannot occur on one of the parties to the convention territory. To differentiate an armed conflict in the common article 3 meaning and less serious violence forms, such as tensions and internal disturbances, banditry acts, or riots, the condition must meet a particular confrontation threshold. Regarding the lower threshold, the hostilities must attain a minimum intensity level, and consideration must be done of non-governmental groups involving in the conflict as the parties to the conflict. By this, there will be the possession of organized armed forces (Akande 2012).
Non-International Armed Conflicts in the Meaning of Article 1 of Addition Protocol II.
Another definition of Non-International Armed conflict was adopted specifically because of Protocol II (Schabas, 2002). However, this definition is less broad than the notion of Non-International Armed conflict under common article 3 in two dimensions. At first, it introduces a territorial control requirement, by the provision of which will make the non-governmental parties exercise such territorial control. Also, Additional Protocol II is only expressly applicable to armed conflicts between dissident armed forces or state armed forces or other organized armed groups. The protocol is not applicable to armed conflicts that occur only between non-state armed groups in opposition to article 3.
It is important to note that Additional Protocol II supplements and develops Article 3 with no modifications of existing application conditions. By this, it is clear that the restrictive definition is only relevant to Article II’s application, without generally extending to the law of Non-International Armed Conflict (Pilloud, Sandoz, and Swinarski).
International Humanitarian Law Jurisprudence.
Significant elements of an armed conflict definition have been brought by the case law, particularly regarding the non-international armed conflict in common article 3, meaning which are not expressly in the concerned conventions (Bothe, Patsch, and Solf, 1982). There is a Non-International armed conflict every time there is protracted armed violence between organized armed groups and government forces or between such groups in a state. Decisions and judgment of the International Criminal Tribunal for the former Yugoslavia also contribute to the definition of Non-International Armed conflicts. Thus International Criminal Tribunal for the former Yugoslavia confirmed the description of Non-International Armed Conflict in the condition that typical article 3 involves situations with several fractions without the government’s armed forces being involved. This definition has been taken as a starting point by each judgment of the International Criminal Tribunal for the former Yugoslavia since that first ruling.
In conclusion, the International humanitarian law is a combination of rules aiming and targeting humanitarian conditions to decrease the armed conflict. Basing on the analysis set out, there are two types of armed conflicts distinguished by the international humanitarian law: the International armed conflict, which exists anytime there is a resort to armed forces between two or more states, and the Non-international armed conflict that are armed confrontations which occurs between governments forces or one or more armed group forces. There are two principles fundamental to international humanitarian law: mandatory protection of persons who are no longer participating in war hostilities, and there is no limitation to the right of parties to an armed conflict in choosing means and methods of welfare. And also, whether an armed conflict is an international armed conflict or a non-international armed conflict has significant implications.
The definition of international armed conflict is mainly found in Article II common to the four Geneva Conventions. The definition states that the international armed conflict rules are applicable to all cases a war declared or any other armed conflict that might arise between two or more of the High contracting parties, meaning that international armed conflict can be between two or more countries only. The definition of a non-international armed conflict is found in article III, common to the four Geneva Conventions. It is defined as an armed conflict that is not international. If an armed state not belonging to a group is a part of the armed conflict, it can be categorized as a non-international armed conflict.
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