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ISIL Year Book of International Humanitarian and Refugee Law |
| You are here: | WorldLII >> Databases >> International >> Journals >> ISILYBIHRL >> 2001 >> [2001] ISILYBIHRL 11 |
M. GANDHI[*]
The humanitarian law applicable to war or international armed conflict is more readily discernible today than the humanitarian law applicable to localized wars or non- international armed conflicts. It has become imperative to examine the humanitarian law applicable in the second situation, as the traditional mode of conducting war has undergone a rapid change and most of the wars today remain undeclared, throwing a question as to the scope of humanitarian law applicable to that situation.
As customary international law imposed no requirements with regard to the treatment of the participants of civil conflict, the determination as to the minimum protection to be given to the victims of non-international armed conflicts had been deliberated and negotiated by states and the outcome of that is the Geneva Conventions of 1949. The idea projected in these Conventions and by the subsequent state practice is that to the international armed conflicts the Hague and Geneva regime would apply and to non-international conflicts common article 3 of the Geneva Conventions of 1949 and Protocol II to Geneva Conventions would apply. Common article 3 appears to have been constructed ambiguously with a view to achieve a delicate compromise acceptable to states which are in favour of the restrictive application of humanitarian law to non-international armed conflict. However recent efforts to expand the scope of common article 3 by national legislation and through judicial interpretation by national courts offer much more protection to the victims of non-international armed conflicts than its implementation through international ad-hoc tribunals.
In general, common article 3 is implemented by setting standards in military manuals, by offering training to armed forces of humanitarian laws, enacting national legislations and by fixing accountability on individuals who are responsible for violating common article 3. These implementing procedures are seen to be increasingly influenced by : (a) effort made towards lowering the threshold of applying international humanitarian law; and (b) convergence of humanitarian law and human rights law. These developments blurred not only the traditional distinction between international armed conflicts and non- international armed conflicts, but also resulted in the blurring of the conceptual boundaries between non-international armed conflicts, war crimes, “crimes against humanity” and “obligation erga omnes”. The fundamental concepts like State sovereignty, is seemingly reduced to a residual concept. Yet the views expressed by states during negotiations of Geneva Conventions 1949 are once again reiterated in the negotiating sessions of ICC[1] also. The ambiguity surrounding the common article 3 is further deepened by the criminalisation of international humanitarian law.
Article 3 is applicable in case of armed conflict not of international character occurring in the territory of one of the contracting parties to the 1949 Conventions. 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[2]. Protocol II which is supplementary to this article has expanded this provision. Article 3 offers an international minimum protection to persons taking no active part in hostilities, including members of armed forces in certain situations specifically stated in the article[3].
Humane and non-discriminatory treatment are two important protections offered under this provision. It prohibits certain acts as against protected person, which are enumerated in this article[4]. Common article 3 assumes greater importance than Protocol II to the Geneva Conventions, 1949 for the reasons that the Geneva Conventions 1949 have been ratified by large number of States and also that article 3 has been claimed to be declaratory of customary international law on this point[5]. However, this article is applicable to the situation of non-international armed conflicts in a limited way as circumscribed in the provision itself[6].
The ambiguity surrounding the article had been used by states to further limit its applicability. The problem with this article is that it is applicable only to a situation, which is an “armed conflict”. However, the term “armed conflict” has not been defined in the Convention. In the absence of the definition of armed conflict, it is left to the state to determine whether an armed conflict exists or not. In practice, low intensity conflicts are not considered as armed conflict. Jean S. Pictet, in his commentary to the Geneva Conventions, says that the armed conflict referred to in article 3 is relating to “armed forces on either side engaged in hostilities – conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country”[7]. Civil conflict and rebellion can thus be treated as an non-international armed conflict when the state party wishes to treat this as an non-international armed conflict[8]. Nonetheless, states can deny the applicability of common article 3 to a situation of armed conflict. In times of disagreement with regard to the application of common article 3, the only applicable criteria is the intensity of violence[9].
There is no internationally administered supervisory body for the implementation of this article. Only obligation imposed under this article is that an impartial humanitarian body, such as International Committee of the Red Cross (ICRC) may offer its services to the parties to conflict. State may or may not accept this offer. However, in practice any offer given by ICRC is generally not rejected. The state party accepting the offer, carefully defines the limits of service in such a way that it promotes the appearance of compliance while enjoying the putative benefits of violence[10]. In cases where an offer by ICRC is rejected the state invariably argues that the particular matter is only an internal disturbance and falling under the domestic jurisdiction of the state[11]. This normally occurs in a situation of sporadic violence or rebellion against the government by its own population. Although article 3 says that the applicability of that provision shall not affect the legal status of the parties to the conflict, any declaration accepting the application of article 3 by the state in the case of armed rebellion targeted against Government would tantamount to recognizing the armed rebellion or conferring belligerent status which entails the application of law of armed conflict to that situation. Decision of a state in such a situation is based less on the reasons of humanitarian consideration rather than on political concern. The situation here would be very sensitive as the party involved in armed rebellion still may like to do whatever possible to colour the localized rebellion as an armed conflict either by spreading it to other neighbouring states or by appealing for mediation from other state,12 so that the local conflict is converted into international armed conflict.
The common article 3 is applicable to civil wars[13] and at the same time it is not applicable either to civil commotion or to the low intensity armed rebellion. It does not also apply to the guerrilla warfare tactics of terrorist groups[14]. In fact, the common article 3 does not deny state’s right to take action against armed rebellion. In the view of Tom Farer, the following acts may be interpreted as not amounting to violation of article 3:
(i) Although torture is prohibited nothing in article 3 prevents the rebellions being hung for treason.(ii) Civilians who inhabit areas where insurgents are active are also subject to forms of detention normally garbed in euphemistic vestments, such as “relocation centers” or “fortified hamlets”, with respect to which article 3 contains no specific safeguards.
(iii) Civilians may also be compelled by the rebellions to serve in effect as slave labourers and subjected to the process of conflict.
(iv) There is no reference in the Convention prohibiting the requisition / destruction of food and other essential goods with a view to prevent them from falling into the hands of other party[15].
The preceding passage would indicate the limitations of common article 3. Although article 3 is regarded as a code by itself and a microcosm, the ambiguity of the text provides enough room for parties to limit its application. However, there has been substantial effort, by UN, other inter-governmental organizations and individual publicists to lower the threshold level for application of common article 3 either by addressing the non-international armed conflict situation through certain species of crimes15a in a flexible way or by creating new soft laws. These ideas sprang upon the understanding that the human miseries associated with conflicts today remain the same whether it results from international armed conflicts or non-international armed conflicts[16]. These developments are reflected in the national legislations, decisions of the national tribunals and the international instruments establishing the ad-hoc criminal tribunals and also in the recent Rome Statute of International Criminal Court (ICC). Although the necessity of expanding the application of humanitarian law in internal strife cannot be treated as a over ambitious exercise, the entire movement seemingly leads to a blurring of the boundaries that separates international and non-international armed conflict on the one hand and the sovereignty and the freedom of human beings on the other. Another major problem of this movement is that it gives room for the intervention in the internal affairs of a state and also attempt to belittle the penal provisions concerning offences against state.
As has been stated elsewhere, the Geneva Conventions, 1949 do not impose any obligation on state parties to make law punishing the violation of the common article 3, which is not a grave breach according to the Conventions. The only obligation imposed upon state is to permit international organizations, such as ICRC, when it offers assistance. There is no supervisory body to oversee the implementation of common article 3. Moreover, the nature of the common article 3 is that it is only a general principle[17] and it can be applied by the state party with a margin of appreciation as reflected in their legislations[18]. In other words, protection of victim of non-international armed conflicts of a state practically implies a commitment to enforce concordant, parallel domestic legislation and law application.
There are national legislations which ensure the implemen-tation of common article 3. Certain new legislations consider the serious violations of international humanitarian law committed in the course of non-international armed conflict in the category of war crimes[19]. Certain other legislations have dropped the traditional distinction between international armed conflict and non-international armed conflicts[20]. Certain penal laws offer the possibility of exercising universal jurisdiction, i.e., the serious violation of international humanitarian law wherever committed either by non-nationals or against non-nationals[21], will be treated as crime against international law. The recent amendment to US War Crimes Act of 1996 extends the jurisdiction of national courts to violations of article 3 common to Geneva Conventions. The Penal Codes of Ethiopia, Yugoslavia, Bosnia Herzegovina and Slovenia provide for the criminalisation of certain acts categorised as war crimes, regardless of the type of conflict[22].
In legislations where individual responsibility is fixed for violation of common article 3, elements not referred to in article 3 is considered strictly outside the jurisdiction of the tribunal. For example, the cases concerning genocide and apartheid had been decided by the national courts as falling outside the scope of common article 3. In cases where individual responsibility is fixed for the violation of common article 3 courts tend to punish for certain violations of the law applicable in international armed conflict also. However, the courts did not consider violation of common article 3 as a grave breach[23]. Certain courts consider the violation of common article 3 as crime against humanity without precisely delimiting the concept[24]. All these indicate that while national courts in Europe tend to criminalise certain types of conduct that violate the rules of humanitarian law applicable in internal conflict they are unable to bring these violations under a uniform category of offences such as, war crime, crimes against humanity, etc.
The confusion of this kind has not been confounded despite there are efforts to create ad hoc international criminal tribunals, such as International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR); and International Criminal Court (ICC), which provides for detailed provisions on the jurisdiction, applicable law and the pre-trial procedure. The main shortcoming of these tribunal is that they are lacking an effective mechanism to enforce arrest warrants and to execute judgments[25].
However, we could see the following resultant positions emerging out of the decisions of the tribunals. First, the criminalisation makes it possible to punish an individual under common article 3. Second, the interpretation of the terms ‘armed conflict’ and ‘non-international armed conflict’ becomes possible by weighing evidence on the basis of ‘geo-military profile’ of the Parties involved. Nevertheless, these developments cause more concern to the sovereign states as the interpretation of these tribunals could greatly differ from the municipal law and the interpretation of the municipal courts, which are conditioned by their constitutional law and national legislation. For example, in a recent decision by the trial chamber of ICTY in Prosecutor vs. Tadic, it was observed that the common article 3 of the Geneva Convention was declaratory of customary international law. The decision further states: the rules contained in paragraph 1 of common article 3 proscribe a number of acts which: (i) are committed within the context of armed conflict; (ii) have a close connection to the armed conflict, and (iii) are committed against persons taking no active part in hostilities[26]. On the question of existence of armed conflict, the appeal chamber stated that “an armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state[27].
It is important to note that the tribunal invoked its jurisdiction on matters which fall under common article 3 under crimes against humanity. Although crimes against humanity need not be related to armed conflict it linked it to armed conflict with a view to invoke the jurisdiction. The approach of the tribunal seems to be faulty at least on two grounds. First, its ascertainment as to the existence of armed conflict on the basis of protracted armed violence between governmental authorities and organized armed groups fail to provide an objective standard by which an armed conflict is ascertainable. An organized terrorist group targeting the governmental authorities within the state through the sporadic violence could be treated under the Tadic reasoning as armed conflict. Even the guerrilla war tactics applied by terrorist groups which never falls under armed conflict could be brought under the Tadic decision as an armed conflict. It is submitted that while involving common article 3, the Tadic court failed to see the limitations of common article 3 of the Geneva Conventions, 1949. By linking it with crimes against humanity, it also failed to take note of an important principle that the treaty based procedures whose definitions are governed by the legal scope of such treaties[28].
However unclear jurisprudentially, the Tadic decision opens a possibility of less intensity conflicts to be covered as crimes against humanity. However, the definition of crimes against humanity, in the Rome Statute of International Criminal Court, which defines the crimes against humanity by an explanatory definition that enumerates certain specific acts as crimes against humanity when committed as part of widespread or systematic attack directed against any civilian population, with knowledge of the attack. The criminal acts which are considered as crimes against humanity in the Rome Statute qualifies the acts by requirements “widespread or systematic attack directed against any civilian population, with knowledge of the attack”. One can see how the ICTY Statute is different from the Rome Statute, which mirrors more couched language accomodating on verse new points
Common article 3 of the Geneva Conventions is co-terminous with certain human rights which are non-derogable in character, i.e., rights which are protected in all times-peace, war and national emergency. However, the enforcement methods of human rights are different from humanitarian laws[29]. The human rights are available only against state, whereas the obligation to observe common article 3 is addressed to the parties to the conflict, namely the state as well as other entities, such as rebel forces[30]. The violation of common article 3 as human rights poses its own problems, First, in case of violations of human rights only state is made liable for the violations as it is essentially a right protected against action of state. Second, the courts and tribunals authorized to decide on the violation of human rights need not be authorized to implement the common article 3[31]. Third, the rebel forces which could be tried under common article 3 can possibly be treated as a victim of human rights before human rights court. Fourth, the rebel forces involved in non-international armed conflict whose aim is to overthrow the lawfully established government may not be the subject of international law[32], notwithstanding, they are triable for the violation of common article when the tribunals are specifically endowed with such jurisdiction. These indicate the unfair treatment meted out to the state in the human rights approach, vis-à-vis rebel groups as it provides for legal protection to the terrorists, armed rebels and also those who are fighting guerilla warfare, involved in the low intensity conflict, who are otherwise not protected under common article 3. In other words, the convergence of common article 3 and the non-derogable rights, obligation erga omnes is capable of making inroads into the sovereign rights of state. The state becomes vulnerable in such a situation where the duty of the citizens to the state is completely absent and offences against state in the penal code stands non implementatable. This could perhaps take a dangerous dimension when this approach is adopted by international criminal tribunals as they seldom have responsibility to interpret the human rights law in harmony with the constitution and the laws of the state within which only the States are obliged to implement the human rights.
Similarly, efforts to develop a minimum humanitarian standards which would apply to all situations of internal strife and tensions, seldom address the concern of states. Although these efforts had the support of certain section of states the soft law approach to this kind has not yet reached fruition. The Moscow Declaration of 1991 and the Budapest Summit in 1994 stressed the importance of a declaration setting out the minimum standards applicable to all situations[33]. The UN Human Rights Commission also has shown much interest in such a kind of declaration. Yet, Sates are not so willing to subscribe to this approach.
The preceding discussion indicates that the distinction between international and non-international armed conflicts is slowly vanishing in the national legislations and in international instruments adopted recently. However, states are still not so willing to the abolition of such dichotomy. There is a general approval that the violation of common article 3 is not a “grave breach” within the meaning of Geneva Conventions. However, it could be a war crime or crimes against humanity, if the legislation or the instrument creating international tribunal specifically categorize it so.
The national legislation and the national tribunals are found to discharge the implementation of common article 3 more effectively within the parameters of the constitution and law of the state than the international criminal tribunals which are created to address a particular situation and a need. The international decisional materials tend to add more confusion to the traditional understanding of common article 3. Any attempt to develop a uniform interpretation seem to lie in the municipal legislations expressing the changing dimensions of humanitarian law applicable in the non-international conflicts than trying to accommodate the protection offered under common article 3 under war crimes and crimes against humanity which have brought already enough confusion to the corpus of humanitarian law.
When treaties fail to clearly define the criminality of prohibited acts, the underlying assumption has been that customary law and internal penal law would supply the missing links[34].
In the case such as common article 3 where the question has been raised whether it is customary law or not, where the content of the common article is uncertain due to ambiguities surrounded by diverse interpretations and national practices, the missing link could be supplied only by the national legislations and judicial interpretations.
[1] Kirsch, Phillipe & John T. Holmer, “The Rome Conference on an International Criminal Court: The Negotiating Process”, American Journal of International Law, vol.93 (1999), p2-11, at p. 9.
[2] The conflicts in Lebanon during 1980s and Somalia after 1991 may be cited as examples of this kind. See Fleck, The Handbook of Humanitarian Armed Conflicts, (1995),p.221.
[3] Ibid.
[4] Ibid
[5] Documents on the Laws of War, (eds.), Adam Roberts and Richard Guelff, 2nd edition, p.170. Similar view is expressed by the International Court of Justice in its judgment in the case of Nicaragua vs. The United States of America (1986 ICJ Rep. 14) The court reached a conclusion in this case that Article 3, as a part of customary law constituted a ‘minimum yard stick’ applicable to all armed conflicts. However, the customary law character of Article 3 has been questioned by publicists. Theodor Meron, while agreeing that “Article 3 may well express the quintessence of humanitarian rules found in other substantive provisions of the Geneva Conventions” is not sure that the rules of Article 3 have necessarily attained the character of customary rules of international law. He also noted that the ICJ in Nicaraguan case completely failed to enquire whether Opinio juris and practice support the crystallization of Article 3 into customary law. (See T. Meron, Human Rights and Humanitarian Norms as customary law,pp 25-27 (1989). The other extreme view that Article 3 is based on customary law, is part of jus cogens and therefore binding on all states is expressed by H.P. Gesser, “A Measure of Humanity in Internal Disturbances and Tensions : Proposal for a Code of Conduct”, 262 International Review of the Red Cross, (1988), p.44. For the comparison of the above views see, Theo c. Van Boven, “Reliance on Norms on Humanitarian Law by United Nations Organs”in Astrid J.M. Delisser, Gerald J. Tanja (Ed) Armed Conflicts : Challenges Ahead (Martinus Nijhooff, 1991) pp. 502-503.
[6] (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 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 care 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.
[7] Jean S. PICTET, Geneva Conventions of 12 August, 1949: Commentary (Geneva,1958), p.36.
[8] See for a detailed analysis in Neil Boister and Richard Burchill, The International Legal Definition of the South African Conflict in the South African Courts: War on National Liberation, Civil War or War At All?, Netherlands International Review, vol. 45 (1998), pp. 348-361. The decisions of the tribunals and judicial bodies assess the ‘geo-military profile of an inter-state conflict’ while determining whether a conflict qualifies to be an armed conflict. For example, the conflict in South Africa between the African National Congress (ANC), Pan African Congress (PAC) and the Tanzanian People’s Organization (AZAPO) on the one side and the Apartheid Govt. and its allies on the other, had not been considered as relevant non-international armed conflict neither by the Apartheid South African courts nor the post-Apartheid South African courts.
[9] Hans-Peter-Gasser, “International Humanitarian Law”, in Introduction to International Humanitarian Law (eds.), M.K. Balachandran, Rose Verghese.
[10] Tom Farer, “Humanitarian Law and Armed Conflicts: Toward the Definition of ‘International Armed Conflict”, Columbia Law Review, vol.71 (1971), p. 37 at p. 39.
[11] Hans-Peter-Gasser, n. 9 at p.19.
[12] In Congo, the foreign intervention of internal conflict has changed the nature of the conflict as an international armed conflict. See Richard I. Miller, The Law of War (Lexington Books, 1965) p. 21.
[13] Geza Herczegh, Development of International Humanitarian Law (1984),p.64.
[14] Hilaire McCoubrey and Nigel D. White, International Law and Armed Conflict, 1992, pp.199-200.
[15] Tom Farer Nigel D.White says that the infiltrated fighters who will normally be fighting for political motives and political objectives, will be normally accorded no international law protection at all. They will be treated as criminal law offenders, either against the common law of crime or the national security law. The state infiltrated will normally decline to admit the presence of activities of the infiltrator fighters. in Michael A Meyer and Hilarie Mc Coubrey , ed. Reflections on Law of Armed Conflicts , (1998),p.200, In other words the hostilities rising to the level of armed conflict is the test, see Michael N Schmitt, “ State Sponsored Assassination in International Domestic Law”, Yale Law Journal of International Law, vol.17, (1992), p.642.
15a. See text corresponding to foot notes 22 to 24.
[16] Certain non-international conflicts may be more violent, extensive and consumptive of life and value than international one. See W.Michael Reisman &James Silk, “Which Law Applies to the Afghan Conflict?” American Journal of International Law, vol.82 (1988), p.481.
[17] Ibid. at pp.463-64.
[18] Herczegh, note 13, p.65.
[19] Belgian Law of 16 June, 1993.
[20] The Penal Code of Finland refers to armed conflict only.
[21] The Swedish and the Netherlands Criminal Laws followed similar scheme.
[22] A detailed analysis of the legislation and case laws covering common article 3. See Thomas Graditzky, “ Individual Criminal Responsibility for Violations of International Humanitarian Law Committed in Non-International Armed Conflicts”. No 322, International Review of the Red Cross 1998, pp. 29-56.
[23] Ibid. p.46.
[24] The decision by the Hungarian Court as cited in ibid, p.47.
[25] Antonnio Cassese, “On the Current Trend Towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law” European Journal of International Law, vol.9 (1998), p.17.
[26] Prosecutor vs. Tadic, 112 ILR, p.202
[27] Prosecutor vs. Tadic (Jurisdiction) (Appeal Chamber), 105 ILR,p.488
[28] Another discrepancy the Tadic rule brought in is that it tries to establish nexus between crimes against humanity and armed conflict, a position which does not reflect contemporary international law, see Phyllis Hwang, Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court, Fordham International Law Journal, vol.22(1998), p.485
[29] Although emergency situation could be an exceptional situation for the application of non-derogable rights; some publicists argue that even in such situations “the intent of humanitarian law should be to insist on the respect for such legal principles...” Asborn Eide, “The Laws of War and Human Rights- Differences and Convergences” in Christophe Swinarski (Eds) Studies and Essays in Humanitarian Law and Red Cross Principles, (Martinuss Nijhoff) p.698.
[30] Ermacora, special rapporteur on the Situation of Human Rights in Afghanistan stated that all parties to the conflict are at least bound by common Article 3 of the Geneva Convention regardless of whether the conflict is considered to be international or non-international. U.N. DOC. A/40/893 p. 128.
[31] Liezbeth Zegveld, “The Inter-American Commission on Human Rights and International Humanitarian Law. A comment on the Tablada case”, No 324, International Review of the Red Cross, 1998, pp. 505-511.
[32] Ibid, p. 505.
[33] Originally this idea appeared to have been promoted by Theodor Meron, see , Djamchid Momtaz, The Minimum Humanitarian Rules Applicable in periods of internal tension and strife, No. 324 International Review of the Red Cross, 1998, p. 455 at p. 461.. See also T. Meron, “Towards a Humanitarian Declaration in Internal Strife” American Journal of International Law , vol.78 (1984), p.859.
[34] Theodor Meron, “International Criminalisation of Internal Atrocities”,American Journal of International Law vol.89(1995 ), p. 563.
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