9 Tackling Internal Armed Conflict and Civil War (Unlawful/ Unprivileged combatants)

Rohini Sen

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BRIEF OVERVIEW

This module will deal with an elaborate discussion about the internal armed conflict and the relevant laws under the International Humanitarian law that deal with the internal armed conflict. Further, the module will discuss the treatment and the protection available to the unlawful combatants in case of international and internal armed conflicts. The module will also detail the shortcomings of the International Humanitarian law with regard to the internal armed conflict.

OBJECTIVE

The objective of this module is to make the readers aware of the distinction between the armed conflicts that exist under the International Humanitarian Law. Further to establish the distinctions between lawful and unlawful combatants and protection available to them under the international and internal armed conflicts.

INTRODUCTION

The post-World War II era saw the increase in number of non-international or internal armed conflict. The cause of this may be attributed to the rise in number of the national liberation wars-which were internal armed conflicts in reality. These wars may between the government and rebels, two or more groups of rebels etc. In contemporary times, the conflicts between state and rebel groups like ISIS (Islamic State of Iraq and Syria) could be termed as an internal armed conflict which has gained international attention. However, the threshold of a conflict or distress should be very high for these wars to become an internal armed conflict.

Definition of Internal Armed Conflict

Two main legal sources explain the meaning of an internal armed conflict under the International Humanitarian Law.

(1) Common article 3

This article applies to “armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties”. A non-international (or “internal”) armed conflict refers to a situation of violence involving protracted armed confrontations between government forces and one or more organised armed groups, or between such groups themselves, arising on the territory of a State.

However, not all acts of violence can be classified as internal armed conflicts. There are certain criteria that are to be met by civil unrest, riots or sporadic acts of violence to become an internal armed conflict. The criteria are as follows First, the hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces.

Second, non-governmental groups involved in the conflict must be considered as “parties to the conflict”; meaning that they possess organised armed forces. This means for example that these forces have to be under a certain command structure and have the capacity to sustain military operations.

(2). Article 1 of the Additional Protocol II

This protocol is applied to the armed conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over apart of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”.

On the basis of above texts, the ICRC(International Committee of Red Cross) has proposed the following definition of the international and non-international armed conflicts-

1. International armed conflicts exist whenever there is resort to armed force between two or more States.

2. Non-international armed conflicts are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State [party to the GenevaConventions]. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organisation.

Relevant law under Geneva, APII and customary IHL

In case of a non-international armed conflict, provisions of Article 3 common to the four Geneva Conventions and Additional Protocol II will apply. It is seen that the conditions applicable in the APII are stricter than the article 3.

i Common Article 3

Article 3 was a breakthrough in the history of the humanitarian law. It was the first law that dealt with the situation of a non-international armed conflict. It is like a mini-convention within the Geneva Convention and no derogation is permitted to the fundamental rights established by the convention.

Article 3 states:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following   provisions:

(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,  color, 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 of 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 recognised as indispensable by civilised peoples.

(2) The wounded and sick shall be collected and cared for.

Article 3 is applicable only to an “armed conflict”. The occasional uprisings, minor rebellions etc. will not come under the purview of this article. The threshold of an ordinary uprising and a rebel needs to be high to become an internal armed conflict.

ii. ADDITIONAL PROTOCOL II

It was seen that since 1945, victims of the non-international armed conflict formed 80 percent of the total victims of the armed conflicts. Internal armed conflicts were often fought with more cruelty than the international armed conflicts. However, there was just one law, i.e. common article 3 that dealt with the armed conflicts of non-international nature. The additional protocol II of 1977 tried to extend the scope of existing laws to non-international or internal armed conflicts.

Article 1- “…Protocol II applies in…. all armed conflicts not covered by article1…. of the Protocol I and which take place in the territory of a high contracting party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this protocol.”

The article includes provision for the humane treatment of those deprived of their liberty, specific judicial guarantees, provisions related to wounded, sick and shipwrecked. The protocol also contains the rights related to protection of civilians, protection of objects indispensable to the survival of the civilian population and other protections and reliefs available to the civilian population.

iii. CUSTOMARY IHL

The customary international law is the study on the non-treaty based humanitarian law. Before the codification of humanitarian law which started in 1864 with the first Geneva convention, customs were the main source of humanitarian law for centuries. The customary international law included the unwritten rules and regulations that guided the conduct of parties at the time of conflict. However, there was uncertainty with regard to identification of customs. In 2005, a study conducted by the International Committee of Red Cross(ICRC) came up with 161 rules of customary international humanitarian law. 149 out of 161 rules identified in the customary IHL are applicable to the non-international armed conflict.

Definition of unlawful combatant

Before understanding what are unlawful combatants let us look at the categories that the International Law creates for people who are a part of conflict-

COMBATANT: Combatants are the lawful participants of a war. Combatants cannot be prosecuted for lawful acts of war in the course of military operations even if their behaviour would constitute a serious crime in peacetime. They can be prosecuted only for violations of international humanitarian law, in particular for war crimes. Once captured, combatants are entitled to prisoner-of-war status and to benefit from the protection of the Third Geneva Convention.

CIVILIAN: Article 50 of the 1977 Additional Protocol I state: 1. A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. 2. The civilian population comprises all persons who are civilians. Also, Article 4 of the 1956 New Delhi

Draft Rules states: For the purpose of the present rules, the civilian population consists of all persons not belonging to one or other of the following categories:

  • Members of the armed forces, or of their auxiliary or complementary organisations.
  • Persons who do not belong to the forces referred to above, but take part in the fighting.

Civilians are those people who do not take direct or indirect part in the war. They are entitled to protection under the International Humanitarian Law.

UNLAWFUL COMBATANTS: Although the terms “combatant”, “Prisoner of war” and “civilian” are frequently used in the text of International Humanitarian Law, there is no reference to the term “unlawful combatant” in the text of the law itself. Unlawful combatants may be described as “all persons taking a direct part in hostilities without being entitled to do so and who therefore cannot be classified as prisoners of war on falling into the power of the enemy.”

Legal Distinction

1.) Combatant: Article 43 of the additional protocol I states that ‘combatants …. have the right to participate directly in hostilities’. Since combatants are the lawful participants of war, they are entitled to “combatant immunity”. This means that at the end of the conflict; a legitimate combatant will not face any prosecution for the acts committed during the war both in internal armed conflict as well as in international conflict.

2.) Unlawful Combatants: A person who is supposed to be a civilian but engages in military activities against the enemy can be considered neither civilian nor combatant. Such people are considered unlawful combatants.

There is a difference in the treatment of unlawful combatants in International law and domestic laws of the state. In International law-

The protection of the common article 3 extends to everyone at all times in an armed conflict. The unlawful combatants are guaranteed humane and non-discriminatory treatment according to the International Humanitarian Law.

Also article 75 of the additional Protocol I provides protection for any person who falls in the hands of an adverse party. Article 75 provides extensive guarantees with regards to the physical and mental integrity of a person and judicial guarantees in case of a trial.

In a non-international armed conflict-

An “unlawful combatant” becomes subject to the domestic criminal law of the state.States are generally not inclined to make provisions for the protection and rights of the unlawful combatants. This is because in cases of internal conflicts, unlawful combatants constitute of rebels against the state. Making provisions for the protection of rebels might give them an incentive to be a rebel and protest against the state.

Problems under IHL

Once a conflict has been characterised as purely internal, certain problems as to the protection of combatants arise.

The strict reading of the common article 3 and the additional protocol suggests that there are many discrepancies that are not provided for in the provisions made for the internal conflict in the international humanitarian law.

For example: “common Article 3 covers only non-participants and persons who have laid down their arms, and does little to protect civilians against the effects of hostilities. Common Article 3also fails to define elaborate rules of distinction between military and civilian targets. It makes no mention of the principle of proportionality in target.

Although Additional Protocol II does address the protection of civilian populations more explicitly, its coverage does not compare to the prohibitions on indiscriminate attack, on methods and means of warfare causing unnecessary suffering, and on damage to the natural environment.

Those are applicable under Additional Protocol I.

Most significant from a political perspective is the fact that there is no requirement in either common Article 3 or Additional Protocol II that affords combatants prisoner-of-war status in non-international armed conflicts, nor is there anything preventing parties from prosecuting enemy combatants in those circumstances for having taken up arms.”

Syria Crisis

Inspired by a wave of anti-government protests in the Middle East and Northern Africa, a pro-democracy protests broke out in Syria in 2011. The protest was against the authoritarian practices of the Bashar Al Assad government. The government used the police, military and paramilitary forces and other forms of violence to suppress the uprising. Later they were joined by other armed groups such as ISIL (The Islamic State of Iraq and the Levant).

Currently, the country is divided into the Assad’s forces and the rebels. Violence has been committed from both the sides. The UN’s High Commission for Refugees (UNHCR) says the number now exceeds 860,000, but many more have left uncounted. The number displaced within the country is higher still. The UN Commission on enquiry on Syria has said that both the Syrian government and the ISIS have committed war crimes and crimes against humanity.

Syrian government forces have dropped barrel bombs on civilian areas, including some believed to contain the chemical agent chlorine in eight incidents. Deaths in custody in Syrian jails are on the rise and forensic analysis of 26,948 photographs allegedly taken from 2011-2013 in government detention centres support its “longstanding findings of systematic torture and deaths of detainees”. Execution in public has become a common scene.

Here the rebels are unlawful combatants of the civil war. They can be prosecuted for the mere fact that they rebel, even though they have completely observed the rules of IHL. Also once the war is over, or the rebels are caught, they will not be treated the same as the prisoners of war.

NAXALS in India- test of internal conflict

The Naxalite movement emerged from a peasant revolt, which took place in a small village of Naxalbari in Darjeeling, West Bengal in 1967. Even though the government was able to control the uprising, it wasn’t able to stop the rapidly speeding ideology of the uprising. The main issue of the Naxalite movement is agrarian transformation, the exploitation of the weaker sections of the society and resistance to imperialism and globalisation. The Naxalites are trying very hard to establish a ‘Compact Revolutionary Zone’ via a ‘Red Corridor’ extending from Nepal, Bihar, and Jharkhand through Chhattisgarh and Maharashtra to Andhra Pradesh, Karnataka and Tamil Nadu with an aim to establish a communist state.

Before moving further, it is important to establish the status of the Naxal conflict as a non-international armed conflict which should be governed by the International Humanitarian Law.

In the Tadić [Duško Tadić] case, the ICTY [the International Criminal Tribunal for the former Yugoslavia] affirmed that a non-international armed conflict [NIAC] exists when there is: “protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.”

  • Protracted armed conflict: The Naxalite movement has been existing in India since its inception in 1967. It continues to train its soldiers to fight against the government and still attacks the government agencies whenever possible. The last notable strike came in 2013 when the insurgents attacked the Indian National Congress convoy killing 27 people including the former state minister Mahendra Karma and then Chhattisgarh Congress chief Nand Kumar Patel.
  • Organized Group: Naxalites have organised themselves on the pattern of classical communist governance system and have rejected the parliamentary system of governance and capitalist philosophy. They have central and regional bureau which provide them with the ideological support and guidance. At village level, they have over ground active supporters who are ideologically committed to their cause.In addition, they have large number of frontal organizations like All India People’s Revolutionary Front and a very effective propaganda outfit.
  • Intensity: The ex-Prime Minister Dr. Manmohan Singh described Naxalism as the biggest internal security challenge for the country. In nearly 1,600 violent incidents involving Naxalites last year, 669 people died. There have been spectacular attacks across a big area: a train hold-up last month involving 250 armed fighters, a jailbreak freeing 350 prisoners, a near-miss assassination attempt in 2004 against a leading politician. “Naxalism” now affects some 170 of India’s 602 districts—a “red corridor” down a swathe of central India from the border with Nepal in the north to Karnataka in the south and covering more than a quarter of India’s land mass.

Since the Naxalites are organised group who have been a part of armed conflict of high intensity in India for a considerable long period of time, the conflict fulfils all the criteria of a non-international armed conflict. Both the parties here the state and the Naxals need to know that they are required to follow the guidelines of non-international armed conflict. However many violations of the rules of international humanitarian law keep taking place even after the existence of guidelines. For example, forcible displacement of people, recruitment of child soldiers, targeting and attacking schools and other public facilities.

EXPANDING THE SCOPE OF LAW

In modern times, the increase in the number of internal armed conflict and the emergence of internationalised armed conflicts has worked to blur the distinction between internal armed conflict and international armed conflict. In terms of law, treaties and customary law are expanding its scope to apply at least some rules uniformly over all types of conflicts.

Various proposals have been kept in front of the board to remove the difference between the international and non-international armed conflict. During diplomatic conference on the Reaffirmation and development of the International Humanitarian Law, it was proposed to drop the two categories of law and formulate a single law for the two kinds of armed conflict. However, the proposal was rejected on the grounds of divergence that exists between the regulation that states are prepared to accept for a conflict between states and an internal armed conflict involving their sovereignty. A single definition of armed conflict will need to ensure that States continue to enjoy an ability to deal with internal disturbances under domestic law but that international conflicts of low intensity remainsubject to international humanitarian protection.

However, the fact cannot be denied that there is a need of uniform application of law over the international and internal armed conflict.

Also, the protection given to the unlawful combatants need to be increased as the basic human right protection.

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Reference

  • Crawford, E. ‘The Treatment of Combatants and insurgents under the law of armed conflict’ Oxford University Press ,2010
  • James G. Stewart “Towards a single definition of Armed Conflict in International Humanitarian Law”, International Review of Red Cross, No. 850,2003
  • Hans Peter Gasser, ‘Internationalized non international armed conflicts: case studies of Afghanistan, Kampuchae and Lebanon’, The American University law review,1983.
  • A specter haunting India’, The Economist(2013) http://www.economist.com/node/7799247
  • ‘The country formerly known as Syria’ http://www.economist.com/news/briefing/21572198-sectarian-divisions-deepen-war-changing-country-beyond-recognition-country
  • ‘Syria and ISIS committing war crime, says U.N.http://www.theguardian.com/world/2014/aug/27/syria-isis-war-crimes-united-nations-un
  • https://www.icrc.org/eng/resources/documents/interview/2012/12-10-niac-non-international-armed-conflict.htm
  • http://www.politico.com/story/2013/04/what-is-an-enemy-combatant-90436.html#ixzz3WNUqVm00