About the author(s):
Dr Saeed Bagheri is Lecturer (Assistant Professor) in International Law at the University of Reading School of Law, where he also held a Postdoctoral Research Fellowship from 2019-2021. Prior to joining the University of Reading, he was a Max Weber Postdoctoral Research Fellow at the European University Institute (EUI) from 2017-2019. Saeed conducts research in the law on the use of force and international humanitarian law and teaches across a range of modules on law programs. He is the author of International Law and the War with Islamic State: Challenges for Jus ad Bellum and Jus in Bello (Oxford, Hart Publishing, 2021).
Protecting civilians in armed conflicts represents one of the main goals of international humanitarian law (IHL), as a distinct body of law intended to protect civilians, civilian objects, and other protected persons and objects that are or may be affected by armed conflicts. However, civilians still face frequent violations in international armed conflicts (IACs) and non-international armed conflicts (NIACs). At the same time, Common Article 1 of the 1949 Geneva Conventions explicitly provides that States undertake to respect and ensure respect for IHL in all circumstances.
This post builds on the question of whether Common Article 1 obligations extend to situations of NIACs. It then goes on to examine a further important legal question as to whether territorial States must engage with organised groups for the purpose of the obligations contained in Common Article 1. Finally, it analyses the difficulties that would be encountered in the implementation of the precedent obligation if territorial States do not recognise the existence of NIACs on the one hand and the legal status of organised armed groups as parties to NIACs on the other.
Respect and ensuring respect for IHL in NIACs
Notably, the obligation to respect IHL in all circumstances first appeared in the 1929 Geneva Convention on the Treatment of Prisoners of War (art 84, LNTS), and the 1929 Geneva Convention on the Amelioration of the Condition of the Wounded and Sick in Armies in the Field (art 25(1), LNTS). The obligation to respect and ensure respect for IHL “in all circumstances”, which was later reproduced in Common Article 1 of the 1949 Geneva Conventions, has been questioned in scholarly assessments. Some authors, most notably Schmitt and Watts, have argued that the “in all circumstances” phrase cannot be extended to NIACs as itapplies only in the context of IACs (Schmitt & Watts, 2020, pp. 679 and 701). They apparently form this view from the International Committee of the Red Cross’s (ICRC) 1952 Commentary on Geneva Convention I, whereby “the words ‘in all circumstances’ do not relate to civil war” (Pictet, 1952, p. 27). They have further argued that the 1929 Conventions, in which the “in all circumstances” phrase initially appeared, dealt only with what is today labelled IAC (Schmitt and Watts, p. 701).
However, this is a sophisticated argument that is not entirely reliable within the current international legal realm due to the changing character of warfare, especially in the course of the increased number of emerging NIACs between States and organised armed groups all across the world. Rather, we need an obvious understanding of the applicable law as it is interpreted today as perthe actual circumstances that exist in the present. To this end, it would be convenient to follow the widely accepted view of the ICRC, according to which the wording of Common Article 1 covers not only the provisions applicable to IACs, but also those applicable to NIACs, such as Common Article 3 of the 1949 Geneva Conventions, which provides the baseline humanitarian protection in the course of NIACs. Common Article 3 creates a legal framework that applies only to the case of armed conflict not of an international character occurring in the territory of one State. This is a statement that is recognised in the existing lex latagoverning IHL. In this context, one of the sub-provisions found under Common Article 3 is that the parties to NIACs must bring into force, by means of special agreements, all or part of the other provisions of the Geneva Conventions.
The ICRC’s 2016 commentary on Common Article 1 explicitly indicates that “the High Contracting Parties must ensure respect for the rules applicable to [NIACs], including by non-State armed groups.” (ICRC, para. 125). This is perhaps the most common interpretation of Common Article 1, assuring humanitarian protection to all those who are affected by or involved in armed conflicts either IACs or NIACs. This is an argument that would also require the positive obligation of territorial States to engage and deal with organised armed groups, especially by concluding special agreements with them under Common Article 3 provisions to ensure IHL compliance and decrease any possible violations during the conflict.
IHL compliance by organised armed groups
It has been argued that organised armed groups have never participated in the creation of either treaty or customary IHL. In great part, this is propounded as one of the major reasons why serious problems have surfaced with regard to respect for IHL by organised armed groups involved in NIACs. However, given the customary nature of the Common Article 1 obligation to respect and ensure respect for IHL in all circumstances (ICRC Study, Rule 144) that also extends to organised armed groups, the legal question is whether and, if so, to what extent the illegal character of organised armed groups would erode the absolute nature of the Common Article 1 obligation.
The answer to this question is reasonably plain. Despite the illegal character of organised armed groups under domestic law, Common Article 1 of the Geneva Conventions still creates positive obligations on States members and their organs to respect and ensure respect for IHL in all circumstances. Note in this regard that the obligation to respect IHL in all circumstances means that States are under an obligation to do everything they can to ensure that the extant rules and principles of IHL are respected by their organs and by all others under their jurisdiction (Chazournes and Condorelli, 2000, p. 69). With this in mind, the States involved in NIACs are required by Common Article 3 to conclude special agreements with organised armed groups as the nationals under their jurisdiction but taking part in protracted armed violence against central governments. Again, as with IACs, this is an extension of the customary obligation to respect and ensure respect for IHL that also applies in the context of NIACs. This is also the current position of the ICRC. In the interest of clarity, I would exclude here the organised groups formed by foreign fighters and this post addresses only those armed groups with the territorial State’s nationality.
The existence of a NIAC
Recall that Common Article 1 obligation would not be the case once a particular situation cannot be qualified as an armed conflict (Milanovic, 2014, p. 170). Relatedly, a NIAC exists where: (i) there is a conflict between a State and an armed group whit a certain level of organization to be qualified as a party to the NIAC (Tadi? case (1995), para. 70); (ii) the threshold and intensity of violence reach a certain degree that goes beyond internal disturbances and tensions. The threshold of a NIAC is met by virtue of the evidential factors, including “the number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the intensity of a conflict.” (Prosecutor v. Haradinaj et al. 2008, para. 49).
That said, having been generally identified as terrorists in domestic law irrespective of whether or not the threshold of a NIAC is met, organised armed groups are criminalised and thus are not granted amnesty and protection in national courts (Bangerter, 2011, p. 377-78). This leaves them with no reason to respect the applicable legal framework in a certain sense. This is one of the many reasons for which organised armed groups would not respect IHL, but it may not apply to all organised armed groups, simply because there may be other groups who may want to respect IHL to gain legitimacy from both domestic and international constituents.
That being so, the question remains as to why organised armed groups should respect the legal framework from which they cannot benefit properly, especially in situations where they may remain unprotected from unlawful killings, detention, torture or ill-treatment. This suggests that by criminalising organised armed groups and labelling them as terrorists territorial States have undermined Common Article 1. This is particularly because such characterisation has often prevented the engagement undertaken by humanitarian actors to increase organised armed groups’ compliance with the applicable legal framework.
Although States find it preferable to criminalise organised armed groups, there is no doubt whatsoever that it has been putting civilians at risk for decades. On this basis, the focal spot of this discussion is that the fear of conferring legitimacy to organised armed groups only because (i) of recognising their legal status as parties to NIACs and (ii) territorial States’ failure to facilitate effective engagement with these groups would keep undermining the overriding objective of Common Article 1. Bearing this in mind, the recognition of the existence of NIACs and the legal status of organised armed groups as parties to NIACs is of paramount importance as it would bring us to the necessity of mutual reaction and engagement with organised armed groups and perhaps potential affirmative cooperation with them to ensure IHL compliance in the interest of civilian protection. Again, however, this would not be the case if the threshold and intensity of the conflict has not been met for there to be a NIAC.
Conclusions
While further study is warranted, the major revelation from this post is that organised armed groups’ compliance with IHL would require territorial States to recognise the existence of a NIAC where the threshold of a NIAC is met. The existence of a NIAC is treated as a necessary criterion for territorial States to collaborate closely with organised armed groups as parties to NIACs by making special agreements under Common Article 3 to ensure IHL compliance during the conflict. This would also require territorial States to grant organised armed groups legal immunity under domestic law and provide them with the opportunity to articulate their political views in the interest of civilian protection and the promotion of respect for the laws in order to achieve the ultimate objective of Common Article 1.