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The protective scope of Common Article 3: more than meets the eye

Published online by Cambridge University Press:  05 May 2011

Jelena Pejic
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Abstract

Non-international armed conflicts are not only prevalent today, but are also evolving in terms of the types that have been observed in practice. The article sets out a possible typology and argues that Common Article 3 to the Geneva Conventions may be given an expanded geographical reading as a matter of treaty law. It also suggests that there is a far wider range of rules – primarily of a binding nature, but also policy-based – that apply in Common Article 3 armed conflicts with regard to the treatment of persons in enemy hands and the conduct of hostilities.

Type
Selected Articles on International Humanitarian Law
Information
International Review of the Red Cross , Volume 93 , Issue 881: Conflict in Afghanistan II , March 2011 , pp. 189 - 225
Copyright
Copyright © International Committee of the Red Cross 2011

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References

1 Additional Protocol II to the Geneva Conventions has a higher threshold of applicability than Common Article 3, even though the ICRC had initially hoped, before and at the Diplomatic Conference of 1974–1977, that their scope of applicability would be the same. Concerns about the impact of the treaty on state sovereignty resulted in a text that offers more clarity but is also more restrictive than originally envisaged. The Protocol's applicability is tied to an armed conflict in which the non-state party must ‘exercise such control over a part of’ the territory of a state party as to enable it ‘to carry out sustained and concerted military operations and to implement this Protocol’. Just as importantly, Additional Protocol II expressly applies only to armed conflicts between state armed forces and dissident armed forces or other organized armed groups, and not to conflicts between such groups themselves. The scope of application of Protocol II is thus narrower than that of Common Article 3, with Article 3 maintaining a separate legal significance even when Protocol II is also applicable. The relationship between the respective sets of rules is expressly provided for in Article 1(1) of Protocol II, pursuant to which the Protocol ‘develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application’.

2 See note 1 above.

3 Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Volume I: Rules, Cambridge University Press, Cambridge, 2005 (hereafter Customary Law Study).

4 By way of reminder, the ICRC Commentaries to Common Article 3 contain a summary of the criteria that were put forward by some states at the Diplomatic Conference but were eventually rejected. See, for example, J. Pictet (ed.), Commentary to the Third Geneva Convention relative to the Treatment of Prisoners of War, ICRC, Geneva, 1960, p. 23. The list, as has been rightly pointed out, sets a ‘far higher threshold of application than is actually required by the Article itself’. See Lindsay Moir, The Law of Internal Armed Conflict, Cambridge University Press, Cambridge, 2002, p. 35.

5 Schindler provides a succinct outline of most of the factual criteria: ‘Practice has set up the following criteria to delimit non-international armed conflicts from internal disturbances. In the first place, the hostilities have to be conducted by force of arms and exhibit such intensity that, as a rule, the government is compelled to employ its armed forces against the insurgents instead of mere police forces. Secondly, as to the insurgents, the hostilities are meant to be of a collective character, that is, they have to be carried out not only by single groups. In addition, the insurgents have to exhibit a minimum amount of organisation. Their armed forces should be under a responsible command and be capable of meeting minimal humanitarian requirements. Accordingly, the conflict must show certain similarities to a war, without fulfilling all conditions necessary for the recognition of belligerency’. Dietrich Schindler, The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols, Recueil des cours, Martinus Nijhof, Brill, 1979, Vol. 163/ii, p. 147.

6 Ibid., p. 36.

7 See Fatmir Limaj et al., International Criminal Tribunal for the Former Yugoslavia (ICTY), Trial Chamber II, Judgment of 30 November 2005, Case No. IT-03-66-T, para. 90; Ramush Haradinaj et al., ICTY, Trial Chamber I, Judgment of 3 April 2008, Case No. IT-04-84-T, para. 60.

8 R. Haradinaj et al., above note 7, para. 49.

9 ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2 October 1995, para. 70, emphasis added.

10 For one view see Meron, Theodor, ‘The humanization of humanitarian law’, in American Journal of International Law, Vol. 94, 2000, p. 260CrossRefGoogle Scholar; Michael Bothe, ‘War crimes’, in A. Cassese, P. Gaeta, and J. W. D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 423; Anthony Cullen, ‘The definition of non-international armed conflict in the Rome Statute of the International Criminal Court’, unpublished PhD thesis, Irish Centre for Human Rights, 2007, p. 22. For the opposing view, see A. Bouvier and M. Sassòli, (eds), How Does Law Protect in War?, ICRC, Geneva, Vol. 1, 2006, p. 110; René Provost, International Human Rights and Humanitarian Law, Cambridge University Press, Cambridge, 2002, p. 268; William Schabas, An Introduction to the International Criminal Court, 3rd edn, Cambridge University Press, Cambridge, 2007, p. 116. See also Eric David, who believes that para. 2(f) did not create a third category of NIAC but that this ‘expanded notion’ of armed conflict replaces that of Additional Protocol II by operation of the lex posterior principle (Eric David, Principes de droit des conflits armés, Bruylant, Brussels, 2002, p. 119).

11 Affaire Lubanga Dyilo, Chambre préliminaire I, Décision sur la confirmation des charges, 29 janvier 2007, paras. 229–237.

12 See How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law? ICRC Opinion Paper, March 2008, available at: http://www.icrc.org (last visited 9 March 2011), emphasis in original.

13 The international armed conflict in Afghanistan that started in October 2001 was re-classified by the ICRC as a NIAC in June 2002 when the present Afghan government was established. Since then, the US and NATO forces have been acting in support of the government against the Taliban and Al Qaeda. Similarly, the international armed conflict that started in Iraq in March 2003 ended in June 2004, after which foreign troops were acting in Iraq with the consent of the interim Iraqi government.

14 The UN as an entity is not bound by human rights treaties.

15 Convention on the Safety of United Nations and Associated Personnel, available at: http://www.un.org/law/cod/safety.htm (last visited 3 March 2011). The 1994 Convention does not envisage UN forces becoming a party to a non-international armed conflict and thus by implication grants them immunity from attack even when they do in fact take a direct part in hostilities in those circumstances.

16 While the designation ‘global war on terror’ has been retired by the Obama Administration, President Obama has nevertheless stated that the US remains ‘at war with Al Qaeda and its affiliates’. See ‘Remarks by the President on national security’, National Archives, Washington DC, May 21, 2009, available at: http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-On-National-Security-5-21-09/ (last visited 3 March 2011).

17 See White House Memorandum of February 7, 2002 on the ‘Humane treatment of Taliban and Al Qaeda detainees’, available at: http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf (last visited 10 March 2011).

18 See Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (hereafter, the Hamdan case), pp. 628–631, available at http://www.supremecourt.gov/opinions/boundvolumes/548bv.pdf (last visited 3 March 2011).

19 See for example ‘Report of the United States of America submitted to the U.N. High Commissioner for Human Rights in conjunction with the Universal Periodic Review’, p. 21, available at: http://www.state.gov/documents/organization/146379.pdf (last visited 3 March 2011).

20 See, among others, ‘International humanitarian law and the challenges of contemporary armed conflicts’, ICRC Report presented at the 28th International Conference of the Red Cross and Red Crescent, 2–6 December 2003, 03/IC/09, ICRC, Geneva, p. 18; and ‘International humanitarian law and the challenges of contemporary armed conflicts’, ICRC Report presented at the 30th International Conference of the Red Cross and Red Crescent, 26–30 November 2007, 30IC/07/8.4, ICRC, Geneva, p. 7.

21 194 states parties as of 1 September 2010. See ICRC IHL treaty database available at: http://www.icrc.org/IHL.nsf/(SPF)/party_main_treaties/$File/IHL_and_other_related_Treaties.pdf (last visited 3 March 2011).

22 Marco Sassòli, ‘Transnational armed groups and international humanitarian law’, HPCR Occasional Paper Series, Winter 2006, No. 6, p. 12, available at: http://www.reliefweb.int/rw/lib.nsf/db900sid/EVOD-6WQFE2/$file/OccasionalPaper6.pdf?openelement (last visited 10 March 2011).

23 ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2 October 1995, para. 98. Similar formulations are to be found in subsequent ICTY cases as well. For example, the Tribunal reiterated that: ‘It is … well established that Common Article 3 has acquired the status of customary international law’ in para. 228 of The Prosecutor v. Naletilic and Martinovic, Case No. IT-98-34-T (Trial Chamber), 31 March 2003.

24 International Court of Justice (ICJ), Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 27 June 1986, Judgment, para. 218.

25 Ibid., para. 219.

26 See International Criminal Tribunal for Rwanda (ICTR), Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Trial Chamber), September 2, 1998, paras. 608–609.

27 A major source cited in support of this view is the ICRC's Commentaries to the Geneva Conventions, in which Jean Pictet unequivocally states that the Article applies to a NIAC occurring within the territory of a single state. See, for example, J. Pictet (ed.), Commentary to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (hereafter GC IV Commentary), ICRC, Geneva, 1958, p. 36: ‘Speaking generally, it must be recognized that the conflicts referred to in Article 3 are armed conflicts, with 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’.

28 For example, the ICTR has stated that a non-international armed conflict is one in which the ‘government of a single state (is) in conflict with one or more armed factions within its territory’. Prosecutor v. Musema, Case No. ICTR-96-13-A (Trial Chamber), January 27, 2000, paras. 247–248. It must be noted that this pronouncement is confusing given that the ICTR Statute clearly indicates in Article 1 that the Tribunal has jurisdiction over the spill-over aspects of the Rwandan conflict into neighboring states, as mentioned further below.

29 This position does not endorse a ‘global war’ (trans-national armed conflict) approach, as already explained above.

30 Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B (Berne, Federal Political Department, 1950–1951), p. 122, italics in original, additional emphasis added.

31 GC IV Commentary, above note 27, p. 31.

32 For a detailed overview of the drafting history of Common Article 3, see Anthony Cullen, The Concept of Non-international Armed Conflict in International Humanitarian Law, Cambridge University Press, Cambridge, 2010.

33 The upshot of the adoption of the second option was that no specific features of a NIAC – as a precondition for the application of Common Article 3 – were included in the text of the Article itself. The conditions listed in the Commentaries to the Geneva Conventions – for example that the de iure government has recognized the insurgents as belligerents or that the insurgent civil authority exercises de facto authority over persons within a determinate portion of the national territory – are clearly stated to provide useful guidance, but no more than that. Pictet's exhortation that the ‘the scope of the application of the Article must be as wide as possible’ has become part of international practice, and the provisions of Common Article 3 have been deemed binding in armed conflicts that do not meet the highly structured indicative requirements listed in the Commentaries. The criteria that have to be met, as explained above, are the existence of organized parties and a certain level of hostilities, without which there can be no non-international armed conflict in the first place.

34 Nils Melzer, Targeted Killing in International Law, Oxford University Press, Oxford, 2008, p. 258.

35 See note 24 above.

36 ICTR Statute, Article 1, available at: http://www.un.org/ictr/statute.html (last visited 11 March 2011).

37 Ibid., Article 4.

38 Hamdan case, above note 18, p. 629.

39 Ibid., p. 630.

40 Ibid.

41 Kretzmer, David, ‘Targeted killings of suspected terrorists: extra-judicial executions or legitimate means of defense?’, in European Journal of International Law, Vol. 16, No. 2, 2005, p. 195CrossRefGoogle Scholar.

42 Ratner, Steven R., ‘Predator and prey: seizing and killing suspected terrorists abroad’, in Journal of Political Philosophy, Vol. 15, No. 3, 2007, p. 261CrossRefGoogle Scholar.

43 See Kenneth Anderson, ‘Is the Israel–Hezbollah conflict an international armed conflict?’ 14 July 2006, available at: http://kennethandersonlawofwar.blogspot.com/2006/07/is-israel-hezbollah-conflict.html (last visited 3 March 2011). See, also, Human Rights Watch, ‘Q and A on hostilities between Israel and Hezbollah’, 1 August 2006, available at: http://www.hrw.org/en/news/2006/08/01/questions-and-answers-hostilities-between-israel-and-hezbollah (last visited 3 March 2011).

44 See lecture of the former US State Department Legal Adviser John B. Bellinger III at the University of Oxford on 10 December 2007, available at: http://insct.syr.edu/uploadedFiles/insct/uploadedfiles/PDFs/Bellinger%20Prisoners%20In%20War%20Contemporary%20Challenges%20to%20the%20Geneva%20Conventions.pdf (last visited 3 March 2011).

45 See Schondorf, Roy S., ‘Extra-state armed conflicts: is there a need for a new legal regime?’, in New York University Journal of International Law and Politics, Vol. 37, No. 1, 2004.Google Scholar

46 Ibid., p. 8.

47 Ibid., p. 51 n. 131.

48 See also Kress, C., ‘Some reflections on the international legal framework governing transnational armed conflicts’, in Journal of Conflict and Security Law, 2010, p. 258Google Scholar, available at: http://www.uni-koeln.de/jur-fak/kress/Materialien/Chef/HP882010/Final.pdf (last visited 3 March 2011).

49 As already mentioned, the Customary Law Study determined that states did not in practice make a clear distinction between the two types of NIAC that exist under treaty law: those reaching the threshold of Common Article 3 and those meeting the requirements of Additional Protocol II.

50 Prisoner of war internment is subject to a different legal regime and is not the subject of this section.

51 See Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff Publishers, Geneva, 1987, Commentary on Additional Protocol I, Art. 75(3), para. 3063.

52 GC IV, Arts. 41(1) and 78(1).

53 The institutional position is set out in Jelena Pejic, ‘Procedural principles and safeguards for internment/administrative detention in armed conflict and other situations of violence’. It was published as Annex 1 to the ICRC's Report on ‘International humanitarian law and the challenges of contemporary armed conflicts’ presented to the 30th International Conference of the Red Cross and Red Crescent held in Geneva in 2007. It is also published in International Review of the Red Cross, Vol. 87, No. 858, June 2005, pp. 375–391, available at: http://www.icrc.org/eng/assets/files/other/irrc_858_pejic.pdf (last visited 3 March 2011).

54 The terms ‘internment’ and ‘administrative detention’ are used interchangeably.

55 GC IV, Art. 78(1).

56 GC IV Commentary, above note 27, p. 257.

57 Ibid., p. 368.

58 GC IV, Arts. 43(1) and 78(2).

59 GC IV, Art. 43(1).

60 GC IV, Arts. 43(1) and 78(2).

61 Periodic review is provided for in GC IV with respect to internees in a state's own territory and in occupied territory. See Articles 43(1) and 78(2), respectively.

62 Customary Law Study, Rule 100.

63 In international armed conflicts, the judicial guarantees of prisoners of war and civilians are provided for in the Third and Fourth Geneva Conventions, respectively.

64 AP I, Art. 75(1).

65 AP I, Art. 75(8).

66 ICCPR, Art. 4.

67 Ibid.

68 The UN Human Rights Committee has stated: ‘As certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations. The Committee is of the opinion that the principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency. Only a court of law may try and convict a person for a criminal offence. The presumption of innocence must be respected. In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party's decision to derogate from the Covenant’. UN Human Rights Committee General Comment No. 29: States of Emergency (Article 4), UN Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001, para. 16.

69 The complementary relationship between humanitarian and human rights law has been confirmed by the International Court of Justice. In a July 2004 Advisory Opinion, the Court stated that humanitarian and human rights law are not mutually exclusive. According to the Court, some rights are only protected by human rights law, some are protected only by humanitarian law, and ‘yet others may be matters of both these branches of international law’. (ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, para. 106.) The rights of persons suspected of having committed a criminal offence – whether detained in IAC or NIAC – may be said to fall into the category of rights that, pursuant to the ICJ's wording, are ‘matters’ of both branches of law. Reliance on human rights law as a legal regime that is complementary to humanitarian law is also explicitly recognized in both Additional Protocols to the Geneva Conventions. According to Article 72 of Additional Protocol I: ‘The provisions of this Section [Treatment of Persons in the Power of a Party to the Conflict] are additional to the rules concerning humanitarian protection of civilians and civilian objects in the power of a Party to the conflict contained in the Fourth Convention, particularly parts I and III thereof, as well as to other applicable rules of international law relating to the protection of fundamental human rights during international armed conflict’ (emphasis added). This article therefore permits resort to human rights law as an additional frame of reference in regulating the judicial guarantees of criminal suspects who belong to ‘persons in the power of a party to the conflict’. (See AP I Commentary, above note 51, paras. 2927–2935.) Preambular paragraph 2 of the Second Additional Protocol establishes the link between that Protocol and human rights law by providing that ‘international instruments relating to human rights offer a basic protection to the human person’. The Commentary to the Protocol specifies that the reference to international instruments includes treaties adopted by the UN, such as the ICCPR, as well as regional human rights treaties. See Commentary on the Additional Protocols, above note 51, Commentary on Additional Protocol II, paras. 4427–4428.

70 E.g. ‘Standard minimum rules for the treatment of prisoners’, and the ‘Body of principles for the protection of all persons under any form of detention or imprisonment’.

71 The absence of conduct of hostilities rules in Common Article 3 does not mean that there are no relevant international treaties whose coverage includes NIACs; the majority, however, are in the area of weapons. (See for example the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, as amended on 3 May 1996 (CCW Amended Protocol II).) Similarly, the ICC Statute provides a list of war crimes that may be committed in the conduct of hostilities in NIAC, albeit not one as comprehensive as could have been wished. It should also be remembered that, under the terms of Common Article 3, the parties are encouraged to conclude special agreements extending the application of the Geneva Conventions (which in fact means IHL rules in general), as a way of mutually agreeing on rules regulating the conduct of hostilities. Unfortunately, such agreements have not been utilized as often or as efficiently as may have been anticipated.

72 Pursuant to Rule 12 of the Customary Law Study, ‘indiscriminate attacks are those: (a) which are not directed at a specific military objective; (b) which employ a method or means of combat which cannot be directed at a specific military objective; or (c) which employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction’.

73 Pursuant to Rule 14 of the Customary Law Study, ‘Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited’.

74 Customary Law Study, Rules 15–24.

75 Ibid., Rules 25–45.

76 Ibid., Rules 46–69.

77 Ibid., Rules 70–86.

78 See GC III, Art. 4(6), which provides that prisoner of war status in an international armed conflict shall also be granted to: ‘Inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war’. See also Article 2 of the 1907 Hague Regulations.

79 AP I, Art. 51(1).

80 AP I, Art. 51(2).

81 AP I, Art. 51(3); and AP II, Art. 13(3).

82 See, for example, the list of war crimes under Article 8 of the ICC Statute; and the Customary Law Study.

83 See ‘ICRC interpretive guidance on the notion of direct participation in hostilities under IHL’, in International Review of the Red Cross, Vol. 90, No. 872, December 2008, pp. 991–1047, available at: http://www.icrc.org/web/eng/siteeng0.nsf/html/review-872-p991 (last visited 3 March 2011).

84 See Article 22 of the Regulations Respecting the Laws and Customs of War on Land annexed to Hague Convention No. IV of 1907. See also Article 35 of Additional Protocol I: ‘In any armed conflict, the right of the Parties to the conflict to choose methods and means of warfare is not unlimited’.