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Timelines, borderlines and conflicts

The historical evolution of the legal divide between international and non-international armed conflicts

Published online by Cambridge University Press:  10 September 2009

Rogier Bartels
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Abstract

Calls have been made in recent years for the legal distinction between international and non-international armed conflicts to be removed. Also as of late, confusion regarding the applicable legal regime has been created by so-called transnational conflicts involving non-state entities. These situations do not fit naturally into the two traditional types of armed conflict recognized by IHL from 1949 onwards. The present article centres on how the legal divide that still exists between international and non-international armed conflict can be explained historically. It aims to further the discussion on whether such a distinction is still relevant, as well as on how certain situations could be classified in the existing typology of IHL.

Type
Typology of armed conflicts
Information
International Review of the Red Cross , Volume 91 , Issue 873: Typology of armed conflicts , March 2009 , pp. 35 - 67
Copyright
Copyright © International Committee of the Red Cross 2009

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References

1 Neither Israel nor Lebanon took the standpoint that the hostilities constituted a non-international armed conflict. See Corn, Geoffrey S., ‘Hamdan, Lebanon, and the regulation of hostilities: The need to recognize a hybrid category of armed conflict’, Vanderbilt Journal of Transnational Law, Vol. 40, No. 2, 2007, p. 305.Google Scholar The International Committee of the Red Cross (ICRC) has not publicly qualified the conflict as either international or non-international in character, whereas the United Nations Commission of Inquiry on Lebanon named the situation a sui generis international armed conflict – Report of the Commission of Inquiry on Lebanon, pursuant to Human Rights Council Resolution S-2/1, UN Doc. A/HRC/3/2, 23 November 2006, paras 8–9 and 57.

2 e.g. Stewart, James, ‘Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict’, International Review of the Red Cross, Vol. 85, No. 850, 2003Google Scholar; Willmott, Deidre, ‘Removing the distinction between international and non-international armed conflict in the Rome Statute of the International Criminal Court’, Melbourne Journal of International Law, Vol. 5, Issue 1, 2004Google Scholar; Crawford, Emily, ‘Unequal before the law: The case for the elimination of the distinction between international and non-international armed conflict’, Leiden Journal of International Law, Vol. 20, Issue 2, 2007.CrossRefGoogle Scholar

3 United States Supreme Court, Hamdan v. Rumsfeld, 548 U.S. 557 (2006), pp. 66–69.

4 Anthony Rogers notes that the division into international and non-international armed conflicts is important for practitioners, for example the ‘military lawyer who has to advise a commander or the military chain of command [on the] applicable law’. See Anthony P.V. Rogers, ‘International humanitarian law and today's armed conflicts’, in Cindy Hannard, Stéphanie Marques dos Santos and Oliver Fox (eds), Proceedings of the Bruges Colloquium: Current Challenges in International Humanitarian Law, Collegium No. 21, ICRC/College of Europe, Bruges, October 2001, p. 20.

5 Malcolm N. Shaw, International Law, Cambridge University Press, Cambridge, 2002, pp. 1068–1069.

6 The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), includes an article on ‘Definitions’ (Article 2), as well as one on ‘Terminology’ (Article 8), but the term ‘armed conflict’ is not defined therein.

7 Jean Pictet, Commentary on the Geneva Conventions of 12 August 1949 relative to the Treatment of Prisoners of War (hereinafter Commentary on GC III), ICRC, Geneva, 1958, p. 23.

8 International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-A, 2 October 1995, para 70. In Haradinaj, the Trial Chamber clarified the definition of non-international armed conflict that has been used by the ICTY since Tadić (see ICTY, Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, Judgement (Trial Chamber), Case No. IT-04-84-T, 3 April 2008). In Boskoski, the Trial Chamber elaborated on this, gave a detailed overview of what constitutes such a conflict, and reviewed how the relevant elements of Common Article 3 that were recognized in Tadić, namely ‘intensity’ and ‘organisation of the armed group’ are to be understood (see ICTY, Prosecutor v. Boskoski and Tarculovski, Judgement (Trial Chamber), Case No. IT-04-82-T, 10 July 2008, paras 175–206).

9 Jelena Pejic writes: ‘What is known is that the omission of a definition in Article 3 was deliberate and that there is a “no-definition” school of thought which considers this to be a “blessing in disguise”’ (Jelena Pejic, ‘Status of conflict’, in Elizabeth Wilmshurst and Susan Breau (eds), Perspectives on the ICRC Study on Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2007, p. 85; see also Lindsay Moir, The Law of Internal Armed Conflict, Cambridge University Press, Cambridge, 2002, p. 32. According to Erik Castrén, who was present at the Diplomatic Conference in 1949, the omission of a definition in Common Article 3 was deliberate, because it was believed that such a definition could lead to a restrictive interpretation (Erik Castrén, Civil War, Suomalainen Tiedeakatemia, Helsinki, 1966, p. 85).

10 Pictet, Commentary on GC III, above note 7, p. 48.

11 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Preamble.

12 In IHL treaties, the term ‘non-international armed conflict’ (Protocol II) and the wording ‘not of an international character’ (Common Article 3) are used. The term ‘internal armed conflict’ is not found in any of the IHL instruments. In some cases, such as EU Council Directive 2004/83/EC, 29 April 2004, the latter is unfortunately used. Also some authors and some courts use the term ‘internal armed conflict’, which creates unnecessary confusion.

13 Protocol II, Article 1(1).

14 International Institute of Humanitarian Law, The Manual on the Law of Non-International Armed Conflict, International Institute of Humanitarian Law, San Remo, 2006, p. 2, available at http://www.michaelschmitt.org/images/Manual%5B1%5D.Final.Brill..pdf (visited 20 May 2009).

15 Particularly as regards the transnational situations mentioned above as being hard to qualify. Those situations, i.e. transnational armed conflicts, seem incompatible with the various aforesaid ‘definitions’ of the scope of application of international and non-international armed conflicts, and thus to be outside the established categories of armed conflict. Transnational armed conflicts thus seem prima facie not to be regulated by IHL, and people affected by these conflicts seem to fall outside the protection afforded by this body of law. This was in fact the position of the US government before the US Supreme Court ruled in Hamdan that as a minimum, Common Article 3 is applicable to these situations (see above note 3).

16 The fact that according to the said Manual NIACs do not ‘encompass conflicts extending to the territory of two or more States’ (p. 2) further illustrates the narrowness of the definition given in it.

17 See ICTY, Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, above note 8.

18 See ICTY, Prosecutor v. Boskoski and Tarculovski, above note 8, paras 175–206.

19 Rosemary Abi-Saab, ‘Humanitarian law and internal conflicts: The evolution of legal concern’, in Astrid J.M. Delissen and Gerard J. Tanja, Humanitarian Law of Armed Conflict: Challenges Ahead – Essays in Honour of Frits Kalshoven, Martinus Nijhoff, Dordrecht, 1991, p. 209.

20 Stewart, above note 2, p. 313, quoting respectively René Jean Dupuy and Antoine Leonetti, ‘La notion de conflict armé à caractère non international’ in Antonio Cassese (ed), The New Humanitarian Law of Armed Conflict, Editoriale Scientifica, Naples, 1971, p. 258; Ingrid Detter, The Law of War, Cambridge University Press, Cambridge, 2002, p. 49; Warbrick, Colin and Rowe, Peter, ‘The International Criminal Tribunal for Yugoslavia: The decision of the Appeals Chamber on the interlocutory appeal on jurisdiction in the Tadić case’, International & Comparative Law Quarterly, Vol. 45, Issue 3, 1996, p. 698CrossRefGoogle Scholar; Reisman, W. Michael and Silk, James, ‘Which law applies to the Afghan conflict?’, American Journal of International Law, Vol. 82, 1988, p. 465.CrossRefGoogle Scholar

21 Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, ICRC/Cambridge University Press, Geneva/Cambridge, 2005.

22 Liesbeth Zegveld, The Accountability of Armed Opposition Groups in International Law, Cambridge University Press, Cambridge, 2002, p. 33.

23 Ibid., p. 34.

24 See e.g. Byron, Christine, ‘Armed conflicts: International or non-international?’, Journal of Conflict and Security Law, Vol. 6, No. 1, 2001CrossRefGoogle Scholar; Kalshoven, Frits, ‘From international humanitarian law to international criminal law’, Chinese Journal of International Law, Vol. 151, Issue 3, 2004.Google Scholar

25 See note 2 above.

26 Jelena Pejic, ‘Status of conflict’, see above note 9, p. 77. See further, inter alia, Spieker, Heike, ‘The International Criminal Court and non-international armed conflicts’, Leiden Journal of International Law, Vol. 13, No. 2, 2000CrossRefGoogle Scholar; Dieter Fleck (ed), The Handbook of International Humanitarian Law, Oxford University Press, Oxford, 2008.

27 Pejic, ‘Status of conflict’, above note 9, p. 77.

28 Fleck (ed), above note 26, p. 627; Henckaerts and Doswald-Beck, above note 21.

29 Ibid.

30 See e.g. the amendment to Article 1 of the Convention on Certain Conventional Weapons, concluded on 21 December 2001 during the Second Review Conference of States Parties. Those particular weapons have been recognized as inhumane. The fact that the regulation of their use should therefore also apply in non-international armed conflict seems to follow from the inhumane effect of the weapons and not from the current state of IHL relating to the distinction between international and non-international conflict. Acts such as torture and collective punishment are prohibited in both types of conflict (see Protocol I, Art. 75; Common Article 3; Protocol II, Art. 4).

31 In particular, the difficulties in qualifying the situations mentioned at the outset have led to writings about so-called transnational armed conflicts, e.g. Corn, above note 1; Schöndorf, Roy S., ‘Extra-state armed conflicts: Is there a need for a new legal regime?’, New York University Journal of International Law and Politics, Vol. 37, No. 1, 2004Google Scholar; Sloane, Robert D., ‘Prologue to a voluntarist war convention’, Michigan Law Review, Vol. 106, 2007.Google Scholar

32 Religion was a reason to go to war both before and after 1648.

33 Martin van Creveld, The Transformation of War, Free Press, New York, 1991, p. 137.

34 Ibid., p. 138.

35 ‘Hostiensis (ca 1200–1271): A typology of internal and external war’, in Gregory M. Reichberg, Henrik Syse and Endre Begby (eds), The Ethics of War: Classic and Contemporary Readings, Blackwell Publishing, Oxford, 2006, pp. 160–161.

36 Laura Perna, The Formation of the Treaty Law of Non-International Armed Conflicts, Martinus Nijhoff, Leiden/Boston, 2006, p. 2.

37 This theory was developed by Christian authors, such as St Augustine and Thomas Aquinas. See Perna, ibid., p. 3.

38 Ibid., p. 2.

39 Ibid., p. 7.

40 Martin Luther, ‘An open letter on the harsh book against the peasants’, reprinted in Albert Marrin (ed), War and the Christian conscience: From Augustine to Martin Luther King, Jr, Henry Regnery Company, Chicago, 1971, pp. 101–102.

41 Perna, above note 36, p. 7.

42 Ibid., p. 8.

43 Van Creveld, above note 33, p. 139.

44 Ibid.

45 Ibid., p. 140.

46 ‘March on, march on, since we are up in arms; If not to fight with foreign enemies, Yet to beat down these rebels here at home.’ – Shakespeare, Richard III, IV.iv. 459–461.

47 Blank, Laurie Rosensweig, ‘The laws of war in Shakespeare: International vs. internal armed conflict’, NYU Journal of International Law and Politics, Vol. 30, No. 1/2, 1998, p. 252.Google Scholar

48 Ibid., p. 254.

49 Ibid., p. 259.

50 Perna, above note 36, p. 8.

51 See inter alia Diego Panizza, ‘Political theory and jurisprudence in Gentili's De Iure Belli: The great debate between “theological” and “humanist” perspectives from Vitoria to Grotius’, Institute for International Law and Justice, History and Theory of International Law Series, Working Paper 15, 2005, available at http://www.iilj.org/publications/documents/2005.15Panizza.pdf (visited 20 May 2009).

52 Which can be translated as ‘Theologians should keep silent in matters that concern others.’

53 See, inter alia, Richard A. Falk, Law in an Emerging Global Village: A Post-Westphalian Perspective, Transnational Publishers, New York, 1998, p. 4. The idea that the Peace of Westphalia ordained something new in terms of sovereignty is criticized by a number of authors – see e.g. Beaulac, Stéphane, ‘The Westphalian model in defining international law: Challenging the myth’, Australian Journal of Legal History, Vol. 8, 2004Google Scholar; Osiander, Andreas, ‘Sovereignty, international relations, and the Westphalian myth’, International Organization, Vol. 55, No. 2, 2001.CrossRefGoogle Scholar

54 Van Creveld, above note 33, pp. 139, 141. The two Westphalian treaties, i.e. the Treaty of Osnabrück and the Treaty of Münster (24 October 1648) do both mention in their preambles that the agreement on the articles was reached partly ‘to the Glory of God’. Treaty texts available at http://avalon.law.yale.edu/17th_century/westphal.asp (visited 20 May 2009).

55 ‘Samuel von Pufendorf (1632–1694); War in an emerging system of states’, in Reichberg, Syse and Begby (eds), above note 35, p. 454.

56 Ibid., p. 455.

57 Ibid., p. 458 (Section 6 of Book 2, Chapter 16, of On the Duty of Man and Citizen).

58 Ibid., p. 455.

59 Ibid., p. 458 (Section 7 of Book 2, Chapter 16, of On the Duty of Man and Citizen).

60 Rosensweig Blank, above note 47, p. 258.

61 Alberico Gentili, ‘The three books on the laws of war’, in J.B. Scott (ed), The Classics of International Law, Clarendon Press, Oxford, 1933, p. 22.

62 Ibid., pp. 24–25.

63 Perna, above note 36, p. 17. Grotius described war in a general definition as ‘the state of contending parties’ – in this definition he included public as well as private wars. See Hugo Grotius, On the Law of War and Peace, (transl. A.C. Campbell), Batoche Books, Kitchener, 2001, p. 6.

64 Grotius, ibid., p. 40.

65 Ibid.

66 See Perna, above note 36, p. 18.

67 Ibid., p. 20.

68 Emmerich de Vattel, The Law of Nations and the Principles of Natural Law, Book III, Chapter XVIII, quoted in Perna, above note 36, p. 21.

69 Perna, ibid., pp. 20–22.

70 ‘Emer de Vattel (1714–1767); War in due form’, in Reichberg, Syse and Begby (eds), above note 35, pp. 516–517.

71 Perna, above note 36, p. 23.

72 Lassa Oppenheim, International Law: A Treatise, Vol. II, War and Neutrality, Longmans, Green and Co., London, 1906, p. 56.

73 Oppenheim described a civil war as a situation ‘when two opposing parties within a State have recourse to arms for the purpose of obtaining power in the State or when a large fraction of the population of a State rises in arms against the legitimate Government.’ (Ibid., p. 65.)

74 Ibid., p. 67.

75 Ibid., p. 58 (emphasis in original).

76 Ibid., p. 65.

77 The fourth and later editions have a slightly different but clearer phasing: ‘[in] the Middle Ages wars between private individuals, so-called private wars, were known, and wars between corporations – … the Hansa, for instance – and States.’ (4th edition, p. 117, and 7th edition, p. 203.)

78 Oppenheim, above note 72, p. 58.

79 Schindler, Dietrich, ‘The different types of armed conflicts according to the Geneva Conventions and Protocols’, Recueil des cours, Vol. 163, Issue 2, 1979, p. 145.Google Scholar

80 For a well-structured outline of the three stages, see Cullen, Anthony, ‘Key developments affecting the scope of internal armed conflict in international humanitarian law’, Military Law Review, Vol. 183, 2005, pp. 69–79.Google Scholar

81 Lothar Kotzsch, The Concept of War in Contemporary History and International Law, Thesis No. 105, University of Geneva, Geneva, 1956, p. 230.

82 Heather A. Wilson, International Law and the Use of Force by Liberation Movements, Oxford University Press, Oxford, 1988, p. 23.

83 Richard A. Falk, ‘Janus tormented: The international law of internal war’, in James N. Rosenau (ed), International Aspects of Civil Strife, Princeton University Press, Princeton, 1964, pp. 197–199.

84 Kotzsch, above note 81, p. 230.

85 Falk, above note 83, p. 199.

86 See New York District Court, United States v. Ambrose Light, 25 Fed. 408 (1885).

87 Kotzsch, above note 80, p. 231, and Cullen, above note 80, p. 69.

88 Hersch Lauterpacht, Recognition in International Law, Cambridge University Press, Cambridge, 1947, p. 230; Falk, above note 83, p. 197.

89 ICTY, Prosecutor v. Dusko Tadić, above note 8, para 96.

90 Wilson, above note 82, p. 23.

91 Falk, above note 83, p. 198.

92 Ibid., p. 199.

93 Cullen, above note 80, p. 71; Falk, above note 83, p. 199.

94 Rosalyn Higgins, ‘Internal war and international law’, in Cyril E. Black and Richard A. Falk (eds), The Future of the International Legal Order, Princeton University Press, Princeton, 1971, p. 88.

95 Anthony Cullen, The Concept of Non-International Armed Conflicts in International Humanitarian Law, unpublished PhD thesis, 2007, p. 20 (to be available from Cambridge University Press at the end of 2009), referring to Castrén, above note 10, pp. 207–223. Hersch Lauterpacht explains that States can intercede with insurgents to ensure measures for a humane conduct of hostilities. See Lauterpacht, above note 88, pp. 270–271.

96 Higgins, above note 94, p. 88.

97 Kotzsch, above note 81, p. 233.

98 Falk, above note 83, p. 200.

99 Moir, above note 9, p. 5.

100 Oppenheim, above note 72, p. 86. See also the ‘Règlement’ that was adopted by the Institut de Droit International, in Annuaire de l'Institut de droit international, 1900, p. 227.

101 Lauterpacht's first criterion deals with the scale of the conflict, whilst his second combines Oppenheim's first and second criteria: ‘[F]irst, there must exist within the State an armed conflict of a general (as distinguished from a purely local) character; secondly, the insurgents must occupy and administer a substantial portion of national territory; thirdly, they must conduct the hostilities in accordance with the rules of war and through organized armed forces acting under a responsible authority; fourthly, there must exist circumstances which make it necessary for outside States to define their attitude by means of recognition of belligerency.’ (Lauterpacht, above note 88, p. 176)

102 Falk, above note 83, p. 203.

103 Moir, above note 9, p. 5.

104 See inter alia Daoud L. Khairallah, Insurrection under International Law: With Emphasis on the Rights and Duties of Insurgents, Lebanese University, Beirut, 1973.

105 Cullen, above note 95, p. 31. In United States v. the Three Friends, a case concerning aid given to Cuban insurgents, the US Supreme Court stated that ‘it belongs to the political department to determine when belligerency shall be recognized’. (United States Supreme Court, United States v. The Three Friends et al. (1897) 166 U.S.1, p. 63).

106 Cullen, above note 95, p. 34.

107 Schindler, above note 79, pp. 145–146.

108 See Hoffman, Michael Harris, ‘The customary law of non-international armed conflict: Evidence from the United States Civil War’, International Review of the Red Cross, No. 277, 1990, pp. 322–344.CrossRefGoogle Scholar

109 Turns, David, ‘At the “vanishing point” of international humanitarian law: Methods and means of warfare in non-international armed conflicts’, German Yearbook of International Law, Vol. 45, 2002, p. 118.Google Scholar

110 Oppenheim, above note 72, p. 59.

111 Ibid. David Turns notes that to this day, the US states that were formerly part of the Confederacy rarely refer to the conflict as the American Civil War. Substitutes include the ‘War between States’, ‘War of Secession’, and War for Southern Independence'. (Turns, above note 109, p. 118)

112 Turns, above note 109, p. 118.

113 This was confirmed by the US Supreme Court in December 1862. See Quincy Wright, ‘The American Civil War, 1861–65’, in Richard A. Falk (ed), The International Law of Civil War, John Hopkins Press, Baltimore, 1971, p. 42.

114 Fontes No. 2469, quoted in Kotzsch, above note 81, p. 228.

115 Perna, above note 36, p. 31.

116 Moir, above note 9, p. 24. Leslie Green observed that the parties in the American Civil War ‘behaved inter se as if they were involved in an international conflict.’ (in The Contemporary Law of Armed Conflict, Juris Publishing, New York, 2008, p. 66).

117 Hoffman, above note 108, pp. 322–344.

118 Roscoe Ralph Oglesby, International War and the Search for Normative Order, Martinus Nijhoff, The Hague, 1969, p. iv. The same author further held that ‘[p]revious civil wars such as the American Revolution, and the Spanish Colonial Wars for Independence provided the needed experimental background for the development of norms governing such conflicts, but it remained for the American Civil War to give them definitive form.’ (pp. vi–vii).

119 Lauterpacht, above note 88, p. 187; Kotzsch, above note 81, p. 226.

120 Turns, above note 109, p. 118.

121 Full text of the Lieber Code available at http://www.icrc.org/ihl.nsf/FULL/110?OpenDocument (visited 20 May 2009).

122 Turns, above note 109, p. 118.

123 Theodor Meron, War Crimes Law Comes of Age: Essays, Oxford University Press, Oxford, 1998, p. 138. Rosemary Abi-Saab explains, however, that at that time in Europe the Lieber Code was seen as closely associated only with the American Civil War. As such, ‘it was seen as a Code that could apply only in similar cases of civil war.’ Rosemary Abi-Saab, ‘Humanitarian law and internal conflicts: The evolution of legal concern’, in Delissen and Tanja, above note 19, p. 209.

124 Lieber Code, Article 152.

125 Perna, above note 36, p. 32.

126 Lauri Hannikainen, Raija Hanski and Alan Rosas, Implementing Humanitarian Law Applicable in Armed Conflicts: The Case of Finland, Martinus Nijhoff, The Hague, 1992, p. 8.

127 Ibid., pp. 8–9.

128 Ibid., pp. 9–10. For a general account see Anthony F. Upton, The Finnish Revolution 1917–1918, University of Minnesota Press, Minneapolis, 1980.

129 Germany contributed some 12,000 soldiers to the White government's war effort. Russia did not officially authorize its soldiers to fight on the side of the Reds, but called upon volunteers to do so. In addition, Russia gave assistance to the Reds in the form of military equipment – it is maintained that the Reds fought primarily with weapons given by Russia. See Hannikainen, Hanski and Rosas, above note 126, p. 11.

130 Ibid., pp. 13, 28. Hannikainen, Hanski and Rosas note that based on the factual situation and the criteria for recognition of belligerency, it would have been lawful for third states to recognize the Reds as a belligerent party (p. 13).

131 cf. Schindler, above note 79, p. 145.

132 See Finnish National Archives, War Victims of Finland 1914–1922, available at http://vesta.narc.fi/cgi-bin/db2www/sotasurmaetusivu/main*lang=en (visited 20 May 2009).

133 See Hannikainen, Hanski and Rosas, above note 126, pp. 16–24. Contrary to IHL today, the Lieber Code actually also held in Article 60 that the ban on ordering that no quarter be given was not absolute, but was subject to military necessity. See Meron, above note 123, p. 137.

134 Hannikainen, Hanski and Rosas, above note 126, p. 16.

135 Ibid., pp. 27–31.

136 Since 1949, many governments have continued to refuse to accept that such a situation should be qualified as a non-international armed conflict, but – at least for the legal qualification – the test is now only a factual one. The test can be applied whether or not a government accepts the existence of an armed conflict within its territory.

137 For example, Germany and Italy provided troops and material support to the Nationalists, whilst Portugal allowed the Nationalists to use its territory and ports and provided them with arms and troops. At the same time Russia and Mexico, and for a short period France too, gave material support to the Republicans (see e.g. Ann van Wynen Thomas and A.J. Thomas Jr, ‘The civil war in Spain’, in Richard A. Falk (ed), above note 113, pp. 113–120).

138 Perna, above note 36, p. 39.

139 Van Wynen Thomas and Thomas, above note 137, p. 122.

140 Ibid., p. 124.

141 Spain signed the Convention on the day of its adoption, 27 July 1929, and was the first state to ratify it (on 6 August 1930). See http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=300&ps=P (visited 20 May 2009).

142 Van Wynen Thomas and Thomas, above note 137, p. 140.

143 Robert Kolb and Richard Hyde, An Introduction to the International Law of Armed Conflicts, Hart Publishing, Oxford, 2008, p. 143.

144 Van Wynen Thomas and Thomas, above note 137, p. 135.

145 League of Nations, Official Journal, 19th Assembly – Plenary Meetings, Special Supplement No. 183, 1938, pp. 135–136.

146 For further details see Antonio Cassese, ‘The Spanish Civil War and the development of customary law concerning internal armed conflict’, in Antonio Cassese (ed), Current Problems of International Law: Essays on UN Law and on the Law of Armed Conflict, 1975.

147 Cullen, above note 95, p. 36.

148 Pictet, Commentary on GC III, above note 7, p. 28.

149 Corn, above note 1, p. 305.

150 Pictet, Commentary on GC III, above note 7, p. 28.

151 Jean Pictet, Commentary on the Geneva Conventions of 12 August 1949 for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (hereinafter Commentary on GC I), ICRC, Geneva, 1952, p. 38.

152 Ibid.

153 Ibid., p. 39. The Commentary on GC III uses slightly different wording, namely, ‘to aid the victims of civil wars and internal armed conflict’ (Pictet, above note 7, p. 28, emphasis added).

154 Pictet, Commentary on GC I, above note 151, p. 39.

155 Ibid.

156 Ibid., p. 40. One author notes in relation to the categories of conflict mentioned (i.e. civil wars, social or revolutionary disturbances), that: ‘Given the timeframe, the ICRC doubtless had in mind, inter alia, the violent events in post-World War I Germany and the Bolshevik Revolution (and ensuing civil war) in Russia when it drafted the 1921 resolution; hence, the terms used.’ Robert Weston Ash, ‘Square pegs and round holes: Al-Qaeda detainees and Common Article 3’, Indiana International & Comparative Law Review, Vol. 17, Issue 2, 2007, p. 279.

157 Pictet, Commentary on GC I, above note 151, p. 40.

158 Ibid., p. 41.

159 Ibid.

160 Ibid., pp. 41–42.

161 Ash, above note 156, p. 280.

162 Pictet, Commentary on GC I, above note 151, p. 42.

163 In 1947, the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims had drafted an article that proposed that ‘the principles of the Convention were to be applied in civil wars by the Contracting Party, provided that the adverse Party did the same’. (Ibid.)

164 Ibid., pp. 42–43 (emphasis added).

165 Ibid., p. 43.

166 Ibid.

167 Final Record of the Diplomatic Conference of Geneva of 1949 (hereinafter Final Record), Vol. I, p. 47 (emphasis added). This was paragraph 4 of the Draft Common Article 2. A separate Common Article 3 only came into existence later, i.e. during the Diplomatic Conference. All volumes of the Final Record can be viewed online at http://www.loc.gov/rr/frd/Military_Law/RC-Fin-Rec_Dipl-Conf-1949.html (visited 22 May 2009).

168 Moir, above note 9, p. 23. Moir notes that the Commentary ‘fail[s] to mention this […] change – an important one, returning to the original proposal of the Preliminary Conference.’ David A. Elder pointed this oversight out in 1979 – see David A. Elder, ‘The historical background of Common Article 3 of the Geneva Convention of 1949’, Case Western Reserve Journal of International Law, Vol. 11, 1979, p. 43.

169 Cullen, above note 95, p. 40.

170 See Pictet, Commentary on GC I, above note 151, p. 42 and Final Record, Vol. I, p. 47.

171 Emphasis added.

172 Marco Sassòli, Transnational Armed Groups and International Humanitarian Law, Harvard University Program on Humanitarian Policy and Conflict Research, Occasional Paper Series, Winter 2006, No. 6, p. 9. In a 2008 opinion paper, the ICRC, proposed – as part of a definition reflecting ‘the strong prevailing legal opinion’ – that non-international armed conflicts arise ‘on the territory of a State’. See ICRC, ‘How is the term “armed conflict” defined in international humanitarian law?’, Opinion Paper, March 2008, p. 5, available at http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict-article-170308/$file/Opinion-paper-armed-conflict.pdf (visited 22 May 2009).

173 Article 1 of Protocol II uses the wording: ‘the territory of a High Contracting Party’. Treaties can only be signed by states and only apply to states that are party to them. The wording of Common Article 3 and Protocol II seems to express only that the place where the conflict takes place needs to come within the formal scope of application of IHL. ‘As the four Geneva Conventions have universally been ratified now, the requirement that the armed conflict must occur “in the territory of one of the High Contracting Parties” has lost its importance in practice. Indeed, any armed conflict between governmental armed forces and armed groups or between such groups cannot but take place on the territory of one of the Parties to the Convention.’ (ICRC, ibid., p. 3).

174 Pictet, Commentary on GC III, above note 7, p. 7. See also Final Record, Vol II-A, Minutes of Plenary Meetings, 4th meeting (25 April 1949), pp. 71–74.

175 See, inter alia, Ash, above note 156, p. 281.

176 Pictet, Commentary on GC I, above note 151, p. 43.

177 Final Record, Vol. II-B, Summary Records of the Joint Committee, 1st Meeting (26 April 1949), p. 10.

178 Ibid.

179 Final Record, Vol. III, Amendment proposed by France (26 April 1949), Annex 12, p. 27.

180 Final Record, Vol. II-B, above note 177, pp. 11–14.

181 Ibid., Vol. II-B, Summary Records of Special Committee of the Joint Committee, 3rd Meeting (9 May 1949), p. 43.

182 Cullen, above note 95, p. 44.

183 Ibid., p. 46, referring to James E. Bond, The Rules of Riot: Internal Conflict and the Law of War, Princeton University Press, Princeton, 1974, pp. 52–53. For the various proposals see Final Record, Vol. II-B, Summary Records of the Joint Committee, 2nd Meeting (27 April 1949), pp. 12–16.

184 Final Record, Vol. II-B, above note 177, p. 16.

185 Moir, above note 9, p. 24.

186 Final Record, Vol. II-B, above note 177, p. 11.

187 Ibid.

188 Cullen, above note 95, p. 50. The Special Committee consisted of Australia, Burma, France, Greece, Italy, Monaco, Norway, the Soviet Union, Switzerland, the United Kingdom, the United States of America and Uruguay.

189 Final Record, Vol. II-B, Summary Records of the Special Committee of the Joint Committee, 3rd and 4th Meetings (11 May 1949), p. 45.

190 Final Record, Vol. II-B, Seventh Report drawn up by the Special Committee of the Joint Committee (16 July 1949), p. 122.

191 Ibid., pp. 123–127.

192 Cullen, above note 95, p. 57.

193 Final Record, Vol. II-B, Report drawn up by the Joint Committee and presented to the Plenary Assembly, p. 129.

194 Cullen, above note 95, pp. 57–58.

195 Ibid., p. 58.

196 Final Record, Vol. II-B, Minutes of 19th Plenary Meeting (29 July 1949), p. 336.

197 Moir, above note 9, p. 24.

198 Final Record, Vol. II-B, Minutes of 19th Plenary Meeting, above note 196, pp. 336–337.

199 It can also be said that the distinction was confirmed rather than created. See the discussion below on this issue.

200 It is interesting to note that the present-day jihadist philosophy, in referring to the other party as a sort of ‘modern-day heathens’, denies those belonging to that party basic rights (under IHL). It can be argued that to some extent the counter-terrorism strategy does the same when denying the application of IHL to those described as ‘terrorists’.

201 Dinstein, Yoram, ‘The legal status of war’, in David Kinsella and Craig L. Carr (eds), The Morality of War: A Reader, Lynne Rienner Publishers, London, 2007, p. 101.

202 Ibid.

203 ICRC, ‘The ICRC since 1945: The Geneva Conventions of 1949’, 2005, available at http://www.icrc.org/Web/eng/siteeng0.nsf/html/icrc-genevaconventions-revision-1949 (visited 22 May 2009).

204 Heather Alexander, ‘Justice for Rwanda: Toward a universal law of armed conflict’, Golden State University Law Review, Vol. 34, 2004, p. 435.

205 ICRC, above note 203.

206 Christophe Swinarski, ‘On the classification of conflicts as a factor of their dynamics’, in Hannard, Marques dos Santos and Fox (eds), above note 4, p. 30.

207 This does not mean that those situations are beyond any form of law. National law and, unlike in earlier times, human rights law does apply to them.

208 For example, control of part of the territory of the state against whose government such a group has taken up arms. If a non-state entity in a transnational conflict has control over any territory, this is (normally) not in the state against which it is fighting.

209 cf. Ash, above note 156, p. 275.

210 Ibid.

211 See International Court of Justice, Nicaragua v. United States of America, Judgment, ICJ Reports 1986, p. 14; United States Supreme Court, Hamdan v. Rumsfeld, above note 4. Pictet's commentary states that Common Article 3 should be applied as widely as possible – Pictet, Commentary to GC I, above note 151, p. 50.

212 As in, among others, Kolb and Hyde, above note 143, p. 257.

213 Brown, Bartram S., ‘Nationality and internationality in international humanitarian law’, Stanford Journal of International Law, Vol. 34, 1998, p. 395.Google Scholar

214 Wagner, Natalie, ‘The development of the grave breaches regime and of individual criminal responsibility by the International Criminal Tribunal for the Former Yugoslavia’, International Review of the Red Cross, Vol. 85, No. 850, 2003, pp. 374–375.Google Scholar

215 The Trial Chamber noted that ‘what is inhumane, and consequently prohibited, in international wars, cannot but be inhumane and inadmissible in civil strife.’ ICTY, Prosecutor v. Dusko Tadić, Judgment (Trial Chamber), Case No. IT-94-1-AR72, 2 October 1995, para 119.