6.2: Situations in Which the Protective Measures Will Apply

As indicated in the introduction, the main purpose of IHL is to provide protection for certain categories of persons and objects and to place certain restrictions on the means and methods of warfare. Before these matters are dealt with more extensively, it is first necessary to acquaint ourselves with the situations in which this body of law will find application. In this instance we should resort to the four Geneva Conventions of 1949 (Geneva Conventions I-IV, see Table 6.1), which constitute one of the major codifications of IHL with universal support. In Articles 2 and 3, common to all four conventions, three situations are listed, namely an armed conflict between two or more of the contracting parties (i.e. the typical international armed conflict situation); all cases involving a military occupation by one of the contracting parties of the territory, in whole or in part, of another contracting party; and armed conflicts not of an international character taking place in the territory of one of the contracting parties (i.e. the so-called internal armed conflict situation).

In 1977, the Geneva Conventions were supplemented by two Protocols. By virtue of Protocol I, Article 1(4), the protective measures of the Geneva Conventions and their supplementation by Protocol I, were extended to cover also “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations …” The inclusion of wars of national liberation as a situation falling under the Geneva Conventions was, and still is, a controversial matter. The reason for this is that governments are often reluctant to recognise an insurgent movement as a “party to an armed conflict” and prefer to deal with insurgents in terms of ordinary national law, often classifying them as ordinary criminals or terrorists posing a threat to national security. This is further borne out by the fact that nineteen of the UN’s 193 member states have not yet ratified Protocol I, including the United States, Pakistan, India, Turkey, Thailand and Myanmar.

As far as internal armed conflicts are concerned, it must be noted that it is only Common Article 3 of the Geneva Conventions that specifically covers this type of conflict. The article’s protective measures extend to the humane treatment of the wounded and the sick and those not taking actively part in the hostilities, including members of the armed forces who have laid down their weapons; and the prohibition, under all circumstances, of acts involving violence to life and person, the taking of hostages, outrages upon personal dignity and the passing of sentences without due process. Common Article 3 also makes it possible for the parties to an internal armed conflict to bring into force, by means of special agreements, all or part of the other provisions of the Geneva Conventions.

Protocol II of 1977 has expanded on the definition of internal armed conflict by limiting it to conflicts taking place on the territory of a contracting party between the armed forces of the contracting parties 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” (Protocol II, Article 1(1). The threshold of control over a part of a state’s territory and the concomitant ability to carry out sustained and concerted military operations mean that conflicts falling below this standard will not be covered by IHL principles and will be dealt with in terms of the law of the land. As a consequence of this requirement, Article 1(2) of Protocol II explicitly excludes from the operation of the Protocol “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” The different situations here can be explained with reference to the Libyan conflict. Inspired by popular protests against undemocratic, oppressive regimes in Tunisia and Egypt, Libyan citizens took to the streets in February 2011 to protest against the dictatorial regime of Colonel Muammar Gaddafi who ruled over the Libyan people for 42 years. In an attempt to restore internal order, the Gaddafi regime responded with forceful action involving the police and armed forces. In the beginning this confrontation could be classified as a typical internal disturbance or spontaneous act of revolt (Protocol II, Article 1(2)) and as such fell outside the ambit of Article 1(1) of Protocol II. But the moment the protesters organized themselves as a rebel movement with a command structure, took up arms and started controlling parts of the Libyan territory an armed conflict within the meaning of Article 1(1) developed as a result of which the parties to the conflict had to conduct their hostilities in accordance with the laws and customs of war.

At this point it is appropriate to take note of the Martens Clause, which is considered to be part of customary international humanitarian law. This clause was inserted, on the initiative of Fyodor Fyodorovich Martens (1845-1909), one of Russia’s most respected international law scholars, in the preamble of the 1899 Hague Convention II containing the Regulations on the Laws and Customs of War on Land, and restated in the 1907 Hague Convention IV on the same matter. It now also forms part of the 1977 Protocol I to the Geneva Conventions. Article 1(2) states as follows: “In cases not covered by this Protocol or by any other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.” It should be clear from this formulation that the clause serves the purpose of covering situations which can be considered grey or not being covered unequivocally by some or other established treaty or customary law principle.

The clause was also considered by the International Criminal Tribunal for Yugoslavia (ICTY) in the case of The Prosecutor v Kupreskic (IT 95-16, Trial Chamber Judgement of 14 January 2000) where the accused persons were charged with crimes against humanity resulting from the persecution and deliberate and systematic killing of civilians during the Yugoslav war. As a result of the Martens Clause the Tribunal argued that although some countries have not ratified Protocol I, they may still be bound by general rules having the same purport, because of the way states and courts have implemented the clause, it clearly shows that “principles of international humanitarian law may emerge through a customary process under the pressure of the demands of humanity or the dictates of public conscience, even where State practice is scant or inconsistent” (para. 527). And elsewhere, following this argument, the Tribunal concluded that “[d]ue to the pressure exerted by the requirements of humanity and the dictates of public conscience, a customary rule of international law has emerged on the matter under discussion” (para. 531).

In concluding this part, three remaining issues must be addressed, albeit briefly. The first deals with the distinction made by the 1949 Geneva Conventions and the two Additional Protocols of 1977 between international and non-international armed conflicts with the vast majority of provisions in these instruments dealing with the former. In recent times this distinction has been subjected to criticism and reassessment, also because of the fact that the majority of armed conflicts in today’s world are internal in nature and causing a disproportionate number of civilian casualties and ill-treatment of civilians. The argument in favour of doing away with the distinction is based on the reasoning that restrictions on the conduct of hostilities and the need for measures to protect certain categories of persons in armed conflict situations exist regardless of the question whether the conflict can be classified as international or non-international. Put differently, it is the nature of the danger people are exposed to and not the formal classification of the situation that is decisive. Support for this argument is often based on Article 1, which in all four of the Geneva Conventions, determines that the “High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”

The second issue relates to what has become colloquially known as the ‘war on terror’ after the 9/11 terrorist attacks in the United States and the United States’ military response to that attack. Much has been written on the matter and a contentious issue is whether we can classify the so-called ‘war on terror’ as an armed conflict in the legal sense of the word and to which IHL will apply. An immediate response should be that terrorist attacks will only be covered by IHL to the extent that they form part of an armed conflict, be it international or non-international. If not they could be classified as violent criminal acts and punishable in terms of the criminal laws of the country where they occur. Terrorist acts forming part of an armed conflict and involving attacks against civilians could qualify as indiscriminate attacks and therefore punishable as war crimes. From this it also follows that recourse to armed force against those responsible for terrorist actions as part of an armed conflict situation, will likewise be subject to the same rules as in any other armed conflict. A recent case in point is the military conflict involving the Islamic State (ISIS).

The last issue relates to the application of IHL principles in failed states. Of specific importance here is the situation where a government in de facto control of government functions reaches such a level of disintegration as a result of internal opposition and violence in the country that it is no longer in a position to perform ordinary governmental functions, and loses control over the exercise of law and order as well as other forms of authority. If the ensuing implosion of government structures coincides with the disintegration of the armed forces an anarchical situation arises characterised by a proliferation of armed factions, a breakdown in the chain of command within the various factions, and divisions in the control over the national territory.

In such situations, civilians are mostly at risk because they cannot rely on government intervention and protection of any kind and they often find themselves at the mercy of one or several of the splintered armed factions whose main purpose in such circumstances is often self-preservation and self-enrichment through crime and wanton violence. From a humanitarian point of view the paradox should be clear: as state structures collapse the reliance on humanitarian aid organisations increases but their interventions become more hamstrung when they cannot rely on the support and cooperation of the central authorities any more. One of the most serious humanitarian challenges identified by the International Committee of the Red Cross in these and other armed conflict situations is the violence against health care workers, facilities and patients. Data collected in sixteen countries between 2008 and 2010 have shown a clear pattern of violence aimed at hindering the delivery of health care, ranging from direct attacks on medical personnel and facilities to looting and kidnapping (ICRC, 2012).^[2]

In anarchical situations brought about by the collapse of authority and state structures humanitarian aid organisations have no choice but to establish and maintain contact with each of the factions involved in the conflict and to negotiate humanitarian spaces for civilians, the sick and the wounded. Precarious how this may be, such efforts and the concessions that may materialize from them are often the only hope for civilians and other vulnerable persons caught between the different armed factions. A fundamental question that arises in these circumstances is the applicability of IHL principles. Here we should invoke the provisions of Common Article 3 to the Geneva Conventions which oblige the parties to any non-international armed conflict to respect the humanitarian principles mentioned earlier on. Although Common Article 3 does not define the term “party to a conflict” it is generally accepted that to qualify as such, an armed group opposing a government must have at least a minimum degree of organization and discipline enabling them to respect IHL. However, since Common Article 3 has a broad humanitarian purpose an unduly restrictive interpretation of its meaning will run counter to the provision’s underlying spirit. Also relevant are the protective measures provided for in Protocol II to the Geneva Conventions on condition that the threshold requirement for the existence of an armed conflict situation referred to earlier on has been met. This means that dissident armed forces or other organized armed groups opposing the government must exercise such control over a part of the state’s territory as to enable them to carry out sustained and concerted military operations (Protocol II, Article 1(1)). Excluded from the operation of the Protocol will be internal disturbances such as riots and isolated and sporadic acts of violence (Protocol II, Article 1(2)). In this context reference should also be made to the following conclusion by the Appeals Chamber of the International Criminal Tribunal for Yugoslavia in the Tadić case:

we find 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. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. (Prosecutor v Tadić, IT-94-AR72, 1995, para. 70)

This understanding of the applicability of protective measures in internal armed conflicts must not detract from the difficulties presented by anarchical situations, especially with regard to the effective implementation of IHL norms. The following observation should therefore be taken note of:

The problem posed by this type of conflict is therefore not so much that of which norms are applicable as it is that of their implementation. This can be said of all national and international legislation applicable on the territory of the State which is disintegrating. Since by definition the disintegration of the State carries with it the risk of non-compliance with the entire corpus of the law, it is in the interest of the international community to make sure, by means of cooperation and in accordance with the UN Charter, that such “no-law” zones do not come into existence. (Sassòli et al., vol II, 2011, p. 679)