By Nirmala Chandrahasan, LL.B, LL.M, Ph.D,,Attorney-at-Law.
In the context that I have been lecturing on the subject and as there appears to be some uncertainty as to the application of International Humanitarian Law i. e. the laws of war to non international (Internal armed conflicts ), I am here in setting out the legal position in brief.
IHL which was originally confined to international armed conflicts between states is now recognized as being largely applicable to internal armed conflicts too, although all the rules of IHL may not be applicable.
The four Geneva Conventions of 1949 codified and expanded the following areas of IHL. The first two Conventions deal with the amelioration of the condition of the wounded and sick in armed forces in the Field and on the Sea. The Third Convention regulates the treatment of Prisoners of War. The Fourth Convention regulates the protection of Civilian Persons in times of war.
However, it must be noted that all four Convention have a common article, namely Article 3 which addresses conflicts not of an international character occurring in the territory of one of the contracting parties ie internal armed conflicts. Article 3, sets out the minimum protections available to persons taking no part in the hostilities i.e. civilians as well as combatants who have laid down their arms or are "hors de combat" due to sickness ,wounds ,detention or other circumstances. Such persons are to be treated humanely. The following acts are forbidden against them, namely violence to life and person, murder, mutilation, cruel treatment and torture, taking of hostages, outrages upon personal dignity (this would include rape and other sexual acts) and extra judicial executions. The sick and wounded must be collected and cared for.
Most states including Sri Lanka are parties to the 1949 Conventions and are thus bound by its provisions. In decisions of the International Court of Justice and international tribunals the Conventions have been regarded as forming part of customary international law and hence binding on all states and not only the states parties to the Conventions.
In the years following the promulgation of the 1949 Conventions, it was felt necessary to expand them and to also address specifically non-international i.e. internal armed conflicts, which had proliferated in the intervening years. Hence in 1977 the Optional Protocols to the 1949 Geneva Conventions were promulgated.
Optional Protocol 11, addresses non-international armed conflicts. Article 1 of the Protocol states It shall apply to 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 are under responsible command, exercise control over part of the territory, are able to carry out sustained and concerted military operations and to implement this Protocol. The Protocol sets out the rules of warfare applicable and protections available to the civilians. This Protocol has not been so widely ratified by states. Its applicability depends on a high threshhold of armed conflict.
Protocol 1 regulates in detail the rules of warfare and the protections available to civilians in international armed conflicts. However, its applicability extends to internal conflicts in which peoples are fighting against colonial domination and alien rule. See Article 1(4) of the Protocol.
It must be kept in mind that the principles and rules of IHL are also contained in customary international law. In the Advisory Opinion on the Legality of the threat or use of Nuclear weapons the International Court of justice stated that all states and not merely parties to the Convention are bound by the rules in Protocol 1, which are merely the expression of pre-existing customary law.
In the cases before the International Criminal tribunal for the former Yugoslavia (ICTY) which was set up in 1993 under a Security Council resolution, following the internal armed conflicts in that country, it was recognized that in the years preceding the setting up of the tribunal some customary rules of IHL had been developed to a point where they govern internal armed conflicts. It was held that they covered such areas as the protection of civilians from hostilities in particular from indiscriminate attacks as well as means and methods of conducting hostilities. However it has been pointed out in the cases that it does not consist of a full and mechanical transplant, but of the general essence of these rules.
This view is now confirmed in the Statute of the International Criminal Court, the Rome Treaty of the ICC, which sets out the definition of war crimes within its jurisdiction. This includes under the category of internal armed conflicts, both violations of Common Article 3 of the 1949 Geneva Conventions, as well as serious violations of the Laws and Customs of War applicable in armed conflicts not of an international character. It would be relevant to point out that in the 2005 study sponsored by the ICRC on customary international humanitarian law, 161 rules of Customary IHL, were identified, of which 141 were found to be equally applicable to both international as well as to internal armed conflicts.
In its definition of non-international armed conflicts the ICC statute sets out a lesser threshold of armed conflict than is required under Protocol 11. It defines such conflicts as an armed conflict between government forces and organized armed groups or between such groups. On the basis of the principle of individual criminal liability the ICC has started prosecutions against individuals accused of committing war crimes as well as crimes against humanity and genocide, which are crimes over which the ICC has jurisdiction.
There is no express mention of terrorist acts or of terrorist organizations per se, as IHL concerns itself primarily with armed conflicts, between identifiable combatants. But presumably where terrorist acts come within the definition of war crimes, crimes against humanity or genocide, the individuals responsible for such acts could be prosecuted for the above crimes. This area would require further elucidation in the future.