The Evolution of the Concept of Non-International Armed Conflicts

In the latter half of the 20th century and the beginning of the 21st, there was an increase in the number of non-international armed conflicts at the expense of international armed conflicts. Civilians have suffered heavily from these conflicts, often affecting the essential resources for their livelihoods.

This situation has prompted the international community to reconsider the concept of armed conflicts, which traditionally relied on theories of war that excluded non-international armed conflicts from any regulatory framework impacting the sovereign domain of the state. Although the recognition of combatants deviated from this theory during that period, states often avoided such recognition due to the legal obligations it imposed, which could conflict with their interests. With the establishment of the United Nations, the traditional theory of war began to show signs of irrelevance, especially following the adoption of Article 4(2) of the Charter, which possesses the characteristics of a peremptory norm in international law. This norm was supposed to reassure the international community from the horrors of international armed conflicts. However, the same could not be said for non-international armed conflicts, which saw a notable increase particularly after the end of the Cold War in 1990.

This surge was caused by countries that contained ethnic, racial, or other groups, which could lead to multi-faceted conflicts within the same territory. Moreover, the vague terminology surrounding non-international armed conflicts and the unclear boundaries between them and various similar forms complicated matters further. It has thus become imperative to address the essence of non-international armed conflicts, given current and future necessities.

We question the legal definition of non-international armed conflicts in light of their multiple forms and variations, as well as how the concept of these conflicts has been settled in contemporary international law. To address this issue, we propose dividing our research into two sections. The first section will discuss the concept of non-international armed conflicts within traditional and contemporary international jurisprudence and then explore the forms excluded from the provisions of international humanitarian law. In the second section, we will examine the evolution of the concept of non-international armed conflicts, beginning with the recognition of combatants and culminating with the latest developments in the law of non-international armed conflicts outlined in the Additional Protocol II of 1977 to the Geneva Conventions of 1949.

Section 1: The Concept of Non-International Armed Conflicts and Their Forms

Defining non-international armed conflicts has become exceedingly important due to the ambiguities involved and its relation to the antiquated principle of sovereignty, compounded by its overlap with a wide range of contexts that are so diverse that they become difficult to distinguish. This will be discussed in the first subsection. Undoubtedly, the ambiguity surrounding the boundaries between non-international armed conflicts and international armed conflicts has obstructed the automatic differentiation between both forms of conflict. This confusion is tied to the traditional theory of war, which affects the distinction between the types of non-international armed conflicts that will be elaborated upon in the second subsection.

Subsection 1: The Concept of Non-International Armed Conflicts

The lack of objective criteria distinguishing non-international armed conflicts from their similar forms has resulted in multiple methodologies being developed to address the concept of non-international armed conflicts. Consequently, international jurisprudence has attempted to define its content, yet the varied legal approaches have influenced the concept of these conflicts. We will begin with traditional jurisprudence in the first branch and contemporary jurisprudence in the second branch.

Branch 1: Traditional Jurisprudence

While traditional jurisprudence focused on international wars, it did not entirely neglect internal wars, often deeming them not to be “real” wars. Such conflicts were typically described as “disturbances,” “movements,” “tumults,” “chaos,” “differences,” and “factions,” attempting to avoid acknowledging civil wars since they involved parties where at least one had no state status.

Scholar Grotius, in his work “On the Law of War and Peace,” categorized wars into:

• Public Wars: Conflicts between a ruler and some of his subjects (e.g., wars among the nobles).
• Private Wars: Conflicts between individual combatants.
• Mixed Wars: Civil wars involving both nobles and private individuals.

Rougier asserted that civil war is the opposite of international war, while Vattel expressed that a civil war occurs when a faction stops obeying the king and possesses the strength to resist, resulting in a collapse of ties between society and the government. This leads to the emergence of two independent sides considering each other as enemies, not subject to a common authority. Nonetheless, Vattel did not address the idea of multiple parties in conflict, as armed disputes could arise between multiple rebel factions.

While traditional international law engaged with the concept of non-international armed conflicts, early attempts to differentiate between the various forms of these conflicts arose during the American Civil War, notably through General Francis Lieber’s instructions in 1863. These regulations distinguished between insurrections, civil wars, and revolutions based on the scale and objectives of the conflict.

Branch 2: Contemporary Jurisprudence

The ambiguity surrounding the term non-international armed conflicts stems from the various approaches and methodologies employed in reaching a precise and specific definition. The two primary trends include an expansive approach that encompasses all forms of non-international armed conflicts due to their negative impacts on civilian life and international peace, and a restrictive approach that limits the definition to the most recognized forms of non-international armed conflicts, potentially sidelining some categories of armed rebellions.

Expansive Approach: Proponents of this stance view the ambiguity in the term non-international armed conflicts as an opportunity to emphasize their broad interpretation. For instance, Professor Salah el-Din Amer argues that the phrase “non-international armed conflict” is subject to continuous international interpretations. Further, George Abi Saab extends this idea, noting the emergence of a new generation of armed conflicts characterized by chaotic conflicts lacking formal organization, against weak governments and rival militias.

Restrictive Approach: Adherents to this viewpoint focus solely on the specific and violent forms of civil war. According to scholar Hazem Mohamed Atlem, the adoption of the term non-international armed conflicts at the Geneva conferences did not imply a divergence from the precise definition of civil wars, which highlight the peak of rebellion and fragmentation of national unity.

Both trends reflect the struggles of defining the nuanced types of non-international armed conflicts, ultimately seeing that the restrictive approach has dominated the legal framework, posing challenges for recognizing new forms of conflicts.

Subsection 2: Forms of Non-International Armed Conflicts

If the forms of non-international armed conflicts are numerous within a state’s territory, international attention has mainly focused on a specific type—civil wars—where rebellion manifests to its fullest extent, while other forms remain relegated to matters of domestic authority. Consequently, we must clarify the concept of civil war and distinguish it from non-international armed conflicts, as well as explore the forms excluded from the application of international humanitarian law, such as disturbances and internal tensions.

Branch 1: Civil Wars

Civil war remains one of the most commonly recognized forms of non-international armed conflicts in traditional international law and is more widely recognized in contemporary law. We aim to explore the concept and characteristics of civil wars.

1. Concept of Civil War: The narrow interpretation of non-international armed conflicts has led to a focus on the precise concept of civil war, relating to violent confrontations stemming from ideological, ethnic, political, or religious differences between two national entities. This description encompasses all armed clashes between a government and rebel groups or among rival factions.
2. Differentiating Civil Wars from Non-International Armed Conflicts: The variety of forms of non-international armed conflicts—demonstrations, armed rebellions, internal disturbances, and civil wars—makes the distinction challenging. While civil war is a specific instance of these conflicts, the relationship between the two depends significantly on conflicting ideologies that have dominated international practice.

Branch 2: Disturbances and Internal Tensions

Disturbances and internal tensions represent other forms of non-international armed conflicts perceived by international law as relatively less intense. Attempts to delineate these forms often result in ambiguity due to the vagueness of the applicable law.

1. Concept of Internal Disturbances: Some scholars argue that defining internal disturbances is challenging due to the wide range of real circumstances. Violence can take many forms, making a clear definition difficult. However, some suggest a simple criterion based on the level of violence exceeding that of customary times, encompassing arbitrary arrests, enforced disappearances, and torture.
2. Concept of Internal Tensions: The International Committee of the Red Cross (ICRC) recognized internal tensions as a lower tier of non-international confrontations. Characteristics may include collective detentions and the emergence of human rights issues like torture.

Strikingly, while internal tensions may overlap with disturbances, tensions express political or social anxieties expressed peacefully, while disturbances can occur without armed conflict or might arise unexpectedly, provoking disorder amidst organized groups challenging government authority.

Despite international humanitarian law’s ambiguity regarding internal tensions and disturbances, national constitutions and human rights charters address their consequences by affirming individual and collective rights, establishing that certain rights—like the right to life—are inviolable even during conflicts or crises, often termed “hard core” rights.

Conclusion:

The ambiguity surrounding the term non-international armed conflicts is artificially constructed and lacks any legal foundation. This obscurity arises from the dominance of the narrow approach that obstructs the embrace of new types that may surface in the future. This contrasts with the spirit of international humanitarian law, which aims to maximize protection, given the potential emergence of a new generation of non-international armed conflicts that may be even more severe than traditional civil wars.

The historical trajectory of the concept of non-international armed conflicts, from the recognition of combatants to the Additional Protocol II, has failed to escape the narrow approach overshadowing this evolution. Therefore, the international community must move beyond the narrow interests of states to adopt an expansive understanding that incorporates all non-international armed conflicts, particularly given their increasing prevalence and the grave violations of peace and security they entail.

Summary:

International jurisprudence has attempted to impose an expansive definition of non-international armed conflicts; however, state interests have largely supported a narrower conception rooted in civil wars. This focus has affected the legal understanding of these conflicts in contemporary international law, complicating the differentiation between their most common forms, notably internal disturbances and tensions. The historical development of non-international armed conflicts, from the recognition of combatants to the Additional Protocol II, has not managed to avoid the narrow trajectory that has characterized all stages of this concept. Thus, it is essential for the international community to transcend the narrow interests of states and adopt a broader concept that encompasses all forms of non-international armed conflicts, especially in light of their rising frequency and the serious violations they involve against international peace and security.

References

• Non-International Armed Conflicts in International Law” by Yoram Dinstein

• “The Law of Non-International Armed Conflict” by Sandesh Sivakumaran

• “International Law and the Classification of Conflicts” edited by Elizabeth Wilmshurst

• “Armed Conflict and International Law: In Search of the Human Face” edited by Mariëlle Matthee, Brigit Toebes, and Marcel Brus

• “The International Law of Non-International Armed Conflict: Regulation, Responsibility, and Accountability” by Anthony Cullen

• “The Transformation of War: The Rise of Non-International Armed Conflicts” by Martin van Creveld

• “International Humanitarian Law and Non-International Armed Conflicts” edited by Emily Crawford and Alison Pert