Sample Law Essay Paper on International Humanitarian

International Humanitarian Law acts as a reference for situations of crisis and conflict. It is
the protector of individual, determining their survival in the wake of violence and atrocities
committed by societies and individuals during an armed conflict. In this paper, we have
looked at the effectiveness of IHL when a conflict of non-international standard shows
characteristics of being international. We have provided distinctions between NIACs and
IACs and the different thresholds for an armed conflict to constitute to be either an NIAC or
IAC and the exceptions to them.
The question that then through our analysis we pose is whether a distinctive rules
should exist between the two types of armed conflict. Our final verdict is that for
international humanitarian law to create a distinction between IAC and NIAC. These two
armed conflict situations have different actors and different implications on the international
system. If a conflict were to evolve from international in nature to non international in nature
it would have to meet the threshold criteria for the new conflict situation rather than those
enshrined in international legal instruments such as Common Article 3 of the 1949 Geneva
Conventions and its supplementary Additional Protocol II of the Geneva Conventions.



International Criminal Tribunal for the former Yugoslavia (ICTY) 10
International Criminal Tribunal for Rwanda (ICTR) 10
Treaty Law That Governs NIAC 11
Situations of occupation 14



International Humanitarian Law is law that is only applicable in armed conflicts. It
constitutes all international rules that are established either through custom or by a treaty and
aimed at solving humanitarian crisis that arise directly from armed conflicts that are
international, non-international and trans national in nature.

International Humanitarian Law acts as a reference for situations of crisis and
conflict. It is the protector of individual, determining their survival in the wake of violence
and atrocities committed by societies and individuals during an armed conflict. (Saulnier-
Bouchet, 2007) Wars and human catastrophes tend to end with a breakthrough in law where
the adoption of new texts is meant to provide greater protection and prevent a recurrence of a
similar disaster. Does it imply that the law of armed conflict always lags one war behind?
Conflict in all its forms has existed throughout human history. 1 However, some crisis and
conflict situations are recognized as radically new, therefore justify exemption from rules that
may have been established earlier.

International Humanitarian Law has not always been accepted in history. 2 In 1938, the
International Committee of the Red Cross (ICRC) proposed a convention to discuss the
protection of civilians during armed conflicts. The discussions were intended to supplement
existing rules covering only members of the armed forces. However, states rejected the
proposal as they believed the power and deterrent capabilities of their armed forces would be
enough for the defence and protection of their populations.

1 Bouchet-Saulnier F., (2007) The practical guide to Humanitarian Law.2 nd edition. Rowman and Littlefield Publishers.
2 Bouvier A., (2006), Assessing the Relationship Between Jus in Bello and Jus ad Bellum: An Orthodox View, in
Proceedings of the 100th Annual Meeting, American Society of International Law, pp. 109-112


That strategy failed miserably in the wake of the 2 nd World War. Several million deaths later,
states tried to redeem their political optimism by trying the Nazi criminals, hence the
adoption of the four Geneva Conventions. The conventions focussed on the general
protection of civilians as well as the ‘hors de combat’. The conventions also focussed on
conflicts among sovereign states and did not apply to civil wars or wars of independence.

Two additional protocols were added to the Geneva conventions in 1977 in order to
consolidate the implementation of humanitarian law in all situations and conflicts and fill the
legal gaps. For the first time, all forms of conflict and methods were included. Protecting
civilians as well as the ‘hors de combat’ was made central to regulations governing the use of
armed force regardless of circumstance.

Wars result in the ravaging of homelands, the depletion of national resources and the
butchering of civilians and combatants alike. It eventually leads to deep-rooted resentments
that never seem to end. Throughout history we have come to note that war only leads to more
war. An example of this is how the aftermath of World War 1 led to World War 2. In the
Middle East, people are fighting without understanding why except that it’s all they have ever
known; there are enough scars to make everyone there hold a grudge. (Bishop, 2011)

The nature of conflict has changed; it is now widely adapted to Napoleon’s model
where the combatants engage in a conflict due to the fact that is a nationalistic act 3 and not
because they get rewarded with lump sums at the end of the day. Large national armies took

3 relating to or showing a belief that your country is better and more important than other countries. (Merriam-Webster
Incorporated, 2014)


the place of the small Professional forces which had been subject to rigid discipline.
(Sangroula, 2010)

Armed conflict is governed by the Law of Armed Conflict (LOAC), which is
concerned with minimizing the negative impact of war by regulating the conduct of
hostilities. The main concern of the Law of armed conflict is: the state of the wounded and
the sick, detainment of prisoners of war, threats to public safety and limitation on the use of
certain weapons. (Wittes, 2013) . The Law of Armed Conflict was birthed out of two
branches: the Law of Geneva, concerned with special protection of civilians and those no
longer taking part in hostilities and non-combatants and the Law of Hague, concerned with
limits on actual military operations/means and methods of warfare. These two main branches
later merged to form the modern Law of Armed Conflict. (Wittes, 2013) .

According to (Wittes, 2013) , the first modern codified regulation of the conduct of
armed forces was adopted by President Abraham Lincoln during the civil war. “The Lieber
Code”, named after the drafter, Francis Lieber was promulgated by President Lincoln in
1863, was intended to regulate the conduct of soldiers in the civil war. It was in that same
year that the International Committee of the Red Cross (ICRC) was founded. The ICRC is
dedicated to assisting victims of armed conflict and to promoting to the development of the
laws of war. After these events came the four Geneva conventions.

From the 19 th century, there have been significant achievements in the codification of
the laws on war. Three main factors led to the restatement and development in international
conventions in the second half of the 19 th century. Firstly, the introduction of compulsory
military service changed the nature of warfare, whereby; large national armies took the place


of small professional forces. This caused a growing need for a binding and widely accessible
codification of rules governing the conduct of war. (Sangroula, 2010) .

Secondly, the horrors of war and the number of victims had increased due to the
enlargement of armies and improvement of arms. This factor catalysed the foundation of the
Red Cross and the adoption and the Geneva Convention of 1864. Lastly, there was a great
need for restraining the destructive force of war. The St. Petersburg Declaration emphasized
the need of making distinction between armed forces and civilians, the declaration clarifies
that the major military objective is to weaken the military forces of the enemy, persons not
engaged in war/who have ceased to take part in hostilities may not be the military object.
(Sangroula, 2010) .

Another development in armed conflict is the role of non-state actors as participants
in armed conflict. The threats from international terrorist organizations and organized crime
groups have increased in the recent past. Also, the threat of war between communities and
within states is on the rise. For instance, three quarters of wars between 1945 & 1995 were
primarily internal in nature, featuring combat between communities within a state or a
community and the state itself rather than combat between states. (Hensel, 2002) .

The recruitment of children in conflict is a post-cold war epidemic. There are an
increasing number of child soldiers 4 and the evolution of their role within armed groups. The
role of children has not fundamentally changed, however, due to the development of
lightweight automatic weapons arms being so advanced, small boys and girls handle common
weapons like M16 and AK47 assault riffles. (Guillaume, 2013) .

4 {Child soldier:-a child who participates actively in a violent conflict as a member of an organization that
applies violence on a systematic way}.


Guillaume (2013), introduces the term “new wars” which is characterized by
organized crime and large scale violations of human rights and there being a breakdown of
social norms. Current armed conflicts are characterized by “identity politics” which
emphasize getting rid of specific identity via terror, population expulsion, mass killings and
forcible resettlement. The main actors in armed conflict according to (Guillaume, 2013) , are
non-state actors, these include, paramilitary units, warlord troops, local militias and
mercenary bands. These actors are known to use unconventional tactics such as torture and
child recruitment to achieve their objective.


Inadequacy Common Article 3 and Additional Article II
Common Article 3

International Humanitarian law distinguishes between international and non-
international armed conflict. In the case of the former 5 , all laws in IHL apply but only a select
few apply in the latter. For the purpose of this paper the focus shall remain on the Common
Article 3 6 of the Geneva Conventions and Additional Protocol II of 1977.
Traditionally, wars were fought interstate among states and not intrastate, within
states as is increasingly becoming the norm today. As a result of this, rebels that took up arms
against national armed forces were tried in national courts and it was unfathomable that
rebels and non-state actors could demand rights from international law (ASSER Institute:
centre for international and European Law, 2014).

5 Traditional Conflict comprise of the realist view of conflict which is state vs. state in an anarchic international system.
Laws during times of conflict were created when interstate conflict was the norm thereby resulting in fewer and more vague
laws regulating intra state conflict
6 All four Geneva Conventions contain an identical Article 3, extending general coverage to “conflicts not of an
international character.”(Common Article 3)


Common Article 3 defines a non-international armed conflict as one that takes place
within a state territory but which does not necessarily involve the states armed forces but two
armed groups (ASSER Institute: centre for international and European Law, 2014). The
International Committee of the Red Cross (ICRC) however comment on the matter by stating
that certain conditions must be applied before Common Article 3 is applicable; these include
that non state actors compose of an organized military force with an authority responsible for
attacks within a determined territory as well as have a means of respecting and ensuring
respect for the convention. These criteria are however just a view point and not binding.
Once a conflict is deemed as a non-international armed conflict, non-state actors are
only obligated to Common article 3 and none other but are “encouraged” to follow the
Geneva conventions if they so wish (ASSER Institute: centre for international and European
Law, 2014).
The vagueness of common article 3 as well as the lack of laws governing non-
international armed conflict make it unrealistic to “request” non-state actors and rebels to
adhere to the conventions if they so wish. The third Geneva Convention 7 regarding the
humane treatment of prisoners of war would be especially hard to adhere to for both state and
non-state actors, as states would be equally unwilling to grant rebels prisoner of war (POW)
status. Furthermore the inclusion of the clause in the 1949 Geneva conference stating that
application of the Geneva Conventions does not affect their legal status 8 only makes it easier
for rebels and non-state actors to ignore the conventions all together for they will be
prosecuted and duly “punished” just for taking up arms regardless of the whether or not they
adhered to the conventions at all (ASSER Institute: centre for international and European
Law, 2014).

8 Without this clause common article 3 would not have been included and was hence considered by states who attended the
Conference 1949


Common Article 3 further does not offer any definitions of ‘protected person’ but
civilians continue to be protected under the article for committed acts. It is also further left
for debate on whether or not Common Article 3 prohibits reprisal (ASSER Institute: centre
for international and European Law, 2014).

The lacking vague nature of common Article three can further be seen as it is silent on
the protection of medics, it does not provide regulation on procedures to be followed during
relief operations, provides no provisions on the treatment of detainees, methods/means of war
fare nor does it express any prohibitions on attacks against civilian population.

Additional Protocol II
This Protocol as a whole was written to deal with the inadequacies of Common
Article 3 in greater detail but it still leaves a great deal unaddressed in comparison to
Additional Protocol I 9 dealing with international armed conflict. Protocol II elaborates on
protections for victims caught up in high-intensity internal conflicts such as civil wars
involving the armed forces of the state as well as one or more rebel groups. It does not apply
to such internal disturbances as riots, demonstrations and isolated acts of violence (American
Red Cross, 2011). This is a major limitation of the protocol as contemporary conflicts more
often involve rebel groups without the interference of the state armed forces (ASSER
Institute: centre for international and European Law, 2014).
Protocol II does provide more in depth provisions and prohibitions in comparison to
Common Article 3, but still leaves a lot to be desired when compared to protocol I. Similarly
to Article 3, Protocol II provides no provisions on means and methods of warfare, combatant
and POW status nor does it provide any provisions granting general civilian protection. It

9 Protocol II only comprises of 28 articles in comparison to protocol I which comprises of 102 (American Red Cross, 2011)


does however have provisions requiring the protection of cultural objects (ASSER Institute:
centre for international and European Law, 2014).

International Criminal Tribunal for the former Yugoslavia (ICTY)
The ICTY describes conflict as the resort to armed force between states or protracted
armed violence between government authorities and organizations, armed groups or between
such groups within a state. 10 International Humanitarian Law will apply when: armed conflict
is protracted, the parties to the conflict are organized and armed conflict is distinguished from
banditry riots, isolated acts of terrorism or similar situations. 11
The ICTY has been used because it is authoritative and it introduces elements that are
not found in Common article three and protocol two. 12

International Criminal Tribunal for Rwanda (ICTR)
This was a tribunal set up by the Security Council to help persecute violators of
international humanitarian law in Rwanda. It has been said to have made the most
contributions in regards to defining international criminal law. 13 It was also the first court of
law established that persecuted high ranking individuals. 14

10 ICTY TADIC(1995)




Non-international armed conflicts can be defined as armed confrontations occurring
within the territory of a single state and in which the armed forces of no other State are
engaged against the central government (Schmitt, et al., 2006) . Non- international armed
conflicts can also be described as struggles within a state or given region, without any foreign
or neighbouring interference. This conflict can later become an international issue depending
on its growth, severity and the number of people it affects.

Treaty Law That Governs NIAC
In the context of a Non- International Armed conflict, also referred to as Internal
Armed conflicts, the applicable laws that govern it are found in:

Common Article 3 of the Geneva Conventions- this article states that the rules of war apply
to conflicts of a non-international nature, but are contained within the boundaries of a single
country. It applies to conflicts between the Government and a rebel group, between two rebel
forces, and to other conflicts that have all the elements of a war but are confined within the
boundaries of a single country.

Additional Protocol II- It defines certain international laws that strive to provide better
protection for victims of internal armed conflicts that take place within the borders of a single
country. The scope of these laws is more limited than those of the rest of the Geneva
Conventions out of respect for sovereign rights and duties of national governments.


When a country faces a non- international armed conflict they are bound to Article 3
common to all four Geneva Conventions. Those provisions are developed in and
supplemented by Geneva Protocol II of 1977 (ICRC, 2002) . Here, Article 3 and the second
Geneva protocol apply not only to the civilians but also to the parties and the combatants
involved in the struggle. If the conflict is a non-international struggle within a region, then
the conflicting parties are automatically bound to Article 3 and the second protocol of the
Geneva Conventions.

In order to clarify how common Article 3 applies to non- international armed
conflicts, international tribunals have stated that it applies whenever there is protracted armed
violence within the territory of a State between government forces and organized armed
groups or between such groups (ICRC, 2002) . A good example of this situation is Syria when
there was a continuous struggle between combatants and civilians. This was where the
common article 3 came in to protect civilians, whether in sickness or in health and those not
involved in the hostilities.

Not only common article 3, but also the Protocol 2 of the Geneva conventions
provides an added level of protection to people involved in conflict. Protocol II is the
outcome of a serious endeavour to define the protection afforded in non-international armed
conflicts situations in greater detail. Its aim was “to develop and supplement common Article
3 (ICRC, 2002) . When a conflict occurs, Additional Protocol 2 gives provision for extra
protection to civilians present in a conflict area, those wounded who need medical attention
and life safety to combatants and others part of the hostilities.


A good example of a non- international armed conflict is Kenyan post-election
violence of 2007-2008. The ethnic rivalry led to struggles within the Kenyan region leading
to loss of many lives, and just as many displaced from their homes and ancestral lands. There
was no international involvement, and the conflict remained within the boundaries until a
mediator was sent to settle the situation. There was no engagement of neighbouring military
assistance, but there was surely assistance from organizations such as Red Cross who
provided shelter and medical care.

International armed conflicts are commonly referred to as inter-state conflicts and
occur between two or more states and a single incident involving the armed forces of the two
state parties involved is threshold enough to be considered an IAC. However, in cases where
an armed conflict is restricted to the territory of one single state and another state intercedes
with its armed forces, supporting the rebel movement against the government forces, will
qualify as an IAC too.

The Tadic Case, which was decided by the International Criminal Tribunal for the former
Yugoslavia, has also included a further scenario in which an NIAC can turn into an IAC. In
an NIAC, if a state arbitrates indirectly into another state without using military force,
supporting the rebel group, the ICTY concluded that “overall control” of the rebel group
would be sufficient enough to internationalize the conflict. An example is the Syrian case
where Russia interceded by supporting the rebels with arms, turning the conflict from non-
international to international.

Situations of occupation


Article 2 of 1949 Geneva Convention IV reads in part: “The Convention shall also apply to
all cases of partial or total occupation of the territory of a High Contracting Party, even if the
said occupation meets with no armed resistance.” 15

A conflict becomes international when a State comes into another state and occupies it,
partially or totally, regardless of whether the state in question used any military force or not.
The rationale for this is that, when another state comes into a country, with disregard for the
sovereignty of the occupied state then it can lead to a conflict that would be international in

Treaty law that governs international armed conflicts
Common Article 2 of The 1949 Geneva Conventions is the main legal instrument that
governs international armed conflict. This article states that the Geneva Conventions apply to
all cases of international conflict, where one of the belligerent states has ratified the
Conventions. The Conventions primarily are applicable in all cases where was has been
declared amongst nations that are signatory to the Conventions. This is the original
understanding of applicability, which predates to the 1949 version. (International Committee
of the Red Cross, 2014)

Furthermore, the Conventions are applicable in all situations where there is an armed
conflict amongst states that have signed the Conventions, even if there is no direct declaration
of war. This was an additional clause in 1949 in order to cater for scenarios that meet the
threshold of a war, without a formal declaration of war. An example is a police action, which
is not involving war. (International Committee of the Red Cross, 2014)

15 Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.


The Conventions apply to a signatory nation even if the opposing nation is not a
signatory. This only occurs if the opposing nation "accepts and applies the provisions" of the
Conventions 16

Additional Protocol I of The Geneva Convention also governs international armed
conflict. Article 1(4) of the protocol provides regulation for armed conflicts in which people
are fighting against colonial domination, alien occupation or racist regimes. There conflicts
are to be considered international in nature. 17

Contrary to an international armed conflict, which involves the armed forces of two or
more states, a non-international armed conflict involves at least one of the two opposing sides
being a non-state armed group.

The existence of a non-international armed conflict triggers the application of
international humanitarian law (IHL), also known as the law of armed conflict, which sets
limits on how the parties may conduct hostilities and protects all persons affected by the
conflict. IHL imposes obligations on both sides of the conflict equally, without conferring
any legal status on the armed opposition groups involved. 18

16 Pictet, Jean (1958). Geneva Conventions of 12 August 1949: Commentary. International Committee of the Red Cross.
17 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), 8 June 1977.
18 ICRC Resource Centre 2012: Internal conflicts or other situations of violence – what is the difference for victims?
Retrieved from 22-03-2013


The aims and objectives of IHL in both international and non-international conflict situations
are similar. In both conflict situations IHL is concerned with the protection of civilians and
property, the provision of food and the humane treatment of the wounded and prisoners of

If merging the concept of international and non-international armed conflicts – which
currently have a different threshold of application – how is one consequently to deter-
mine the threshold between an armed conflict and internal disturbances?

It has been argued recently in international forums, that there is no need for a different
threshold to define and persecute states that breach IHL during NIACs and IACs. They have
constantly debated upon merging these concepts, especially since the emergence of new
forms of armed conflicts – transnational conflicts. If we were to merge, would there be any
A concept of occupation could not simply be applied to any given NIAC. One would
have to distinguish different situations, depending on the parties involved. Regarding non-
State actors, three key factors need to be considered. Firstly, effective control by a non-State
actor that is not ethnically distinct from the majority of the population on the territory under
control. Secondly, an ethnically distinct group that is in charge of the area where it is the
majority; a third – rather theoretical – situation is when a non-state actors operating outside
its own territory, takes over a territory of another state. (Hensel, 2002)

The distinction between IAC and NIAC would only disappear the day States
disappear. States rightly refused to abolish this distinction since the current world order is one


of sovereign States. An enormous difference exists between an inter-State armed conflict and
an armed conflict between a State and a non-State actor – which is ‘not part of the club’.

The classification of armed conflicts is closely linked to the distinction between jus ad
bellum and jus in bello. Especially during transnational armed conflicts this close relationship
comes clearly into play, given the fact that a State is fighting a non-state actors on the
territory of another State, which is generally no longer in control of parts of its territory.
If a State crosses the border of another State, without the permission of the latter, to fight an
armed group on the territory of the other State, there is a clear violation of Article 2(4) of the
UN Charter – irrespective of whether there is armed resistance by the invaded State. The
invading State can of course attempt, in limited circumstances, to justify this violation
through the argument of self- defence, without however ignoring the role of the UN Security
Council in this regard. (Wittes, 2013)
In order to create a better understanding of the importance of the distinction between
IAC and NIAC situations we must analyze the origins of why these distinctions were created.
Before the 19 th century it was common for States to view belligerents and rebel groups as
criminals to be placed under the jurisdiction of national law. National armed forces were the
only military bodies given international legal status in war and that were able to participate in
legitimized warfare. States were allowed to use any force necessary to suppress rebel groups
and protect their territorial integrity. The interference of other states in these matters was
precluded before it started (ASSER Institute: Centre for International & European Law,
2014) 19 . This belief was enshrined in Article 2(7) of the United Nations Charter which states
that the Charter did not enable the United Nations to intervene in the internal affairs of states
unless there was a grave breach to international peace and security (International Committee
19 Asser Institute: Centre for International & European Law (2014): International Humanitarian Law Applicable in Non-
International Armed Conflicts. Retrieved from 30-2-2014


of the Red Cross, 2002) 20 . Moreover, international law was deemed as only applicable to
States, as many experts in the field could not understand how non-State actors could derive
their rights from international law(Asser Institute: Centre for International & European Law,
Although these convictions held strong, at the turn of the 19 th century many believed
that the atrocities and humanitarian issues caused by non-international conflict needed to be
addressed internationally. States began to realize that their all affairs cannot be viewed as
purely internal but rather as those that affect the international community as a whole
(International Committee of the Red Cross, 2002). Therefore several international legal
instruments were created to address the atrocities committed in non-international armed
conflicts. In 1921, a resolution was adopted by the International Conference of the Red Cross
specifically relating to the civil war. The Geneva Conventions of 1949 also incorporated
regulations for the behaviour in non-international conflict enshrined in Common Article 3.
Additionally, in 1977 Additional Protocol II was added to the 1949 Geneva Conventions to
further expound on Common Article 3 and create a higher threshold to define a non-
international armed conflict (ASSER Institute: Centre for International & European Law,
2014). According to the Article 1.1 of Additional Protocol II, non-international armed
conflict occurs between a High Contracting party’s armed force “and dissident armed forces
or other organized armed groups which, under responsible command, exercise such control
over a part of the territory as to enable them to carry out sustained and concerted military
operations” (International Committee of the Red Cross, 2014). 21 These non-international

20 International Committee of the Red Cross. (2002, 06). The law of armed conflict. Retrieved from 20-2-2014

21 International Committee of the Red Cross (2014). Protocol Additional to the Geneva Conventionsod August 12 1949,
andrelating to the protection of victims of Non-international Armed Conflicts( Protocal II), 8 June 1977. Retrieved from 30-3-2014


conflicts had to have separate set of rules codified in these international legal instruments
because they had different actors and different ramifications on the international community.
Due to these factors it would be difficult to merge the concepts of IAC and NIAC.

In conclusion it is evident that there is a need for international humanitarian law to
create a distinction between IAC and NIAC. These two armed conflict situations have
different actors and different implications on the international system. If a conflict were to
evolve from international in nature to non international in nature it would have to meet the
threshold criteria for the new conflict situation rather than those enshrined in international
legal instruments such as Common Article 3 of the 1949 Geneva Conventions and its
supplementary Additional Protocol II of the Geneva Conventions. A deeper understanding of
the international legal instruments that govern both the IAC and the NIAC will aid in the
examination of the reach of international humanitarian law in both armed conflict situations
in its attempt to regulate military behaviour. High Contracting State parities should therefore
streamline the definitions of the thresholds’ of these two armed conflict situations.


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