At what point does violence become an armed conflict? What difference does it make to those involved in or affected by that violence? The distinction matters because how the situation is characterized will determine what law is applicable.
In a non-international armed conflict - or internal conflict - international humanitarian law applies. This body of law aims to limit the methods and means of warfare, and to protect people who are not, or no longer, taking part in the hostilities.
When collective violence erupts in a country, the ICRC uses well-established legal criteria to assess whether or not that violence is characterized as an armed conflict. This characterization enables the ICRC to remind the parties to the conflict of their legal obligations.
Examples of recent non-international armed conflicts include the hostilities that broke out in northern Mali in early 2012 between armed groups and the Malian armed forces, and the fighting in Syria between armed groups and Syrian government forces.
"Among the rules that the parties to an armed conflict must respect when conducting hostilities, there is the prohibition of direct attacks against civilians and of indiscriminate attacks; the obligation to respect the principle of proportionality in attacks; and the obligation to take all feasible precautions so as to avoid as far as possible civilian casualties."
What is a non-international armed conflict?
Kathleen Lawand, the outgoing head of the ICRC unit that counsels on the law applying in the armed conflicts and other situations of violence in which the ICRC conducts its humanitarian activities, responds to some recurring questions on the legal classification of non-international armed conflicts.
When does a situation of violence become a non-international armed conflict and why does the classification matter?
A non-international (or "internal") armed conflict refers to a situation of violence involving protracted armed confrontations between government forces and one or more organized armed groups, or between such groups themselves, arising on the territory of a State.
Read also: Typology of armed conflicts in international humanitarian law: legal concepts and actual situations, Sylvain Vité, IRRC 873
In contrast to an international armed conflict, which opposes the armed forces of States, in a non-international armed conflict at least one of the two opposing sides is 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, though without conferring any legal status on the armed opposition groups involved.
What criteria must be met for there to be an armed conflict?
IHL requires that two criteria be met for there to be a non-international armed conflict: the armed groups involved must show a minimum degree of organization and the armed confrontations must reach a minimum level of intensity. The fulfilment of these criteria is determined on a case-by-case basis, by weighing up a number of factual indicators.
The level of intensity of the violence is determined in light of indicators such as the duration and gravity of the armed clashes, the type of government forces involved, the number of fighters and troops involved, the types of weapons used, the number of casualties and the extent of the damage caused by the fighting. The level of organization of the armed group is assessed by looking at factors such as the existence of a chain of command, the capacity to transmit and enforce orders, the ability to plan and launch coordinated military operations, and the capacity to recruit, train and equip new fighters. I should stress that the motivation of an armed group is not considered a relevant factor.
A non-international armed conflict is to be distinguished from lesser forms of collective violence such as civil unrest, riots, isolated acts of terrorism or other sporadic acts of violence.
Examples of recent non-international armed conflicts include the hostilities that broke out in northern Mali in early 2012 between armed groups and the Malian armed forces, and those that have been occurring in Syria between armed groups and Syrian government forces.
What is the difference between a non-international armed conflict and a "civil war"?
There is no real difference. The term "civil war" has no legal meaning as such. It is used by some to refer to a non-international armed conflict. Article 3 common to the Geneva Conventions - called "common" because it is identical in each of the four Geneva Conventions - does not use the term "civil war," but refers instead to "armed conflict not of an international character."
The ICRC generally avoids using the term "civil war" when communicating with the parties to an armed conflict or publicly, and speaks instead of "non-international" or "internal" armed conflicts, as these expressions mirror the terms used in common Article 3.
Which treaties and rules must the parties to a non-international armed conflict respect?
The parties to non-international armed conflicts are at minimum required to comply with Article 3 common to the Geneva Conventions and with rules of customary IHL. These rules guarantee humane treatment to each person that finds him- or herself in the power of the enemy and require that persons wounded in the hostilities, including wounded enemy fighters, be collected and cared for without discrimination.
The outbreak of an armed conflict has significant consequences on the legal obligations of those involved in the fighting, especially regarding their use of force. Indeed, IHL permits a far greater degree of force against lawful targets, though within strict limits aimed at protecting civilians, than what is allowed in situations of violence other than armed conflict.
Among the rules that the parties to an armed conflict must respect when conducting hostilities, there is the prohibition of direct attacks against civilians; the prohibition of indiscriminate attacks; the obligation to respect the principle of proportionality in attack; and the obligation to take all feasible precautions in planning and executing military operations so as to avoid as far as possible civilian casualties.
What happens if the parties to a non-international armed conflict do not respect their obligations under IHL?
Each party to an armed conflict is required to respect and ensure respect for IHL by all those acting on its instructions, or under its direction or control. It must be emphasized that each party must respect IHL even of its adversary does not; in other words, the obligation to respect IHL does not depend on reciprocity.
As regards serious violations of IHL occurring in non-international armed conflicts - also known as war crimes - States must criminally prosecute persons suspected of committing such violations. Under certain conditions, alleged war criminals may also be referred to the International Criminal Court.
I should stress that the ICRC, in keeping with its special status under international law and as a neutral and independent humanitarian organization, does not in any way get involved in the investigation and trials of war crimes, this being the sole responsibility of States.
In a non-international armed conflict, are captured enemy fighters considered prisoners of war?
No. The term "prisoner of war" refers to a special status afforded by the Third Geneva Convention to captured enemy soldiers ("combatants") in international armed conflicts only. Prisoners of war cannot be prosecuted for acts that are lawful under IHL (for example, for having attacked enemy forces). In contrast, in a non-international armed conflict, IHL does not prevent the prosecution of captured rebel fighters for the mere fact of having taken up arms, although IHL encourages governments to grant the broadest possible amnesties at the end of an armed conflict, except for persons suspected of, accused of, or sentenced for war crimes.
If armed groups can be party to an armed conflict, doesn't this give them a form of legitimacy they don't deserve?
As is recalled in Article 3 common to the Geneva Conventions, the mere fact that an armed group - be it labelled "criminal," "freedom fighters," "terrorist" or otherwise - is party to an armed conflict does not give it any particular status under IHL. It does, however, create legal obligations for the armed group, as for any party to an armed conflict - in particular, the obligation to ensure that its members respect IHL at all times.
But the application of IHL does not affect the sovereignty of a State or a government's right to suppress rebellion through armed force and to prosecute insurgents under its own laws.
The sole objective of IHL is to minimize suffering in armed conflict. It regulates only how the fighting takes place, and not why it occurs. In internal armed conflicts in particular, IHL imposes obligations on each side without regard to the legitimacy of those taking part in the fighting, which is governed by other bodies of law.
On what authority does the ICRC determine whether a situation of violence amounts to an armed conflict?
In order to fulfil its humanitarian mandate in a given situation of violence, the ICRC assesses whether or not it is an armed conflict. This allows the ICRC to refer to the applicable rules in its dialogue with those involved in the violence.
Although the ICRC's legal classification of a situation of violence does not bind States, the ICRC's specific mandate under the Geneva Conventions and its historic role in the development of IHL gives a particular weight to its classifications, which States must consider in good faith.
How does the ICRC determine whether a situation of violence is an armed conflict?
The ICRC takes great care in analysing a situation of violence with the aim of determining the applicable legal framework. It carries out its own independent assessment, relying preferably on first-hand information collected by its field delegations, or failing this on credible and reliable second-hand sources.
When it determines that there is an armed conflict, what is the ICRC's policy regarding the communication of its classification?
Once it has concluded that a situation of violence attains the threshold of an armed conflict, in principle the ICRC will first and foremost, and as soon as possible, share its legal reading bilaterally and confidentially with the parties to the armed conflict. In doing so, it aims to initiate a dialogue with each of the parties on the measures they are taking to respect IHL. The ICRC will later communicate its classification publicly. In exceptional cases, the ICRC may decide to defer the sharing of the classification with the parties and/or its public communication, for example in situations of urgency where the humanitarian needs are great and there is a need to focus on accessing to and assisting the population.