The Law of Internal Armed Conflict

By Lindsay Moir | Go to book overview

4
Customary international law and internal
armed conflict

The primary legal bases for the regulation of internal armed conflicts are the conventional rules contained in common Article 3 and Additional Protocol II. During the drafting process of Additional Protocol II there had been a reluctance to accept that any customary rules existed regulating internal armed conflict, and the Martens Clause contained in the Preamble to Protocol II differs from that in Article 1(2) of Protocol I in that it makes no reference to 'the principles of international law derived from established custom'. This has been explained as being due to the fact that 'the attempt to establish rules for a non-international armed conflict only goes back to 1949 and that the application of common Art. 3 in the practice of States has not developed in such a way that one could speak of “established custom” regarding non-international conflicts'.1

Meron has nevertheless argued that Additional Protocol II contains a basic core of human rights, many of which have already been accepted as representing customary international law in human rights instruments, and which should therefore continue to have customary law status when stated in humanitarian law instruments.2 Meron has also

____________________
1
Michael Bothe, Karl J. Partsch and Waldemar A. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (The Hague, 1982), 620. This is further evidenced by the wording of Article 13(1) of Additional Protocol II compared to Article 51(1) of Protocol I, as outlined above at p. 117, n. 140 and accompanying text. See also Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford, 1989), 72–73.
2
Meron, Human Rights and Humanitarian Norms, 73. He relies on a passage from the ICRC Commentary on the 1977 Protocols which provides that 'Protocol II contains virtually all the irreducible rights of the Covenant on Civil and Political Rights… These rights are based on rules of universal validity to which States can be held, even in the absence of any treaty obligation or any explicit commitment on their part.' See Yves Sandoz, Christophe Swinarski and Bruno Zimmerman (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, 1987) at 1340.

-133-

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