Legalization of Civil Wars: The Legal Institutionalization of Non-International Armed Conflicts
Buhl, Kenneth Øhlenschlæger, Journal on Ethnopolitics and Minority Issues in Europe : JEMIE
I. INTRODUCTION AND PRESENTATION
This article is concerned with the legal challenges of regulating civil wars in international humanitarian law.1 Civil war is not a term used in international law; it falls, however, within the context of the legal term 'armed conflicts not of an international character', although the shorter 'non-international armed conflict' is used here. Civil wars are usually limited to the territory of a state. Considering that international law is generally concerned with the legal relations between states - being a legal system based on the system of states with states as its subjects - the main question is how civil wars as internal conflicts have become subject to international humanitarian law.
International humanitarian law, which is a term that came into the legal vocabulary after World War Two, is the part of international law that regulates behaviour during armed conflicts; other legal terms used are the 'laws of war', 'jus in bello' or 'the laws of armed conflict'. International humanitarian law applies to all participants regardless of who caused the conflict. In this sense, international humanitarian law as jus in bello is distinct from the jus ad bellum, the right to start a war or use armed force, and the two are watertight compartments.2
Traditionally in international law, belligerent status, as the right to wage war during wartime, has been considered the prerogative of states. Only states and their armed forces could lawfully participate in armed conflicts, and as such they were considered equal. Consequently, until 1949, international humanitarian law dealt with international armed conflicts, i.e. wars between states. Indeed the laws of war were the subject of some of the first conventions in international law, such as the first Geneva Convention from 1864, which also marked the birth of the International Committee of the Red Cross (ICRC).3 The legacy of Henri Dunant is often mentioned as the driving force behind the convention; what must also be taken into account, however, are the political and religious movements in Europe at the time, which created a window of opportunity during which states agreed to limited themselves legally in their right to wage war.4
More narrowly, international humanitarian law is aimed at regulating conduct during armed conflict, and at protecting civilians and the victims of war. In more practical terms international humanitarian law has sought to balance the requirements of military necessity and the principles of humanity. Regulation of non-international armed conflict has been less extensive than that of international armed conflict, and was first made part of international humanitarian law with the introduction of a common Article 3 into each of the four Geneva Conventions from 1949, which are mainly concerned with the regulation of international armed conflicts. These conventions, together with their two Additional Protocols from 1977, are considered the core of international humanitarian law. They build on the experience of World War Two, and must be analysed in this context. The fact that Article 3 set minimum standards for non-international armed conflicts broke new ground in international law. Until then civil wars had been considered to fall within the internal affairs of states and were not subject to international regulation; for this reason, the inclusion of Article 3 met with a lot of resistance.5 The 1949 Geneva Conventions include 394 articles that relate to international armed conflict. Together with the 1977 Additional Protocol 1, which also concerns international armed conflict, there are altogether 496 articles regulating armed conflict between states. By comparison, Article 3 of the 1949 Conventions, which sets minimum standards in non-international armed conflicts, along with the 1977 Additional Protocol 2, which formulates rules for non-international armed conflicts, has 28 articles.
Generally states are only bound by the convention obligations they have ratified. …