Gray Areas in International Humanitarian Law


By Ewen Allison and Robert K. Goldman

A conflict between government forces and rebels can be governed by three sets of rules, and the problem for observers is to determine which applies. Gray areas in humanitarian law revolve around whether a given situation is an armed conflict, and if it is, whether it is internal or international.

One concern is how to classify an internal situation falling in the gray zone between peace and war. The line separating particularly violent internal tensions and disturbances from low-level armed conflict may sometimes be blurred and not easily determined. Such situations typically involve riots, isolated and sporadic acts of violence resulting in mass arrests, the use of police, and, sometimes, the armed forces to restore order. The foregoing do not amount to what humanitarian law would call an armed conflict. Instead, they are governed by domestic and human rights law. A gray-zone conflict would actually be internal armed conflict if, at a minimum, it was protracted and involved armed clashes between government forces and relatively organized armed groups. Determining what counts as protracted and well organized requires a case-specific analysis of the facts.

Another form of internal conflict involves determining if, because of the disintegration of the State, there is any government entity with armed forces capable of quelling civil strife between armed groups from different clans, religions, tribal, or ethnic groups. In a truly anarchic situation with minimal levels of organization, the applicable internal law is Common Article 3, which also applies to government clashes with armed insurgent groups. If, however, there is a conflict between a government and dissident armed forces, and the dissident group is organized under responsible command and exercises territorial control, then Common Article 3 is supplemented by Protocol II. To apply Protocol II, at least one of the parties to the conflict must be a government, defined as a generally recognized regime that has a right and duty to exert authority over a population and provide for its needs.

Another gray area involves whether a conflict is internal or international. History has shown that this internal/international distinction is often artificial. For example, troops from a foreign country may fight alongside rebels or government troops involved in internal hostilities. Where such foreign intervention occurs, it may be unclear whether the hostilites are governed by the internal or international armed conflict rules. Such a conflict is called an “internationalized internal conflict.” The recent hostilities in Bosnia and Angola are examples of such mixed armed conflicts.

This question is less significant now, thanks to a decision by the International Criminal Tribunal for the former Yugoslavia. In the Dusko Tadic case, the Appeals Chamber found that leading principles of international humanitarian law apply to both sorts of conflicts. Yet these specific principles and rules for international armed confict are not transposed word-for- word into the laws of internal armed conflict. It is, therefore, unclear whether certain provisions apply to both. Generally, the more basic a principle is, the more likely it is to apply across the board.

Finally, a gray area that has been much discussed since September 11, 2001, concerns whether there can be an armed conflict between a State and a terrorist group based outside its borders. The Bush administration has taken the view the struggle against al-Qaeda and its terrorist affiliates is a new kind of global conflict, not contemplated by existing humanitarian law, and not covered by any of the Geneva Conventions. Some analysts have argued that it should be regarded as a form of non-international armed conflict, on the grounds that it is not between two or more States. Many States, while acknowledging the serious threat posed by al-Qaeda and its global affiliates, envision the struggle against terrorist groups as essentially requiring enhanced international cooperation in law enforcement, intelligence sharing and the like–as well as full compliance with international humanitarian law when this struggle involves armed conflict.

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