The protective scope of common article 3: More than meets the eye

International Review of the Red Cross

Volumn 93, Issue 881, 2011, Pages 189-225

  Pejic, Jelena ^a  

^a Legal Division   (Switzerland)

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EID: 82655183464     PISSN: 18163831     EISSN: 16075889     Source Type: Journal    
DOI: 10.1017/S1816383111000130     Document Type: Article

References (54)

1. Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Volume I: Rules, Cambridge University Press, Cambridge, 2005 (hereafter Customary Law Study).
2. By way of reminder, the ICRC Commentaries to Common Article 3 contain a summary of the criteria that were put forward by some states at the Diplomatic Conference but were eventually rejected. See, for example, J. Pictet (ed.), Commentary to the Third Geneva Convention relative to the Treatment of Prisoners of War, ICRC, Geneva, 1960, p. 23. The list, as has been rightly pointed out, sets a 'far higher threshold of application than is actually required by the Article itself'.
3. See Lindsay Moir, The Law of Internal Armed Conflict, Cambridge University Press, Cambridge, 2002, p. 35.
4. Schindler provides a succinct outline of most of the factual criteria: 'Practice has set up the following criteria to delimit non-international armed conflicts from internal disturbances. In the first place, the hostilities have to be conducted by force of arms and exhibit such intensity that, as a rule, the government is compelled to employ its armed forces against the insurgents instead of mere police forces. Secondly, as to the insurgents, the hostilities are meant to be of a collective character, that is, they have to be carried out not only by single groups. In addition, the insurgents have to exhibit a minimum amount of organisation. Their armed forces should be under a responsible command and be capable of meeting minimal humanitarian requirements. Accordingly, the conflict must show certain similarities to a war, without fulfilling all conditions necessary for the recognition of belligerency'. Dietrich Schindler, The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols, Recueil des cours, Martinus Nijhof, Brill, 1979, Vol. 163/ii, p. 147.
5. See Fatmir Limaj et al., International Criminal Tribunal for the Former Yugoslavia (ICTY), Trial Chamber II, Judgment of 30 November 2005, Case No. IT-03-66-T, para. 90; Ramush Haradinaj et al., ICTY, Trial Chamber I, Judgment of 3 April 2008, Case No. IT-04-84-T, para. 60.
6. ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2 October 1995, para. 70, emphasis added.
7. For one view see Theodor Meron, 'The humanization of humanitarian law', in American Journal of International Law, Vol. 94, 2000, p. 260;
8. Michael Bothe, 'War crimes', in A. Cassese, P. Gaeta, and J. W. D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 423;
9. Anthony Cullen, 'The definition of non-international armed conflict in the Rome Statute of the International Criminal Court', unpublished PhD thesis, Irish Centre for Human Rights, 2007, p. 22. For the opposing view
10. see A. Bouvier and M. Sassòli, (eds), How Does Law Protect in War?, ICRC, Geneva, Vol. 1, 2006, p. 110;
11. René Provost, International Human Rights and Humanitarian Law, Cambridge University Press, Cambridge, 2002, p. 268;
12. William Schabas, An Introduction to the International Criminal Court, 3rd edn, Cambridge University Press, Cambridge, 2007, p. 116.
13. See also Eric David, who believes that para. 2 (f) did not create a third category of NIAC but that this 'expanded notion' of armed conflict replaces that of Additional Protocol II by operation of the lex posterior principle (Eric David, Principes de droit des conflits armés, Bruylant, Brussels, 2002, p. 119).
14. Affaire Lubanga Dyilo, Chambre préliminaire I, Décision sur la confirmation des charges, 29 janvier 2007, paras. 229-237.
15. See How is the Term 'Armed Conflict' Defined in International Humanitarian Law? ICRC Opinion Paper, March 2008, available at: http://www.icrc.org (last visited 9 March 2011), emphasis in original.
16. Convention on the Safety of United Nations and Associated Personnel, available at: http://www.un.org/law/cod/safety.htm (last visited 3 March 2011). The 1994 Convention does not envisage UN forces becoming a party to a non-international armed conflict and thus by implication grants them immunity from attack even when they do in fact take a direct part in hostilities in those circumstances.
17. While the designation 'global war on terror' has been retired by the Obama Administration, President Obama has nevertheless stated that the US remains 'at war with Al Qaeda and its affiliates'. See 'Remarks by the President on national security', National Archives, Washington DC, May 21, 2009, available at: http://www.whitehouse.gov/the-press-office/Remarks-by-the- President-On-National-Security-5-21-09/(last visited 3 March 2011).
18. See White House Memorandum of February 7, 2002 on the 'Humane treatment of Taliban and Al Qaeda detainees', available at: http://www.pegc.us/archive/ White-House/bush-memo-20020207-ed.pdf (last visited 10 March 2011).
19. See Hamdan v. Rumsfeld, 548 U. S. 557(2006) (hereafter, the Hamdan case), pp. 628-631, available at http://www.supremecourt.gov/opinions/boundvolumes/ 548bv.pdf (last visited 3 March 2011).
20. See for example 'Report of the United States of America submitted to the U. N. High Commissioner for Human Rights in conjunction with the Universal Periodic Review', p. 21, available at: http://www.state. gov/documents/ organization/146379.pdf (last visited 3 March 2011).
21. See, among others, 'International humanitarian law and the challenges of contemporary armed conflicts', ICRC Report presented at the 28th International Conference of the Red Cross and Red Crescent, 2-6 December 2003, 03/IC/09, ICRC, Geneva, p. 18; and 'International humanitarian law and the challenges of contemporary armed conflicts', ICRC Report presented at the 30th International Conference of the Red Cross and Red Crescent, 26-30 November 2007, 30IC/07/8.4, ICRC, Geneva, p. 7.
22. 194 states parties as of 1 September 2010. See ICRC IHL treaty database available at: http://www.icrc.org/IHL.nsf/(SPF)/party-main-treaties/ $File/IHL-and-other-related-Treaties.pdf (last visited 3 March 2011).
23. Marco Sassòli, 'Transnational armed groups and international humanitarian law', HPCR Occasional Paper Series, Winter 2006, No. 6, p. 12, available at: http://www.reliefweb.int/rw/lib.nsf/db900sid/EVOD-6WQFE2/ $file/OccasionalPaper6.pdf?openelement (last visited 10 March 2011).
24. ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2 October 1995, para. 98. Similar formulations are to be found in subsequent ICTY cases as well. For example, the Tribunal reiterated that: 'It is... well established that Common Article 3 has acquired the status of customary international law' in para. 228 of The Prosecutor v. Naletilic and Martinovic, Case No. IT-98-34-T (Trial Chamber), 31 March 2003.
25. International Court of Justice (ICJ), Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 27 June 1986, Judgment, para. 218.
26. A major source cited in support of this view is the ICRC's Commentaries to the Geneva Conventions, in which Jean Pictet unequivocally states that the Article applies to a NIAC occurring within the territory of a single state. See, for example, J. Pictet (ed.), Commentary to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (hereafter GC IV Commentary), ICRC, Geneva, 1958, p. 36: 'Speaking generally, it must be recognized that the conflicts referred to in Article 3 are armed conflicts, with armed forces on either side engaged in hostilities - conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country'.
27. Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B (Berne, Federal Political Department, 1950-1951), p. 122, italics in original, additional emphasis added.
28. For a detailed overview of the drafting history of Common Article 3, see Anthony Cullen, The Concept of Non-international Armed Conflict in International Humanitarian Law, Cambridge University Press, Cambridge, 2010.
29. Nils Melzer, Targeted Killing in International Law, Oxford University Press, Oxford, 2008, p. 258.
30. ICTR Statute, Article 1, available at: http://www.un.org/ictr/statute. html (last visited 11 March 2011).
31. Hamdan case, above note 18, p. 629.
32. David Kretzmer, 'Targeted killings of suspected terrorists: extra-judicial executions or legitimate means of defense?', in European Journal of International Law, Vol. 16, No. 2, 2005, p. 195.
33. Steven R. Ratner, 'Predator and prey: seizing and killing suspected terrorists abroad', in Journal of Political Philosophy, Vol. 15, No. 3, 2007, p. 261.
34. See Kenneth Anderson, 'Is the Israel-Hezbollah conflict an international armed conflict?' 14 July 2006, available at: http://kennethandersonlawofwar. blogspot.com/2006/07/is-israel-hezbollah-conflict.html (last visited 3 March 2011).
35. See, also, Human Rights Watch, 'Q and A on hostilities between Israel and Hezbollah', 1 August 2006, available at: http://www.hrw.org/en/news/2006/08/01/ questions-andanswers-hostilities-between-israel-and-hezbollah (last visited 3 March 2011).
36. See lecture of the former US State Department Legal Adviser John B. Bellinger III at the University of Oxford on 10 December 2007, available at: http://insct.syr.edu/uploadedFiles/insct/uploadedfiles/PDFs/ Bellinger%20Prisoners%20In%20War%20Contemporary%20Challenges%20to%20the%20Genev a% 20Conventions.pdf (last visited 3 March 2011).
37. See Roy S. Schondorf, 'Extra-state armed conflicts: is there a need for a new legal regime?', in New York University Journal of International Law and Politics, Vol. 37, No. 1, 2004.
38. See also C. Kress, 'Some reflections on the international legal framework governing transnational armed conflicts', in Journal of Conflict and Security Law, 2010, p. 258, available at: http://www.uni-koeln. de/jur-fak/kress/ Materialien/Chef/HP882010/Final.pdf (last visited 3 March 2011).
39. See Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff Publishers, Geneva, 1987, Commentary on Additional Protocol I, Art. 75(3), para. 3063.
40. The institutional position is set out in Jelena Pejic, 'Procedural principles and safeguards for internment/administrative detention in armed conflict and other situations of violence'. It was published as Annex 1 to the ICRC's Report on 'International humanitarian law and the challenges of contemporary armed conflicts' presented to the 30th International Conference of the Red Cross and Red Crescent held in Geneva in 2007. It is also published in International Review of the Red Cross, Vol. 87, No. 858, June 2005, pp. 375-391, available at: http://www.icrc.org/eng/assets/files/other/irrc-858-pejic.pdf (last visited 3 March 2011).
41. GC IV, Art. 78(1).
42. GC IV Commentary, above note 27, p. 257.
43. GC IV, Arts. 43(1) and 78(2).
44. GC IV, Art. 43(1).
45. GC IV, Arts. 43(1) and 78(2).
46. Customary Law Study, Rule 100.
47. The complementary relationship between humanitarian and human rights law has been confirmed by the International Court of Justice. In a July 2004 Advisory Opinion, the Court stated that humanitarian and human rights law are not mutually exclusive. According to the Court, some rights are only protected by human rights law, some are protected only by humanitarian law, and 'yet others may be matters of both these branches of international law'. (ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, para. 106.) The rights of persons suspected of having committed a criminal offence - whether detained in IAC or NIAC - may be said to fall into the category of rights that, pursuant to the ICJ's wording, are 'matters' of both branches of law. Reliance on human rights law as a legal regime that is complementary to humanitarian law is also explicitly recognized in both Additional Protocols to the Geneva Conventions. According to Article 72 of Additional Protocol I: 'The provisions of this Section [Treatment of Persons in the Power of a Party to the Conflict] are additional to the rules concerning humanitarian protection of civilians and civilian objects in the power of a Party to the conflict contained in the Fourth Convention, particularly parts I and III thereof, as well as to other applicable rules of international law relating to the protection of fundamental human rights during international armed conflict' (emphasis added). This article therefore permits resort to human rights law as an additional frame of reference in regulating the judicial guarantees of criminal suspects who belong to 'persons in the power of a party to the conflict'. (See AP I Commentary, above note 51, paras. 2927-2935.) Preambular paragraph 2 of the Second Additional Protocol establishes the link between that Protocol and human rights law by providing that 'international instruments relating to human rights offer a basic protection to the human person'. The Commentary to the Protocol specifies that the reference to international instruments includes treaties adopted by the UN, such as the ICCPR, as well as regional human rights treaties.
48. See Commentary on the Additional Protocols, above note 51, Commentary on Additional Protocol II, paras. 4427-4428.
49. Customary Law Study, Rules 15-24.
50. AP I, Art. 51(1).
51. AP I, Art. 51(2).
52. AP I, Art. 51(3);
53. and AP II, Art. 13(3).
54. See 'ICRC interpretive guidance on the notion of direct participation in hostilities under IHL', in International Review of the Red Cross, Vol. 90, No. 872, December 2008, pp. 991-1047, available at: http://www.icrc.org/web/eng/ siteeng0.nsf/html/review-872-p991 (last visited 3 March 2011).