What Laws control non-international armed conflict and in the use of force in situation of occupation?
Non international armed conflict is the most common type of armed conflict nowadays. In order to understand this aspect it is important to understand its definition and the parameters therein. Non international armed conflict is defined as an armed conflict occurring between two factions in a state without the participation of another sovereign military engaging. This, as described above is the most common type of armed conflict today. It can be between a government’s forces and a rebel faction (International Committee on the Red Cross, 2005). Example can be drawn from the Rebel group in Columbia which has been fighting with the government for years. These conflicts are common in Africa and South America. In Africa, a good example can be the government forces of Uganda against the Lord’s resistance Army rebellion against president Yoweri Museveni. The latest example is the non- international armed conflict in the world youngest state which is South Sudan in which government forces loyal to President Salva kiir are fighting with rebels loyal to the former vice President Riek Machar.
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International Humanitarian law does not have adequate provision for this type of conflict. It is noted with great concern that the Geneva Convention of 1949 only provided one article known as Common 3 to address this particular type of conflict. It is also noted that this particular provision lacks a high number of ratification compared to other treaties. As a result the provisions of Common 3 remain to be a toothless dog in addressing issues of Non -international armed conflict.
However, even with its shortcomings, Common article 3 remains the only law that governs non international armed conflict. In as much as states have not ratified it, some authors have argued that Common article 3 is now part of Jus cogens. The international Court of Justice stated that the Common Article 3 remains an integral aspect of governing Non international armed conflict and that it is the very Yardstick that shall inform the court decisions on relevant matters.
Common Article 3 is however not to be applied in every aspect of local conflict. The conflict must be above and beyond a particular threshold. Firstly the intensity of the violence has to necessitate the deployment of military forces instead of police force. Secondly the groups should be organized in that they have disciplined forces, armed, training of some kind, ideology, and they they must have a leader. If then this is not the case, will it prevent the application of common Article 3? I am of the opinion that it will not. This is because the Common Article 3 has very basic provisions. Unlike other International Human rights instruments which provide for the suspension of some human rights obligations if a conflict situation has deteriorated, Common 3 Article comes into play during such times to provide for the basic humane treatment of people. This include the right to a fair trial, access to food, shelter, water and humanitarian assistance and the freedom from torture of any kind.
Due to the shortcomings of Common article 3, a convention was organized by the International Convention on the Red Cross (ICRC) in 1971. However, this particular convention failed terribly to measure up to its objective of supplementing the failures of Common Article 3. This was mainly because it faced a major resistance from the developing countries. Hence, instead of supplementing the former they sought to define only the most intense non- international armed conflict and regulate on them ( Verhoeven, 2011).
Do you agree with Dr. Droge's conclusion?
I do not entirely agree or disagree with Dr. Droge’s conclusion that humanitarian law is the lex specialis of conflict law.
Why or why not?
The respective conventions on international law have provided for the parameters upon which the international human rights instruments apply. Instruments like International Convention on Civil and Political Rights (ICCPR), the Universal Declaration on Human Rights (UDHR) and the International Convention on Economic and Social Rights (ICESR) solely provide for the general provisions of human rights. They address Civil and political rights, General human rights and economic and social rights respectively.
This, in my view, are not adequate in providing for human rights hence the introduction of humanitarian rights which serve to protect civilians in times of conflict or war either locally or internationally. It was after the Second World War that the world drew its attention to the importance of human rights since a lot of suffering had been endured by men, women and children. A good example being the execution of Jews by the Hitler regime in Germany; the world therefore thought it prudent to legislate at a Global level on a uniform law that would inform and punish any human rights violations. Moreover, Human rights law and Humanitarian Law basically address two totally different situations in their totality.
Humanitarian law serves to reserve the rights of civilians and soldiers during a conflict. It is basically the Dos and Don’ts during times of conflict. As discussed above the above legal human rights instruments provide for the suspension of rights in a situation that has totally deteriorated. This then invokes the Humanitarian Law which provides for the basic humane treatment that even when their rights have been suspended, they still get humane treatment at a particular level.
What are the benefits and possible issues with your solution?
My solution entails that, the two sections of human rights and humanitarian law should stay both in their lanes and not conflict with each other. The Geneva Convention of 1949 is a quite elaborate on when each document is applicable. However, the issue arising is that of the coordination of these instrument given that most states have ratified the Human Rights instruments but have not ratified the Humanitarian Law instruments. This is a major challenge because in case of a conflict in a country that has not ratified humanitarian law instrument, they will turn to the Human Rights instruments which are particularly vague and ineffective in addressing this particular problem.
Does your answer change if human rights law is viewed as customary law?
My answer will not change in its entirety if human rights law is viewed as a customary law. Why or why not? This is mainly because the International Court of justice stated that the Common Article 3 in the Geneva Convention of 1949 is the very Bedrock that informs the basic requirements of humanitarian law. Some authors have argued that since humanitarian law has been practiced for a long time is it part of jus cogens it should therefore be recognized as part of international customary law.
References
International Committee on the Red Cross (ICRC). (2010). Lesson 10; The law of Armed Conflict- Non international Armed Conflict, oxford University Press.
Verhoeven, S (2007). International and Non- international Armed Conflict. Working paper No. 107 of 2007 . Institute of International Law.
