I. INTRODUCTION
International lawyers have long been preoccupied with the issue of conflict characterization. Thus, Soviet presence in Afghanistan from 1979 raised questions regarding the correct classification of the conflicts in that country for the purposes of international law.Footnote 1 Similarly, the complexities arising from the collapse of the Socialist Federal Republic of Yugoslavia created great confusion over the character of the conflicts in that region.Footnote 2 Disagreement also existed over the nature of the conflicts in Afghanistan (following the 2001 invasion) and Iraq (following the 2003 invasion), due to the regime changes that occurred in those countries.Footnote 3 These issues also arose when the Security Council authorized foreign intervention in Libya in 2011.Footnote 4
Such questions arise because the manner in which international law regulates a conflict varies depending on the conflict's character. In essence, international humanitarian law (IHL) bifurcates the concept of armed conflict into two legal categories, expressed in their modern form in common Articles 2 and 3 of the 1949 Geneva Conventions.Footnote 5 Whilst common Article 2 states that the Conventions apply in armed conflicts ‘between two or more of the High Contracting Parties’ (‘international armed conflicts’),Footnote 6 the single common Article 3 sets out the entire regime applicable under the Conventions in ‘armed conflict[s] not of an international character’ (‘non-international armed conflicts’).Footnote 7 Although marking the first treaty provision explicitly designed for non-international armed conflicts,Footnote 8 and thus reflecting an important development in IHL, the brevity of common Article 3 demonstrates the extremely limited degree to which such conflicts have traditionally been regulated by international law relative to inter-State wars.Footnote 9 It is on this basis that most criticisms of the distinction between the two categories of conflict are made, for victims of internal conflicts have enjoyed fewer protections under IHL than those of international conflicts.Footnote 10 This is especially worrying, given that, in the post-1945 period, non-international armed conflicts have become the norm rather than the exception.Footnote 11
Subsequent developments have gradually narrowed the distinction between international and non-international armed conflicts. Importantly, two Additional Protocols to the Geneva Conventions were adopted in 1977, the first further codifying rules applicable in international conflicts,Footnote 12 and the second doing the same for non-international conflicts.Footnote 13 Additional Protocol II (APII), however, contains only 15 substantive articles, compared with over 70 in Additional Protocol I (API). Moreover, in contrast to common Article 3, which applies to all non-international armed conflicts, APII applies only to non-international conflicts that are fought between a State and those non-State groups that, ‘under responsible command, exercise such control over a part of its [the State's] territory as to enable them to carry out sustained and concerted military operations’ and to implement the Protocol.Footnote 14 In addition to these developments in APII, Article 1(4) API lifted ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination’ out of the category of non-international conflicts and brought them under the umbrella of international armed conflicts.Footnote 15
Finally, the law applicable in non-international armed conflicts has continued to develop under both conventional and customary law since the adoption of the Additional Protocols. Regarding conventional law, a number of weapons treaties apply equally in all armed conflicts (and in peacetime).Footnote 16 At the level of custom, it has increasingly been argued that a large number of the rules designed for international armed conflicts now apply equally in non-international conflicts, most notably by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Committee of the Red Cross (ICRC).Footnote 17
These developments notwithstanding, important differences remain between the law applicable in international and non-international armed conflicts, and States have consistently expressed their desire to preserve the general distinction.Footnote 18 Indeed, as a caveat to its finding that certain rules previously applicable only in international conflicts now apply under custom in non-international conflicts, the ICTY confirmed that ‘only a number of rules and principles governing international armed conflicts have gradually been extended to apply in internal conflicts' and that ‘this extension has not taken place in the form of a full and mechanical transplant of those rules to internal conflicts; rather, the general essence of those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts'.Footnote 19
It is on this distinction in IHL between international and non-international armed conflicts that the present article focuses. In particular, it examines this issue from the perspective of the influence of international human rights law (IHRL). It will be demonstrated that the evolution of the distinction drawn in IHL between types of conflict has been heavily influenced by the parallel development of IHRL. As such, the approach adopted here differs from that in other accounts of the distinction, which tend to focus on its consequences for victims of non-international conflicts,Footnote 20 or its unsuitability for practical application.Footnote 21 It will be shown in this article that human rights law has had two, seemingly contradictory, effects on this distinction in IHL. Section II will demonstrate how the emergence of IHRL following the Second World War contributed to the necessary foundation for the incorporation into treaty law of rules regulating non-international armed conflicts. In so doing, an important challenge will be made to conventional accounts which view the post-war developments in IHRL and IHL as entirely separate matters.Footnote 22 Section II will also demonstrate how the subsequent expansion of IHRL continued to influence the development of the law of non-international armed conflict. Importantly, these developments have occurred primarily by drawing on the rules previously applicable only in international armed conflicts, such that human rights law has encouraged the gradual elimination of the distinction between types of conflict in IHL. Section III will then show how, more recently, human rights law has had the opposite effect, being invoked as a basis for preserving what remains of the distinction. This will be demonstrated with reference to recent debates regarding the development of the law of non-international armed conflict, which invoke IHRL in a very different manner than traditionally was the case.
The aim of this article is to construct a narrative, tracing the development of this distinction in contemporary IHL by contextualizing it within broader developments in international law. This narrative will demonstrate that a fundamental shift has occurred in the influence of human rights law on IHL's distinction between categories of conflict. Moreover, it will show how two major topics at the heart of many current debates in the area, those regarding the distinction in IHL and the relationship between IHL and human rights law, are very closely linked. It is hoped that, by tracing and analysing these developments, a richer understanding of this structural feature of IHL will be offered, which can then contribute to the ongoing debates about the future development of the law of non-international armed conflict.
II. THE DISSOLUTION OF THE DISTINCTION BETWEEN CATEGORIES OF ARMED CONFLICT
The evolution of IHRL following the Second World War played an important role as a catalyst in the development of the law of non-international armed conflict. Importantly, as will be shown in this section, human rights law has been invoked so as to encourage the extension of many of the rules traditionally applicable only in international armed conflicts to their non-international counterparts. The consequence has been the gradual and partial elimination of the distinction between the two categories of conflict in IHL. To demonstrate this, a brief discussion of the distinction as it existed in international law before the consolidation of IHRL is first necessary in section A. This will provide important context for understanding the relevance of IHRL for the adoption of common Article 3 in 1949. Section B will then build upon that discussion by demonstrating how the continued evolution of IHRL has encouraged the subsequent development of the law of non-international armed conflict and narrowing of this distinction in IHL.
A. The Traditionally Inter-State Nature of International Law
Appreciating the origins of the distinction between international and non-international armed conflicts is important for understanding the influence of IHRL. Until the adoption of the four Geneva Conventions in 1949, the distinction arose from the fact that treaty law was generally concerned only with conflicts between States and did not regulate civil conflicts within a State.Footnote 23 Although there have long existed customary rules on the laws of war, the project of codifying those rules in multilateral treaties did not begin until the mid-nineteenth century.Footnote 24 At this point in history, international law was presumed to regulate the reciprocal relationships between States, and treaties generally dealt only with questions relevant to this subject matter; intra-State issues tended to be excluded, as these were seen as belonging to the realm of domestic, as opposed to international law.Footnote 25 Early treatises confirmed this inter-State focus of traditional international law, with the first editions of Oppenheim containing the classic formulation: ‘International Law is a law between States only and exclusively’.Footnote 26 The Oppenheim formula certainly glossed over many of the nuances concerning the position of non-State actors within international law at the time, and one might note here as examples the international minimum standard on the treatment of aliens and direct access of individuals to international tribunals. However, as a formal description, it was for the most part accurate, for whilst individuals were directly engaged by international law in these areas, the principal relationship at issue remained inter-State.Footnote 27 Thus, the international minimum standard concerned the treatment of foreign nationals,Footnote 28 whilst individual access to international tribunals was restricted to claims against a foreign State.Footnote 29 This helps to explain why, with the adoption of the early conventions on IHL, the question of their application to civil (intra-State) conflict did not arise.Footnote 30 Instead, they were generally applicable only in situations of ‘war’,Footnote 31 which did not include conflicts between States and their subjects: ‘[t]o be considered war, the contention must be going on between States’.Footnote 32
The nineteenth century did, however, witness the emergence in customary international law of the doctrines of insurgency and belligerency that addressed, to differing degrees, civil war.Footnote 33 The effectiveness of these doctrines, however, still remained constrained by the inter-State focus of international law. In particular, they tended to be relevant mainly to those internal conflicts that affected the interests of third States, being invoked by such States to regulate their relations with the parties to the conflict.Footnote 34 Moreover, even according to the doctrine of belligerency, whereby insurgents could be recognized as belligerents either by the State against which they were fighting (leading to the application of the ius in bello between them) or by a third State (leading to the application of the law of neutrality), recognition remained entirely at the discretion of the particular State.Footnote 35 Humanitarian concerns were, therefore, somewhat sidelined. Indeed, recognition of belligerency fell into desuetude in the twentieth century, and it was the refusal by States in particularly atrocious civil wars, such as that in Spain, to recognize the belligerent status of their opponents, which highlighted the need for a more robust method by which to regulate these conflicts; the consequence was a renewed demand, particularly by the ICRC, for treaty rules in this area.Footnote 36
It was, therefore, only in 1949 that non-international armed conflicts explicitly became subject to treaty-based regulation under common Article 3. At the same time, the distinction between international and non-international conflicts was codified. As the first treaty provision adopted to address non-international conflicts, common Article 3 was one of a number of developments at that time that reflected the expansion of the subject matter of international law to include purely intra-State matters. The other key development in this regard was, of course, the emergence of IHRL following the end of the Second World War, reflected in provisions of the Charter of the United Nations,Footnote 37 the 1948 Universal Declaration of Human Rights (UDHR),Footnote 38 and the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.Footnote 39 Lea Brilmayer has opined that these post-war developments represented a shift in international law from traditional contractual notions of legal obligation to the rise of non-reciprocal ‘pledges’ by States to act in conformity with moral precepts.Footnote 40 Importantly, these ‘pledges’ were intra-State in the strictest sense, in that the obligations thereunder rested on States vis-à-vis their own nationals (and, of course, non-nationals within their jurisdiction). The novelty therefore laid in the absence of any necessary inter-State element, in contrast to those previous developments in international law noted above that directly engaged individuals, such as the minimum standard of treatment of aliens.Footnote 41
We might think of these developments in the aftermath of the Second World War as the consolidation of intra-State structures of obligation in international law. By this is meant the general extension of the subject matter of international law to include purely intra-State matters. As seen from the references above to Oppenheim and other early texts, such intra-State structures of obligation were generally absent from classical international law, accounting, in large part, for the lack of treaty rules on non-international armed conflicts. The adoption of common Article 3 in 1949 must, therefore, be seen as part of this broader trend in international law, with the emergence of intra-State obligations contributing to the necessary foundations for the adoption of a treaty provision on non-international armed conflicts. The premise underpinning both IHRL and the law of non-international armed conflict is, after all, that it is the relationship between a State and its nationals that is to be regulated.Footnote 42 Indeed, Theodor Meron has highlighted this close relationship between the post-war emergence of human rights law and the adoption of common Article 3:
This Article [common Article 3] is a clear demonstration of the influence of human rights law on humanitarian law. The inclusion in the United Nations Charter of the promotion of human rights as a basic purpose of the Organization, the recognition of crimes against humanity as international crimes, the conclusion of the 1948 Genocide Convention and the regulation by a multilateral treaty of non-international armed conflicts for the first time in 1949, all stemmed from this influence.Footnote 43
The novelty of these broader developments, however, meant that common Article 3 would prove the most contentious article during the 1949 diplomatic conference.Footnote 44 Importantly, many of the debates on what would become common Article 3 were concerned not so much with extending humanitarian law to internal conflicts but rather, more generally, with extending international law to intra-State matters. This is evidenced by the records of the comments of the delegation of Burma, unofficial representative of the Asian bloc,Footnote 45 which objected to the inclusion of any provision relating to non-international armed conflicts.Footnote 46 A central concern of the Burmese delegate was that ‘[i]nternal matters cannot be ruled by international law or Conventions … It is not the object of the Conference to intervene in matters essentially within the domestic jurisdiction of any State.’Footnote 47 Such objections did not prevail, however, largely because they ignored the contemporaneous developments noted above. Indeed, in response to similar objections by the UK,Footnote 48 the Soviet delegate made clear the importance of recent innovations in laying the foundation for the adoption of common Article 3:
This theory [that international law does not regulate internal matters] was not convincing, since although the jurists themselves were divided in opinion on this point, some were of the view that civil war was regulated by international law. Since the creation of the Organization of the United Nations, this question seemed settled. Article 2 of the Charter provided that Member States must ensure peace and world security. They could therefore not be indifferent to the cessation of hostilities, no matter the character or localization of the conflict. Colonial and civil wars therefore came within the purview of international law.Footnote 49
The post-war consolidation of intra-State structures of obligation thus played an important role in the adoption of common Article 3. In this sense, although it is true that, generally, there was no cross-fertilization between IHL and IHRL at this time,Footnote 50 there was an important structural relationship between IHRL and the law of non-international armed conflict.Footnote 51 As reflected in the quote above by Meron, these post-war developments in IHL and IHRL were not merely coincidental but intimately connected. The extension of international law to purely intra-State matters rendered anachronistic a significant part of the historical basis for differentiating between international and non-international conflicts.
Importantly for the present thesis, common Article 3 was based on the proposed (but eventually unsuccessful) preamble to the Geneva Conventions.Footnote 52 The new treaty law of non-international armed conflict was, therefore, modelled on the law applicable in international armed conflicts, with the result that, whilst codifying the distinction, the Geneva Conventions partially narrowed it. Indeed, this provenance of common Article 3 helps to explain why it lays down only the most basic and open-ended norms. Of course, the uniqueness of these broader developments in international law meant that any provision regarding internal conflicts was necessarily going to be very limited, as many States were concerned as to the consequence that legislating for such conflicts would have on their sovereignty.Footnote 53
Following these initial developments in the wake of the Second World War, the subsequent evolution of IHRL has continued to encourage the parallel development of the law applicable in non-international armed conflicts. As with the adoption of common Article 3, the consequence of these developments has been a further reduction in the distinction drawn by IHL between types of armed conflict. It is to this that we now turn in the following section.
B. The Expansion of the Law of Non-International Armed Conflict
In the decades following the adoption of the first international human rights instruments in the aftermath of the Second World War, IHRL developed considerably, marked by the widespread ratification of international and regional human rights treaties.Footnote 54 This rapid evolution of IHRL in turn both represents and has encouraged the continued expansion of international law from its historically inter-State domain, with the result that it now concerns itself more than ever with intra-State matters and, more specifically, the protection of the individual. As the International Law Association's Committee on International Human Rights Law and Practice has stated, ‘[t]he permeation of international human rights law through general international law constitutes a quiet revolution which invariably targets international law's most “statist” features’.Footnote 55 More specifically, individual protection, without regard to any necessary inter-State element, now forms a major substantive area of international legal regulation. Whilst a number of scholars have cautioned against overstating the implications of this trend, its existence is undeniable.Footnote 56 Indeed, one can see this impact of IHRL in many diverse areas, from the methodological approach to the formation of custom,Footnote 57 to the debates regarding the need to introduce human rights considerations into the structure of the international trading system.Footnote 58 Theodor Meron has referred to this trend as the ‘humanization of public international law’.Footnote 59
This evolution of IHRL has also continued to have an important impact on IHL and, importantly for our purposes, the evolution of the law of non-international armed conflict, following the important step made in 1949. This influence is illustrated clearly in two particular developments: first, the adoption of the Additional Protocols in 1977, and, second, the development of customary law by the ICTY. On the first, IHRL played an important role at the 1974–77 diplomatic conference at which the Protocols were negotiated. Indeed, the work of the UN in the late 1960s on human rights in armed conflictFootnote 60 can be seen as a prelude to the diplomatic conference.Footnote 61 More specifically, the influence of IHRL on that process is illustrated in several ways. First, the provision noted above in Article 1(4) API, regarding wars of national liberation, was heavily influenced by recent developments that had occurred in IHRL and State practice. Thus, during the 1960s and early 1970s, as a result of the decolonization process, self-determination consolidated into an independent human right.Footnote 62 This fact, together with the representation at the 1974–77 conference of many newly independent States and national liberation movements,Footnote 63 led to the elimination of the distinction for a very specific category of non-international armed conflicts, ie those involving anti-colonial or national liberation struggles.Footnote 64
Second, and most importantly for present purposes, just as the post-war consolidation of intra-State structures of obligation was relied upon by certain States advocating the adoption of common Article 3, so the continued expansion of IHRL was invoked by a number of delegates at the 1974–77 diplomatic conference as evidence of the increasing role played by international law in protecting individuals vis-à-vis their own State. This served to highlight not only that the historical basis for the marginalization of non-international armed conflicts was being constantly eroded but that this marginalization was also inconsistent with the emphasis on individual protection that was becoming so ubiquitous in international law. This line of argument was employed by a number of delegates at the 1974–77 diplomatic conference. For example, during the drafting of APII, the delegate for the Federal Republic of Germany (FRG) argued:
there had been considerable developments in international law since the drafting of the [UN] Charter and the legal position of the individual had also changed. The Universal Declaration of Human Rights had been adopted by the General Assembly of the United Nations on 10 December 1948, but it was only now becoming clear that the individual had a part to play as a subject of the new legal order … One result of that development had been a change in the definition of State sovereignty in international relations. One of the most important limitations on State sovereignty was respect for human rights.Footnote 65
By invoking IHRL in this manner, as evidence of the extension of international law to intra-State matters for the purpose of protecting individuals, norms of IHL were then free to move across into non-international armed conflicts and, in so doing, the distinction could be narrowed. Consequently, as with common Article 3, the majority of the provisions of APII were based on the law applicable in international armed conflicts.Footnote 66 Indeed, this was treated as the self-evident means by which to humanize non-international conflicts.Footnote 67 There were exceptions to this, whereby specific rights contained in human rights treaties were drawn on directly in drafting particular provisions in APII.Footnote 68 However, where this was the case, it was done so either for both international and non-international armed conflicts or simply to address a situation unique to non-international conflicts. Importantly, IHRL was not invoked as an alternative to drawing from the rules applicable in international conflicts.Footnote 69
The same influence of IHRL can also be seen in the developments that have occurred in customary international law. Much of this development was recognized, and driven, by the ICTY.Footnote 70 The Appeals Chamber in Prosecutor v Duško Tadić, for example, invoked IHRL in precisely the same manner as the delegate of the FRG at the 1974–77 conference, holding that a number of rules applicable as treaty law only in international conflicts now apply equally, under custom, in non-international armed conflicts. It is worth quoting the judgment at length:
The impetuous development and propagation in the international community of human rights doctrines, particularly after the adoption of the Universal Declaration of Human Rights in 1948, has brought about significant changes in international law … A State-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach … It follows that in the area of armed conflict the distinction between inter-State wars and civil wars is losing its value as far as human beings are concerned. Why protect civilians from belligerent violence, or ban rape, torture or the wanton destruction of hospitals, churches, museums or private property, as well as proscribe weapons causing unnecessary suffering when two sovereign States are engaged in war, and yet refrain from enacting the same bans or providing the same protection when armed violence has erupted “only” within the territory of a sovereign State?Footnote 71
Again, the evolution of IHRL was invoked as evidence that the historical basis for the distinction between types of conflict had fallen away, allowing for humanitarian concerns to become decisive.Footnote 72 On this basis, the Appeals Chamber concluded that a number of rules of IHL, such as those relating to the means and methods of warfare, had crystallized as custom applicable in non-international armed conflicts.Footnote 73 Once again, therefore, it has been the consistent approach of the ICTY to look to the law of international armed conflict when examining the customary rules applicable in non-international conflicts.
C. Conclusions
To sum up the discussion thus far, the above sections have demonstrated the important role played by IHRL in encouraging the development of the law of non-international armed conflict and the latter's resulting convergence with the law applicable in international armed conflicts. Initially, the emergence of IHRL in the aftermath of the Second World War represented the consolidation of intra-State structures of obligation in international law, contributing to the necessary foundations for the adoption of common Article 3. Thereafter, the rapid evolution of IHRL and its emphasis on individual protection vis-à-vis one's own State was relied upon in support of subsequent developments in the law of non-international armed conflict. Importantly, as a result of the way in which IHRL was invoked, these developments have generally drawn on the law applicable in international armed conflicts. The consequence is that IHRL has encouraged the gradual and partial elimination of the distinction in IHL between categories of armed conflict. Indeed, there are few areas in the law of non-international armed conflict that remain untouched by this gradual erosion.Footnote 74
More recently, however, IHRL has had the opposite effect, in certain instances encouraging the preservation of what remains of the distinction between international and non-international armed conflicts. It is to this that we now turn in the following section.
III. THE PRESERVATION OF THE DISTINCTION BETWEEN CATEGORIES OF ARMED CONFLICT
In order to complete the picture of the impact of IHRL on IHL's distinction between the two categories of armed conflict, it is necessary to consider recent debates concerning the further development of the law of non-international armed conflict. It will be shown in this section how these debates have been heavily influenced by IHRL, with consequences for the general distinction and its preservation. In particular, IHRL has contributed to the emergence of two opposing schools of thought on the development of the law of non-international armed conflict. I term these schools the ‘human rights approach’ and the ‘humanitarian law approach’, so as to reflect their differing views on the appropriate source of rules for non-international armed conflicts (these are, in many ways, the two extremes at either end of a spectrum). It is important to note that it is not the goal of this section to consider the relative merits of these approaches or to argue whether one or the other might be a more appropriate avenue for the law to follow. Instead, the focus is on the impact that each of these approaches would have on the distinction between international and non-international conflicts in IHL. It will be shown that neither seeks entirely to eliminate this distinction; on the contrary, each relies, for very different reasons, on its preservation, marking a significant change from the traditional influence of IHRL that was explored in the previous section. These two schools of thought will now be discussed in turn.
A. The Human Rights Approach
It was noted at the outset that one of the major criticisms of the distinction between international and non-international armed conflicts has been its inconsistency with the humanitarian premise of IHL: by focusing on international conflicts and marginalizing non-international conflicts, IHL has failed sufficiently to protect victims of the latter. As was demonstrated in the previous section, the solution to this problem that traditionally has been adopted both in State practice and jurisprudence is gradually to eliminate the distinction between types of conflict by extending the rules applicable in international conflicts to non-international conflicts. Indeed, those States that have sought to negotiate the highest level of protection for victims of internal conflicts have advocated the extension of most, if not all, of the rules of IHL.Footnote 75 This has similarly been the approach advanced by a number of commentators.Footnote 76 It was shown that an important driver in these developments was the parallel emergence and consolidation of human rights protections at the international level.
This section will now demonstrate that some recent approaches to the development of the law of non-international armed conflict invoke IHRL in a very different manner than traditionally was the case, with the consequence that what remains of IHL's distinction between categories of conflict would be preserved. It was shown above that during the 1949 and 1974–77 diplomatic conferences, for example, IHRL was invoked as evidence of the consolidation of intra-State structures of obligation in international law and the importance of individual protection vis-à-vis one's own State. This meant that the historical basis for the distinction in IHL could fall away. Certain of the rules previously applicable only in international armed conflicts could then be extended to their non-international counterparts. The manner in which IHRL is invoked in the approaches explored in this section, however, differs significantly from this traditional technique. Here, IHRL is drawn on not as an analogy, justifying the extension of the rules applicable in international armed conflicts, but rather as a source of rules in itself. Thus, certain international bodies and commentators have drawn on IHRL directly to regulate non-international armed conflicts rather than extending the entire corpus of IHL, achieving the goal of protecting victims in such conflicts whilst maintaining the general distinction under humanitarian law. As such, IHRL is now being invoked in a way that would preserve what remains of IHL's distinction, in contrast to the orthodoxy discussed in the previous section. It must be borne in mind that the approaches explored here are relevant to the law of non-international armed conflict both de lege lata and de lege ferenda; this will be demonstrated throughout.
These human rights approaches to the law of non-international armed conflict can be seen particularly clearly in certain practice with regard to detention. This was the case, for example, in the ICRC's 2005 Study on Customary International Humanitarian Law. Generally, the Study drew on the law of international armed conflict in elaborating the customary rules applicable in non-international conflicts, consistent with the approach explored above.Footnote 77 However, this was not true in all cases, and in certain areas it drew instead on IHRL, leading to different standards applying depending on the character of a given conflict. This was seen, for example, in its Rule 99, which declared that ‘[a]rbitrary deprivation of liberty is prohibited’ under custom in both international and non-international conflicts.Footnote 78 In elaborating this rule for international armed conflicts, the ICRC referred, inter alia, to the IHL treaty rules in the Fourth Geneva Convention,Footnote 79 which permit a belligerent power to intern enemy civilians where necessary for reasons of security, subject to the provision of initial and periodic administrative reviews.Footnote 80 The treaty law of non-international armed conflict, however, is silent on the regulation of detention. As a result, in such situations, rather than drawing by analogy from the rules for international armed conflicts found in the Fourth Geneva Convention, the ICRC relied on the more protective IHRL standards alone, concluding, inter alia, that internees in non-international conflicts must be able to challenge the legality of their internment before a court,Footnote 81 a right protected under IHRL but not IHL.Footnote 82 The result is that the rules applicable in international and non-international conflicts remain different, with different bodies of law regulating each situation.
The same, differentiated approach to the regulation of detention can be seen in the jurisprudence of the Grand Chamber of the European Court of Human Rights. In Al-Jedda v UK, the Court examined the legality of Al-Jedda's detention by the UK during the non-international armed conflict phase of coalition operations in Iraq.Footnote 83 The Court rejected the UK's arguments that relevant Security Council Resolutions authorizing internment in similar situations to those found in the Fourth Geneva Convention for international armed conflicts prevailed over Article 5 of the European Convention on Human Rights (ECHR).Footnote 84 Consequently, the Court concluded that Article 5 ECHR alone applied as the relevant legal framework for regulating the UK's detention operations. This is to be contrasted with the Grand Chamber's subsequent approach in Hassan v UK, which again concerned a detention by the UK in Iraq, but during the international armed conflict phase.Footnote 85 Here, the Court held that the primary legal framework against which the UK's detention operations in such situations are to be judged is IHL, with its more permissive grounds for detention and review procedures being read into Article 5 ECHR as a matter of treaty interpretation.Footnote 86 The consequence, like that of Rule 99 in the ICRC's Study, is that whilst detention in international armed conflicts is subject in the first place to IHL, detention in non-international armed conflicts, in the absence of relevant IHL treaty rules, remains regulated solely by IHRL, leaving the distinction between the two categories of armed conflict intact.Footnote 87
This approach of the ICRC and the European Court of Human Rights relates to the lex lata of non-international armed conflicts.Footnote 88 That is to say, they are applying IHRL on the basis that those rules, in their view, reflect the sole standards against which the particular State conduct must be judged in such situations, given the silence of IHL in this area.Footnote 89 This reliance on IHRL over IHL, however, also arises de lege ferenda, and it is argued by certain commentators that the law of non-international armed conflict should continue to be based on IHRL as opposed to drawing by analogy from the law of international armed conflict. Louise Doswald-Beck, for example, takes the view that, with regard to the use of force against members of non-State armed groups, the standards of IHRL can be more appropriate for situations of non-international armed conflict than simply analogizing to the rules on targeting in international armed conflicts.Footnote 90 David Kretzmer follows a different line of reasoning, arguing for a gradated approach to the regulation of non-international armed conflicts, with IHRL alone regulating those up to the applicability threshold of APII,Footnote 91 whilst the entire corpus of IHL would then apply to those that meet or surpass that threshold.Footnote 92 What unites these different approaches is their use of IHRL as a direct source of rules for (at least some) non-international armed conflicts, rather than simply proposing the extension of the entire corpus of IHL to all such conflicts. The consequence is to provide for different standards depending on the character of the conflict: in international armed conflicts, the detailed rules of IHL operate, on one view, as the lex specialis and provide the primary standards against which conduct is to be judged;Footnote 93 in non-international armed conflicts, on the other hand, these approaches envisage the application of IHRL as the governing standards, at least for lower intensity non-international conflicts. Whereas the previous section demonstrated that, traditionally, IHRL had been invoked so as to encourage the dissolution of the distinction between categories of conflict in IHL, the approaches explored here invoke IHRL as the direct source of rules, in a manner that would partially preserve what remains of the distinction.Footnote 94
Whether these approaches are more appropriate for the purposes of developing the law than extending the whole corpus of IHL to non-international armed conflicts is beyond the scope of this article. Instead, what is relevant for present purposes is why some now rely on IHRL rather than IHL in proposing how the law applicable to non-international conflicts should develop. The answer lies in the relative protective capacities of the two bodies of law.Footnote 95 Thus, in most areas, IHRL, as it has come to be developed in jurisprudence, provides greater protections to individuals than IHL.Footnote 96 This is, in part, a result of the differing premises of the two bodies of law. IHRL was conceived as a body of rules to govern ‘normal’ peacetime situations; its primary function is the protection of the individual vis-à-vis the State, and it was envisaged as having general applicability.Footnote 97 IHL, on the other hand, was developed to regulate a very specific situation, and its rules were consequently subject to different considerations than those of IHRL.Footnote 98 In particular, it is often said that the rules of IHL represent a balance between humanitarian considerations and considerations of military necessity,Footnote 99 a balance not reflected in IHRL.Footnote 100 IHL thus has a permissive element to it, and although IHRL treaties also contain certain permissive aspects,Footnote 101 the unique character of military necessity in IHL, together with the fact that IHRL has had the benefit of development through international jurisprudence, has meant that this permissive feature is much more prevalent in IHL than it is in IHRL. Indeed, certain scholars have argued that this permissive aspect of IHL reveals its true nature. Chris Jochnick and Roger Normand, for example, argue that, whilst humanitarian sentiments were the initial triggers for each successive codification of the laws of war,
the diplomats who negotiated the laws and the soldiers who implemented them structured a permissive legal regime. Despite the humanitarian rhetoric, military concerns have dictated the substantive content of the laws of war. National governments, conceiving their sovereign interests narrowly, have proven unwilling to accept any restrictions, legal or otherwise, on their ability to deploy the level of military power they deem necessary to uphold national security.Footnote 102
The permissive nature of IHL relative to IHRL was alluded to above with regard to the different approaches under each legal regime concerning the regulation of detention.Footnote 103 It may also be illustrated by comparing the rules on the use of lethal force. Thus, it is generally accepted that IHL permits the lethal targeting of those qualifying as combatants at any time on the basis of that status alone, without the requirement that it actually be necessary in the prevailing circumstances, eg for self-defence.Footnote 104 This lack of immunity of combatants from targeting is premised on the presumed threat that is posed by the group, ‘whether or not he or she personally endangers the lives or interests of the other party to the conflict’.Footnote 105 Indeed, when the ICRC argued in its 2009 Interpretive Guidance on Direct Participation in Hostilities that the force used against otherwise legitimate targets (including combatants) ‘must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances’,Footnote 106 this was heavily criticized by many commentators for its alleged failure accurately to reflect the current lex lata.Footnote 107 This liberal approach to targeting under IHL contrasts starkly with the equivalent rules in IHRL as they have been developed in jurisprudence. There, it is required that the use of lethal force only be employed where it is necessary in the prevailing circumstances for the achievement of a legitimate aim, such as in self-defence, and where proportionate to that aim.Footnote 108 Thus, unlike IHL, under IHRL nobody may be targeted solely on the grounds of status.
IHRL, as developed in case law, thus offers a generally more protective regime than IHL. It is for this reason that there is a preference by some scholars to rely, at least in part, on IHRL as a direct source of rules for developing the law of non-international armed conflict.Footnote 109 In addition, the evolution of IHRL has also fundamentally changed the consequences of eliminating the distinction in IHL between international and non-international conflicts. As David Kretzmer demonstrates when justifying his proposals for developing the law of non-international armed conflict, whereas historically the assumption was that, absent regulation by IHL, States would entirely be free in the means and methods used to counter an insurgency on their territory, the emergence of IHRL has now changed this.Footnote 110 Although this has been a topic of some dispute in the past, it is now trite to note the mainstream view that IHRL, absent derogation, continues to apply in armed conflict, including non-international conflicts.Footnote 111 Were the distinction between international and non-international conflicts eliminated, the entirety of IHL would then apply alongside IHRL in non-international conflicts, raising the question of how the two bodies of law would interact. The International Court of Justice in its Nuclear Weapons advisory opinion interpreted this relationship for the purposes of the right to life using the lex specialis maxim, whereby the ‘open’ standards of IHRL are interpreted according to the specialized rules of IHL:
The test of what is an arbitrary deprivation of life … falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant [on Civil and Political Rights], can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.Footnote 112
The consequence of the ICJ's lex specialis approach to the relationship between IHL and IHRL is that, whilst IHRL continues to apply in armed conflict, one enjoys no more substantive protection than otherwise exists under IHL.Footnote 113 As noted above, the rules relating to targeting in IHL are much more permissive than those in IHRL, especially in light of the latter's elaboration through jurisprudence. By virtue of the ICJ's approach, therefore, extending the detailed IHL rules on the conduct of hostilities to non-international conflicts could be invoked as a justification for significantly curtailing the protections already afforded by the applicable rules of IHRL.Footnote 114 Consequently, the long-held view that eliminating the distinction in IHL would improve the protections afforded to victims of non-international conflicts now faces a powerful counterargument, summed up well by Kretzmer:
While the original intention behind extension of IHL to non-international armed conflicts was to enhance the protection granted to potential victims of such conflicts, given the dramatic development of IHRL, categorization of a situation as one of armed conflict [to which IHL would then become applicable] … may serve to weaken the protection offered to potential victims rather than to strengthen it.Footnote 115
Whilst many have raised cogent arguments against such inferences being drawn from the Court's use of the lex specialis maxim,Footnote 116 it is clear that others endorse the notion of IHL as effectively displacing otherwise applicable IHRL.Footnote 117 Indeed, certain commentators are of the view that, by virtue of the extension under custom of many of the rules of IHL to non-international armed conflicts, they already operate as the lex specialis, requiring that applicable human rights law be interpreted in conformity with the more permissive IHL standards.Footnote 118 The present author is sceptical of these views. First, it is important to note that the ICJ's invocation of the lex specialis maxim is a simple acknowledgment that the adoption of detailed treaty rules on a particular subject might be one relevant factor indicating the common intentions of the States parties when seeking to interpret another, ‘open’ treaty provision. The lex specialis maxim does not answer finally which rule prevails; rather, it reminds us of one potential reference point when interpreting treaty provisions in order to help discern the intentions of the States parties.Footnote 119 Other (equally relevant) factors may exist that undermine the claim that human rights standards are affected by applicable rules of IHL. One cannot invoke the lex specialis maxim without, therefore, considering what weight such ‘special’ rules should have in the interpretive process and why.Footnote 120
Second, the existence of incompatible treaty or customary obligations is not unusual in international law, and the obligation to reconcile such obligations rests principally with the State that has consented to them.Footnote 121 Otherwise, to the extent that reconciliation through consistent interpretation is not possible, the obligations will often simply apply in parallel to the same facts. Indeed, this was the approach of the ICJ in the only contentious case in which it has addressed the relationship between IHL and IHRL, where the ICJ made no explicit reference to the lex specialis maxim and instead simply applied all relevant treaties, both IHL and IHRL, in parallel, finding violations of both regimes based on the same facts.Footnote 122 The need for a workable legal framework is, of course, especially necessary in this area. However, for those human rights standards that are insufficiently ‘open’ to allow for interpretation consistent with IHL (ie the ICJ's approach in the Nuclear Weapons opinion), States still enjoy the right to derogate under most general human rights treaties, and it is unclear why we should be looking elsewhere for a means to reconcile these diverging obligations.Footnote 123
Based on the above, one should be sceptical of the assumption that more exhaustive regulation of non-international conflicts by IHL necessarily results in IHRL effectively being displaced.Footnote 124 However, as noted above, it is clear that many make this assumption. Indeed, as will be shown in the following section, certain States have utilized the ICJ's approach here for the purpose of arguing that their actions during armed conflict are subject not to the higher standards of IHRL but the lower standards of IHL. It is this risk that explains the approach of the first school of thought to the regulation of non-international armed conflict explored in this section, that is, that IHRL should be drawn on as a direct source of rules. This represents a significant change from the manner in which IHRL was invoked traditionally, as evidence of the expanding scope of international law, so as to encourage the application of the rules applicable in international conflicts to non-international conflicts. The proposals explored here rely on the continued preservation of (what remains of) IHL's distinction, lest the more permissive standards of IHL be invoked as the lex specialis so as to displace inconsistent (more protective) IHRL standards.
There is another side to this, however, which is represented by the second school of thought. This school starts from an entirely different premise to the one discussed here and seeks to apply IHL alone to govern non-international armed conflicts in order to exploit the permissive aspects of that body of law, which, so the argument goes, contains the more appropriate standards for regulating State action in such situations. Certain advocates of this approach nonetheless continue to support the distinction between international and non-international armed conflicts in IHL.
B. The Humanitarian Law Approach
The development of the second school of thought, which I term the ‘humanitarian law approach’, is in many ways a response to the human rights approach discussed above. In short, whereas the emphasis of the human rights approach lies in the desire to achieve the highest protection for victims of non-international armed conflicts, the humanitarian law approach considers IHRL to be an inappropriate regulatory framework in such situations. Thus, certain States and commentators have called for the exclusive regulation of non-international conflicts by IHL, in order to exploit the more permissive aspects of that regime, which, so the argument goes, are more appropriate standards in such situations.Footnote 125 Importantly for our purposes, certain advocates of this second school of thought, as with the first, do not envisage the complete elimination of the distinction drawn in IHL between international and non-international conflicts. Instead, as will be shown in this section, they draw from the law of international armed conflict with regard to particular permissive rules, whilst leaving many of the protective rules applicable only in international conflicts.
A recent example of this approach can be seen in the practice of certain States in their military operations against transnational non-State armed groups, such as the post-9/11 practice of the US against al-Qaeda and affiliated groups. This practice has raised questions about how to categorize and regulate such operations,Footnote 126 creating something of a deadlock between those advocating a ‘law enforcement/IHRL’ paradigm,Footnote 127 and those in favour of a ‘war/IHL’ paradigm.Footnote 128 These post-9/11 debates are, in fact, no more than a specific application of a much older debate regarding the relationship between IHL and IHRL. That traditional debate centred on claims that IHRL formed part of the law of peace and IHL the law of war, maintaining the conceptual and practical separability of the two regimes.Footnote 129 This general debate has since faded with the emerging consensus that IHRL prima facie continues to apply in situations of armed conflict, operating alongside IHL.Footnote 130 The post-9/11 practice, however, seems to have resurrected the old debates in particular cases.
This practice relating to conflicts between States and transnational non-State groups is important for our purposes as certain States qualify these as independent non-international armed conflicts. This is the case, for example, with regard to the US' view of its military operations against al-Qaeda, which both the judiciary and the government consider to constitute a global non-international armed conflict, given that it involves hostilities between a State and non-State armed group.Footnote 131 Claus Kreß has shown more generally how recent State practice supports the application of the law of non-international armed conflict in situations involving transnational non-State groups.Footnote 132 This practice represents a significant change from the past, when it was common for States to reject the view that a particular situation had reached the level of a non-international armed conflict, in order to avoid being bound by the restrictions in common Article 3 and seen to be losing control over their domestic affairs.Footnote 133 However, as David Kretzmer has cogently argued, in light of the development of IHRL and, more specifically, the emerging consensus that those rules continue to apply in armed conflict, States now have an interest in a situation being governed by the more permissive rules of IHL.Footnote 134 As noted, given the ICJ's view that, at least for certain rules, IHRL must be interpreted in accordance with IHL as the lex specialis, applying the latter could allow States to exploit its more permissive rules by arguing that they effectively displace the protections afforded by the stricter IHRL standards.Footnote 135 Ironically, this is in part a consequence of the gradual elimination of the distinction between international and non-international conflicts, itself a result of the humanizing influence of human rights law on IHL.Footnote 136 Indeed, it was also noted above that the gradual extension of IHL to non-international armed conflicts has led some to argue that IHL now operates as the lex specialis in many areas, including targeting.Footnote 137 On this view, the conduct of States in non-international conflicts is to be judged according to the more permissive standards of IHL, rather than the default human rights standards. Whether one shares this view or not, it is clear that States have an advantage in a particular situation being governed by IHL.Footnote 138 In addition, the traditional concern of States, that applying IHL in a non-international armed conflict reflected an acknowledgment that they no longer have control over their territory, does not apply in the case of extra-territorial military operations.
This advantage for States in having their conduct in non-international armed conflicts regulated exclusively by IHL is augmented by the fact that certain of the protective rules of IHL, such as combatant immunity and prisoner of war (POW) status, remain inapplicable in non-international armed conflicts.Footnote 139 Consequently, the government is able to treat non-State fighters as common criminals and prosecute them for their mere participation in hostilities.Footnote 140 There is, therefore, not only an incentive for States to advocate an ‘IHL model’ for the regulation of non-international armed conflicts, and to argue that the permissive aspects of that regime then become the governing standards, but there also remains a significant advantage for States in preserving the distinction between international and non-international conflicts with regard to many of the protective rules.
This tendency to differentiate between the permissive and protective aspects of IHL can be seen in US detention practices in the context of its conflict with al-Qaeda.Footnote 141 Here, the US has referred to a general ‘law of war’ right to detain enemy fighters in any armed conflict for the duration of hostilities.Footnote 142 It is true that the law of international armed conflict explicitly authorizes the internment of both enemy forces as POWs for the duration of hostilities,Footnote 143 as well as enemy civilians for so long as they pose such a threat to State security as to necessitate internment.Footnote 144 This power of internment is intimately tied up with the relative statuses recognized by the law of international armed conflict.Footnote 145 However, IHL applicable in non-international armed conflicts neither confers a legal basis to intern nor regulates internment as such; these matters are instead left to domestic law (and IHRL).Footnote 146 Given this absence of regulation in IHL, the US draws on what it sees as ‘principles’ of the law of international armed conflict governing internment and extends these to non-international armed conflicts.Footnote 147 Importantly, however, this practice of analogizing to the law of international armed conflict seems only to extend to the permissive rules of IHL; in particular, although the US argues that it may detain enemy fighters in its conflict with al-Qaeda (which, it was noted above, is treated by the US as a non-international armed conflict) on the same basis as combatants in international armed conflicts, it does not suggest that such fighters might be entitled to the protections afforded to combatants and POWs.Footnote 148
This approach, therefore, seeks the elimination of the distinction between international and non-international armed conflicts with regard only to the permissive rules of IHL (those granting to States certain powers which would not be permitted in peacetime), whilst preserving the distinction for the purpose of the protective rules (those that limit the power of States). Insofar as IHL applicable in international armed conflicts is concerned, such a development would profoundly alter the structure of that regime, which premises the applicability of its permissive rules and protective rules on status: either one is a combatant, and thus subject to internment as a POW and protected by the large number of rules governing POW treatment in GCIII, or one is a civilian, and can only be interned where GCIV applies and where the conditions found therein governing civilian internment are met; where one is so detainable under GCIV, one necessarily enjoys the protections afforded by that treaty.Footnote 149 The right to detain under IHL thus flows from the initial fact that the relevant Convention, with its permissive and protective rules, applies to the individual in question. Drawing solely from the permissive rules applicable in international armed conflicts and applying these by analogy to non-international conflicts without the corresponding protective rules distorts this status-based structure and could result in false positives, given the absence of objectively identifiable ‘combatants’ who could be targeted and/or interned on the basis of their status alone.Footnote 150
Importantly, extending the permissive rules of IHL to non-international conflicts without the corresponding protective rules is, in fact, precisely the opposite approach which historically has been taken in developing the law of non-international armed conflict. As Sandesh Sivakumaran notes, ‘the law of non-international armed conflict does not provide the parties to the conflict with a right to undertake certain actions. Rather, it prohibits certain actions and regulates other conduct should the parties choose to engage in particular endeavours'.Footnote 151 Thus, whilst IHL applicable in non-international conflicts recognizes, for example, that the parties to a conflict will intern and use lethal force, it does not provide a legal basis for such actions; rather, it merely accepts that they occur and, without prohibiting, seeks to regulate them.Footnote 152 This is, of course, reflective of the nature of IHL as a legal regime, which regulates all aspects of armed conflict without affecting its legality as a matter of the ius ad bellum. Footnote 153 Any legal bases for particular actions, such as detention, in non-international armed conflicts must, therefore, come from another source, principally domestic law. Indeed, the reason for this is clear: given that IHL applies equally to all parties to a non-international armed conflict,Footnote 154 were IHL to provide legal authority to detain in such situations, for example, that legal authority would (presumably) apply equally to non-State armed groups, a result which States have consistently refused to accept.Footnote 155 The practice referred to above of drawing on permissive rules of IHL to the exclusion of protective rules is entirely at odds with the way in which the law of non-international armed conflict has, thus far, developed.
Before concluding, it must be noted that the approaches explored in this section are very closely related to the debate on the existence of a third category of persons in IHL, alongside those of combatant and civilian. It was the view of the Bush Administration that non-State fighters in its conflict with al-Qaeda constituted ‘unlawful/enemy combatants’, targetable and detainable on the same basis as combatants under the law of international armed conflict and yet not entitled to combatant or POW status.Footnote 156 This view has been heavily criticized for both its legal and ethical shortcomings.Footnote 157 Indeed, State practice, much of which has been in response to US detentions, similarly confirms the non-existence of this alleged third category.Footnote 158 Thus, as Emily Crawford notes, ‘[g]iven the almost uniform resistance to US attempts to proclaim a “Geneva” status of “unlawful enemy combatant”, it is doubtful such a legal category exists’.Footnote 159 Although the Obama Administration has rejected the designation ‘unlawful/enemy combatant’, it appears to remain the US' approach to extend the permissive rules on detention in international armed conflicts to its conflict with al-Qaeda, whilst excluding the protective rules.Footnote 160
C. Conclusions on the Two Schools of Thought
The above sections have demonstrated how the development of IHRL has encouraged the emergence of two schools of thought on the law of non-international armed conflict. Section IIIA illustrated how those seeking the highest level of protection of victims of such conflicts no longer advocate eliminating the distinction in IHL between types of conflict but instead seek to apply the more protective rules of IHRL to govern particular conduct in these situations; indeed, these arguments rely on the preservation of what remains of the distinction between the two categories of armed conflict so as to avoid lex specialis-based arguments leading to the more permissive IHL rules undermining otherwise applicable human rights standards. Section IIIB then explored a second school of thought that has emerged in light of the application of IHRL to armed conflicts. This school takes the view that IHL is the more suitable body of law for regulating non-international conflicts. Moreover, whilst those in this school analogize to the rules applicable in international armed conflicts, section IIIB focused on those that do so with regard only to the permissive rules of IHL, preserving the legal distinction between types of conflict for the purposes of certain protective rules. Notwithstanding the difference between these two schools of thought, both rely in part on the preservation of IHL's distinction between international and non-international conflicts.
This recent influence of IHRL is clearly at odds with its influence discussed in section II, where it was shown that historically IHRL had encouraged the gradual elimination of the distinction in IHL. This changing influence of IHRL is explained by the context surrounding the various developments in the law of non-international armed conflict. Thus, as explained at the outset, classical international law concerned itself principally with inter-State relations, with internal matters, including civil wars, generally being excluded. This was reflected in the debates leading to the adoption of common Article 3, the latter provision transgressing this traditionally restricted focus of public international law. The emerging international human rights norms at this time, also reflecting the move beyond primarily inter-State matters, were too embryonic for any serious debate to be had on their applicability during armed conflict.Footnote 161 In consequence, the manner in which these developments in IHRL were invoked was generally limited to their use as evidence of the consolidation of intra-State structures of obligation into international law, thereby undermining the historical basis for the marginalization of non-international conflicts in IHL. It followed that many of the rules applicable in international armed conflicts could then be extended to their non-international counterparts, thus reducing the effects of the distinction in IHL.
As IHRL developed, however, the context changed, with a consensus emerging that the human rights obligations of States continue to apply in situations of armed conflict, especially non-international conflicts. With this changing context, IHRL could now be invoked as a direct source of rules for the regulation of non-international armed conflicts, and their more protective nature meant that those that had long argued for the better protection of victims of internal conflicts could now call for the exclusive application of this body of rules. Importantly, to avoid claims that these higher standards of IHRL were displaced by IHL, the general distinction between categories of conflict had to be preserved. At the same time, however, the emerging consensus regarding the continued applicability of IHRL in times of armed conflict has led others to argue in favour of the exclusive regulation of non-international conflicts by IHL as the lex specialis. Once again, many of those supporting this approach consider that IHL's distinction between categories of conflict should be preserved with regard to certain protective rules, including those granting combatant and POW status.
IV. CONCLUDING REMARKS
Whilst most accounts of the distinction between international and non-international armed conflict focus on the consequences of the distinction, this article has approached the subject from a different angle, constructing a narrative of its evolution within the context of the emergence of IHRL. By examining the development over time of IHL's distinction between categories of conflict, and considering its relationship to other developments in international law, it is hoped that this article has offered a richer understanding of this structural feature of IHL. In so doing, it has been made clear that the evolution of the bifurcation of armed conflict by IHL is closely linked with those debates regarding the relationship between that body of law and IHRL.
It is also hoped that this article has contributed to an understanding of some of the recent debates regarding the development of the law of non-international armed conflict, enabling us to move forward in this area. It was noted that the two schools of thought explored in section III are, in reality, extremes on the spectrum of possibilities for how the law of non-international armed conflict might now develop. Many authors fall between the two, arguing for an approach that draws on principles of both IHL and IHRL.Footnote 162 It is submitted that this is the correct approach to take, for any successful discussion of this issue must avoid the intractable IHRL/IHL-paradigm debate. Indeed, it was noted above that the default legal position under existing law (ie absent derogation and other possible means of reconciliation) must be that both IHL and IHRL obligations apply in parallel to the same facts; in order not to be in breach of any obligation, the State must then adhere to the more demanding standard (ie IHRL).Footnote 163 The present author has argued elsewhere that this current state of the law of non-international armed conflict should not be replaced with a new IHL treaty but should instead be built upon, relying on IHRL as the default legal framework regulating State actions, with the possibility of derogation where that framework becomes inappropriate based on the exigencies of the situation; where derogation does take place, a specially-developed IHL regime for non-international armed conflicts would then help to define the minimum standards below which no conduct may fall.Footnote 164 Such an IHL regime would also be necessary in order to address the lack of rules that would otherwise bind the non-State armed group party to the conflict.
In this sense, both IHL and IHRL have important roles to play in any future law of non-international armed conflict. The artificial boundaries established by legal categories such as ‘international armed conflict’, ‘non-international armed conflict’ and other ‘situations of internal disturbances and tensions’, should not be determinative of the applicable norms. Instead, the starting point might more usefully be conceived in terms of a consideration of how different situations (regardless of their legal characterization) might be regulated according to the highest standard of individual protection possible, which will involve a combination of rules drawn from both IHL and IHRL.
