By A. P. V. Rogers
Treaties on the laws of war were developed to deal with wars between States, not civil wars (or internal armed conflicts as they are now known). They only applied to the latter in the unlikely event that the belligerent status of the insurgents was recognized. It was not until after World War II that treaties started to include some provisions on internal armed conflicts to ensure some protection for the victims of those conflicts.
It is never easy to determine when a violent confrontation within a State goes beyond the realms of domestic criminal law and becomes an armed conflict to which international law applies. This is especially the case as the State will be reluctant to admit that it does not have the situation under control, yet dissidents will be quick to claim that theirs is a cause of international concern.
Assuming that threshold is crossed, the international legal rules governing internal armed conflicts are much less developed than those applying to armed conflicts between States. The rules are to be found in basic customary law principles and in Common Article 3 of the 1949 Geneva Conventions. Additionally, certain fundamental (known as “non-derogable”) principles of human rights law provide protection for the victims of these conflicts. If dissident forces exercise sufficient control over part of the State’s territory as to enable them to carry out sustained and concerted military operations and comply with their obligations under it, Protocol II of 1977 also applies.
The following are the most important rules that apply to all parties to internal armed conflicts:
1. All combat activity must be justified on military grounds; activity that is not militarily necessary is prohibited.
2. Attacks may be directed only against objects that make a contribution to the enemy’s military effort and hence are of tactical or strategic importance. Incidental loss and damage must be minimized.
3. A distinction must always be made between combatants, who may take a direct part in hostilities and be attacked themselves, and noncombatants, who may not take a direct part in hostilities and may not be attacked or used as shields.
4. Noncombatants and their property must be spared as far as possible from the incidental effects of military operations. Stealing is an offense in war as in peace.
5. Prisoner of war status does not arise in internal armed conflict. Captured persons can be tried under the law of the State where the internal armed conflict is going on for any offenses they may have committed against that law. They have the protections listed in paragraph 6 and under human rights law. Sentences may only be carried out after a proper trial by a properly constituted court.
6. Persons who take no active part in hostilities (noncombatants, captured persons, the wounded, sick, and shipwrecked) are to be treated humanely and equally, irrespective of race, color, religion, sex, wealth, etc. That means there must be no murder, mutilation, cruel treatment, torture, rape, sexual assault, or other outrages on personal dignity, or humiliating or degrading treatment.
7. Hostage taking is prohibited.
8. Starvation of noncombatants as a method of warfare is prohibited.
9. The wounded, sick, and shipwrecked must be collected and cared for.
10. Although it may be necessary to evacuate noncombatants from areas of danger, it is prohibited to move them for discriminatory reasons or to shield military targets from attack.
In internal armed conflicts to which Protocol II applies, the above rules are supplemented by more detailed provisions on the protection of the civilian population, especially children, the treatment of detainees, and the conduct of criminal prosecutions.