By Mahasweta Muthusubbarayan
One of the obvious consequences of the World Wars has been the growth of a corpus of international laws, rules and norms governing the conduct of warfare and the treatment of prisoners and victims of war. It has always been a failure of international law that it did not sufficiently address intra-nation conflicts or civil wars. Moreover, it has never placed human rights violations and atrocities committed during such wars on the same footing as those committed during wars between nations. Perhaps, this is the reason why the depravities committed during civil wars are never effectively punished, even in the 21st century, and why countries are mere spectators of the brutality of the conflicts currently raging in the Middle East.
Non-international armed conflicts
In common parlance, a civil war denotes an intra-State conflict, or more aptly, armed fighting between various organised factions within the same State. It usually happens for purposes like ushering in a change in regime or government policies, promoting ideological agendas, the welfare of an identity group and equitable access to resources, etc. Civil wars do not include wars of independence or national liberation and generally involve government militia fighting rebellious elements. International law labels civil wars legalistically as non-international armed conflicts. Since the cold war, such conflicts have dominated the international arena and have become more frequent, especially in the Middle East and Africa, after the Arab Springs movement. Syria and Yemen are the centres of focus right now as they represent stages of massive humanitarian crises. Extremely violent civil wars provoke destabilisation beyond the borders of a State owing to large-scale displacement of people and a shortage of resources, thereby endangering international peace and security. The present international regime is not clear on how to deal with civil wars, as the UN Charter has created express obligations to resolve only inter-State disputes peacefully.
Distinction between human rights law and international humanitarian law
In order to preserve the element of humanity in times of armed conflict, there are two branches of law known as human rights law and international humanitarian law. The difference between these is that human rights law guarantees basic rights for a fulfilling and dignified life and operates both in times of war and peace, while international humanitarian law operates only during times of conflict and provides for different levels of protection depending on whether the conflict is trans-national or internal. Although international humanitarian law often entails a grey area where the domestic and international spheres overlap, it is the branch of law which serves as the most effective deterrent during times of armed conflict in punishing war crimes. The codified international humanitarian law pertaining to non-international armed conflicts is largely contained in the common Article 3 of the four Geneva Conventions of 1949 and Protocol II to the conventions, which was adopted in 1977. The reach of international law with regard to civil wars has been limited owing to the concept of sovereignty of individual States over their internal affairs and the refusal of States to provide belligerents with any kind of special recognition under international law under the garb of providing them with protection. However, the application of the Geneva Conventions and their protocols does not have any effect on the legal status of the parties to the conflict.
Horizontal and vertical application of the Geneva Conventions
The Geneva Conventions impose both horizontal and vertical obligations during civil wars. Apart from the obligation on the State and the insurgents to protect non-combatant civilians (the vertical obligation), there is also a corresponding horizontal obligation between conflicting parties which imposes equal responsibilities under the Conventions on rebels, non-State actors and individuals. Further, common Article 1 of the Conventions mandates all nations to ensure respect for the principles of the Convention. This has sometimes been construed as meaning that even third States are obliged to intervene in cases of massive humanitarian violations during internal conflicts, although views are divided on this point.
Common Article 3 and Additional Protocol II of the Geneva Conventions
Article 3 laid down bare minimum humanitarian principles which were to be supplemented by rules adopted by special agreements between warring parties. Protocol II provided rules for the conduct of hostilities so that non-combatants and civilians were protected. Article 3 requires that persons taking no active part in hostilities (including combatants who have laid down their arms for whatever reason) must be treated humanely, without any adverse discrimination founded on race, religion, sex, etc. Non-combatants are guaranteed life, dignity, and integrity, and are protected from murder, mutilation, torture, sentencing and execution without judicial trial, etc. The wounded and the sick are to be cared for and humanitarian organisations are free to service the parties to the conflict. Protocol II prohibits collective punishment, terrorism, enslavement, use of minors in hostilities, damage of medical units and punishment of medical personnel, acts of violence intended to terrorise civilians, damage and destruction of civil infrastructure. It also lays down standards for humane treatment of detained insurgents and application of criminal laws.
No proof of intention or prior deliberate planning is needed to attract penalties. However, Article 3 does away with the supervision of neutral protecting powers applicable in the case of international conflicts. The application of Protocol II is narrower than the common Article 3 and is dependent on control of territory by insurgents and their ability to apply the provisions. Nonetheless, Protocol II contains a Martens clause which means that even acts not covered by the law can be punished for violating humanity and public conscience.
In order to ensure that there was something more than mere good faith to ensure compliance, the Rome Statute gave the International Criminal Court the jurisdiction to try commission of war crimes in both internal and international conflicts. The Geneva Conventions aim at enforcement of penalties at a national level but do not exclude the jurisdiction of international ad-hoc tribunals.
Grave breaches and the concept of universal jurisdiction
The Geneva Conventions contain certain provisions, the violation of which are considered to be grave breaches, meaning that offences listed under these provisions would entail individual criminal responsibility along with State responsibility, and the State parties should either prosecute or extradite the offenders. These grave breaches are traditionally known as war crimes and relate only to international armed conflicts. Earlier jurisprudence held that common Article 3 and Protocol II do not fall under grave breaches, and therefore, do not entail individual criminal responsibility in non-international conflicts. This position was largely overturned after the constitution of the ad-hoc international tribunal to try the atrocities committed in Rwanda during a non-international armed conflict. The criminal element inherent in violations of common Article 3 and Protocol II was later recognised by countries like the US and Germany. These developments paved the way for nations to exercise universal jurisdiction with regard to offences committed under these provisions. Universal jurisdiction means that any State can prosecute an offender for certain crimes which are so heinous that they shock the collective conscience of the international community, even when there is no link between the crime and the prosecuting State. Although treaty law does not recognise universal jurisdiction with respect to war crimes committed during non-international armed conflicts, the customary international law does, albeit not as a mandatory or serious obligation.
Is the existing law sufficient to regulate civil wars?
In the Nicaragua case, the International Court of Justice recognised the customary law character of common Article 3 and Protocol II. This means that the problem of adherence of a State to a particular Convention by virtue of being a non-signatory does not arise, as customary law is binding on all States. So, the fact that international law does not treat civil wars on the same level as international wars is not much of a problem. The real problem in international prosecutions of civil-war crimes is the lack of political will and evidence. The international tribunals constituted for Yugoslavia and Rwanda indicated a hardening instance with regard to the law on civil wars, yet the international community struggles to stop the atrocities committed in the Middle East nations as the law only provides for prosecutions after the conflict is over. Even the UN Charter indirectly allows international intervention only where a civil conflict goes to the extent of having large-scale trans-national ramifications. The biggest drawback is that international law does not provide for punishment for States which fight proxy power wars in countries through rebel groups, arming them with weapons, resources and training.
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