"First, a
non-international armed conflict is distinct from an
international armed conflict because of the legal
status of the parties opposing each other; the
parties to the conflict are not sovereign States, but
the government of a single State in conflict with one
or more armed factions within its territory.
It is therefore appropriate
to raise the question whether all forms of violent
opposition to a government, from simple localized
rioting to a general confrontation with all the
characteristics of a war, can be considered as
non-international armed conflicts.
The expression "armed
conflict" gives an important indication in this
respect since it introduces a material criterion: the
existence of open hostilities between armed forces
which are organized to a greater or lesser degree.
Internal disturbances, characterized by isolated or
sporadic acts of violence, do not therefore
constitute armed conflict in a legal sense, even if
the government is forced to resort to police forces
or even to armed units for the purpose of restoring
law and order. Within these limits, non-international
armed conflict seems to be a situation in which
hostilities break out between armed forces or
organized armed groups within the territory of a
single State. Insurgents fighting against the
established order would normally seek to overthrow
the government in power or alternatively to bring
about a secession so as to set up a new State."
Through this explanation, the
Commentary illustrates the collective character of the
confrontation between forces, which cannot consist of
isolated individuals without co-ordination. Moreover, a
Sub-Group of the Working Group at the Conference of
Government Experts, which was established in 1971 to
consider the drafting of the new instruments to
supplement the Geneva Conventions, adopted three criteria
that had to be met on the side of the insurgents for the
recognition of the existence of an internal armed
conflict and these were indeed incorporated into the text
of article 1 of Protocol II.
(i) a responsible command;10
(ii) such control over part
of the territory11 as to enable them to carry out
sustained and concerted military operations;12 and
- According
to the
ICRC Commentary,
"[t]he existence of a responsible command
implies some degree of organization of the
insurgent armed group or dissident armed forces,
but this does not necessarily mean that there is
a hierarchical system of military organization
similar to that of regular armed forces. It means
an organization capable, on the one hand of
planning and carrying out sustained and concerted
military operations, and on the other, of
imposing discipline in the name of a de facto
authority."
- The
ICRC
Commentary states,
"In many conflicts there is considerable
movement in the theatre of hostilities; it often
happens that territorial control changes hands
rapidly. Sometimes domination of a territory will
be relative, for example, when urban centres
remain in government hands while rural areas
escape their authority. In practical terms, if
the insurgent armed groups are organized in
accordance with the requirements of the Protocol,
the extent of the territory they can claim to
control will be that which escapes the control of
the government armed forces. However, there must
be some degree of stability in the control of
even a modest area of land for them to be capable
of effectively applying the rules of the
Protocol."
- The ICRC Commentary states,
"Sustained" means that the operations
are kept going or kept up continuously. The
emphasis is therefore on continuity and
persistence. "Concerted" means agreed
upon, planned and contrived, done in agreement
according to a plan. Thus we are talking about
military operations conceived and planned by
organized armed groups."
|
