Sivakumaran's ‘Law of Non-International Armed Conflict’: A Criminal Lawyer's Perspective

Abstract

One of the least clarified areas of international law is the legal regime applicable to non-international armed conflict (NIAC) – that is, where hostilities occur between state and non-state actors (NSAs) or between two or more NSAs.1 This can be explained by the reticence of states to grant legality to such movements and their preference to label them as criminal movements or terrorist groups.2 The result is that the regulation of NIAC is still limited to the application of Common Article 3 of the Geneva Conventions of 1949 (GCs) and their Additional Protocol II of 1977 (Additional Protocol II or AP II).3 While Common Article 3 provides only a rudimentary framework of minimum standards, Additional Protocol II, which usefully supplements it, is still less detailed than the rules governing international armed conflict (IAC). Moreover, in contrast to Common Article 3,4 it has not yet attained customary status.5 This situation is a source of concern. Faced with the horrors committed in NIACs such as those in Rwanda, Sierra Leone and Liberia in the 1990s, and the awareness of an inadequate legal framework, the international criminal law (ICL) community decided to resort to international human rights law (IHRL) and ICL to fill the gaps of international humanitarian law (IHL) applicable to NIAC.6