The Principle of Distinction in an International Armed Conflict: Organized Armed Groups Not Belonging to a State Party to the Conflict

Talitha Ramphal

doi:doi:10.11648/j.ijls.20210404.15

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The Principle of Distinction in an International Armed Conflict: Organized Armed Groups Not Belonging to a State Party to the Conflict

Talitha Ramphal

Published in International Journal of Law and Society (Volume 4, Issue 4)

Received: 10 October 2021 Accepted: 11 November 2021 Published: 23 November 2021

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Abstract

The classification of Non-State Organized Armed Groups participating in a mere International Armed Conflict (IAC) could be troublesome, especially in the absence of a co-existing Non-International Armed Conflict (NIAC). Since this situation is not simply covered by the Geneva Conventions. Under the current legal framework of IHL, an Organized Armed Group classifies as armed forces in an IAC if it belongs to a State Party to the conflict. If not, the Organized Armed Group cannot be considered as armed forces as specified in Article 43 of Additional Protocol I to the Geneva Conventions and may as a result be classified as civilians. This differs from NIACs in which Non-State Organized Armed Groups are considered as armed forces as specified in Common Article 3. In the absence of a co-existent NIAC, the classification is contingent on how the Non-State Organized Armed Group fits in the IAC. This article argues that on the basis of international bodies of law such as the Geneva Conventions, Non-State Organized Armed Groups taking part in a mere IAC should not be considered as taking part in a NIAC, nor should they be classified as civilians taking continuously direct part in hostilities, and lastly nor should they be treated as armed forces as defined in Article 43 (1) of Additional Protocol I to the Geneva Conventions. Rather, the article concludes that Organized Armed Groups taking place in an IAC are classified as armed forces as provided in Common Article 3 and is therefore, also governed by what is known as the ‘mini-convention’ provided in Common Article 3 under customary international law.

Published in	International Journal of Law and Society (Volume 4, Issue 4)
DOI	10.11648/j.ijls.20210404.15
Page(s)	275-279
Creative Commons	This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited.
Copyright	Copyright © The Author(s), 2021. Published by Science Publishing Group

Keywords

International Armed Conflict, Non-state Organized Armed Groups, Common Article 3, Principle of Distinction

References

[1]	Cf. Prosecutor v Lubanga Dyilo (Judgment) ICC-01/04-01/06 (14 March 2012), para. 540; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment. I. C. J. Reports 1986, p. 14, p. 114, para. 219.
[2]	See e.g. M. Milanovic, ‘Chapter 2: The Applicability of the Conventions to ‘Transnational’ and ‘Mixed’ Conflicts’ in: A. Claphan, P. Gaeta, M. Sassoli, et al (eds), The 1949 Geneva Conventions: A Commentary (OUP, Oxford, 2015).
[3]	N. Melzer, Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, Geneva: International Committee of the Red Cross 2009, p. 24.
[4]	International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3.
[5]	See e.g. The Public Committee Against Torture in Israel v. The Government of Israel (2006) HCJ 769/02 (Targeted Killings case).
[6]	ICTY, Prosecutor v. Dusko Tadic a/k/a "DULE", Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 70.
[7]	See article 51 (3) of Additional Protocol I.
[8]	See e.g. ICRC ‘Rule 1. The Principle of Distinction between Civilians and Combatants’, , accessed on 10 January 2021; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I. C. J. Reports 1996, p. 226.
[9]	Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1. C. J. Reports 1996, p. 226, at p. 257, para. 78-79.
[10]	Article 4 (A) (1) of International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 UNTS 135.
[11]	Article 4 (A) (2) of the Third Geneva Convention.
[12]	Article 4 (A) (3) of the Third Geneva Convention.
[13]	Article 43 of Additional Protocol 1 to the Geneva Conventions.
[14]	Ibid. See also Rule 4 in the ICRC IHL Database Customary IHL < https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule4>, accessed 11 October 2021.
[15]	See also N. Melzer, Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, Geneva: International Committee of the Red Cross 2009, p. 22.
[16]	M. N. Schmitt, ‘The Interpretative Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis’, Harvard National Security Journal 2010, vol. 1, 5., p. 20.
[17]	Art. 51 (3) Additional Protocol I and Art. 13 (3) of International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609.
[18]	See N. Melzer, Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, Geneva: International Committee of the Red Cross 2009.
[19]	The Public Committee Against Torture in Israel v. The Government of Israel (2006) HCJ 769/02 (Targeted Killings case), para. 25.
[20]	The Public Committee Against Torture in Israel v. The Government of Israel (2006) HCJ 769/02 (Targeted Killings case), para. 39.
[21]	ICRC, ‘Practice relating to Rule 1. The Principle of Distinction between Civilians and Combatants’, , accessed 10 January 2021.
[22]	See also Rule 4 in the ICRC IHL Database Customary IHL < https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule4>, accessed 11 October 2021.
[23]	See also N. Melzer, ‘Keeping the Balance between Military Necessity and Humanity: A Response to Four Critiques of the ICRC’s Interpretative Guidance on the Notion of Direct Participation in Hostilities’, N. Y. U. Journal of International Law & Politics 2010, vol. 42, 831, p. 844.
[24]	The ICTY adopts that ‘some degree of organization’ is necessary (Prosecutor v. Tadic, Appeals Chamber, ICTY (Case No IT-94-1-A), para 120; Prosecutor v Limaj, Trial Chamber II, ICTY (Case No IT-03-66-T, para. 89; Prosecutor v Boskoski, Judgment, Trial Chamber, ICTY (Case No IT-04-82-T) 10 July 2008, para. 195), while the ICC ruled that under the ICC Statute there must be a sufficient degree of organization (Lubanga Dyilo, ICC-01/04-01/06, para 536; Bemba Gombo, ICC-01/05-01/08, para 134).
[25]	Prosecutor v Ramush Haradinaj et al., Trial Chamber I, ICTY (Case No. IT-04-84-T), para. 60; Boskoski para 198. See also Ntaganda, Decision on the Prosecutor’s Application under Article 58, 13 July 2012, Pre-Trial Chamber II, ICC-01/04-02/06, ICC, para 49.
[26]	See also, Prosecutor v. Tadic, Appeals Chamber, ICTY (Case No IT-94-1-A), para 120. See also Prosecutor v Boskoski, Judgment, Trial Chamber, ICTY (Case No IT-04-82-T) 10 July 2008, para 197.
[27]	Prosecutor v Ramush Haradinaj et al., Trial Chamber I, ICTY (Case No. IT-04-84-T), para. 60.
[28]	ICRC, Fourth Expert Meeting on the Notion of Direct Participation in Hostilities Summary Report, November 2006, p. 18.
[29]	Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment. I. C. J. Reports 1986, p. 14, at p. 113-114, paras. 218-219.

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Talitha Ramphal. (2021). The Principle of Distinction in an International Armed Conflict: Organized Armed Groups Not Belonging to a State Party to the Conflict. International Journal of Law and Society, 4(4), 275-279. https://doi.org/10.11648/j.ijls.20210404.15

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Talitha Ramphal. The Principle of Distinction in an International Armed Conflict: Organized Armed Groups Not Belonging to a State Party to the Conflict. Int. J. Law Soc. 2021, 4(4), 275-279. doi: 10.11648/j.ijls.20210404.15

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Talitha Ramphal. The Principle of Distinction in an International Armed Conflict: Organized Armed Groups Not Belonging to a State Party to the Conflict. Int J Law Soc. 2021;4(4):275-279. doi: 10.11648/j.ijls.20210404.15

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@article{10.11648/j.ijls.20210404.15,
  author = {Talitha Ramphal},
  title = {The Principle of Distinction in an International Armed Conflict: Organized Armed Groups Not Belonging to a State Party to the Conflict},
  journal = {International Journal of Law and Society},
  volume = {4},
  number = {4},
  pages = {275-279},
  doi = {10.11648/j.ijls.20210404.15},
  url = {https://doi.org/10.11648/j.ijls.20210404.15},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20210404.15},
  abstract = {The classification of Non-State Organized Armed Groups participating in a mere International Armed Conflict (IAC) could be troublesome, especially in the absence of a co-existing Non-International Armed Conflict (NIAC). Since this situation is not simply covered by the Geneva Conventions. Under the current legal framework of IHL, an Organized Armed Group classifies as armed forces in an IAC if it belongs to a State Party to the conflict. If not, the Organized Armed Group cannot be considered as armed forces as specified in Article 43 of Additional Protocol I to the Geneva Conventions and may as a result be classified as civilians. This differs from NIACs in which Non-State Organized Armed Groups are considered as armed forces as specified in Common Article 3. In the absence of a co-existent NIAC, the classification is contingent on how the Non-State Organized Armed Group fits in the IAC. This article argues that on the basis of international bodies of law such as the Geneva Conventions, Non-State Organized Armed Groups taking part in a mere IAC should not be considered as taking part in a NIAC, nor should they be classified as civilians taking continuously direct part in hostilities, and lastly nor should they be treated as armed forces as defined in Article 43 (1) of Additional Protocol I to the Geneva Conventions. Rather, the article concludes that Organized Armed Groups taking place in an IAC are classified as armed forces as provided in Common Article 3 and is therefore, also governed by what is known as the ‘mini-convention’ provided in Common Article 3 under customary international law.},
 year = {2021}
}

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Y1  - 2021/11/23
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AB  - The classification of Non-State Organized Armed Groups participating in a mere International Armed Conflict (IAC) could be troublesome, especially in the absence of a co-existing Non-International Armed Conflict (NIAC). Since this situation is not simply covered by the Geneva Conventions. Under the current legal framework of IHL, an Organized Armed Group classifies as armed forces in an IAC if it belongs to a State Party to the conflict. If not, the Organized Armed Group cannot be considered as armed forces as specified in Article 43 of Additional Protocol I to the Geneva Conventions and may as a result be classified as civilians. This differs from NIACs in which Non-State Organized Armed Groups are considered as armed forces as specified in Common Article 3. In the absence of a co-existent NIAC, the classification is contingent on how the Non-State Organized Armed Group fits in the IAC. This article argues that on the basis of international bodies of law such as the Geneva Conventions, Non-State Organized Armed Groups taking part in a mere IAC should not be considered as taking part in a NIAC, nor should they be classified as civilians taking continuously direct part in hostilities, and lastly nor should they be treated as armed forces as defined in Article 43 (1) of Additional Protocol I to the Geneva Conventions. Rather, the article concludes that Organized Armed Groups taking place in an IAC are classified as armed forces as provided in Common Article 3 and is therefore, also governed by what is known as the ‘mini-convention’ provided in Common Article 3 under customary international law.
VL  - 4
IS  - 4
ER  -

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Author Information

Talitha Ramphal

Conway & Partners, Rotterdam, The Netherlands

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APA Style

Talitha Ramphal. (2021). The Principle of Distinction in an International Armed Conflict: Organized Armed Groups Not Belonging to a State Party to the Conflict. International Journal of Law and Society, 4(4), 275-279. https://doi.org/10.11648/j.ijls.20210404.15

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ACS Style

Talitha Ramphal. The Principle of Distinction in an International Armed Conflict: Organized Armed Groups Not Belonging to a State Party to the Conflict. Int. J. Law Soc. 2021, 4(4), 275-279. doi: 10.11648/j.ijls.20210404.15

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Talitha Ramphal. The Principle of Distinction in an International Armed Conflict: Organized Armed Groups Not Belonging to a State Party to the Conflict. Int J Law Soc. 2021;4(4):275-279. doi: 10.11648/j.ijls.20210404.15

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@article{10.11648/j.ijls.20210404.15,
  author = {Talitha Ramphal},
  title = {The Principle of Distinction in an International Armed Conflict: Organized Armed Groups Not Belonging to a State Party to the Conflict},
  journal = {International Journal of Law and Society},
  volume = {4},
  number = {4},
  pages = {275-279},
  doi = {10.11648/j.ijls.20210404.15},
  url = {https://doi.org/10.11648/j.ijls.20210404.15},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20210404.15},
  abstract = {The classification of Non-State Organized Armed Groups participating in a mere International Armed Conflict (IAC) could be troublesome, especially in the absence of a co-existing Non-International Armed Conflict (NIAC). Since this situation is not simply covered by the Geneva Conventions. Under the current legal framework of IHL, an Organized Armed Group classifies as armed forces in an IAC if it belongs to a State Party to the conflict. If not, the Organized Armed Group cannot be considered as armed forces as specified in Article 43 of Additional Protocol I to the Geneva Conventions and may as a result be classified as civilians. This differs from NIACs in which Non-State Organized Armed Groups are considered as armed forces as specified in Common Article 3. In the absence of a co-existent NIAC, the classification is contingent on how the Non-State Organized Armed Group fits in the IAC. This article argues that on the basis of international bodies of law such as the Geneva Conventions, Non-State Organized Armed Groups taking part in a mere IAC should not be considered as taking part in a NIAC, nor should they be classified as civilians taking continuously direct part in hostilities, and lastly nor should they be treated as armed forces as defined in Article 43 (1) of Additional Protocol I to the Geneva Conventions. Rather, the article concludes that Organized Armed Groups taking place in an IAC are classified as armed forces as provided in Common Article 3 and is therefore, also governed by what is known as the ‘mini-convention’ provided in Common Article 3 under customary international law.},
 year = {2021}
}

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TY  - JOUR
T1  - The Principle of Distinction in an International Armed Conflict: Organized Armed Groups Not Belonging to a State Party to the Conflict
AU  - Talitha Ramphal
Y1  - 2021/11/23
PY  - 2021
N1  - https://doi.org/10.11648/j.ijls.20210404.15
DO  - 10.11648/j.ijls.20210404.15
T2  - International Journal of Law and Society
JF  - International Journal of Law and Society
JO  - International Journal of Law and Society
SP  - 275
EP  - 279
PB  - Science Publishing Group
SN  - 2640-1908
UR  - https://doi.org/10.11648/j.ijls.20210404.15
AB  - The classification of Non-State Organized Armed Groups participating in a mere International Armed Conflict (IAC) could be troublesome, especially in the absence of a co-existing Non-International Armed Conflict (NIAC). Since this situation is not simply covered by the Geneva Conventions. Under the current legal framework of IHL, an Organized Armed Group classifies as armed forces in an IAC if it belongs to a State Party to the conflict. If not, the Organized Armed Group cannot be considered as armed forces as specified in Article 43 of Additional Protocol I to the Geneva Conventions and may as a result be classified as civilians. This differs from NIACs in which Non-State Organized Armed Groups are considered as armed forces as specified in Common Article 3. In the absence of a co-existent NIAC, the classification is contingent on how the Non-State Organized Armed Group fits in the IAC. This article argues that on the basis of international bodies of law such as the Geneva Conventions, Non-State Organized Armed Groups taking part in a mere IAC should not be considered as taking part in a NIAC, nor should they be classified as civilians taking continuously direct part in hostilities, and lastly nor should they be treated as armed forces as defined in Article 43 (1) of Additional Protocol I to the Geneva Conventions. Rather, the article concludes that Organized Armed Groups taking place in an IAC are classified as armed forces as provided in Common Article 3 and is therefore, also governed by what is known as the ‘mini-convention’ provided in Common Article 3 under customary international law.
VL  - 4
IS  - 4
ER  -

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