Non-International Armed Conflicts: Critical Reflections on the Adoption of Limited Rules and Multiple Descriptions

Armed conflicts not of an international character is a unique category, unlike international armed conflicts, in the sense that states consider it an internal matter and prefer to treat it as a law-enforcement situation. Under the laws of armed conflict, states are reluctant to confer the status of combatant and prisoner-of-war to non-state actors. This posture of states has gone to the extent of adopting different rules of conduct on international level in respect of international and non-international armed conflicts. On the other hand, states have recognized two categories of non-international armed conflicts in the Statute of International Criminal Court (Rome Statute) and two relevant lists of war crimes also. Taking into account the inferior legal treatment towards non-international armed conflicts, the author first seeks to investigate the drafting history of the Geneva Conventions of 1949 and critically explain how States agreed upon a smaller set of rules in the form of the Common Article 3 in respect of non-international armed conflicts, as compared to the detailed regulations with regard to international armed conflicts. Subsequently, the author intends to examine the scope and impact of multiple descriptions of non-international armed conflicts in the Common Article 3, the Additional Protocol II and the Rome Statute. The paper thus seeks to emphasize that the formulation of different clauses is not only absurd and illogical, but also creates gap in the protection of victims and prosecuting the war criminals of non-international armed conflicts. For this purpose, the author follows historical methodology and mainly relies on primary sources and, in some cases, secondary materials too.