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Expanding the Borders of Common Article 3 in Non-International Armed Conflicts: Amending Its Geographical Application Through Subsequent Practice?

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Abstract

The geographic footprint of contemporary warfare often challenges the existing understanding of the term ‘non-international armed conflict’, a term not defined in international humanitarian treaty law. This article examines whether the opening lines of Common Article 3 of the Geneva Conventions include a geographical requirement. Controversy surrounds this question which until recently has received little attention. The customary interpretation of Common Article 3 is that it has a geographical scope of application limited to non-international armed conflicts which take place exclusively within the borders of a single member state (internal armed conflict). The 2016 ICRC Commentaries to the First Geneva Conventions challenges this traditional view and argues in favour of a broader interpretation of the scope of application of Common Article 3. This re-interpretation recently has gained traction in scholarship. The ICRC’s position serves as a possible solution to prevent a lacuna in humanitarian protection in situations where conflicts fit neither the understanding of ‘international armed conflict’ nor ‘internal armed conflict’. By evaluating the merits of the arguments posed by the ICRC, the article assesses whether the phrase ‘conflict not of an international character’, as included in Common Article 3, conclusively limits its geographical application to an armed conflict occurring within the boundaries of a single state.

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Notes

  1. See Final Report on the Meaning of Armed Conflict in International Law, International Law Association: The Hague Conference: Use of Force (2010), p. 4. For a general discussion, see Fleck (2013), pp. 1201–1221.

  2. See e.g. Kress (2012), p. 145.

  3. Ibid., pp. 146–147. Kress identifies two such tracks attributed: first, to the Tadić case and, second, to the events following 9/11.

  4. Ibid.

  5. Ibid.

  6. See Schoberl (2015), p. 77. ‘Spill-over’ armed conflicts are defined as conflicts between armed forces and non-state armed groups or among non-state armed groups which spill over into the territory of a neighbouring state. Schmitt (2014), p. 11 defines ‘spill-over’ armed conflicts as conflicts ‘in which the government armed forces penetrate the territory of a neighbouring state in order to engage organized armed groups operating in border areas’.

  7. Schondorf (2004), p. 1. ‘Cross-border’ armed conflicts refer to conflicts in which states fight non-state groups operating from the territory of a neighbouring state without that neighbouring state exercising control over the non-state armed group.

  8. Kress (2010), p. 245 defines a transnational armed conflict as a ‘descriptive term for a phenomenon which may be defined as cross-border armed violence between a state and a (collective) non-state actor’.

  9. ICRC, ‘Commentary of 2016: Article 3: conflicts not of an international character’, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=59F6CDFA490736C1C1257F7D004BA0EC (accessed 23 November 2016).

  10. Ibid.

  11. Art. 3 is common to all four the Geneva Conventions listed in sequence: the 1949 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 UNTS 31; the 1949 Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 85; the 1949 Geneva Convention III Relative to the Treatment of Prisoners of War, 75 UNTS 135; and the 1949 Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287.

  12. Ibid.

  13. As has generally been accepted and, furthermore, confirmed by the ICJ in Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, ICJ Reports 1986, p. 14, at p. 103, para. 218, Common Art. 3 of the Geneva Conventions has acquired customary status.

  14. Moir (2003), p. 31.

  15. Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II, Section B, p. 42: ‘International law and conventions should apply when civil war was of such magnitude as to be full-scale war [emphasis added]’. See Pictet (1960), p. 36; Cullen (2010), p. 42. ‘The Report drawn up by the Joint Committee and presented to the Plenary Assembly interprets the term “armed conflict not of an international character” as having the same meaning as “civil war”. In explaining what was understood by “armed conflict not of an international character”, the report states that “it was clear this refers to civil war” […] This Report of the Joint Committee […] is referred to here only to highlight that the terms “civil war” and “armed conflict not of an international character” were understood as possessing equivalent thresholds. This is significant, as the concept of civil war presupposes the existence of hostilities of a scale and duration similar to that of an international conflict. Situations falling short of this level of intensity required to merit the recognition of belligerency and, hence, would not qualify for application of international humanitarian law [emphasis added]’. Compare Prosecutor v. Duško Tadić aka ‘Dule’, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-A, A.Ch, 19 July 1998, para. 70.

  16. See also Prosecutor v. Mile Mrkšić, Miroslav Radić, Veselin Šljivančanin, Trial Judgment, Case No. IT-95-13/1-T, T.Ch., 27 September 2007 for a confirmation of this test.

  17. See Tadić case, above n. 15; Prosecutor v. Boškoski and Tarčulovski, Trial Judgment, Case No. IT-04-82-T, T.Ch.II, 10 July 2008, para. 175; Prosecutor v. Ramush Haradinaj, Idriz Balaj, Lahi Brahimaj, Trial Judgment, Case No. IT-04-84-T, T.Ch.I, April 2008, para. 39; Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Thomas Lubanga Dyilo, Decision on the Confirmation of Charges, Case No. ICC-01/04-01/06, Pre Trial Chamber I, 29 January 2007, para. 538; Prosecutor v. Zejnil Delalić, Zdravko Mucić also known as ‘Pavo’, Hazim Delić, Esad Landžo also known as ‘Zenga’, Judgment, Case No. IT-96-21-T, T.Ch., 16 November 1998; Prosecutor v. Enver Hadžihasanović, Amir Kubara, Judgment, Case No. IT-01-47-T, T.Ch., 15 March 2006; Prosecutor v. Georges Anderson Nderubumwe Rutanganda, Judgment, Case No. ICTR-96-3-T, T.Ch.I, 6 December 1999, para. 93; Prosecutor v. Alfred Musema, Judgment and Sentence, Case No. ICTR-96-13-A, T.Ch.I., 27 January 2000, paras. 248–51; Prosecutor v. Jean-Paul Akayesu, Judgment, Case No. ICTR 96-4-T, T.Ch.I., 2 September 1998, para. 627.

  18. Ibid.

  19. Haradinaj case, above n. 17, para. 49; 2016 ICRC Commentaries, above n. 9, paras. 88–94. Para. 90 stipulates: ‘The duration of hostilities is thus appropriately considered to be an element of the assessment of the intensity of the armed confrontations. Depending on the circumstances, hostilities of only a brief duration may still reach the intensity level of a non-international armed conflict if, in a particular case, there are other indicators of hostilities of a sufficient intensity to require and justify such an assessment’.

  20. Final Record, above n. 15, paras. 44, 77. For a scholarly discussion of the Final Record of the Diplomatic Conference of Geneva of 1949 and the Pictet Commentaries in relation to Common Art. 3, see Cullen (2004), pp. 194–195.

  21. Boškoski case, above n. 17, paras. 199–203. See also n. 19.

  22. See Sivakumaran (2014), pp. 171–174 for an analysis of the organisational criterion.

  23. Pejic (2011), p. 202; Kress (2010), p. 245; Jinks (2003), p. 1; Sassòli (2006); Schmitt (2014), p. 1; Cullen (2005), p. 66; Arimatsu and Choudhury (2014), p. 1. See also 2016 ICRC Commentaries, above n. 9, paras. 88–94. Para. 90 stipulates that ‘[t]he duration of hostilities is thus appropriately considered to be an element of the assessment of the intensity of the armed confrontations. Depending on the circumstances, hostilities of only a brief duration may still reach the intensity level of a non-international armed conflict if, in a particular case, there are other indicators of hostilities of a sufficient intensity to require and justify such an assessment’.

  24. Ibid.

  25. An in-depth analysis of the consequences of what this situation would be defined as under international law falls outside the scope of the article. However, in terms of the traditional interpretation of Common Art. 3, such a situation would not be a non-international armed conflict.

  26. The intensity of the non-international armed conflict would not necessarily diminish once the border has been crossed, but such a possibility exists. This is possible, for example, if a small section of the state’s armed forces and a few members of the organised armed group belonging to the non-state party to the conflict cross the border and shots are fired outside the territory of the High Contracting Party, resulting in a negligible death toll. In such a case, arguably the conflict on the territory of the second state fails to meet the intensity requirement. However, it may over time become systematically more violent and could escalate to the extent that the intensity requirement is satisfied. It is only once the intensity requirement is met that Common Art. 3 will apply. On the other hand, it remains possible that the intensity of the fighting is continuously sustained before, during and after the crossing of the border. In essence, a new evaluation will be conducted regarding both the intensity and organisational requirements once the border of the High Contracting Party is crossed into foreign territory and, indeed, it can be that some time lapses before the fighting on the other side of the border satisfies these requirements, if ever.

  27. Geneva Conventions, above n. 11.

  28. International Committee of the Red Cross, ‘How is the term “armed conflict” defined in international humanitarian law?’, International Committee of the Red Cross (ICRC) Opinion Paper, March 2008, p. 5; Schmitt (2014), p. 9; Sassòli (2006), p. 9; Schondorf (2004), p. 78.

  29. This definition also is challenged by the conflict in Lebanon and the current armed conflict in Syria.

  30. 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, Art. 31(1). For an in-depth discussion of Art. 31(1), see Sorel and Bore Eveno (2011), pp. 804–837.

  31. Vienna Convention, above n. 30, Arts. 31(2) and 31(3). For an in-depth discussion of Art. 31, see Sorel and Bore Eveno (2011). In The MOX Plant case (Ireland v. The United Kingdom), Provisional Measures, Case No. 10 ITLOS, 3 December 2001, para. 51.

  32. Vienna Convention, above n. 30, Art. 32. For an in-depth discussion of Art. 32, see Le Bouthillier (2011), pp. 841–863.

  33. Kress (2012).

  34. Ibid.

  35. 2016 ICRC Commentaries, above n. 9, para. 105. ‘[T]raditionally non-international armed conflicts have predominantly been understood as armed conflicts against or between non-state armed groups within the confines of a state, in the sense of an “internal” armed conflict. However, that raises the question of whether the limitation to the territory of one state is a requirement for a non-international armed conflict in the sense of Common Article 3’.

  36. Geneva Conventions, above n. 11.

  37. See Sects. 2 and 3.1 of this article.

  38. Final Record, above n. 15.

  39. See Mikos-Skuza (2012), p. 19.

  40. 2016 ICRC Commentaries, above n. 9, paras. 105 and 115.

  41. See Sects. 2 and 3 of this article.

  42. Geneva Conventions, above n. 11.

  43. Ibid.

  44. Shaw (1982), p. 66. Land is understood as land permanently above the low-water mark.

  45. Brownlie (2008), p. 115. Territorial subsoil refers to the subsoil adjacent to the land belonging to the sovereign state.

  46. Brownlie (2008), p. 115; Boothby (2012), p. 328; Giemulla and Weber (2011), p. 6. When examining the term ‘airspace’, it is important to note that airspace extends both horizontally and vertically. International law has failed to provide a binding definition of the term ‘airspace’. Its vertical dimension, nevertheless, has traditionally been set at between 80 to 120 km above the earth’s surface. The Karman line, which establishes the boundary between the earth’s atmosphere and outer space at 100 km above sea level, also enjoys wide acceptance. The horizontal dimension refers to the state’s sovereign borders. This horizontal dimension of airspace refers to airspace adjacent to the land territory of the state and its internal water and territorial seas form part of the territory of the state.

  47. Brownlie (2008), p. 116. The legal concept ‘internal waters’ includes lakes and rivers included in the land territory of a state. Water on the landward side of baselines from which the territorial sea is considered internal water.

  48. Shaw (1982), p. 66.

  49. Ibid., p. 105.

  50. Branch (2011), p. 1.

  51. Shaw (1982), p. 61.

  52. Crawford (2007), p. 60.

  53. Geneva Conventions, above n. 11, Common Art. 3.

  54. Collins English Dictionary, HarperCollins, Glasgow 2015, p. 548.

  55. Geneva Conventions, above n. 11, Common Art. 3.

  56. Collins English Dictionary, above n. 54, p. 535.

  57. Ibid.

  58. Geneva Conventions, above n. 11, Common Art. 3.

  59. Final Record, above n. 15, p. 12.

  60. See Milanovic and Hadzi-Vidanovic (2013), p. 288, where they agree that ‘[t]here is little (if any) historical evidence that the drafters of the major IHL instruments had anything other than purely internal conflicts in mind when formulating the relevant provisions’.

  61. Ibid.

  62. Ibid.

  63. See Sect. 3.1 of this article for a discussion of this alternative reading and analysis of authors supporting this reading. Authors supporting this reading include Bellal (2015), p. 19; Gray (2012), p. 69; Jinks (2003), p. 1.

  64. Compare Final Record, above n. 15, p. 12.

  65. Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, http://www.refworld.org/docid/3ae6b3b04.html (accessed 19 October 2017).

  66. See Viljanen (2015); See also Tyrer v. The United Kingdom, Appl. No. 5856/72, ECtHR, 15 March 1978, http://www.refworld.org/cases,ECHR,402a2cae4.html (accessed 19 October 2017); Letsas (2010), pp. 518, 527; Matthews v. United Kingdom, Appl. No. 24833/94, 30 EHRR (1999) 361, para. 39; see discussion of Marckx v. Belgium, Appl. No. 6833/74, ECtHR, 13 June 1979, http://www.refworld.org/cases,ECHR,3ae6b7014.html (accessed 19 October 2017). In: Letsas (2010), pp. 529–530.

  67. Viljanen (2015); Letsas (2010), pp. 513, 518.

  68. Letsas (2010), pp. 513, 518, 540.

  69. Ibid.

  70. See Viljanen (2015); cf Letsas (2010), pp. 527–528.

  71. Letsas (2010), pp. 532, 538; Letsas (2013), p. 107.

  72. See discussion in Sect. 3.2 of this article.

  73. Cf. Letsas (2010), pp. 509–541.

  74. See Jaloud v. The Netherlands, Appl. No. 47708/08, ECtHR, 20 November 2014; Al-Jedda v. United Kingdom, Appl. No. 27021/08, ECtHR, 7 July 2011; Hassan v. United Kingdom, Appl. No. 29750/09 (2014). For a discussion of the interpretive approach followed by the European Court of Human Rights, see Honko (2016); Hailbronner (2016), pp. 339–364.

  75. Letsas (2013), p. 118, fn. 60.

  76. Geneva Conventions, above n. 11.

  77. 1977 Geneva Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflict, 1125 UNTS 609, Art. 1(2).

  78. Vienna Convention, above n. 30.

  79. Ibid., Art. 31(3)(a).

  80. Protocol II, above n. 77, Art. 1(1). ‘This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 […] [emphasis added]’. For a discussion of the drafting history of Additional Protocol II as well as an analysis of its content, see Moir (2003), pp. 89–132; Zegveld (2002), pp. 9–34. See Cassese (1981), p. 416.

  81. Emphasis added.

  82. Additional Protocol II, above n. 77, Preamble.

  83. Additional Protocol II, above n. 77. ‘This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of this territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol [emphasis added]’.

  84. Vienna Convention, above n. 30, Art. 31(3)(a): ‘There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the applications of its provisions […] [emphasis added]’.

  85. 2016 ICRC Commentaries, above n. 9.

  86. Nicaragua, above n. 13, p. 114; Cullen (2004), p. 193.

  87. 1998 The Rome Statute of the International Criminal Court, 2187 UNTS 90, Art. 8(2)(f) (emphasis added).

  88. Schmitt, Garraway and Dinstein (2006), para. 1.1.

  89. For scholarship supporting this interpretation, see Schmitt, Garraway and Dinstein (2006); Paust (2016), p. 46; The Joint Service Manual of the Law of Armed Conflict (United Kingdom), Joint Service Publication 383, 2004 edn., paras. 3.6 and 15.3; Australian Defence Doctrine: Law of Armed Conflict, The Executive Series ADDP 06.4 (2006), para. 1.52.

  90. Schondorf (2004), p. 3; Corn and Jensen (2000), p. 56.

  91. These states include the United States of America, Indonesia and France; see discussion at Sect. 3.2.1.

  92. 2016 ICRC Commentaries, above n. 9, paras. 102–132. See ICRC Opinion Paper, above n. 28, p. 5; Corn and Jensen (2000), p. 48, 69; Milanovic and Hadzi-Vidanovic (2013); Vite (2000), p. 69; Cullen (2004), p. 189; Kretzmer (2005), p. 171; Jinks (2003), p. 1; Schondorf (2004); Daskal (2013), p. 1165; Schoberl (2015).

  93. Ibid.

  94. 2016 ICRC Commentaries, above n. 9, para. 116.

  95. Schoberl (2015), p. 78; Schmitt (2014), p. 12; ICRC Opinion Paper, above n. 28, p. 5.

  96. Compare Corn and Jensen (2000), p. 56.

  97. Haque (2016); Arimatsu and Choudhury (2014), p. 1.

  98. Kress (2012), p. 165; Schondorf (2004), p. 36; Schoberl (2015), p. 69.

  99. See Kress (2012); Brooks (2004), p. 675; Schoberl (2015) p. 69; Jinks (2003). This conflict, however, originated as an international armed conflict which began shortly after 9/11 and has evolved into a non-international armed conflict fought on both the territory of Afghanistan and the bordering mountainous regions of Pakistan.

  100. 2016 ICRC Commentaries, above n. 9, para. 119.

  101. Sassòli (2006), p. 9.

  102. Milanovic and Hadzi-Vidanovic (2013), p. 290.

  103. Ibid.

  104. Pictet (1960), p. 50.

  105. Sassòli (2006), p. 9; Bartels (2009), pp. 60–61; Jinks (2003), p. 8; Milanovic and Hadzi-Vidanovic (2013), pp. 290–291.

  106. Ibid.

  107. Ibid.

  108. Watkin (2004), p. 8.

  109. Ibid.

  110. Ibid.

  111. See Pejic (2011), p. 203 who summarises the ‘gap theory’: ‘Despite the customary nature of the substantive provisions of Common Article 3, its territorial clause has given rise to what may be called the “gap theory”. According to proponents of this view, because there are no IHL treaty rules applicable to an armed conflict involving states and non-state armed groups with extraterritorial effect, such a conflict is either governed only by customary law, including Common Article 3; or would require the development of a new legal framework’.

  112. Ibid.

  113. Art. 8(2)(d) of the Rome Statute, above n. 87, determines that the International Criminal Court may exercise jurisdiction over the crimes listed in Art. 8(2)(c) of the Statute if such alleged war crimes have been committed in the context of an armed conflict not of an international character. The logical deduction from the inclusion of the phrase ‘armed conflict not of an international character’ in this provision is that it mimics the scope of application of Common Art. 3 determining that a Common Art. 3-type armed conflict should be in existence for Common Art. 3-type war crimes to be committed. Thus, if the scope of application is that of a Common Art. 3-type armed conflict, then the content of the term ‘organised armed group’ will be identical for both Common Art. 3 and Art. 8(2)(d) of the Rome Statute. Furthermore, the war crime provisions of the Rome Statute are said to be reflective of customary international law. United Nations Diplomatic Conference of Plenipotentiaries on the Rome on the Establishment of an International Criminal Court, 15 June–17 July 1998: Vol. II Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole, 247, paras. 108, 294; paras. 102–12, 169; para. 41, 277; paras. 44, 67; paras. 76, 161. See also Cullen (2004), pp. 193, 208; Art. 8(2)(f) of the Rome Statute determines the scope of a non-international armed conflict to be formulated as ‘armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups [emphasis added]’. It refers to the territory of a state and not to multiple states. Pejic agrees that a wide interpretation of the territorial clause of Common Art. 3 is not at present reflective of customary international law. Pejic (2011), p. 204.

  114. Bellinger III and Padmanabhan (2011), pp. 201–243 and John B. Bellinger, Lecture at the University of Oxford, Oxford, England, 10 December 2007, Oxford Leverhulme Programme on the Changing Character of War transcript, https://2001-2009.state.gov/s/l/2007/112723.htm (accessed 23 October 2017).

  115. Ibid.

  116. Ibid.

  117. Pejic (2011), p. 204, fn. 47. Some also acknowledge that there are certain shortcomings inherent in Common Art. 3 and that a special legal regime is needed to regulate these new types of non-international armed conflict. See Bellinger, above n. 114; Bellinger and Padmanabhan (2011). See also Corn (2007), fnn. 80–82.

  118. Pejic (2011), p. 202, fn. 41, citing Kretzmer: ‘There is no substantive reason why the norms that apply to an armed conflict between a state and an organized armed group within its territory should not also apply to an armed conflict with such a group which is not restricted to its territory. It therefore seems […] that to the extent that treaty provisions relating to non-international armed conflicts incorporate standards of customary international law, these standards should apply to all armed conflicts between a state and non-state actors. This means that, at the very least, Common Article 3 will apply to such conflicts’. See also Corn (2007), fnn. 80–82.

  119. 2016 ICRC Commentaries, above n. 9, paras. 116, 119.

  120. Ibid.

  121. Cf. Final Records, above n. 15, p. 71 and 2016 ICRC Commentaries, above n. 9, para. 119.

  122. Vienna Convention, above n. 30, Art. 31.

  123. Ibid.

  124. Ibid.

  125. Sassòli (2006), p. 9; Bartels (2009), pp. 60–61; Jinks (2003), p. 8; Milanovic and Hadzi-Vidanovic (2013), pp. 290–291.

  126. Radin (2013), pp. 704–705; see fn. 30 where Radin cites the work of Sassòli and Sivakumaran, specifically Sassòli (2006) and Sivakumaran (2014), pp. 228–229. See contra Bellinger and Padmanabhan (2011), pp. 202–212 and Bellinger, above n. 114, who identify the shortfalls inherent in Common Art. 3 and call for a new treaty regime to regulate these extraterritorial types of non-international armed conflict.

  127. Cf. Vienna Convention, above n. 30, Arts. 31 and 32.

  128. For an overview on the law of subsequent practice, see Nolte (2013).

  129. Vienna Convention, above n. 30. ‘There shall be taken into account, together with the context (c) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’.

  130. Nolte (2013), p. 309. ‘“Subsequent practice” covers any application of the treaty. It can also take various forms and may consist of action or inaction’.

  131. Ibid., p. 173. ‘[S]ubsequent practice […] constitutes objective evidence of the understanding of the parties as to the meaning of the treaty […] [S]ubsequent practice only has this effect if it “shows the common understanding of the parties as to the meaning of the terms”’.

  132. Ibid., p. 3.

  133. Ibid., p. 137.

  134. Gardiner (2008), p. 227.

  135. Vienna Convention, above n. 30.

  136. See Nolte (2013), p. 17.

  137. Ibid. ‘Subsequent practice can be considered when the parties to a treaty, through their authorities, engage in common conduct, in the application of the treaty, and when such action is conducted wilfully and with awareness (belief, fully aware) of the consequences of their actions’.

  138. Ibid.

  139. Gardiner (2008), pp. 235–238.

  140. Ibid.

  141. Nolte (2013), pp. 112 and 215.

  142. Ibid., p. 326.

  143. Ibid., pp. 3, 21 and 170. ‘[T]he importance of such subsequent practice in the application of a treaty, as an element of interpretation, is obvious; for it constitutes objective evidence of the understanding of the parties as to the meaning of the treaty’.

  144. Ibid., pp. 3, 21, 353. ‘Finally, the role of subsequent practice is not only interpreting a treaty; certain decisions have found that the subsequent conduct of the parties had actually modified the treaty’.

  145. Ibid., p. 181.

  146. Ibid.

  147. Ibid., p. 344.

  148. Ibid.

  149. Ibid., p. 181; 1945 Charter of the United Nations, [1945] ATS 1.

  150. Ibid. ‘Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting’.

  151. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276, Judgment of 21 June 1971, ICJ Reports 1971, p. 16.

  152. Vienna Convention, above n. 30, Art. 41. ‘1. Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if: (a) the possibility of such a modification is provided for by the treaty; or (b) the modification in question is not prohibited by the treaty and: (i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations; (ii) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole. 2. Unless in a case falling under paragraph l(a) of the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides’.

  153. Ibid.

  154. Ibid.

  155. Ibid.

  156. Ibid.

  157. See Sect. 2 of this article.

  158. Compare Geneva Conventions, above n. 11, Art. 31(3)(c) and Vienna Convention, above n. 30, Art. 41.

  159. For a discussion of Art. 41, see Dörr and Schmalenbach (2012), pp. 719–727.

  160. Vienna Convention, above n. 30.

  161. Dörr and Schmalenbach (2012), p. 722; contra Villiger (2009), p. 538.

  162. Vienna Convention, above n. 30, Art. 4. ‘Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by states after the entry into force of the present Convention with regard to states’.

  163. Ibid.; Geneva Conventions, above n. 11.

  164. See 2016 ICRC Commentaries, above n. 9, para. 3119 for a discussion of the relationship between the Vienna Convention on the Law of Treaties and the Geneva Conventions.

  165. See n. 161.

  166. Nolte (2013).

  167. M. Wood, Third Report on Identification of Customary International Law, International Law Commission, Sixty-seventh session, 2015, A/CN.4/882.

  168. Jurisdictional Immunities of the State (Germany v. Italy), Judgment of 3 February 2012, ICJ Reports 2012, p. 434, para. 55.

  169. Physical actions of states; acts of the executive branch; diplomatic acts and correspondence; policy statements; legislative acts; opinions of government legal advisors; judgments of national courts; official publications in the relevant fields of international law; practice in connection with treaties; resolutions of organs of international organisations; practice of intergovernmental organisations; resolutions relating to legal questions raised in the General Assembly.

  170. See n. 136.

  171. Wood, above n. 167.

  172. M. Wood, Fourth Report on Identification of Customary International Law, International Law Commission, Sixty-eight session, Geneva, 2016, A/CN.4/695, p. 21.

  173. Wood, above n. 167.

  174. For differing views concerning the use, purpose and value of military manuals, see Garraway (2004), p. 425; Garraway (2010), p. 45; Rogers (2010), p. 89; Turns (2010), p. 65; Von Heinegg (2010), p. 109; Reisman and Leitzau (1991), p. 1.

  175. Ibid.

  176. Garraway distinguishes between three different categories of military manuals. The first category is international manuals such as the 1913 Oxford Manual of Naval War. The second category is national military manuals which Garraway views as serving the purpose ‘to lay out a national view of the legal constraints accepted by the particular state’. The third category is that of internal manuals which encapsulate instructions or regulations to its armed forces. Basically it is an audience-specific reduced version of the national manual. Garraway (2004), pp. 427–440.

  177. Garraway (2004), pp. 425 and 427.

  178. Garraway (2004), pp. 425 and 426.

  179. Garraway (2010), p. 52.

  180. Garraway (2010), p. 53.

  181. Garraway (2004), pp. 431 and 434; Turns (2010), pp. 65–72.

  182. See Crawford (2012), p. 24; M. Wood, Second Report on Identification of Customary International Law International Law Commission, Sixty-sixth session, Geneva 5 May–6 June and 7 July–8 August 2014, General Assembly Report A/CN.4/672, paras. 40 and 41(f).

  183. Garraway cites the example of the Čelebići case in which the ICTY Trial Chamber referenced two national military manuals in order to define command responsibility. See The Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo, ICTY Trial Chamber, Case No. IT-96-21-T, 16 November 1998 para. 358 as cited in Garraway (2004), p. 434, fn. 62. Turns cites the example of the Tadić decision where the Appeals Chamber expressly determined that ‘military manuals are a useful tool in identifying military operational practice and, therefore, state practice’. Prosecutor v. Duško Tadić aka ‘Dule’, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-A, A.Ch, 19 July 1998 para. 99, as cited in Turns (2010), p. 67.

  184. Henckaerts and Doswald-Beck (2005) in which military manuals are frequently cited in footnotes as evidence of subsequent practice in international humanitarian law. For a discussion, see Garraway (2004), p. 434 and Turns (2010), pp. 66–67.

  185. National Military Manuals on the Law of Armed Conflict, FICHL Publication Series No. 2 (2nd edn., 2010), p. 89; Turns (2010), p. 68.

  186. Ibid.

  187. White Paper on Defence, August 2015.

  188. Ibid.

  189. Defence Ministry of the Republic of Indonesia, Defence White Paper 2015.

  190. Ibid. Executive practice which was consulted but did not comment on the geographic requirement under Common Art. 3 or did not include a definition of non-international armed conflict (or an armed conflict not of an international nature) includes that of the states of Armenia (FSC.EMI/179/15), Bosnia and Herzegovina (Law on Defence of Bosnia and Herzegovina, Official Gazette of Bosnia and Herzegovina, 88/05), the Netherlands (Netherlands Defence Doctrine), Denmark (Military Penal Code Act no. 530 of 24/06/2005), Estonia (Estonian Defence Forces Organisation Act, RT I 2008, 35, 213), India (D.O. No. 6(3)(58)/99-LC(LS)), Namibia (Ministry of Defence: Defence Policy) and Nepal (Army Act, 2063 (2006)). The Netherlands in a policy decision applies international humanitarian law standards to all military operations, but this practice is not the result of a legal obligation. This practice is an example of an approach by which a regulatory gap can be overcome. See para. 3.2 of the Netherlands Defence Doctrine.

  191. Department of Defence Law of War Manual, 12 June 2015 (United States of America), para. 3.3.1; contra Paust (2016), p. 46.

  192. Manuel du droit des conflits armés (2012), http://www.cicde.defense.gouv.fr/IMG/pdf/20130226_np_cicde_manuel-dca.pd (accessed 20 June 2017).

  193. JSP 383: The Joint Service Manual of the Law of Armed Conflict, Joint Service Publication 383, 2004 edn., para. 15.3.

  194. The Executive Series ADDP 06.4 Law of Armed Conflict (2006) Australian Defence Doctrine, para. 1.52.

  195. South African National Defence Force (Joint Operations Division): Joint Warfare Publication JWP 139 – African Battlespace (DS/OPS/DIV HQ/R/305/1P) (Access Restricted), para. 6. ‘In the event of an armed conflict not of an international character (a civil war or other internal armed conflict), Common Article 3 to the 1949 Geneva Conventions will apply to the parties’.

  196. Due to the author’s limited knowledge of foreign languages and the restricted access to military manuals, only a select number of manuals could be consulted. These limitations do not compromise the results of this study or the value of the assessment of the available manuals, as subsequent practice requires the uniform interpretation by state parties. The fact that divergent interpretations exist is clearly reflected in the fact that the manuals of the United States (n. 191) and France (n. 192) support a broad interpretation of the scope of application of Common Art. 3, but which is contrary to the views in the manuals of the United Kingdom (n. 193), Australia (n. 194) and South Africa (n. 195), which support the conventional reading of ‘armed conflict not of an international character’ and limit the scope of application of Common Art. 3 to internal armed conflicts alone. Military manuals of states which do not offer a definition of the scope of application of Common Art. 3 or of their understanding of a non-international armed conflict include those of Canada (B-GL-300-001/FP-001 Land Operations); Germany (ZDv 15/2 Humanitäres Völkerrecht in bewaffneten Konflikten—Handbuch, issued in August 1992); New Zealand (Manual of Armed Forces Law DM69 (2 ed) Vol 1); and the Philippines (Philippine Army Manual 1-10 (PAM 1-10) dated 21 May). The Canadian manual refers to Common Art. 3 in paras. 1702 and 1706, but does not offer any indication that it deviates from the traditional understanding of the article’s scope of application. First, it does not specifically define ‘non-international armed conflict’ and, second, it quotes Common Art. 3 itself in its text. The author was able to access only the 1992 Military Manual of Germany which shows consistent support for the pre-9/11 interpretation that Common Art. 3 applies only to internal armed conflicts. It defines its understanding of non-international armed conflict in para. 210: ‘A non-international armed conflict is a confrontation between the existing governmental authority and groups of persons subordinate to this authority, which is carried out by force of arms within national territory and reaches the magnitude of an armed riot or a civil war’. The military handbook, Nolte (2003) summarises and compares military law in Belgium, Denmark, France, Germany, Italy, Luxembourg, the Netherlands, Poland, Spain and the United Kingdom. It reveals that the only state military law which expressly refers to its military manual as taking precedence over the general treaty interpretation of international humanitarian law, should such a manual explicitly define key terms, is that of France. France supports a broader interpretation of the scope of application of Common Art. 3.

  197. Germany v. Italy, above n. 168. The ICJ highlighted the paramount importance of national legislation as an indicator of state practice.

  198. Ibid.

  199. Hamdan v. Rumsfeld, Secretary of Defence et al, 548 US 557 (2006).

  200. Ibid., para. 4(d)(ii).

  201. Ibid.

  202. Ibid. See also Milanovic and Hadzi-Vidanovic (2013), pp. 269–270.

  203. Ibid.

  204. Ibid.

  205. Ibid.

  206. Ibid. See also Pejic (2011), p. 202.

  207. Ibid.

  208. Ibid.; Pejic (2011), p. 201.

  209. Ibid., at the opinion of Judge Stevens, para. 4. For an in-depth discussion of the Hamdan ruling, see Pejic (2011), pp. 201–203; Milanovic and Hadzi-Vidanovic (2013) pp. 269–271.

  210. Ibid.

  211. Ibid. See also Milanovic and Hadzi-Vidanovic (2013), p. 270.

  212. Ibid.

  213. Ibid.

  214. Ibid. See also Pejic (2011), p. 202.

  215. Merely defining the term ‘international armed conflict’ negatively in order to determine the meaning of ‘non-international armed conflict’ fails to appreciate the minimum threshold requirements regarding the intensity of violence and the required degree of organisation of the military units of the parties to the conflict. In addition, this comparison ignored the phrase ‘occurring in the territory of one of the High Contracting Parties’. Compare Milanovic and Hadzi-Vidanovic (2013), p. 270.

  216. Initially, the United States did not apply Common Art. 3 extraterritorially. Common Art. 3 came to be applied to the conflict with Al Qaeda only after the Hamdan ruling by the United States Supreme Court. Prominent legal advisors in the United States question whether this ruling is correct but are of the view that the United States should have applied Common Art. 3 as a policy consideration to this conflict at an earlier stage. An earlier application would have facilitated more open debate concerning the shortcomings in Common Art. 3 in its ability to regulate extraterritorial armed conflict such as that between the United States and Al Qaeda. The Obama administration as a matter of policy adopted Art. 75 of Additional Protocol II to regulate the detention of non-state actors. The United States is not a party to Additional Protocol II and has questioned the outcome of the ICRC study on international humanitarian law which affords this provision customary status in the context of all armed conflicts. Therefore, this adoption is not a binding legal obligation but, in the words of a former legal advisor to the United States Department of State, as a result of a ‘sense of legal obligation’ it is applied. The Hamdan decision was not challenged in court, but this lack of a challenge does not mean that initially it was met with approval by the Department of State. However, it did consider the probable political and international ‘backlash’ which would result from the non-application of Common Art. 3 and that may have prevented the United States government openly questioning this ruling. A more restrictive interpretation is in the interest of the United States as that limits the possibility of law suits and gives it greater freedom concerning the operational conduct of its military. The United States has followed the Hamdan ruling and later administrations have avoided the difficulties experienced by the Bush presidency. The Hamdan decision has a place in this discussion but its importance should not be overstated (Bellinger and Padmanabhan (2011) and Bellinger, above n. 114).

  217. Ibid.

  218. Ibid. See also Pejic (2011), p. 202.

  219. Tadić, above n. 2, para. 70. See cases listed at n. 17.

  220. Tadić, above n. 2, para. 70 (emphasis added).

  221. Cf. Shamir-Borer (2007), p. 610.

  222. Ibid.

  223. Sassòli (2006), p. 9 problematises a restrictive interpretation of the territorial application of Common Art. 3, as follows: ‘According to the aim and purpose of IHL, this must be understood as simply recalling that treaties apply only to their state parties. If such groups and spreading over the territory of several states were not “non-international armed conflicts”, there would be a gap in protection which could not be explained by states’ concerns about their sovereignty. Those concerns made the law of non-international armed conflict rudimentary. Yet concerns about state sovereignty could not explain why victims of conflicts spilling over the territory for several states should benefit from less protection than those affected by conflits limited to the territory of only one state’. Therefore, he is not opposed to the court’s ruling in the Hamdan case and considers that there is sufficient judicial practice to suggest that ‘internal conflicts are distinguished from international armed conflict by the parties involved rather than by the territorial scope of the conflict’. This approach followed in the Hamdan case was consistently included as the United States position in its 2015 US Department of Defense Law of War Manual as discussed in Sect. 3.2.1 of this article.

  224. Judgment C-781 of 2012, para. 5.4.1, http://www.corteconstitucional.gov.co/RELATORIA/2012/C-781-12.htm (accessed 2 August 2017).

  225. Ibid., para. 5.4.1.

  226. Ibid.

  227. See n. 136.

  228. 2016 ICRC Commentaries, above n. 9, para. 121.

  229. Nolte (2013), p. 47.

  230. Gardiner (2008), pp. 235–238.

  231. Ibid.

  232. Cf. Nolte (2013), pp. 54 and 326. ‘Divergent practice does not reflect an agreement between states’.

  233. Gardiner (2008), pp. 235–238. See also Wood, above n. 167, para. 22.

  234. This conclusion is inferred by a survey of the available military manuals of states party to the four Geneva Conventions. The author specifically examined whether states adopted new military manuals post-9/11 and whether any amendments to its understanding of the geographic requirement or definition of non-international armed conflict and the scope of application of Common Art. 3 were made. See discussion at n. 196.

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Acknowledgements

This work is based on the research supported by the South African Research Chairs Initiative of the Department of Science and Technology and the National Research Foundation of South Africa (Grant no. 98338). I am grateful to Professor Erika de Wet, Professor Jann Kleffner, Jeanique Serradinho and the anonymous reviewers for comments on earlier drafts of the article.

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  1. Doctoral Candidate, Department of Public Law, University of Pretoria, Pretoria, South Africa

    Martha M. Bradley

  2. Non-Resident SARChI Associate, Institute for International and Comparative Law in Africa, University of Pretoria, Pretoria, South Africa

    Martha M. Bradley

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Bradley, M.M. Expanding the Borders of Common Article 3 in Non-International Armed Conflicts: Amending Its Geographical Application Through Subsequent Practice?. Neth Int Law Rev 64, 375–406 (2017). https://doi.org/10.1007/s40802-017-0100-7

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