Primacy of Common Article 3 to the Four Geneva Conventions of 1949:

Measuring the Ambit of Non-International Armed Conflict in International

Humanitarian Law

Abstract:
From the beginning of earth, conflicts and wars have been a part of human life. At present, armed
conflicts become very terrible to us. The majority of armed conflicts that have been occurred since the
Second World War may be characterized as non-international. Non-international armed conflicts
have become the most widespread armed conflicts in the contemporary world. Common Article 3 of
the four Geneva Conventions is a milestone to the development of the law of war. This article marked
a breakthrough, as it covered, for the first time, situations of non-international armed conflicts. This
paper provides a typology of non-international armed conflicts governed by Common Article 3 of the
1949 Geneva Conventions, and examines the application, as well as the enforceability and binding
force to contemporary forms of non-international armed conflict. Finally, this study tries to explore
and depict the ambit of Common Article 3. The relevant cases have, therefore, been discussed and
analyzed.

Keywords: Non-international armed conflict (NIAC); Common Article 3 (CA3); Additional

Protocol II (AP2); Minimum protections; Customary law.

“Lost to the clan, lost to the hearth, lost to the old ways,
that one who lusts for all the horrors of war with his own people.” 1

I. Introduction:
One thing that the human kind was doing from the beginning of time is fighting with each
other. Many times the fighting got out of hand and consumed the innocent people. Fight
against own people has always been considered one of the worst. Most armed conflicts today
are non-international in nature.2 They take place within the borders of states, and are waged
between a state and organized non-state armed groups or among such groups themselves. 3
International Humanitarian Law (hereinafter IHL) is a branch of Public International Law
which is intended to alleviate human pain and suffering resulting from armed conflicts 4 deals
with humanitarian problems which arise directly or indirectly from international or non-

1
Homer, The Iliad, Book IX.
2
Michelle Mack, Increasing Respect for International Humanitarian Law in Non-International Armed Conflicts
(ICRC, Geneva 2008) Pp. 5.
3
Ibid.
4
F. Kalshoven, Constraints on the Waging of War (ICRC, Geneva, 1987) pp. 1.
international armed conflicts (hereinafter NIAC).5 Humanitarian law, as a distinct body of
law aiming at the protection of the individual in times of war, finds written expression in the
four Geneva Conventions6 and Additional Protocol I,7 the law concerning NIAC is
specifically found in Common Article 3 (hereinafter CA3) of the four Geneva Conventions
and Additional Protocol II (hereinafter APII).8 IHL is a body of law that provides essential
protection for those directly affected by an armed conflict, if it is respected by the parties to
that conflict.9 Prior to the formulation of the four Geneva Conventions of 1949, there existed
no substantive provision of IHL specific to situations of NIAC. 10 CA3 to the four Geneva
Conventions of 1949 was the first provision of its kind to deal specifically with humanitarian
protection in situations of NIACs.11 CA3 to all four Geneva Conventions makes a new era in
the unceasing development of the idea on which the Red Cross is based, and in the
embodiment of that idea in international obligations. Before the 1990s the law of NIAC was
poorly developed. In the 1990s, under the impulsion of the growing amount of human rights
law and the practice of international organs as the Security Council and the International

5
The first collective government effort to codify the rules began with a diplomatic conference convened at
Geneva in 1864, which set up the Red Cross Organisation with the aim of providing for amelioration of the fate
of members of the armed forces wounded on the battlefields. That conference adopted 1864 Convention on the
subject. Three names, will always remain linked with this humanitarian work and the genesis of the Red Cross
Organization viz., those of the English Nurse Florence Nightingale, the Swiss Writer J. H. Duant and his
countryman Gustava Mornier, President of the Soci'et'e d' Utilite' Publique of Geneva, which convoked an
international congress in that town in 1863. Sec. J. H. W. Verzijl, International Law in Historical Perspective
(Vol.ix), Pp.125. Cited from B. C. Nirmal, ‘International Humanitarian Law: Its Nature and Scope’ (2002) 31
Ban. L. J. 66-86.
6
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field, Aug. 12, 1949, 6 U.S.T. 3362, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition
of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75
U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75
U.N.T.S. 135; and Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12,
1949, 6 U.S.T. 3316, 75 U.N.T.S. 287. The international armed conflicts to which these treaties apply include
armed conflicts between states and the belligerent occupation of one state’s territory by another.
7
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter API]. API applies to conflicts
between states, the belligerent occupation of one state’s territory by another, and self-determination conflicts of
national liberation.
8
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609 [hereinafter APII]. The non-international
armed conflicts that Common Article 3 addresses include a state engaging in armed violence against organized
non-state armed groups, or organized non-state armed groups fighting each other.
9
Michelle Mack, Increasing Respect for International Humanitarian Law in Non-International Armed Conflicts
(ICRC, Geneva 2008) Pp. 5.
10
Anthony Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law (eds),
(Cambridge University Press; 1st edition 2010). Pp. 25.
11
Ibid.

2
Criminal Tribunal for the former Yugoslavia (hereinafter ICTY),12 the law of NIAC quickly
developed, on a case-by-case basis.13 It now tends to largely merge into the law of
international armed conflicts (Hereinafter IAC).14 CA3, widely considered to reflect
customary international law,15 governs NIAC between a state and armed groups, as well as
those conflicts between armed groups.16

In this paper the legal and academic dispute and a matter of arguments and discussions that
typology of NIAC governed by CA3 of the 1949 Geneva Conventions. In dealing with these
issues, both primary and secondary sources have been taken into account. As primary sources
relevant International Instruments, case-laws have been taken. Additionally secondary
sources including books, journals, articles, online resources, statements, presented papers,
documents of relevant international and non-governmental organizations and other materials
have been taken into account for proper analysis, comprehensive understanding and
consistent conclusion. Accordingly the research is Analytical method and doctrinal in nature
as no field work or empirical research has been undertaken.

II. The Notion of Non-International Armed Conflict:

Armed conflict means open armed conflict between two or more parties, nations, or states. As
a rule, the applicability of the law of armed conflict (hereinafter LOAC) is dependent on the
existence of an armed conflict.17 & 18
IHL recognizes two different categories of armed
conflict.19 The reference point for distinguishing between the two is the state border: wars
12
ICTY, Prosecutor v. Tadic, IT-94-1-AR72 (2 October 1995) paras [96]-[127]; Proscutor v. Galic (Judgement) IT-
98-29-A (30 November 2006) paras [79]-[90]; prosecutor v. Furundzija, IT-95-17/1-T (10 December 1998); and
Prosecutor v. Krstic, IT-98-33-T (2 August 2001). Cited from Robert Kolb and Richard Hyde, ‘An Introduction to the
International Law of Armed Conflict’, (2010/2008) USA, Rep. Oxford-Portland Oregion, Pp. 258.
13
Ibid.
14
Ibid.
15
Jean Pictet, Commentary to Geneva Convention III Relevant to the Treatment of Prisoners of War (eds),
(2006) pp. 23.
16
Dieter Fleck , The Hand Book of International Humantarian Law (eds), (2d ed. 2010) pp. 618.
17
Louise Arimatsu and Mohbuba Choudhury, The Legal Classification of the Armed Conflicts in Syria, Yemen
and Libya, (International Law, PP. 2014/01) Chatham House, London, pp. 3<www. Chathamhouse.org>
accessed on 4 April 2015.
18
1949 Geneva Conventions and the 1977 Additional Protocols thereto, distinguish between international and
non-international armed conflicts by specifically prescribing which rules apply in which type of armed conflict.
However, neither the Geneva Conventions nor Protocol I contain a real definition of the expression ‘armed
conflict’. The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection
of Victims of International Armed Conflicts (API), includes an article on ‘Definitions’ (Article 2), as well as one
on ‘Terminology’ (Article 8), but the term ‘armed conflict’ is not defined therein. An important definition of an
armed conflict comes from the ICTY judgment in Prosecutor v. Dusko Tadic´, Case No. IT-94-1-A, 2 October
1995, para 67, the tribunal held that ‘for there to be a violation of IHL, there must be armed conflict.
19
Dietrich Schindler, ‘The Different Types of Armed Conflicts According to the Geneva Conventions and
Protocols’ (1979) RCDAI, Vol. 163 II, pp. 117-163.

3
between two or more States are considered to be IAC, and warlike clashes occurring on the
territory of a single state are non-international or internal armed conflicts (usually known as
civil wars).20 In a NIAC the existing government is fighting against a faction within its own
territory or different factions are fighting against each other without the involvement of
governmental power.21 NIACs are armed confrontations occurring within the territory of a
single state and in which the armed forces of no other state are engaged against the central
government.22 Internal disturbances and tensions (such as riots, isolated and sporadic acts of
violence, or other acts of a similar nature) do not amount to a NIAC.23

According to H. P. Gasser, it is generally admitted that "non-international armed conflicts

are armed confrontations that take place within the territory of a state between the
governments on the one hand and armed insurgent groups on the other hand. […] Another
case is the crumbling of all government authority in the country, as a result of which various
groups fight each other in the struggle for power"24

NIAC are covered by CA3, APII, several other treaties, 25 as well as by customary law. Two
main legal sources must be examined in order to determine what a NIAC under IHL is: CA3
to the Geneva Conventions of 1949 and Article 1 of APII. CA3 does not define NIAC it
refers to "armed conflicts not of an international character occurring in the territory of one
of the High Contracting Parties"26 as having the same meaning as ‘civil war.’ 27 It implies that
even some armed conflicts which are not restricted to inter-state hostilities can be deemed as

20
Ibid.
21
Sandoz Yves, Swinarski Christophe and Zimmermann Bruno, Commentary on the Protocol Additional to the
Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of NIAC (APII) (Martinus
Nijhoff Publishers, Geneva, 1987).
22
International Institute of Humanitarian Law, The Manual on the Law of Non-International Armed Conflict,
International Institute of Humanitarian Law (San Remo, 2006) pp. 2,<http://
www.michaelschmitt.org/images/Manual%5B1%5D.Final.Brill..pdf>Accessed on 4 April 2015.
23
Ibid.
24
H.P. Gasser, International Humanitarian Law: an Introduction, in: Humanity for All: the International Red
Cross and Red Crescent Movement, H. Haug (eds.), (Paul Haupt Publishers, Berne, 1993) pp. 555.
25
Such as the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict;
the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May
be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, and its Protocols.
26
The assertion in the text that a NIAC occurs ‘in the territory of one of the High Contracting Parties’ has
generated debate about the geographical scope of this type of NIAC. Although some commentators suggest that
NIACs are confined to those that take place within the territorial boundaries of a single state, the dominant view
is that ‘one’ is a reference to the territory of any of the Contracting Parties. The phrase imposes no territorial
limitations so long as the relevant states are party to the 1949 Geneva Conventions. In Hamdan v. Rumsfeld, 548
U.S. 557 (2006) the U.S. Supreme Court held that the “term ‘conflict not of an international character’ is used
here in contradistinction to a conflict between nations.”
27
Final Record, Report drawn up by the Joint Committee and presented to the Plenary Assembly, Vol. II-B, pp.
129. Cited from, cf Cullen (n10).

4
international armed conflicts if they contain an international element. 28 In order to distinguish
an armed conflict, in the meaning of CA3, from less serious forms of violence, such as
internal disturbances and tensions, riots or acts of banditry, the situation must reach a certain
threshold of confrontation. It has been generally accepted that the lower threshold found in
Article 1(2) of APII, which excludes internal disturbances and tensions from the definition of
NIAC, also applies to CA3. Two criteria are usually used in this regard: 29 First, the hostilities
must reach a minimum level of intensity. This may be the case, for example, when the
hostilities are of a collective character or when the government is obliged to use military
force against the insurgents, instead of mere police forces. 30 Second, non-governmental
groups involved in the conflict must be considered as "parties to the conflict", meaning that
they possess organized armed forces. Article 1(2) of APII identifies situations of violence that
do not meet the ‘armed conflict’ threshold and includes in that category ‘internal disturbances
and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar
nature’.31 As elaborated in the Commentary to Article 1(2), even if the government is forced
to deploy armed units, to the extent that the purpose is to restore law and order, such violence
is considered not to constitute armed conflict in the legal sense. 32 This threshold also applies
to CA3. The ICTY has deemed there to be a NIAC in the sense of CA3 ‘whenever there is …
protracted armed violence between governmental authorities and organized armed groups or
between such groups within a state’.33 The ICTY thus confirmed that the definition of NIAC
in the sense of CA3 encompasses situations where "several factions [confront] each other
without involvement of the government's armed forces" 34 Though there are no specific
definitions on NIAC but above discussion we can make distinction between the two types’
armed conflict between IAC and NIAC.

28
H. Meyrowitz, ‘The Law of War in the Vietnamese Conflict, in R. A. Falk’ (eds), The Vietnam War and
International Law. Vol. 2. (Princeton, 1969) pp. 533.
29
ICTY, The Prosecutor v. Dusko Tadic, IT-94-1-T, 7 May 1997, para. 561-568; ICTY, The Prosecutor v.
Fatmir Limaj, IT-03-66-T, 30 November 2005, para. 84. Cited from how is the Term "Armed Conflict" Defined
in International Humanitarian Law? International Committee of the Red Cross (ICRC) Opinion Paper, March
2008, pp. 3
30
For a detailed analysis of this criteria, see ICTY, The Prosecutor v. Fatmir Limaj, IT-03- 66-T, 30 November
2005, para. 135-170.
31
Further insight is provided in the Commentary to Article 1 of APII, which adds ‘riots, such as demonstrations
without a concerted plan from the outset; isolated and sporadic acts of violence, as opposed to military
operations carried out by armed forces or armed groups; other acts of a similar nature, including, in particular,
large scale arrests of people for their activities or opinions.’ Cited from, cf Arimatsu and Choudhury (n 17) 14.
32
Commentary to Article 1of APII. Id.
33
ICTY, The Prosecutor v. Dusko Tadic, IT-94-1-A, 2 October 1995, para. 70.
34
Y. Sandoz/C. Swinarski and B. Zimmermann, ‘Commentary on the Additional Protocols of 8 June 1977 to the
Geneva Conventions of 12 August 1949’ (eds), (ICRC, Geneva, 1987) para. 4461.

5
III. Scope and Application of Common Article 3 to the four Geneva Conventions:

All four Geneva Conventions contain an identical CA3 extending general coverage to NIAC.
CA3 of the 1949 Geneva Conventions is virtually a convention within a convention 35 was the
first attempt to legally regulate NIAC in treaty law. When CA3 was first adopted, it was
considered a major step in the right direction in the development of the IHL 36 Significantly,
CA3 is the only provision of the four Geneva Conventions that directly applies to internal
armed conflicts. The article states that:

In the case of armed conflict not of an international character occurring in the territory of
one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a
minimum, the following provisions:
1. Persons taking no active part in the hostilities, including members of armed forces
who have laid down their arms and those placed hors de combat by sickness, wounds,
detention, or any other cause, shall in all circumstances be treated humanely, without
any adverse distinction founded on race, colour, religion or faith, sex, birth or
wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place
whatsoever with respect to the above-mentioned persons:
a) violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
b) taking of hostages;
c) outrages upon personal dignity, in particular, humiliating and degrading
treatment;
d) the passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.
2. The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may
offer its services to the Parties to the conflict.

35
Jean Pictet, ‘Commentary on the Geneva Conventions of 12 August 1949’ (eds), Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Volume I, (ICRC 1952)
Pp. 32. ; Junod, ‘Additional Protocol II: History and Scope’ (1983) 33 AM. U.L. REV. 29, 30.
36
Heather A Wilson, International Law and the Use of Force by National Liberation Movements, (Oxford,
1988) pp. 43.

6
The Parties to the conflict should further endeavour to bring into force, by means of special
agreements, all or part of the other provisions of the present Convention. The application of
the preceding provisions shall not affect the legal status of the Parties to the conflict.

Under the legal regime contemporary to the formulation of CA3, the application of IHL to a
situation of NIAC depended upon it being fundamentally akin to an international armed
conflict.37 In order to apply CA3, one should ask if a certain intensity of violence has been
reached within the conflict.38 According to the Inter-American Commission on Human
Rights, the threshold is reached in armed confrontation of low intensity and does not require
large-scale and general hostilities to exist.39 CA3 simply established a few basic rules of
humane treatment, and set forth certain minimal judicial guarantees. Article 3 protected those
classes of people deems most vulnerable when conflict occurs. 40 Despite the undisputed
significance of CA3, as an improvement of the traditional international law approach to
internal conflicts, it barely employs the most basic principles preserved in the Conventions
into NIAC.41 In theory, CA3 should be applied automatically and without discretion. CA3
applies in the case of a classic civil war when the state’s armed forces are confronted with
armed opposition groups within the state’s territory. Moreover, this provision is applicable
when two dissident groups fight against each other within the territory of one state which
may, or may not, be a party to the armed conflict. It also applies to a situation where the
conflict is within the state, between the Government and the rebel forces or between the rebel
forces themselves.42 The International Court of Justice (hereinafter ICJ) held that this
provision is a minimum yardstick, which also applies in IAC besides the more elaborate rules
governing these conflicts, and is to be considered as part of the elemental considerations of
mankind.43 Some authors even conclude that CA3 is part of jus cogens.44 However, CA3 is
applicable to the situation of NIAC in a limited way as circumscribed in the provision itself.

37
Cullen (note 10) 26.
38
Jon Romer, Killing in a Gray Area between Humanitarian Law and Human Rights: How Can the National Police
of Colombia overcome the Uncertainty of which Branch of International Law to Apply? (2010) Springer, pp.8.
39
IACiHR, Abella v. Argentina, Case No. 11.137, Report No. 55/97. 18.11.1997 para 152; ICTY, Tadic Case,
Case No. IT-94-1, Decision o2. 10. 1995, para 70. Cited from Ibid.
40
Oren Gross and Fionnuale Ni Aolain, Law in Time of Crisis: Emergency Powers in Theory and Practice
(2006) pp. 356.
41
Higgins Noelle, ‘The application of international humanitarian law to wars of national liberation’ (2004)
Journal of Humanitarian Assistance, Pp. 28<www. jha.ac/articles/a132.pdf>Accessed on 4 April 2015.
42
Fleck, The Handbook of Humanitarian Armed Conflicts, (1995), pp. 221.
43
Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States),
Merits, 27 June 1986, I.C.J. Rep. 1986, § 218.
44
C. Zorgbibe, ‘Pour une affirmation du droit humanitaire dans les conflits armés internes’ (1970) JDI, 676.

7
CA3 was first applied in Guatemala in 1954.45 Since then it has been explicitly accepted and
applied in a number of situations including Lebanon (1958), Cuba (1959), Vietnam (1964),
and Chile (1973).46 Several judicial developments also point to the applicability of CA3
extraterritorially. The International Criminal Tribunal for Rwanda (hereinafter ICTR) Statute,
for example, includes jurisdiction over crimes committed across the Rwandan border in
neighboring countries.47

IV. Relationship between Common Article 3 and Additional Protocol II:

APII of 1977 supplements and develops CA348 of the Geneva Conventions of 1949, dealing
with NIAC. Before the adoption of APII, CA3 was the only source of law that applies
explicitly to NIAC. It provided basic rules on methods of warfare applicable by both states
and Non-state Actors involved in NIAC.49 According to Christopher Greenwood, ‘APII goes
a long way to putting flesh on the bare bones of CA3 of the 1949 Geneva Conventions. 50 In
particular, APII contains the first attempt to regulate by treaty the methods and means of
warfare in internal conflicts.’51 As a reflection of the historical bias in IHL towards the
regulation of inter-state warfare, the 1949 Geneva Conventions and the 1977 Protocols
contain close to 600 articles, of which only Article 3 common to the 1949 Geneva
Conventions and the 28 articles of AP II apply to internal conflicts. 52 Therefore, unlike CA3
of the Geneva Conventions, APII will not apply to conflicts between two warring dissident

45
M. Veutheyv, ‘Implementation and Enforcement of Humanitarian Law and Human Rights in Non-
International Armed Conflicts: The Role of the International Committee of the Red Cross’ (1983) 33 Am U L R
83, at 87.
46
D. Forsythe, ‘Legal Management of Internal War: The 1977 Protocol on Non-International Armed Conflicts’
(1978) 72 Am J Int'l L 272, at 275.
47
Prosecutor v. Hadžihasanović, Case No. IT-01-47-T, Para, 93, 179 (ICTY, Mar. 15, 2006). See also Statute of
the ICTR art. 6(3), S.C. Res. 955, Annex, U.N. Doc. S/RES/955 (Nov. 8, 1994); Statute of the Special Court for
Sierra Leone (SCSL) art. 6(3), annexed to Agreement between the United Nations and the Government of Sierra
Leone on the Establishment of a SCSL, Jan. 16, 2002, 2178 U.N.T.S. 138; Prosecutor v. Limaj, Case No. IT-03-
66-T, Para, 87 (ICTY, Nov. 30, 2005); Dino Kritsiotis, ‘The Tremors of Tadić’ (2010) 43 Israel Law Review,
262, 288; Theodor Meron, ‘The Humanization of Humanitarian Law’ (2000) 94 American Journal of
International Law 239, 260–61; Anthony Cullen, ‘The Definition of Non-International Armed Conflict in the
Rome Statute of the International Criminal Court: An Analysis of the Threshold of Application Contained in
Article 8(2)(f)’ (2007) 12 Journal of Conflict and Security, 419.
48
Article 1(1) state that the Protocol ‘develops and supplements Article 3 common to the Geneva Conventions
of 12 August 1949 without modifying its existing conditions of application’.
49
Dayana Jadarian, International Humanitarian Law´s Applicability to Armed Non-State Actors (Graduate
Paper, Faculty of Law, University of Stockholm, 2007), Pp. 39.
50
Cullen (note 10) 87.
51
Greenwood, ‘Critique of the Additional Protocols’, p. 14. Cited from, Ibid.
52
S. Boelaert-Suominen, ‘Grave breaches, universal jurisdiction and internal armed conflict: Is customary
law moving towards a uniform enforcement mechanism for all armed conflicts?’ (2000) Journal of Conflict and
Security Law, Vol. 5, No. 63, at section 5.

8
groups.53 It will also only apply in conflicts that in fact approximate to traditional conceptions
of inter-state warfare, namely where an organized dissident armed force exercises military
control over a part of the territory of a state Party. Like CA3, APII provides for the humane
and non-discriminatory treatment of all those who are not, or who are no longer, taking a
direct part in hostilities. The relationship between the two conventional instruments is, thus,
of great importance when considering which one prevails? Pursuant to the general rules of
international law and notably the lex posterior54 and lex specialis55 APII should contain the
universal rules applicable to conflicts of non-international nature. 56 In the case where states
are parties to both treaties and unless otherwise provided for in a treaty, the earlier instrument
applies only to the extent its provisions are compatible with the later treaty (in conformity
with the latin maxim lex posterior derogat legi priori).57 Since APII, regulates the scope of
application of both instruments, both treaties are simultaneously applicable and, therefore,
two thresholds of applicability of norms relating to NIAC exist.58 APII clearly indicates that it
develops and supplements CA3 so that means CA3 and APII exist autonomously. That APII
and CA3 should have the same scope of application was the original intention of the ICRC. 59
Treaty law as envisaged in the Geneva Conventions and the APII knows of two types of
NIAC, granting individuals different kinds of protection from the ghastly effects of armed
conflicts.

V. Protection of Civilians under Common Article 3:

During armed conflict, civilians often pay a heavy price. They may face daily threats of
violence and death as they find themselves inadvertently caught up in the middle of a
conflict. CA3 to the four Geneva Conventions of 1949 establishes the minimum standards
that all parties involved in a NIAC should observe concerning the treatment and protection of
civilians, those no longer actively participating in the hostilities, and civilian objects.60 CA3
53
James G. Stewart, ‘Towards a single definition of armed conflict in international humanitarian law: A critique
of internationalized armed conflict’ (June 2003) IRRC, Vol. 85 No 850, pp. 319.
54
The full sentence is ‘lex posterior derogat legi priori’ and means that the newer norm is preferred over the
elder one.
55
The full sentence is ‘lex specialis derogat legi generali’ and means that ‘whenever two or more norms deal
with the same subject matter, priority should be given to the norm that is more specific.’ United Nations General
Assembly (International Law Commission) 2006, Fragmentation of International Law: Difficulties Arising from
the Diversification and Expansion of International Law, UN Doc A/CN.4/L.702, 18 July 2006, para. 14.2(5).
56
Applicability Test of Additional Protocol. II and Common Article 3 for Crimes in Internal Armed Conflict. Noëlle
Quénivet, pp. 36< file:///C:/Users/User/Downloads/9789462650077-c2% 20(6).pdf>Accessed on 4 April 2015.
57
Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331, 23 May 1969, Article 30(3).
58
Ibid 38.
59
Abi-Saab R, ‘Humanitarian law and internal conflicts: the evolution of legal concern, in: Delissen AJM, Tanja GT’
(eds), Humanitarian law of armed conflict: Challenges ahead (Martinus Nijhoff, Dordrecht, 1991) pp. 209–223.
60
Uhler et al., The Geneva Conventions of 12 August 1949 - Commentary: IV Geneva Convention Relative to
the Protection of Civilian Persons in Time of War, pp.35.

9
protects civilians through the explicit prohibition of violence to life and person (in particular
murder, mutilation, cruel treatment or torture) taking of hostages, outrages upon personal
dignity (in particular humiliating or degrading treatment) and the passing of sentences and the
carrying out of executions without previous judgment pronounced by a regularly constituted
court, affording all judicial guarantees which are generally recognized as indispensable. 61
These acts are prohibited at any time and in any place whatsoever. 62 CA3 to the four Geneva
Conventions of 1949 establishes minimum standards that parties, including State and non-
State actors shall respect in NIAC. The civilian population as such, as well as individual
civilians, shall not be the object of attack. 63 An attack which may be expected to cause
incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the concrete and direct military advantage
anticipated is prohibited.64And also civilians shall enjoy general protection against the
dangers arising from military operations”.65 In the conduct of military operations, constant
care shall be taken to spare the civilian population, civilians and civilian objects” and that all
feasible precautions must be taken with the “view to avoiding, and in any event to
minimizing, incidental loss of civilian life, injury to civilians and damage to civilian
objects.”66 And also APII: Article 14 ensures the protection of objects indispensable to the
survival of the civilian population. Particularly APII is more specific than CA3 for the
protection of civilian population in the situation of NIAC.

VI. The Binding force of Common Article 3:

[

Unlike human rights law, which restrains violations inflicted only by a government and its
agents, the obligatory provisions of CA3 expressly bind both parties to the conflict, i.e.,
government and dissident forces.67 Moreover, the obligation to apply CA3 is absolute for both
parties and independent of the obligation of the other party.68 United Nations General
61
Report on the Protection of Civilians in the Armed Conflict in Iraq: 5 June to 5 July 2014, United Nations
Assistance Mission for Iraq (UNAMI), pp. 5; CA3 of the Geneva Conventions of 12 August 1949.
62
Ibid.
63
APII, article 13(2)
64
Jean-Marie Henckaerts and Louise, ‘Customary International Humanitarian Law’ (eds), Volume 1, (CU
P/ICRC, Cambridge 2005).
65
APII, article 13(1).
66
Rules 15 to 21, ICRC Study on Customary International Human Rights Law.
67
The International Committee of the Red Cross (ICRC) has stated that the provisions of article 3 now possess
the character of jus cogens, a peremptory norm of international law, and thus are binding on all authorities
claiming to exist in international law. Speech by Jacques Moreillon, Director for General Affairs and Directorate
Member, ICRC, Inter-American Seminar on State Security, Human Rights and Humanitarian Law, San Jose,
Costa Rica (Sept. 1982); see also Military and Paramilitary Activities In and Against Nicaragua (Nicar. v. U.S.)
1986 ICJ. 14, Para. 220 (indicating that CA3 reflects general principles of humanitarian law or customary
international law).
68
Junod, ‘Additional Protocol II: History and Scope’ (1983) 33 AM. U.L. REV, pp. 29, 30.

10
Assembly Resolution 2444, Respect for Human Rights in Armed Conflicts (United Nations
Resolution 2444),69 adopted by unanimous vote on December 19, 1969, expressly recognized
this customary principle of civilian immunity and its complementary principle requiring the
warring parties to distinguish civilians from combatants at all times. Furthermore, the ICRC
has long regarded these principles as basic rules of the laws of war that apply in all armed
conflicts. By way of reminder, the ICJ affirmed in the Nicaragua case that:

Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain
rules to be applied in the armed conflicts of a non-international character. There is no doubt
that, in the event of international armed conflicts, these rules also constitute a minimum
yardstick, in addition to the more elaborate rules which are also to apply to international
conflicts; and they are rules which, in the Court’s opinion, reflect what the Court in 1949
called ‘elementary considerations of humanity…’70

The US government also has expressly recognized these principles as declaratory of existing
customary international law."71 ICTR has likewise affirmed the customary law nature of
CA3.72 In 1967 the parties to the conflict in Yemen brought about an agreement to respect
the provisions of the Geneva Conventions and in 1988 the FMLN movement in El Salvador
agreed to adhere to the provisions of CA3 and APII.73 And also the ICRC’s Customary Law
Study also confirmed that the substantive provisions of CA3 are binding as customary law.
So, there is no doubt that the substantive provisions of CA3 apply as a matter of customary
law to all parties to an armed conflict, regardless of its formal classification or geographical
reach. In that case, CA3 would apply as customary law.

VII. Problems of Implementation of Common Article 3:

Most important problem is that, implementation of CA3 in NIAC. IHL does not contain real
implementation mechanisms for situations of NIAC. States, by becoming parties to the 1949
Geneva Conventions, have undertaken ‘to respect and to ensure respect’ for the main
conventions on the laws of war.74 There is no supervisory body to oversee the implementation
of CA3. Neither CA3 nor APII contains provisions governing their enforcement. Moreover,

69
G.A. Res. 2444, 23 U.N. GAOR Supp. (No. 18) at 164, U.N. Doc. A/7433 (1968).
70
ICJ, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), 27 June 1986, para. 218.
71
Rovine, ‘Contemporary Practice of the United States Relating to International Law’ (1973) 67 Am, J. INT'L
L. 118, pp. 122-25.
72
ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, September 2, 1998, paras. 608–609.
73
Prosecutor v. Duško Tadić , Case No. IT-94-1-AR72, 2 October 1995, para. 124.
74
Adma Roberts, The Law of War: Problems of Implementation in Contemporary Conflict,
pp.11http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1358&context=djcil>accessed on 5 April 2015.

11
the nature of the CA3 is that it is only a general principle 75 and it can be applied by the state
party with a margin of appreciation as reflected in their legislations. 76 For the implementation
of CA3 broadly, the amendment to US War Crimes Act of 1996 extends the jurisdiction of
national courts to violations of article 3 common to Geneva Conventions. 77 However, the
courts did not consider violation of CA3 as a grave breach.78 Certain courts consider the
violation of CA3 as crime against humanity without precisely delimiting the concept. 79 The
confusion of this kind has not been confounded despite there are efforts to create ad hoc
international criminal tribunals, such as ICTY, ICTR and ICC, which provides for detailed
provisions on the jurisdiction, applicable law and the pre-trial procedure. The main
shortcoming of this tribunal is that they are lacking an effective mechanism to enforce arrest
warrants and to execute judgments 80 and also it may look even weaker if it reaches a decision
which is then not fully implemented; in some cases it could be very difficult to secure
implementation of the court's decisions. The great problem is states tend to show an
unwillingness to acknowledge a situation as an internal armed conflict within the meaning of
CA3 and/or APII so it becomes difficult to implement of CA3 in a state. While the final
clause of CA3 states that its application ‘shall not affect the legal status of the Parties to the
conflict’,81 state authorities engaged with NIAC have a tendency not to recognize its
applicability.

VIII. The Ambit of Common Article 3:

There are many criticisms to be made of CA3. As Wilson points out 'article 3 does not
prevent the established government from punishing the rebels under municipal law, nor does

75
W.Michael Reisman and James Silk, ‘Which Law Applies to the Afghan Conflict?’ (1988), American Journal
of International Law, vol.82, pp.463-464.
76
Geza Herczegh, Development of International Humanitarian Law (1984) pp.64.
77
This act prohibits certain violations of CA3 of the 1949 Geneva Conventions, which sets out minimum
standards for the treatment of detainees in armed conflicts of a non-international character. In the 2006 case of
Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), the Supreme Court rejected the Bush Administration’s long-
standing position that CA3 was inapplicable to the present armed conflict with Al Qaeda. As a result, questions
have arisen regarding the scope of the War Crimes Act as it relates to violations of CA3 and the possibility that
U.S. personnel may be prosecuted for the pre-Hamdan treatment of Al Qaeda detainees.
78
A detailed analysis of the legislation and case laws covering CA3; Thomas Graditzky, ‘Individual Criminal
Responsibility for Violations of International Humanitarian Law Committed in Non-International Armed
Conflicts’ (1998) No 322, International Review of the Red Cross, pp. 29-56.
79
Ibid 47.
80
Antonnio Cassese, ‘On the Current Trend Towards Criminal Prosecution and Punishment of Breaches of
International Humanitarian Law’ (1998) European Journal of International Law, vol.9, pp.17.
81
According to the ICRC Commentary on the first Geneva Convention, this clause ‘makes it absolutely clear
that the object of the Convention is a purely humanitarian one, that it is in no way concerned with the internal
affairs of States, and that it merely ensures respect for the few essential rules of humanity which all civilized
nations consider as valid everywhere and under all circumstances and as being above and outside war itself’.
Pictet (ed.), Commentary I, p. 60.

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it change their status in law.'82 One of the biggest failings of CA3 is the uncertainty
surrounding its application. Because this application of the provision is automatic, no
'recognition' is necessary and therefore, 'target conflicts' are not easily identifiable. CA3 does
not provide for a competent authority that can decide if a particular conflict constitutes a
'CA3 conflict'. Also quite controversial regarding CA3 is the lack of special provisions for
guerrilla warfare. The problem with this article is that it is applicable only to a situation,
which is an ‘armed conflict’. However, the term “armed conflict” has not been defined in the
Convention and also with the term of 'armed conflict not of an international character' not
being defined.83 There is much uncertainty concerning the threshold of violence necessary
before a conflict can be regarded as being a NIAC under the Geneva Convention for the
purposes of CA3. CA3 also fails to define elaborate rules of distinction between military and
civilian targets84 and makes no mention of the principle of proportionality in target
selection.85 Although the substance of CA3 defines principles of the Conventions and
stipulates certain imperative rules, the article does not contain specific provisions. 86 In
Hamdan v. Rumsfeld87, the Court erroneously applied CA3, which applies to conflicts not
international in scope; more specifically, CA3 is intended to be used in cases of civil war,
rebellion, and the like, not in conflicts against an international terrorist group. 88 The
procedures for enforcing CA3 are not specified within the article itself. 89 While some parties
may apply prisoner of war laws in internal conflicts, under both APII and CA3 these
privileges do not cover captured combatants in a civil war.90

Conclusion:
The world has witnessed many human rights violations which have also constituted violations
of IHL throughout the twentieth century. The fundamental principle of the Geneva
82
cf Wilson (note 36).
83
Suter Keith, An International Law of Guerrilla Warfare: The Global Politics of Law-Making, (Frances Pinter
Publishers, London, 1984).
84
Article 48 of API.
85
API, Articles 51(5)(b), 57(2) (iii) and 85(3).
86
J. Pictet, Commentaries on the Geneva Conventions of 12 August 1949, Vol. III: Geneva Convention relative
to the Treatment of Prisoners of War (eds), (ICRC, Geneva, 1960) pp. 31.
87
Hamdi v. Rumsfeld, 542 U.S. 507, 510 (2004),
88
Matthew Sonn, Hamdan v. Rumsfeld: A Bad Decision with the Best Intentions - Why the Court Was Wrong in
Interpreting the Geneva Conventions and What Should Be Done, (2007) 19 Pace Int'l L. Rev. 143.
89
C Lysaght, ‘The Scope of Protocol II and its Relation to Common Article 3 of the Geneva Conventions of
1949 and Other Human Rights Instruments’ (1983) 33 Am UL R 9, 12.
90
George Mousourakis, Applying Humanitarian Law to Non-international Armed Conflicts, Pp.
314<http://dadun.unav.edu/bitstream/10171/21626/1/ADI_XIV_1998_06.pdf>accessed on 5 April 2015.

13
Conventions, which is the protection of the individual in times of armed conflict, is gradually
asserting itself without acknowledging artificial legal distinctions as to the nature of those
conflicts. Most victims in NIAC are civilians which do not take part to the hostilities.
Undoubtedly CA3 applied as a treaty law matter only to internal armed conflicts. CA3 is
revolutionary because it purported to regulate as a matter of IHL wholly internal matters.
CA3 establishes fundamental rules from which no derogation is permitted. This paper has
argued that CA3 may today be given a different geographical reading as a matter of treaty
law and that it applies to all situations of violence that can be classified as NIAC, based on
the quality of the parties involved. The violence need not be confined within the borders of
single state can be reached through a different line of reasoning. They include traditional civil
wars, internal armed conflicts that spill over into other states or internal conflicts in which
third states or a multinational force intervenes alongside the government. And also NIAC that
spills outside territorial boundaries, and a conflict that is fought on territorial waters but
which extends to the high sea, would both remain covered by the CA3, even that part of the
fighting that takes place outside state territory? It should be specific. This study also observes
that the main problem with the implementation of CA3 is in the recognition of situations as
constituting armed conflict. Traditionally it was very difficult to enforce the law of NIAC.
Moreover language of the provision limiting its application to the “territory of one of the
High Contracting Parties” It should be widen enough and provision should be more specific.
The above analysis shows the the problems surrounding the implementation and enforcement
of IHL in NIAC and not easily dealt with under the current regulations so uniform regulation
applicable to all armed conflicts could be produced. In the meantime, customary international
law can help to partially bridge the existing gaps in protection, as well as a strong
encouragement of parties in NIAC to apply the rules regulating IAC to their conflict. In the
end the international community, including the Human Rights Council, should remain
engaged in closely following the situation with a view to ensuring that perpetrators of gross
violations of human rights law or serious violations of international humanitarian law are
held accountable.

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