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Home Armed Conflict Developing the Law of Non-International Armed Conflict: A View of the Harmonization
Project

Developing the Law of Non-International Armed

Conflict: A View of the Harmonization Project
Published on September 12, 2014

Lawrence Hill-Cawthorne

Author: Lawrence Hill-Cawthorne

Editors Note: This post is part of the joint series of posts

(http://www.ejiltalk.org/transatlantic-dialogue-on-internationallaw-and-armed-conflict-a-blog-series/)hosted by EJIL:Talk!,
Lawfare
(http://www.lawfareblog.com/)and
Intercross
(http://intercrossblog.icrc.org/) (blog of the International
Committee of the Red Cross) and arising out of the Transatlantic
Workshop on International Law and Armed Conflict held in
Oxford this summer.
This post is a response to Professor Sarah Clevelands post
(http://www.ejiltalk.org/developing-the-law-of-non-international-armedconflict)on the Columbia-based Harmonization Project that Professor
Cleveland and Sir Daniel Bethlehem are leading. That project explores
the potential for applying the law of international armed conflict (IAC)
in non-international armed conflicts (NIACs), as a means of developing
the law applicable in the latter. The conclusion of the project is that the
large majority of the rules applicable in IACs can be transplanted into
NIACs without amendment and that this should be done by States either
multilaterally or via unilateral declarations.
A detailed, rule-by-rule consideration of the degree to which parity
between the law of IAC and NIAC is practicable is a very useful
endeavour. Indeed, historically this has been the method by which the
law of NIAC has developed. It is clear why this should have been the
case. When the first international humanitarian law (IHL) treaties were
adopted in the mid-nineteenth century, international law was still, by and
large, a law governing inter-State relations. Matters that did not directly
engage such relations, including NIACs, were thus generally excluded.
Customary rules did of course develop to govern certain NIACs, such as
the doctrine of belligerency, but these often applied only where another,

Lawrence Hill-Cawthorne
(http://www.reading.ac.uk/law/about/staff/lhill~cawthorne.aspx) is a Lecturer
in Law and Programme Director of
the LLMs in International Law and
Human Rights at the University of
Reading. He has a DPhil in
International Law from the
University of Oxford and his
research interests lie in
international humanitarian law,
human rights law, international
criminal law, and relationship of
these different areas to general
international law.
Full bio:
http://www.reading.ac.uk/law/about/staff/lhill~cawthorne.aspx
(http://www.reading.ac.uk/law/about/staff/lhill~cawthorne.aspx)

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the doctrine of belligerency, but these often applied only where another,
non-party State was affected by the conflict.
As international law expanded to include the regulation of purely intraState matters (reflected in human rights instruments, as well as the
Genocide Convention, adopted in the aftermath of the Second World

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War), this basis for marginalising NIACs began to fall away. Rules
traditionally applicable only in IACs could now move over into NIACs.
And indeed this is what has happened: common Article 3 to the 1949
Geneva Conventions and Additional Protocol II were based on the law
of IAC. This is also true of the customary rules recognised by the ICTY
and ICRC.
It is therefore only natural that we should look to the law of IAC in

Recent Comments
Jordan

A critical error appears

in the H.C.'s Report, para. 34, etc.

re: the reach of the ICCPT b/c the

developing the law of NIAC. This post, however, will offer some words
of caution in adopting this method of humanising NIACs. In particular,

person must be within the actual...

it will be argued that both general and specific arguments militate

against this supposedly self-evident means by which to develop the law

Aman Verma Is the Human

Rights Essay Award Competition

of NIAC.

open to students from all around

the world? Sep 14

General Concerns
The Harmonization Project declares its goal as being to build upon
current obligations in NIACsit is limited to IHL and does not seek to
make a claim regarding the relationship between IHL and human rights
law. However, it seems to me that one cannot avoid such questions
when considering proposals for developing the law of NIAC. Indeed, if
ones goal is further to humanise NIACs (as the Harmonization Projects
seems to be) then one must tread carefully in proposing the extension of
IHL
in
toto
to
NIACs.
As
David
Kretzmer

Sep 15

Jordan Lawrence: I predict

that most states will, in any event,
refuse to provide "combatant
immunity" for rebel fighters
engaged in a NIAC (e.g., armed
conflict... Sep 12
What impact would Scottish
independence have on a Brexit

(http://journals.cambridge.org/action/displayAbstract?
fromPage=online&aid=8501810&fileId=S0021223700000431)
has
shown, far from increasing protections, this method could in fact

referendum? | EuroDale {
[] of the value of international
cooperation, especially if Scotland

undermine existing protections.

remains in the EU (as would seem

likely): couple that to a British
government that... }

It is rather trite now to note that a States international human rights

obligations continue, prima facie, to apply in armed conflict, including
(and perhaps especially) NIACs. Thus, whereas in 1949 a Lotus-like
presumption arguably applied in NIACs such that, absent IHL, no other

Jordan p.s. I wonder whether

there is any person who is familiar

rules of international law applied, the situation now is very different. If

we were to extend the entire corpus of IHL to NIACs, we would need to
consider how those rules interact with existing human rights obligations.

with international law who would

go on record stating that treatybased human rights under... Sep

No doubt one would be faced, reasonably or not, with lex specialis-type

arguments that those IHL rules now displace incompatible human rights
obligations. The result could, with regard at least to certain matters (e.g.

11

targeting and detention), be a lowering of protections, rather than a

raising of the floor. Indeed, this would be a consequence of the fact that

application of IHRL treaty law"?

See, e.g., U.N. Charter, art. 55(c)

harmonization would involve not only protective rules but also

("UNIVERSAL respect for, and

Jordan an "intractable debate

regarding the extra-territorial

permissive

rules.

Dapo

Akande

and

have

written

here

(http://www.ejiltalk.org/does-ihl-provide-a-legal-basis-for-detention-innon-international-armed-conflicts/)
and
here
(http://www.ejiltalk.org/locating-the-legal-basis-for-detention-in-noninternational-armed-conflicts-a-rejoinder-to-aurel-sari/) on the absence
of permissive rules from the current law of NIAC; harmonization would
change this.
The emergence of international human rights law has therefore
significantly altered the context of these debates on the distinction
between IACs and NIACs. Far from representing the final stage in the
process of raising the level of protection for victims of NIACs,
harmonization could be the final nail in the coffin for this endeavour.
This is especially so for it would apply a single legal regime to all
NIACsa category which, since 1949, has expanded considerably to
include a vast number of permutations, from relatively low-intensity
internal conflicts at one end, to large-scale NIACs involving multinational forces at the other. Underpinning IHL is a basic presumption
that it is necessary to revert to its more permissive rules whenever an
armed conflict exists. One must question whether this general
presumption of necessity shouldapply in all situations labelled a NIAC.
Specific Rules

11

Authors
Ahlborn, Christiane
Ahmad, Jawad
Akande, Dapo
Alexandra Harrington, Frdric
Mgret and
Alice Grozdanova & Konstantina
Tzouvala, Rumyana Panepinto,
More Authors (#moreauthors)

Archives
September 2014
August 2014
July 2014

None of the above is meant as an absolute rejection of harmonization.

Rather it is a caution against assuming harmonization to be a progressive
method. In certain areas, the law of IAC can function as a useful starting
point, but simple harmonization would be problematic.
Let us take detention (internment) as an example. The law of IAC
contains two principal internment regimes: that for prisoners of war
(under the Third Geneva Convention, GCIII) and that for civilians
(under the Fourth Geneva Convention, GCIV). Harmonization would
involve applying both regimes in NIACs. The GCIII regime, however,
poses significant problems for NIACs. That regime comprises two key
elements: internment on the basis of status and internment for the
duration of hostilities. Both elements are unsuitable for application in
most NIACs. The first, status-based internment, is problematic by
reason of the absence of any elaborated notion of status in NIAC. Even
if one could develop an appropriate definition of combatant for NIACs
(whether
it
is
the
(http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf)

observance of"), 56, 103... Sep

ICRCs

continuous combat function test, the Israeli Supreme Courts

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notion of contribution to the cycle of hostilities, or the various functional

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GCIII regime is equally problematic. This is because the temporal

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GCIII regime is equally problematic. This is because the temporal

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contours of NIACs are notoriously indeterminateif there is one thing

more difficult than identifying precisely when a NIAC comes into

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speak of an end to the conflict. Applying the GCIII presumption of

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extremely prolonged detention without any form of review.

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The GCIV internment regime, covering civilians, is more appropriate for

NIACs, given its individual, conduct-based approach. GCIV provides
that a civilian may be interned where necessary for reasons of security,
provided that they have periodic reviews of the actual necessity of their
internment and are released as soon as the individual reasons justifying
their internment cease. However, this should not simply be transposed
verbatim into NIACs. Rather, we should use GCIV as a starting point
and take this opportunity to develop these rules in line with subsequent
practice.
Thus,
in
line
with
the
ICTY
in
Delali
(http://www.icty.org/x/cases/mucic/acjug/en/cel-aj010220.pdf)(para
329), we might say that the review body must have the power to order
release. Similarly, in keeping with State practice, we could include a
requirement that the review body be independent from the chain of
command that ordered the initial detention. The point here is simply to
remind ourselves that the treaty rules applicable in IACs are very much a
product of their time; one should not be too quick to assume that these

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skeletal rules constitute the benchmark for developing the law of NIAC.

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This post has offered two lines of critique against the orthodoxy of

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harmonization, and one may now ask how these are to be reconciled
on the one hand, I have suggested that drawing on the law of IAC could
undermine existing protections, whilst on the other I have suggested that
certain rules might be useful starting points in developing the law of
NIAC. I have offered a proposal along these lines in a recent article
(http://journals.cambridge.org/action/displayAbstract?
fromPage=online&aid=9277234&fileId=S0021223713000265). Simply
put, my view is that, at least in particular respects, the law of NIAC
should be developed, using the law of IAC as a starting point (but not an
end in itself). However, for States wishing to access these more

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permissive rules, they should do so via their human rights treaty

obligations, e.g. through contextual interpretation of those human rights

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obligations, where possible, or by derogation therefrom, again where

possible. This dual approach of developing NIAC law, but accessing it

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through human rights law, has a number of advantages. First, requiring a

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State to access the permissive aspects of IHL through their human rights
obligations would ensure that it is not simply assumed necessary to

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revert to those permissive rules. Rather, necessity and proportionality in

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revert to those permissive rules. Rather, necessity and proportionality in

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the prevailing circumstances would need to be demonstrated. Second,

developing the law of NIAC would clarify the minimum standards that

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States must honour. It would constitute the floor below which no

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conduct may fall even in cases of permissible derogation. Finally,

whereas there is great uncertainty surrounding whether and, if so, to

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what extent armed groups might be bound by human rights law, the law

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of NIAC binds States and non-State groups equally. Developing the law
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1 Comment

One Response
Jordan
September 12, 2014 at 16:13

Lawrence: I predict that most states will, in any event, refuse to

provide combatant immunity for rebel fighters engaged in a
NIAC (e.g., armed conflict not of an international character
occurring in the territory of one of the parties to the GCs)
and will refuse to provide pow status to such folk.
However, I hope that the project can identify additional rules for
NIACs than GC 3 and the few methods and means identified by
the ICTY and that appear in Art. 8 of the Rome Statute.
With respect, and with regard to your statement that
international law was still, by and large, a law governing interState relations, this is manifestly in error but unnecessary for
your study. International law has NEVER been merely or by
and large state-to-state. There have been other actors with
formal participatory roles (like nations, tribes, peoples, and, yes,
belligerents) for a few hundred years and the laws of war have
recognizably applied to armed conflicts involving these entities
(usually against a state or states) and we would, today, term
these IACS in part because it was recognized in the 19th
Century that all of the customary laws of war apply to a
belligerency (like the U.S. Civil War) and above. See
http://ssrn.com/abstract=1701992
(http://ssrn.com/abstract=1701992) Yess, GC 3 was entirely new