Implications of Applying IHL to Low-Intensity Conflict: From Internal Disturbance to Armed Conflict

Release Date: 
Wednesday, September 28, 2016

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Humanitarian actors increasingly find themselves in contexts where the application of the norms and concepts of international humanitarian law (IHL) is contested. In particular, those working in possible situations of non-international armed conflict are often faced with the fact that it can be far from clear whether or not there exists a situation of armed conflict, which is required for the application of IHL. Especially in cases of armed insurgencies, spill-over conflicts, riots, urban violence, or violence in fragile states, the application of IHL may be disputed, resulting in a lack of clarity as to the applicable norms, and the obligations parties have with regard to the use of lethal force, the protection of civilians, detention practices, and other issues.

When there is an absence of a clear pronouncement from the parties themselves, governments, courts, or other leading actors such as the International Committee of the Red Cross (ICRC), other humanitarian actors may be unsure whether or not they are in fact operating in a conflict paradigm. Moreover, in such cases, humanitarian actors face a strategic choice as to whether to advocate for the application of IHL, from a practical, pragmatic or protection point of view. After all, other legal frameworks such as international human rights law may be more protective of civilians, in particular setting higher protection standards for protection of life and basis for detention.

The qualification of armed violence, and the resulting potential application of IHL, thus raise a number of important questions for humanitarian actors, from both a factual, legal and policy perspective. In conversations with key experts and practitioners, this podcast will examine legal and policy considerations with regards to ‘low level’ armed violence and the strategic importance of application or non application of IHL in such contexts.

Key questions include:

-- What are the implications of classifying a situation of armed conflict under IHL? What is the impact of classification of conflict by some parties or actors and not by others?

-- How should humanitarian organizations decide whether to advocate for the application of IHL to low-intensity conflicts?

-- From both a legal and policy perspective, what are the advantages and disadvantages of applying IHL? Beyond IHL, how can other relevant legal tools be utilized to enhance humanitarian protection?

Giovanni Bassu
Regional Deputy Representative (Protection)
UNHCR, Panama
Twitter: @UNHCR
Jann Kleffner
Professor of International Law
Head of the International Law Centre, Swedish Defence University
Armando Meneses Larios
National Autonomous University of Mexico
Former ICRC legal advisor for the Americas
Twitter: @UNAM_MX

Additional Resources

International Law Meeting Summary Classification of Conflicts: The Way Forward 

Internal Conflicts or other situations of violence- what is the difference for victims?

Classifying the conflict: a soldier’s dilemma. A Carswell

US announcement on Central America refugees highlights the seriousness of situation, UNHCR

Were there armed conflicts in Mexico in 2012? Stuart Casey Maslen. Oxford University Press Blog

 

Comments

Laure Schneeberger's picture

What are the consequences (in particular for the victims) of NOT classifying a situation as internal conflict, like the case of Northern Ireland?

In Colombia today the Government claims that the negotiations with the FARC are about to result in PEACE, how is it possible to claim that there will be peace when there are still 3 other parties to the conflict for which the IHL applies in Colombia, isn't it a denial of the victims of those armed groups and the army ?

Chiara's picture

Once classified the situation, how far can we insure that IHL is binding for political decisions as well as for humanitarians ones, therefore preventing divergent positions and actions?

Ida M Molina's picture

The peace negotiation in Colombia is a long-term process. Thus, recognizing that the progress made so far is a necessary step on the road to peace what immediate recovery transitional approaches can be applied for political reinsertion and social cohesion?

C Ayer's picture

Missed the live event. Will this discussion be available online as a podcast?

Hakimi bin Abdul Jabar's picture

I had just completed a Harvard Humanitarian Response Course in which one of the lecturers was Claude Bruderlein of Harvard University & the ICRC.  I am further intrigued by your article.

What roles do humanitarian actors guided by well-enshrined humanitarian principles & approaches play pursuant to Art. 33 UNC & the efficacy of such?

https://www.fidh.org/en/region/Africa/south-sudan/south-sudan-continued-...

In relation to the abovementioned case scenario, what roles do humanitarian principles & approaches play pursuant to Art. 33 of the UNC in which the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

What are the efficacies of such an approach?

Secondly, pursuant to Justice Tanaka's dissenting opinion in the South West Africa cases (1966) ICJ Reports p.298, in which he had stated that the protection of human rights belong to the jus cogens, anyone taking into account the strength of such a highly-respected opinion, in providing humanitarian assistance of the basic necessities essential for the very existence of human life, e.g. food, water, medical supplies, etc., in accordance with the well-enshrined humanitatian principles, be automatically absolved from negative repercussions of intervention/interference as the provision of such humanitarian aid be considered peremptory norms towards the protection of human rights and its sustenance?

Thank you.

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