QUESTION| What is the understanding and scope of legal regimes pertaining to International Armed Conflict (IAC) and Non-International Armed Conflict (NIAC) respectively, and what are the thresholds of application of these two regimes ?
Importance of this question : 2020 UPSC Law Optional Mains Question
ANSWER |Illustrate the impact of International Humanitarian Law on the international refugee crisis.
There is not a single definition of armed conflict under international humanitarian law. Instead, international humanitarian law distinguishes between international armed conflicts and armed conflicts ‘not of an international character.’
Pursuant to a widely accepted general definition of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), ‘an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State’.
In other words, there is an international armed conflict whenever there is a resort to armed force between states, regardless of the intensity of such force. In contrast, for a non-international armed conflict to exist, two cumulative criteria must be fulfilled.
First, there must be ‘protracted armed violence’ in the sense that a certain threshold of armed violence has been reached in terms of intensity. Second, at least one side to the conflict is an organised armed group. The distinction between international and non-international armed conflict is thus based on two factors:
1. The structure and status of the parties involved is different. International armed conflicts involve sovereign states. In contrast, non-international armed conflicts involve states and organised armed groups.
2. The threshold of the intensity of violence is different. The level of violence required to trigger an international armed conflict is significantly lower than that necessary to constitute a non-international armed conflict.
The criteria of the threshold of violence and the degree of organisation of the armed group distinguish situations of non-international armed conflicts from situations of internal disturbances, riots, terrorism, or high criminality that are not subject to international humanitarian law. If the threshold or organisation criteria are not fulfilled, the situation does not amount to a non-international armed conflict.
Many contemporary armed conflicts appear to not fit well into either one or the other category because they combine elements of traditional non-international armed conflicts within a single state with international interventions to a varying degree and spill over into other states’ territories. Such challenges to contemporary conflict classification relate to the fragmentation of armed conflicts, the relevance of consent, the targeting of non-state armed actors abroad, the use of proxy forces and interventions by foreign forces, including multinational forces.
The relationship between international humanitarian law and refugee law is also a two-way cross fertilisation.
Impact of IHL on Refugees:
Armed conflict and international humanitarian law are of relevance to refugee law and refugee protection in a number of ways.
First, to determine who is a refugee. Many asylum seekers are persons fleeing armed conflict and often violations of international humanitarian law. Not every person fleeing an armed conflict automatically falls within the definition of the 1951 Refugee Convention, which lays down a limited list of grounds for persecution. While there may be situations, notably in conflicts with an ethnic dimension, where persons are fleeing because of a fear of persecution based on their “race, religion, nationality or membership of a particular social group”.
Recognising that the majority of persons forced to leave their state of nationality today are fleeing the indiscriminate effect of hostilities and the accompanying disorder, including the destruction of homes, food stocks and means of subsistence all are violations of international humanitarian law. But with no specific element of persecution, subsequent regional refugee instruments, such as the 1969 OAU Refugee Convention and the 1984 Cartagena Declaration on Refugees have expanded their definitions to include persons fleeing armed conflict.
Moreover, states that are not party to these regional instruments have developed a variety of legislative and administrative measures, such as the notion of “temporary protection” for example, to extend protection to persons fleeing armed conflict.
A second point of interface between international humanitarian law and refugee law is in relation to issues of exclusion. Violations of certain provisions of international humanitarian law are war crimes and their commission may exclude a particular individual from entitlement to protection as a refugee.
International humanitarian law offers refugees who find themselves in a state experiencing armed conflict a two tiered protection. First, provided that they are not taking a direct part in hostilities, as civilians refugees are entitled to protection from the effects of hostilities. Secondly, in addition to this general protection, international humanitarian law grants refugees additional rights and protections in view of their situation as aliens in the territory of a party to a conflict and their consequent specific vulnerabilities.