Abstract
From the 1977 Additional Protocols to the 1949 Geneva Conventions up to recent statements by the International Committee of the Red Cross, there is broad support among international lawyers for the proposition that international humanitarian law (IHL) applies to non-international armed conflicts. This consensus, however, has also generated many disagreements. This article focuses on a particular tension regarding the war convention today. On the one hand, states and scholars agree that more rules of international humanitarian law should apply to non-international armed conflicts. On the other hand, the enforcement dimension of international humanitarian law remains truncated in non-international armed conflicts as compared to international armed conflicts. The International Law Commission dealt with this tension in its work on the “Draft Code of Crimes Against the Peace and Security of Mankind” and on the “Statute for an International Criminal Court.” Ultimately, the International Law Commission decided to retain a distinction between international and non-international armed conflicts when it came to war crimes. This article assesses that decision and concludes that the contemporary conventional wisdom about the war convention produces a tension between the desire to broaden the scope of international humanitarian law rules that apply to non-international armed conflicts, and the desire to limit their enforcement. The article considers different ways to resolve this tension, including the possibility of distinguishing between core and non-core war crimes. It also discusses the problems that arise if a country has two kinds of armies, one that fights international wars and another that fights non-international wars, and each is constrained by a different set of war crimes rules with different enforcement mechanisms. Finally, it considers the possibility of a paradigm shift when it to comes to the enforcement of international humanitarian law in non-international armed conflicts. This article is original in that it focuses on a particular, and neglected, tension in the war convention today.
Keywords
international humanitarian law, non-international armed conflicts, war crimes, International Law Commission, enforcement of IHL
Full Text
From the 1977 Additional Protocols to the 1949 Geneva Conventions up to recent statements by the International Committee of the Red Cross, there is broad support among international lawyers for the proposition that international humanitarian law (IHL) applies to non-international armed conflicts. This consensus, however, has also generated many disagreements. This article focuses on a particular tension regarding the war convention today. On the one hand, states and scholars agree that more rules of international humanitarian law should apply to non-international armed conflicts. On the other hand, the enforcement dimension of international humanitarian law remains truncated in non-international armed conflicts as compared to international armed conflicts. The International Law Commission dealt with this tension in its work on the “Draft Code of Crimes Against the Peace and Security of Mankind” and on the “Statute for an International Criminal Court.” Ultimately, the International Law Commission decided to retain a distinction between international and non-international armed conflicts when it came to war crimes. This article assesses that decision and concludes that the contemporary conventional wisdom about the war convention produces a tension between the desire to broaden the scope of international humanitarian law rules that apply to non-international armed conflicts, and the desire to limit their enforcement. The article considers different ways to resolve this tension, including the possibility of distinguishing between core and non-core war crimes. It also discusses the problems that arise if a country has two kinds of armies, one that fights international wars and another that fights non-international wars, and each is constrained by a different set of war crimes rules with different enforcement mechanisms. Finally, it considers the possibility of a paradigm shift when it to comes to the enforcement of international humanitarian law in non-international armed conflicts. This article is original in that it focuses on a particular, and neglected, tension in the war convention today.