Military Operation in Civil Wars

Decode the legal playbook shaping military operations in civil wars – it's a jurisdiction jigsaw.

Common Article 3 of the Geneva Conventions and Additional Protocol II are the main legal regimes governing Non-International Armed Conflicts (NIACs). They are built upon the rules of limited warfare: distinction, proportionality, precautions, unnecessary suffering etc. (see articles explaining these principles individually on the blog).

A number of specific weapons prohibitions, for instance, only apply to NIACs in accordance with Customary International Law.

The state parties to the Geneva Conventions that are bound by Common Article 3 and Additional Protocol II have not expressed a willingness to grant combatant privilege to so-called fighters who are acting against a state's armed forces. Thus, in NIACs, combatant status does not exist; ony the national state laws apply.

Therefore, fighters whom conduct hostilities may be prosecuted after the NIAC for such offences under the penal code of their given state.

Fighters & Civilians

Fighters can be members of organised armed groups, and can accordingly be lawfully attaked at any time, in the same way combatants may be attacked in an International Armed Conflict (IAC).

Civilians (alike in an IAC) remain protected from the dangers arising from war.

EXCEPTION: If civilians take up arms, then they can lose their civilian protection for such time as they take a direct part in hostilities. During this time, they may be lawfully attacked. (For NIACs this rule is found in customary IHL, and codified in both Common Article 3 and Article 3 and 13, paragraph 3 of Additional Protocol II.)

Direct Participation in Hostilities (DPH):

Relevant treaty law does not provide a definition, so the ICRC has published an interpretative guidance document on the notion of DPH. It identifies 3 requirements that an act must meet in order to amount to direct participation in hostilities:

1. The act must result in a minimum threshold of harm.

2. There must be a direct causal link between the antcipated harm and the act.

3. Must be a belligerent nexus - the act must be specifically designed to perform the required threshold of harm, in support of one party and to the detriment of another.

Continuous Combatant Function

This is where civilians are fighting continuously.

They are considered to be carrying out this function for an organised group. These civilians are thus regarded as members of that armed group, and become legitimate military targets. They are not entitled to combatant privileges.

Those whom do not take direct part in hostilities remain protected in NIACs.