The Principle of Distinction in an International Armed Conflict: Organized Armed Groups Not Belonging to a State Party to the Conflict

Abstract

The classification of Non-State Organized Armed Groups participating in a mere International Armed Conflict (IAC) could be troublesome, especially in the absence of a co-existing Non-International Armed Conflict (NIAC). Since this situation is not simply covered by the Geneva Conventions. Under the current legal framework of IHL, an Organized Armed Group classifies as armed forces in an IAC if it belongs to a State Party to the conflict. If not, the Organized Armed Group cannot be considered as armed forces as specified in Article 43 of Additional Protocol I to the Geneva Conventions and may as a result be classified as civilians. This differs from NIACs in which Non-State Organized Armed Groups are considered as armed forces as specified in Common Article 3. In the absence of a co-existent NIAC, the classification is contingent on how the Non-State Organized Armed Group fits in the IAC. This article argues that on the basis of international bodies of law such as the Geneva Conventions, Non-State Organized Armed Groups taking part in a mere IAC should not be considered as taking part in a NIAC, nor should they be classified as civilians taking continuously direct part in hostilities, and lastly nor should they be treated as armed forces as defined in Article 43 (1) of Additional Protocol I to the Geneva Conventions. Rather, the article concludes that Organized Armed Groups taking place in an IAC are classified as armed forces as provided in Common Article 3 and is therefore, also governed by what is known as the ‘mini-convention’ provided in Common Article 3 under customary international law.