Towards comprehensive civilian protection under Common Article 3 by addressing protection gaps in spill-over conflicts

Abstract

There is a proliferation of non-international armed conflicts across the globe. Increasingly, these conflicts involve groups across two or more borders or that involve cross-border clashes. This is termed as spill-over conflict. The Middle East and Central Africa serve as salient examples to this effect. A literal reading of Common Article 3 locks out the victims of such conflicts from protected status. Common Article 3 restricts its application to non-international armed conflicts occurring in the territory of one high contracting party. The gap in protection occurs where the groups do not meet the organisational threshold in Additional Protocol II regarding the structure of the non-state actors’ organisation but are engaged in conflicts spanning more than a single territory. This paper examines the history of Common Article 3 and finds that the parties had no intention of locking out the application of Common Article 3 based on territorial considerations. Secondly, this paper looks into customary international law through state practice and jurisprudence. It finds that state practice and emerging jurisprudence recognises the fundamental principles that underpin Common Article 3. To this end, even where treaty law is inapplicable, customary international humanitarian law shall apply to provide protection to victims of spill-over non-international armed conflict. It is against this backdrop that the paper proposes that the single territory provision in Common Article 3 be amended to accommodate a more inclusive cross border reading.