Contemporary Conflicts and Protection Gaps in International Humanitarian Law: The Necessity and Practical Utility of Fundamental Standards of Humanity

• Jurisdiction: South Africa
• Date: 23 May 2019
• Published date: 23 May 2019
• Pages: 24-58
• Author: Brian Sang YK

Contemporary Conicts and

Protection Gaps in International

Humanitarian Law: The Necessity

and Practical Utility of Fundamental

Standards of Humanity

Brian Sang YK*1

Abstract

International humanita rian law (IHL), applicable to armed con ict, is

coming up against the inev itable challenges of the times be cause the

nature of and part icipants in contemporary conicts dif fer considerably

from that in the conic ts of yesteryear. IHL trad itionally sought to

regulate the conduct of, and damage cau sed by, armed conict betwee n

rather than with in states. Contemporary con icts are far more likely to

be internal rather tha n international and thus enta il the presence, to

a large extent, of non-state actors, whether as combata nts or victims.

The recent history of con icts reveals that interna l armed conicts and

other situations of internal v iolence of lesser intensity, namely internal

disturbances a nd tensions, are the most common forms of violence

today. This high incidence of such con icts poses major problems for

legal regulation and protec tion of individuals from abu ses related to

the associated violence. The appa rent inadequacy of internationa l law

in effectively protec ting individual s caught up in grey-zone conicts

generally and the right to li fe in particula r makes clear the necessity

to ll the protection gaps. Th is article asks whet her common elements

in human rights law and IH L can be identied and ar ticulated as

fundamental sta ndards of humanity that ought to apply along the entir e

spectru m of violence (from internal tensions to ful ly-edged civil war),

regardless of the formal c lassication of such situations. Its thesis is that

fundamental sta ndards of humanity c an offer a means to ensure t hat

grey-zone conicts ar e subject to regulatory norms of i nternational law

pursuant to which indiv iduals caught up in the violence can b e better

protected.

Keywor ds: armed conicts, classication, international humanitarian

law, international human rights law

The protection of vict ims of armed conic t is becoming increasi ngly difcult

in cases of undened sit uations of violence, resulting in a w idespread and

* LLB ( MU), LLM (UCT ), PhD (Can) (UCT), Faculty of L aw, University of Cape

Town; i.briansang@yahoo.co.uk.

24

(2015) African Yearbook on International Humanitarian Law 24

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CONTEMP ORARY CONFLICTS A ND PROTECTION GAPS 25

indiscrim inate violation of fundamental hu man rights, such as the rig ht

to life….1

The guarantees a fforded by the fundamental rules of [international law]

today appear to be insuf cient [because] they do not cover al l the cases of

serious violations of human itarian principles t hat frequently occur in t his

type of situation. 2

In order to remedy the lack of internat ional protection of persons in suc h

situations, it is urgent to identify a nd to bring together fundamenta l

standards of human ity, accessible to all, in one statement of principles

reecting inter national human rights and hum anitarian law …, applicable

at all times, in al l circumstance s and to all actors, governmental, i nter-

governmental or non-governmental, a s well as to all individuals.3

1. INTRODUCTION

International humanitarian law (IHL) applicable to armed conict is

coming up against the inevitable challenges of the times because the

nature of and participants i n contemporary conicts differ considerably

from that in the conicts of yesteryear. IHL traditionally sought to

regulate the conduct of and damage caused by armed con ict between

rather than within states.4 But contemporary conicts are far more

likely to be internal than internationa l and thus entail the presence, to

a large extent, of non-state actors, whether as combatants or victims.

The recent history of conicts reveal s that internal armed conicts and

other situations of internal violence of lesser intensity, namely internal

disturbances and tensions, are the most common forms of violence

today. This high incidence of such conicts poses major problems for

legal regulation and protection of individuals from abuses related to

the associated violence. While international law previously focused

more on international conicts fought between two state armies,

there is now an urgent need to focus on internal conicts involving

both state and non-state actors. Due to the traditional emphasis on

international rather than internal conicts, internal armed conicts

and lesser forms of internal violence are sparsely regulated. Hence the

realities of contemporary conicts are continually putting current IHL

to the test.

Internal armed conicts and other violent situations have been

and continue to be a major source of concern due to the widespread

1 Marco Odello ‘Fund amental standard s of humanity: A common la nguage of

international huma nitarian law and huma n rights law’ in Rober ta Arnold and

Noëlle Quénivet (eds) (200 8) International Humanit arian Law and Human Rights

Law: Towards a New Merger in Internatio nal Law 15, 16-1 7.

2 Djamchid Momtaz, ‘T he minimum humanitaria n rules applicable in periods of

internal tension and st rife’ (1997) 324 International Review of t he Red Cross 455.

3 Jean-Da niel Vigny and Cecilia T hompson ‘Fundamental stand ards of humanity:

What future?’ (20 02) 20:2 Netherlands Quarterly of Hum an Rights 185, 186.

4 Chr is af Jochnick and Roge r Normand ‘The legiti mation of violence: A critica l

history of the laws of war ’ (1994) 35 Harvard International L aw Journal 49, 49.

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26 AFRICA N YEARBOOK ON INT ERNATIONAL HUMA NITARIAN LAW

atrocities and wanton destruction in their wake.5 Even more alarming

has been a high incidence of ‘undened situations of violence’6 or

grey-zone conicts, straddling the interstitial area between internal

armed conict and ver y violent internal disturbances. In such conict s,

serious violations of the fundamental rights of individuals and

communities often occur on a massive and w idespread scale, and these

are typically perpetrated by state agents or armed opposition groups.

The crux of the problem of decient legal protection by international

law in grey-zone conicts is rooted in the fact that neither IHL nor

international human rights law is clearly applicable. This creates a

situation of apparent lawlessness where the distinct legal regimes of

human rights law and IHL do not apply.

The apparent inadequacy of international law in effect ively

protecting individuals caught up in grey-zone conicts generally

and the right to life in particular makes clear the necessity to ll the

protection gaps. This article ask s whether common elements in human

rights law and IHL can be identied and articulated as fundamental

standards of humanity that ought to apply along the entire spectrum

of violence (from internal tensions to fully-edged civil war), regardless

of the formal classication of such situations. Its thesis is that

fundamental standards of humanity can offer a means to ensure that

grey-zone conicts are subject to regulatory norms of international

law pursuant to which individuals caught up in the violence can be

better protected. This article explores the relevant international legal

developments in this line and advocates the necessity and practical

utility of fundamental standards of humanity that are ‘applicable at

all times, in all circumstances and to all parties’7 as a means to ll the

protection gaps in international law.8

2. THE GENERAL PROBLEM OF LEGAL UNCERTAINTY IN

INTERNAL CONFLICTS

The factual circumstances of contemporary internal armed conicts

make it particularly difcult to decisively classify a situation of armed

violence as belonging to a specic category. In many cases, such

conicts exhibit the characteristics of different types of conicts

5 Gab riella Blum ‘Re-envisagin g the international law of internal armed con ict:

A reply to Sandesh Sivaku maran’ (2011) 22(1) European Journal of International

Law 265, 266.

6 Odello op cit note 1 at 15 and 16.

7 United Nations E conomic and Social Cou ncil Report of the Se cretary-G eneral,

UN Doc E/CN.4/20 06/87 (3 March 2006) para 12.

8 Vigny and Thompson op c it note 3 at 185. See also Lou ise Doswald-Beck ‘Fill ing

the protection gap: Funda mental standards of huma nity and the releva nce of

customary inter national humanita rian law’ (6 June 2005) Respect: The Human

Rights Newsletter 4.

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