As John Crook has pointed out, most of the armed conflicts of recent years have been internal rather than international, and most of the suffering of the civilian population has occurred in these internal conflict

Matheson, Michael J.

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ASIL INTERNATIONAL LAW WEEKEND: PANELON INTERNAL CONFLICTSMichael J. MathesonAs John Crook has pointed out, most of the armed conflicts ofrecent years have been internal rather than international, and most of thesuffering of the civilian population has occurred in these internal conflicts.The United States and other western governments have been trying for anumber of years to improve both the legal standards applicable in internalconflicts and the means for their enforcement. This morning, I would liketo survey the various contexts in which this question has arisen and todescribe what the United States has attempted to do in each case.John has already referred to the basic texts that apply rules ofinternational humanitarian law to internal conflicts-namely, commonarticle 3 to the 1949 Geneva Conventions and the 1977 Additional ProtocolII to those Conventions. During the Geneva Diplomatic Conference whichadopted the Additional Protocols, the western group fought a hard andlargely unsuccessful battle to bring the substance of provisions applicablein internal conflicts closer to those applicable in international conflicts,particularly with respect to protection of the civilian population.There were two primary obstacles. First, the nonaligned andSoviet blocs expressed the concern that any strengthening of theobligations applicable in internal conflicts would give enhanced politicaland legal status to insurgent groups, and would lead to greaterinternational intrusion into their internal affairs. This was a particularconcern of the many nonaligned states that did not have a strong history ofnational unity, and that lived in fear of secessionist ethnic, tribal andreligious movements within their societies. It was also a concern ofgovernments that had been the object of international criticism fordomestic abuses, and that were not inclined to give new grounds and newopportunities for such criticism or intervention.Second, there were concerns that the standards and procedures ofinternational humanitarian law, which had been developed to regulate theconduct of states and regular armed forces, could not sensibly be appliedto internal conflicts where the insurgent groups often had little internaldiscipline and fewer incentives to comply with international standards they* Principal Deputy Legal Advisor, United States Department of State.ILSA Journal of Int'l & Comparative Lawhad no hand in negotiating and may never have accepted. A frequentobjection was that these governments could not be expected to require theirmilitary forces to obey restrictions which their insurgent opponents had notaccepted and might not have the ability to comply with if they wanted todo so.As a result, Additional Protocol II is not as comprehensive aswestern delegations had wanted, either with respect to its substance or itsscope of application. With respect to substance, the Protocol was animportant improvement in some areas, but its protections for the civilianpopulation, for detained persons and for those engaged in humanitarianwork were in many ways only a pale copy of the rules for internationalarmed conflict.With respect to its scope of application, the Protocol excludesconflicts with insurgent armed groups which are not under responsiblecommand or which do not exercise such control over a sufficient part ofnational territory as to enable them to carry out sustained and concertedmilitary operations. Unfortunately, these provisions would exclude manyguerrilla wars fought by irregulars. They have also provided a convenientbasis for governments that do not wish to apply the Protocol to decline todo so.The view of the United States is that the rules of AdditionalProtocol II should apply to all internal armed conflicts, and in submittingthe Protocol to the Senate the Executive Branch proposed that UnitedStates ratification be subject to a formal Declaration that it would so applythe Protocol and would encourage all other states to do likewise. We hopethat the Senate can be persuaded to give its advice and consent to theProtocol with this Declaration at an early date.Since 1977, the United States has attempted in various contexts toexpand the application of international humanitarian protections to internalconflicts. For example, during the drafting of the Statute of theInternational War Crimes Tribunal for the former Yugoslavia, we took theposition that the Tribunal should have jurisdiction over war crimes, crimesagainst humanity and genocide in internal as well as international armedconflicts.The Statute that was drafted by the United Nations Secretariat andadopted without change by the Security Council in 1993 included fourjurisdictional articles. The article on crimes against humanity expresslystated that the Tribunal had jurisdiction over such crimes when committedin armed conflict, whether international or internal in character .... Thearticles on grave breaches of the 1949 Geneva Conventions, otherviolations of the law and customs of war, and genocide did not expresslystate whether they applied in internal conflicts. In her explanation of vote[Vol. 3:523Mathesonin the Security Council in favor of the Statute, Ambassador Albright statedfor the record that the United States interpreted the jurisdiction of theTribunal to apply in all respects to internal as well as internationalconflicts, including violations of the provisions on internal armed conflictsin common article 3 of the 1949 Conventions and Additional Protocol II.When these issues came before the Appeals Chamber of the WarCrimes Tribunal in the course of ruling on various appeals by the first warcrimes defendant (Dusko Tadic), we argued that the conflict in the formerYugoslavia was in fact an international conflict, but that in any event eachof the jurisdictional provisions of the Tribunal's Statute applied in bothinternational and internal conflicts. The Appeals Chamber disagreed withour argument that the entire conflict was international in character, anddisagreed with our argument that the grave breaches provisions of the1949 Geneva Conventions applied in both types of conflicts. However,the Chamber agreed that the other jurisdictional provisions applied ininternal as well as international conflicts, relying heavily on the UnitedStates statement during the deliberations of the Security Council.Therefore, although we did not agree with the reasoning of the AppealsChamber on all points, it did sustain our basic argument that the Tribunal'sjurisdiction did apply to violations of genocide, war crimes, and crimesagainst humanity committed during internal armed conflict.When the International War Crimes Tribunal for Rwanda wascreated by the Security Council in 1994, it was agreed by all concernedthat the Rwanda situation was an internal armed conflict, and this time thejurisdictional provisions of the Rwanda Statute were drafted so asexpressly to apply to the rules of humanitarian law in internal armedconflict, as well as to genocide and crimes against humanity. Therefore,there should be no question that the applicable rules of common article 3and Additional Protocol II will apply in the Rwanda war crimes trials.The question of internal armed conflict was also a critical issueduring the negotiations of the past few years to improve the internationalrules governing the use of conventional weapons-particularly land minesand similar devices, which are governed by the Mines Protocol of the 1980Convention on Conventional Weapons. Unfortunately, the 1980Convention clearly applied only to international conflicts, while the greatmajority of civilian casualties from land mine use in recent conflicts haveoccurred in internal conflicts, such as those in Angola and Cambodia. Itwas therefore one of the primary United States objectives in the revision ofthe Mines Protocol to expand its scope to include all internal conflicts. Atfirst, the nonaligned states opposed such an expansion, for all the samereasons that had caused them to oppose the expansion of the scope andcontent of Additional Protocol II.1997] 525526 ILSA Journal of Int'l & Comparative LawIn the end, we and other western delegations were able to convincethese states that a revised Mines Protocol would be of little practical valueif it did not apply to internal conflicts, and that there was no valid reasonfor denying the civilian population protection from land mines simplybecause the conflict in which they found themselves happened to beinternal rather than international. To meet their concerns about the legaleffects of expanding the scope of the Protocol, we added languagespecifically disclaiming any effect on the legal status of the conflict or theinsurgent groups involved, as well as a provision stating that theobligations of the Protocol would apply equally to all parties to theconflict. These additions seemed to provide the necessary cover to allowthem to agree to the expansion of scope.However, I do not know whether this expansion of the MinesProtocol to internal conflicts suggests that it may now be possible toexpand other humanitarian law protections to internal conflicts. Inagreeing to the expansion of the scope of the Mines Protocol, one keynonaligned state made clear that it viewed this as an exceptionalcircumstance that should not be repeated elsewhere, and blocked theproposed expansion of the scope of other parts of the Convention,particularly the new Protocol on Blinding Laser Weapons that was adoptedat the same time. Furthermore, we were not able to persuade thenonaligned to accept a western proposal for international fact-findinginvestigations into alleged violations of the Mines Protocol, and one of thereasons often cited for the nonaligned refusal was that it would never beacceptable to have international investigations into the circumstances ofinternal conflicts.In surveying the field on the application of law to the conduct ofinternal armed conflicts, we should not neglect various provisions of armscontrol agreements that affect the use of weapons in those conflicts. Thebest early example of this was the 1925 Geneva Protocol which prohibitedthe use of chemical and bacteriological weapons. This Protocol is oftenclassified as an arms control agreement, but in fact it states a veryimportant rule of the law of armed conflict. By its terms, the Protocolonly applies to the use of these weapons in war, which was understood tomean international armed conflict. Over the years, however, more andmore states came to accept the position that this prohibition had become apart of customary international law applicable in internal as well asinternational conflicts. This position was supported by the United States inthe aftermath of the use of chemical weapons by Iraqi forces againstKurdish civilians in northern Iraq after the end of the Iran-Iraq War.Not all states accept this view of customary law. However, twoarms control agreements concluded in recent decades would produce much[Vol. 3:523Mathesonthe same effect. The 1972 Biological Weapons Convention did notexpressly deal with the use of such weapons in armed conflict, but didprohibit any acquisition or retention of biological agents of types or inquantities that have no justification for peaceful purposes, or of weaponsor means of delivery designed to use such agents for hostile purposes or inarmed conflict. The effect of these prohibitions is to make it impossiblelawfully to use biological weapons in any form of armed conflict.Likewise, the 1993 Chemical Weapons Convention expressly prohibits theuse of chemical weapons, and the use of riot control agents as a method ofwarfare. This would clearly preclude the lawful use of chemical weaponsin either internal or international conflicts.The United States was a strong supporter of both theseconventions, and is of course a party to the Biological WeaponsConvention. The Chemical Weapons Convention has been submitted tothe Senate, but the Senate has not yet given its consent to ratification. Wehope this will occur soon.Finally, attempts have been made recently by government and non-government experts to identify the rules which may be said to be part ofcustomary international law in international and internal conflicts, or todefine sets of principles that should be applied in all circumstances-whether in armed conflict or peacetime. I imagine that Professor Meron,who has been active in these efforts, will describe them in greater detail.The United States is particularly interested in the current project of theInternational Committee of the Red Cross to conduct a detailed study ofthe customary rules of international humanitarian law, and hopes tocontribute in a concrete way to this useful work.1997] 527

Asil International Law Weekend: Panel On Internal Conflicts

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Asil International Law Weekend: Panel On Internal Conflicts

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