Non-International Armed Conflict – Current Conceptual Challenges: Confronting organized crime and globalization of the conflict

This article reviews the current state of the law of non-international armed conflict (NIAC) in light of increasingly violent, intense, sophisticated, and at times transnational criminal armed groups. The current range of legal regimes addressing these issues are insufficient for managing the intensity and persistence of violence posed by these entities that exploit seams between national boundaries and challenge states and state institutions. The development of new legal frameworks for addressing transnational and globalized crime is one area deserving additional research. This paper seeks to be a starting point for assessing options for bridging the gaps between the various legal regimes in order to better cope with globalized criminal violence.

Introduction

The regulation of non-international armed conflict (NIAC) by means of international treaties is relatively recent, dating back to the 20th century. In fact, the law of war was largely constructed by the customary international law. Before that, even in international armed conflict (IAC), what was available was the possibility of applying customary rules of the law of war between States, notably regarding prisoners of war. A large-scale internal armed conflict was seen as an IAC, to the extent that it had recognition of belligerence by the State Party to the conflict, or by other Nations.^[1] With this recognition, the internal armed conflict raised the concern of other Nations to maintain neutrality, enabling the use of ports and the establishment of even commercial agreements with the insurgents without violating these rules.^[2] In this case, the insurgent group acquired a status close to that of a State. In short, international law did not recognize any type of regulation of armed conflict other than that which involved States. Any other situation, however serious it might be, without this recognition, was viewed solely from the perspective of the domestic law of the country in conflict.

This situation prevailed until the Spanish Civil War, which can be considered the introductory episode of the Second World War. After the end of this great conflict, negotiations began to try to regulate the NIAC. Until then, the IAC were regulated by the Law of The Hague—Hague Conventions—a set of jus in bello treaties that are still in force today, as well as by the Geneva Conventions of 1929, but which proved to be very incomplete in protecting the civilian population, civilian property and people hors de combat.

At the same time, it became clear that there was a need to establish minimum rules that could regulate internal armed conflicts, but in a way that did not imply legitimizing insurgency or interfering with the sovereignty of nations. These were the concerns always cited as grounds for not regulating the IACs, not because internal conflicts were not considered to be as serious as wars. As mentioned, the Second World War itself had as one of its precursors the Spanish Civil War, one of the bloodiest IACs of the 20th century.

Conceptual evolution

After the Second World War, a consensus finally emerged regarding the regulation of NIACs. It can be said that the idea of establishing two regulatory regimes for armed conflicts was based not only on the need to establish minimum rules for this type of armed conflict—which, in practice, is as serious as, or even more serious than, IACs —but also so that these regulations on NIACs would respect the sovereignty of nations, in order to avoid international interference in internal affairs, and at most, be an international commitment on minimum rules for respecting human rights. This gave rise to article 3 common to the 1949 Geneva Conventions, or simply, article 3 common, the result of a very difficult international agreement.

Then, with the intensification of the IACs, came Protocol I of 1977, which regulated a very specific type of armed conflict, disseminated due to the new geopolitical arrangements, post-World War II and the emergence of the Cold War: wars of national liberation,^[3] extending the rules for IAC to it. In relation to the NIACs, Protocol II of 1977 ensued, the next phase of conceptual evolution, as we will see later.

Regarding the first rule of the NIAC—common article 3—, it is immediately clear that it lacks any conceptual content ^[4]. It simply deals with minimum rules that must be observed in any NIAC, but it does not establish a concept of what it is, its requirements or how to differentiate it from the countless conflict situations that all countries have experienced internally at some point. It is known that, at the time of its creation, it was referring to a situation as serious as an armed conflict between nations. In situations like this, of exclusively political insurgency, aiming to seize power by force, the non-state actor is part of a belligerent organization similar to the Armed Forces (FFAA), and the war actions are constant and of similar intensity.

The next step after Article 3 common to the 1949 Geneva Conventions was Protocol II of 1977, which came into force shortly after the end of the Vietnam War. Protocol II added important conceptual elements, such as territorial dominion and an extremely fundamental output rule, namely, the provision of situations in which NIAC could not be considered: internal tensions and disturbances. In other words, it established a minimum threshold for the intensity of the conflict.

The consequence is that, if a situation does not fit into the Protocol II hypothesis, due to lack of clear territorial domain, or even if one of the items that make up its concept is not present, such as, for example, the level of organization of the armed group,  such as article 1, I, of Protocol II requires,^[5] the de facto situation does not necessarily stop being classified as NIAC, as it may well return to the threshold of the concept of common article 3. And, if it is not a NIAC, the matter only concerns International Human Rights Law (IHRL).

However, the regulation of NIACs remained incomplete in many aspects, such as, for example, when to consider the existence of an organized armed group; on limits to the use of force; and serious violations of the law of war. Some of these were subsequently filled by the jurisprudence of the International Courts, others by the Rome Statute (RS), a treaty that regulates the International Criminal Court (ICC).

In a third phase of evolution of the NIAC concept, we will have the contribution of the international jurisprudence of the courts, the ICTY (International Criminal Tribunal for the Former Yugoslavia) and the ICTR (International Criminal Tribunal for Rwanda). Both Courts, with their historic decisions, filled some gaps, which became customary international law. For example, with the extension of the limits on the use of force in Protocol I of 1977, specific to the IAC and some hypotheses of war crimes. However, this was not enough to overcome the gaps in the concept of NIAC, because, as armed conflicts are thus classified in view of the observation of the de facto situation, we now have several hypotheses of violence in the form of political insurgencies, which would require better establishing the limits between International Human Rights Law (IHRL) and International Humanitarian Law (IHL) or the Law of Armed Conflicts (LAC), although the applicability of their non-derogable norms in times of war is not recognized by the theory of complementarity. Added to this are the reflections of International Criminal Law (ICL), which have become more frequent. In this regard, it would be interesting for ICL to be codified, similar to national penal codes,because, given its increasing proximity to the criminal law of Nations and its complementarity with national jurisdictions, the existence of international crimes without observance of the principle of legality is currently encountering enormous resistance, which requires greater detailing of the factual situation that underpins the criminal conduct. Today, ICL cannot be conceived of as being distant from the General Theory of Crime.

Organization and intensity, as decided by the ICTY in the Tadić^[6] case, continue to be fundamental elements of the concept, but now the extension of some hypotheses of war crime is added, which, within written international law, the rules provided for in treaties, particularly the Geneva Conventions of 1949, until then was only possible in the face of some serious visible situations to international commitments on ILAC in the IACs. Without a doubt, this is yet another factor justifying that the international community update the concept of NIAC in international law, not through customary law but through treaties. Custom, as a source of creation of crimes, is not compatible with the principle of criminal legality, although it is a very important source of international law. This contradiction can be overcome by codifying the ILAC. It is true that the principle of legality was observed through the RS, but it is only valid for the countries that signed it. It would be all the better if there were not only a codification of international law, but that the extensions of rules on the limits of the use of force from the IAC were expanded to the NIAC, but through treaties.

Another very important discussion that arose in the trial of the Tadic case concerns the control of an organized armed group by an external military force from another Nation, a topic that interests us closely, as it refers to the globalization of the conflict, the cause of numerous debates about the evolution of the NIAC concept.

It is noteworthy to know whether we are dealing with the establishment of new concepts of NIAC or whether this is a conceptual evolution, in which the topic has moved from a situation of total absence of conceptual elements, common article 3, to conceptual enrichment, in which new elements have been added to written international law regarding the conceptualization of NIAC. That is, in relation to common article 3, which is devoid of conceptual content, a minimum threshold of violence was effectively added by Protocol II of 1977, at which point the conflict situation would cease to be an object of exclusive concern of IHRL and would become the domain of the ILAC.

The next phase came with the creation of the International Criminal Court (ICC). The Rome Statute (RS), a treaty that regulated the ICC, confirmed the jurisprudential additions made by two International Courts—Yugoslavia and Rwanda. Although the jurisprudence of these two Courts represented progress in the protection of human rights in armed conflicts, it is important to note that it represented a deepening of criticism of the Nuremberg Tribunal, not only because the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), like any other International Court for a specific case, are ad hoc tribunals, but because it extended the concept of war crime to NIAC, originally constructed in treaties exclusively for IAC, based on the notion of serious violations of International Humanitarian Law (IHL). The creation of the ICC undoubtedly diminished these criticisms, especially regarding the establishment of ad hoc tribunals to judge international crimes.

Although the international doctrine mostly does not understand it this way, apparently, observing the treatment that the RS gives to war crimes within the scope of NIAC, in article 8, there would be three concepts of this type of conflict, by adding the element “protracted conflict”, a possible new threshold of intensity, at the same time that it incorporated the additions of territorial domain from the jurisprudence of the International Courts on intensity and organization of non-state actors.^[7]

In this incorporation of the case law of the two International Courts, the concept of war crime was extended, now in written form, to NIACs,^[8] in Article 8(2)(c), complementing the concept in Article 8(2)(d), which at the same time extended the minimum threshold of the 1977 Protocol II to common Article 3, which is in accordance with international doctrine, the majority of which has always considered that the requirement of the minimum threshold, above internal tensions and disturbances, also applied to common Article 3. On the other hand, Article 8(2)(e) lists other crimes, while Article 8(2)(f) apparently restricts the type of NIACs that authorize the establishment of the jurisdiction of the Court, at least in relation to the hypothesis of Article 8(2)(e). Thus, Article 8(2)(f) states: “It applies to armed conflicts occurring in the territory of a State where there is a protracted armed conflict between governmental authorities and organized armed groups or between such groups.” The problem lies in the determination that the armed conflict must be “prolonged”. The presence of this expression gives rise to some of the doctrine to understand that an additional, and higher, minimum threshold has been provided for, and therefore a new concept of NIAC. In other words, there would be two types of notion of intensity, one in Article 8(2)(f), and the other in Article 8(2)(d). Since it is a matter of applying criminal law, this conclusion seems inevitable, in compliance with the principle of legality. The ILAC is today closely linked to the general theory of criminal law and to the treatment of the criminal law of Nations. Furthermore, the addition of the possibility of conflicts between organized groups, that is, exclusively between non-state actors, is visible, reinforcing that the RS conceived the existence of another concept of NIAC.

The International Courts were designed to overcome the extremely serious violation of human rights resulting from trials by ad hoc courts, the best example of which are the Nuremberg and Tokyo Courts during the Second World War. However, the international community ended up committing an even greater violation by creating a crime without prior criminal law established in treaties, and written treaties, especially given the repercussions of criminal law, with an impact on the law of nations, whose principle of the prior existence of criminal law, a consequence of the principle of legality, is accepted worldwide, both for civil law and for common law.

The RS incorporated this interpretative innovation, undoubtedly supported by human protection, but it further reinforced the resistance and distrust of nations regarding the treatment of NIACs, whose greatest fear is the legitimization of non-state actors and interference in internal affairs. Would Common article 3, at the time it was drafted, have found easy acceptance had it provided for war crimes in the event of violation of its precepts, the assumptions of which are based on serious violations of the law of war applicable to IACs and not to NIACs? Does the international community easily accept the idea of expanding the concept of NIACs outside of a specific debate?

Unification of the concept of armed conflict

In view of the above, it is extremely worrying that there are no specific treaties with detailed rules on means and methods of combat for NIAC,^[9] with the limits on the use of force being restricted to customary law, with an extension of the IAC rules, especially methods of combat. Neither can its definition be said to be secure, as it is open to the subjectivity of interpretation regarding the intensity and level of organization of the non-state actor. If the conflict situation falls outside the scope of the LIAC, all that remains is the protection of human rights, within the rules of application of criminal law ^[10], without any details on the limits on the use of force, as proportionality refers exclusively to the person who is the target of the police action.

The first factor favoring the unification of concepts is the extension of the rules that regulate the use of force by the IAC, as set out in Protocol I of 1977, which occurred largely through international jurisprudence. This is because, if a de facto situation is understood as covered by the concept of NIAC, the civilian population does not have the same level of protection that can be seen in the regulation of IAC, which forced the extension of many of the IAC rules to internal conflicts through customary law, favoring the thesis of the unification of the two concepts.^[11] The second is the extension of the concept of some hypotheses of war crimes to NIAC, an understanding, as we have emphasized, incompatible with the postulates of criminal law, both for civil law and for common law.

However, there must continue to be differentiated treatment between the two types of armed conflicts, as the response in the form of criminal law to violations that amount to crimes are just one aspect of the need to regulate conduct in combat, which is, in fact, the heart of the problem. The extension of specific rules from the IAC to the NIAC happened precisely because the two situations could not be equated, under penalty of legitimizing the insurgency. The regulation of IACs is based on the principle of recognizing actors who can participate in the conflict and fall under the concept of combatant, and can benefit from the status of prisoner of war.^[12] This is unthinkable within the scope of NIAC.

In parallel with the understanding of the unification of armed conflict concepts, there are two situations that, on the contrary, may justify or expand the concept of NIAC or provide for the creation of a separate conceptual system. They are: the scope of the NIAC concept in crime suppression and the globalization of NIAC

Confronting criminal organizations

Certainly, this hypothesis was never considered when discussing the regulation of NIAC. The common understanding, which prevails to this day, is that problems relating to criminal repression, governed by the progressive use of force, unlike armed conflicts where the use of force by state security bodies is naturally lethal, are exclusive to the rules of the application of criminal law, a concern for the sovereignty of Nations, which falls outside the sphere of the LAC, but is a concern for the IHRL[13].

Furthermore, the history of crime repression has never recorded confrontations in the form of wars. But this is not the reality today. Organized crime, especially that which controls territorial domains, acts in the same way as political insurgent groups in order to defend their businesses. They organize themselves in a similar way, with weapons of war and military tactics, and their confrontations with security forces are in no way different from armed conflicts.^[14]

It should be added that the concept of NIAC in international law does not require any specific motivation, especially political motivation, although the seizure of power by force is the most common hypothesis. The violence unleashed in the repression of organized crime today, in countries such as Mexico, Brazil and Colombia, has acquired this characteristic. These are situations in which criminal organizations defend their illicit drug trade hubs as guerrillas or associate themselves with subversive movements.

Either the above or the conflict develops in a gray zone,^[15] so that in its dynamics the intensity of the conflict oscillates up and down the minimum threshold of tensions and internal disturbances. IHRL is insufficient to establish limits on the use of force in these situations and, with that, reduce the collateral effects of the confrontations on the civilian population. Only the law of war can do this, since it has detailed rules on limits on the means and methods of combat, however, the tendency is to avoid invoking its protection, due to the unfounded fear of legitimizing the insurgency and absorbing the collateral effects on the civilian population. Now, even in terms of the application of criminal law, this also happens, with criminal legal rules known from any criminal code, such as situations of essential or accidental error, such as: error of type or fact, error of prohibition, error of person and object, aberractio ictus (error of execution) and aberractio criminis (result different from that intended).

Considering the resistance to understanding some situations of crime repression as covered by the concept of NIAC, at the very least, situations of great violence in the application of criminal law, notably the fight against organized crime in urban areas, for example, require the creation of a third conceptual system, expanding the protective rules of IHRL based on the limits on the use of force under the law of war, as well as granting greater legal guarantees for the actions of security forces, since in operations to enforce criminal law they do not enjoy the concept of combatant specific to the law of war, although serving an arrest warrant in a slum dominated by organized crime is not very different from the risks of an infantry operation in a war. A good parameter would be the qualified immunity of North American (US) law.^[16] A police officer confronting violent organized crime, which defends its drug dealing areas like guerrillas wanting to seize power, especially when they have territorial control, is not the same thing as arresting a drunken troublemaker on the street.

Internationalized non-international armed conflicts

An even greater challenge concerns the transnational nature of NIACs. The territorial component is apparently the element that separates the internal conflict from the international one. Both Common Article 3 and Protocol II refer to conflicts that occur within the territory of a party. There is doctrine that states a conflict of a transnational nature as a third category of armed conflict,^[17] an expression that can be said to be similar to and at times synonymous with internationalized non-international armed conflict. Situations such as Israel’s attack on Lebanon in 2006, on the Hezbollah group, which is not part of the Lebanese Armed Forces but acted as an independent force against Israel, a conflict that has now been repeated, really draws attention, especially due to the high intensity of the confrontations and the international nature,^[18] in the sense that the conflict went beyond the territory of Israel, but was not enough to characterize the IAC. The “War on Terror,” which began with the 9/11 attack, undoubtedly triggered new discussions, based on a situation that had not been experienced before of attacks and counter-attacks at an international level against belligerent groups that, since they are terrorists, already raise the discussion of whether they can be considered an organized armed group, in the sense of the concept of NIAC. And here we can note the transnational dimension or “internationalization” of the conflict as a component that can impact the concept of NIAC, which goes far beyond what the treaties have established, notably Protocol II, and it is true that in some situations there is even doubt as to whether the situation is NIAC or IAC.^[19]

But would the territorial component be the element that truly separates the two classifications of armed conflicts and would allow for the creation of a third? The answer is definitely negative. The classification of armed conflicts is much more based on the parties involved in the conflict, while at the same time it would not justify the creation of this third category. This is the conclusion that has prevailed, albeit much criticism.

The transnational nature of an NIAC, that is, when it goes beyond the borders of the country that hosts it, does not necessarily transform it into an IAC. The quasi-internationalization of an NIAC can occur either because the conflict has spread to the territory of another country, or because of the intervention of another state, or group of states, in that conflict^[20] This second hypothesis is the one that concentrates most of the proposals for creating a third concept of armed conflict: the transnational or quasi-internationalized NIAC.

In the first case, for example, an insurgent group can set up a base in another country’s territory and bring the conflict to its own territory. The Colombian Armed Forces attacked the FARC (Fuerzas Armadas Revolucionarias de Colombia – Revolutionary Armed Forces of Colombia) in Ecuador^[21] in 2010 and when this happened the conflict did not become international, it maintained the nature of an internal conflict, although the lack of consent from the State where the attack ^[22] initially took place leads to its classification as an IAC. In the specific case of this military operation in Ecuador, since it took place in a remote location, with no consequences for the civilian population, it is possible to conclude that it did not reach the level of IAC.^[23] For the same reason, since it was an isolated episode and was an attack against an insurgent group operating in Colombia, it can also be concluded that there was no violation of Chapter VII of the United Nations Charter.

The second hypothesis begins with a discussion of the legal effects of the consent given or denied by the host State of the conflict for the entry of another State or group of States into the conflict situation. In this case, external intervention, in the absence of consent from the host State of the conflict, may give rise to the conclusion that an IAC exists, as well as that there has been aggression, a violation of Chapter VII of the United Nations Charter. And another, even more complicated issue concerns who can give consent. Normally, it will be whoever actually controls the majority of the territory and speaks on behalf of the country, although there is an understanding that the legitimately elected government is privileged. Let us also imagine a hypothesis of a failed state to get an idea of the difficulty of the problem, of which Syria is a very recent example.

In the event of intervention by another State in an ongoing conflict in another country, this does not necessarily occur between bordering States. The solution is the same as in relation to the first hypothesis, that is, in principle, the conflict remains non-international if the intervening State does not attack the armed forces of the host State of the conflict. Our country experienced something similar when, on February 26, 1991, a detachment of the Brazilian Army on the border with Colombia was attacked by the FARC.^[24] The response to the attack involved a military incursion against the insurgents within Colombian territory, called Operation Traíra. In this case, the NIAC existing in that country, which was developing against the Colombian Armed Forces (FFAA), ended up extending to the Brazilian FFAA inside and outside the national territory, demonstrating that the territorial component is really secondary in distinguishing NIAC from IAC, with the identification of the protagonists being more important.

Considering that this was the continuation of a NIAC giving rise to the emergence of another, it remained of this nature, and was not a mere episodic confrontation within a situation of application of criminal law against organized crime criminals, for example. The requirements of intensity and organization of non-state actors were extended to this new conflict. It is clear that we are presupposing the consent of the Colombian State to the Brazilian Armed Forces in this military intervention within its borders, and it is true that silence is a good indication of consent. So, from this episode a second NIAC emerged, this time with Brazil. But it could be an IAC, as it is also possible to say that, if the intervening State associates itself with the Host State on a permanent basis in the conflict, it becomes part of it.

The lack of consent would lead to an attack against the neighboring state, that is, the conflict would become internationalized, at least in relation to Brazil, given that the concept of IAC has no gradation, no minimum intensity. And why would it become internationalized in relation to Brazil? Because, according to the prevailing understanding, the international component normally does not alter the ongoing NIAC, but it can give rise to a parallel IAC. This is because, inevitably, in relation to Brazil, without the consent of the host state of the conflict, it would be an attack against the civilian population of another country, even if it is an insurgent group. But it is possible for the entire conflict to become internationalized, if, for example, in an opposite hypothesis, the insurgent group fully integrates itself with the intervening state, becoming an armed wing of the state that violates the sovereignty of the state in an internal dispute. In this case, the conflict begins to occur between two States. Not to mention that it is also possible to find those who argue that the mere presence of foreigners would make the conflict international, which seems exaggerated to us, especially since invasion is not enough to fulfill the concept of occupation,^[25] a hypothesis for applying the LAC in IAC. The most accepted doctrine is the separation of situations, opening the way for a fragmented analysis. It would be difficult for a situation like this to have unanimous agreement in concluding that the conflict has become completely international.

Fragmented analysis

It can therefore be seen that, in the event of a foreign intervention, an IAC may coexist with a NIAC or another NIAC may emerge. This is the result of the fragmented analysis of the conflict, an understanding that, as mentioned, has prevailed.^[26] Without this analysis of the conflict by parts, that is, in opposition to a unified approach to ongoing conflicts, the internationalization of a NIAC could automatically generate a transformation into an IAC, given that the rules that regulate IAC are more comprehensive and detailed, notably in relation to the limits on the use of force. The result would be the undesirable legitimization of the insurgency.

Furthermore, the fragmented analysis is the one that best fits the distinction between IAC and NIAC, given that despite the conceptual approximations between the two, carried out by the jurisprudence of the ICTY and ICTR, and later confirmed in the RS with the expansion of the concept of war crime, there is still, as mentioned, much resistance to treating armed conflict as a single concept. However, even so, it is possible for the total internationalization of the conflict to occur in some isolated case. An intervention in a NIAC in which the insurgent group becomes part of the intervening armed forces, which act against the Host State, with this control being unequivocally exercised, is, as said, a very plausible hypothesis.^[27]

Effective or overall (total) control

Does an organized armed insurgent group fighting against the host State, but acting under the control of another State, constitute a factor that internationalizes the conflict? The answer we have seen is yes, but the entire conflict does not necessarily become internationalized. But what type of control is this? Would it be “effective control,” or should there be an “overall control”? Effective control, in the words of the ICJ – International Court of Justice in The Hague’s decision in the Nicaragua case implies concluding that the State that controls the organized armed group is responsible for its actions, insofar as it equips, finances, plans, or helps to plan its war operations. Something like an objective responsibility of the State for acts of its agents in Brazilian law, a type of civil liability. However, it should be noted that, when judging the preliminary admissibility of the fact, the Court did not address the direct link to the practice of war crimes, especially because this conclusion is outside its mission.

The ICTY analyzed the control of the organized armed group from another perspective, in order to first determine whether the conflict was international, and then to charge serious violations and, consequently, war crimes. The conclusion now became that overall control was necessary.^[28] What was at stake now was the analysis of the practice of international crimes and not just the responsibility of the intervening State. This is because Article 4(A)(2) of the 3rd Geneva Convention, when dealing with the definition of prisoners of war and, as such, only applies to IACs, requires that organized armed groups, in order to fall under this concept, must “belong” to a Party to the conflict.^[29] The overall control also does not require the intervening State to be directly aware of each serious violation of the laws of war committed by the organized armed group. The overall control is sufficient to characterize the internationalization of the conflict, but to characterize a war crime, this must be analyzed in each specific case, whether there was actually a link to the criminal practice.^[30]

The intervention of a State or group of States in an NIAC may occur even without an invasion by its troops, but with occupation^[31] by an organized armed group, for example, the insurgent group that it starts to support. This is the hypothesis of indirect involvement of an intervening State or group of States. Imagine the entry into the conflict by an intervening State that starts to control, in a proxy war, the insurgent group against the State hosting the conflict.^[32] The insurgent group becomes part of the intervening State. In this case, the discussion about effective or global control of insurgent armed groups would only make sense to conclude if the non-international conflict became fully internationalized, with the non-State actor becoming part of the intervening State’s force. However, even so, within a fragmented analysis, the best option would be to consider that an NIAC would continue to exist between the insurgent group and the State hosting the conflict. In short, the occupation can occur remotely,^[33] in the face of total control by non-state actors, which in itself implies the characterization of the IAC in relation to the intervening State. This is a situation that escapes the reality of Latin America, the object of our most direct concern, however, the article provides bibliography for those who wish to delve deeper into the subject.

A military operation by one country against another does not always fall within the concept of IAC, and this can even happen between non-bordering states. The internationalization of armed conflicts between non-contiguous states has been frequent, but without characterizing IAC. An example of this is the “War on Terror,” that is, the conflict that developed after the 9/11 attack. The conflict did not become international, even when the United States, by attacking al-Qaeda, developed military activities in Afghanistan. The US Supreme Court, called to rule on the situation of the Guantanamo prisoners, considered the conflict to be non-international in nature, recognizing the need to observe common article 3 of the Geneva Conventions.^[34]

These situations have multiplied in the 20th century. The most important conceptual element, therefore, is the parties involved, rather than the territory. Whether or not there is a need to create a third concept of armed conflict is another discussion. Situations such as:^[35]

1. The intervening State attacks the organized armed group that is fighting the State originating the conflict. In this case, the intervening State invades the State where the conflict is taking place. The consent of the NIAC Host State is assumed.
2. The intervening State invades the territory of the Host State of the conflict and begins to act there in favor of the insurgent group, against the Armed Forces of the Host State of the conflict.
3. The organized armed group, which fights the NIAC Host State, invades the neighboring State, extending the conflict to it, fighting against the security forces of the intervening State.
4. The organized armed group also begins to act from the neighboring State, without its consent, and suffers an attack from the NIAC Host State, which fights against the organized armed group.

The prevailing understanding is that, for any situation of intervention by a third State, or when the internal conflict goes beyond the limits of the territory of the State where it originally occurs, what exists in terms of ILAC is already sufficient to deal with this situation, that is, the definition of NIAC or IAC covers this situation.^[36] Following what exists in terms of ILAC treatment of the classification of armed conflicts, the situations presented, in our understanding, may have a different result from what is normally presented in the doctrine, in NIAC or IAC, or both, due to the fragmented analysis of the conflicts when they present themselves in multiple forms, in more than one relationship between the subjects involved in the conflict.

In letter “a,” there will be a parallel NIAC between the intervening State and the insurgent organized armed group, provided that there is consent, even tacit, from the State that originally fights with the organized armed group. Although the fragmented analysis results in seeing another NIAC, in fact, the intervening State may have permanently associated itself with the Host State of the conflict against the insurgent. In short, the fragmented analysis does not rule out the possibility of seeing this as a single conflict, now with an associate from the Host State.

But in either case, the original intensity of the conflict extends to this second situation. Otherwise, a parallel NIAC, in the face of the intervening State, and in episodic intervention, could be reduced to a simple case of application of criminal law, ignoring its original intensity and organization of the non-State actor, leaving the civilian population of the Host State without protection regarding means and methods of combat, standards that only the law of war provides in detail, and legally disarming the military, since the standards that regulate the use of force in police activity do not legitimize its use on a lethal level, as the law of war does.

However, the lack of consent may also authorize the conclusion that a parallel NIAC would emerge with the insurgent group if the military action of the intervening State falls exclusively on non-State actors, without affecting the civilian population. In this hypothesis, even without consent, it makes no sense to argue that an IAC of the insurgent State against the organized armed group came into existence, if the civilian population was not the target of the military action of the intervening State, especially in an episodic situation, such as the Traíra River Operation in 1991, which resulted in several deaths and arrests of guerrillas and their supporters.

Another view is that, since the host State of the conflict can no longer give its consent, and the organized armed group has in fact taken over the government, the conflict becomes internationalized, in view of the action of the intervening State. However, there is an understanding that, if the deposed government was the democratically elected one, it has a voice, and not the one that actually controls the territory.^[37] It may also happen that the intervening State carries out an occupation, article 2(2) of the Geneva Conventions, in which case it is inevitable to conclude that a parallel IAC exists, since this is one of the hypotheses for applying the ILAC rules to international conflicts, as described by Cassese.[38]

In letter “b,” there is IAC of the intervening State, for two reasons. First, because it is an occupation. Second, because the intervening State, by exercising total control over the organized armed group, in the words of the ICTY or effective control, ICJ, it doesn’t matter, internationalized the conflict in relation to itself and the host State of the conflict. The organized armed group becomes an instrument and a military body of the intervening State. The fragmented analysis of the conflict tends not to consider that there was total “internationalization” of the conflict, and that there continues to be a NIAC between the insurgent group and the host State of the conflict. However, in our understanding, this is the clearest hypothesis in which the conflict becomes fully transnational or internationalized.

Still on point “b,” the mere sale of weapons, supply of materials or advice is not enough to speak of effective or total control of the insurgent group. Sending troops and mercenaries, yes. The intervening state has to be a real party to the conflict. Only in this case does it really control the insurgent group. Of course, depending on the level of support, even without direct involvement, this could be characterized as a proxy war.

In the letter “c” another NIAC appears. The organized armed group that operated in the Host State of the conflict begins to act in the same way against another State. The only observation we make is that, in our understanding, all the requirements already existing in the original conflict extend to this new conflict. Otherwise, as stated, there is a risk of treating new confrontations as a simple case of repression of crime. This was the situation that gave rise to Operation Traíra.

In the case of “d,” the hypothesis of Colombia’s attack on the FARC in Ecuadorian territory, without the consent of the neighboring State, it can be considered that there was an IAC, and therefore, the conflict becomes internationalized in relation to the host State of the conflict. For the reasons already mentioned, this is not the most appropriate solution, especially if the military action of the host State of the conflict was focused exclusively on the insurgent group, without targeting the civilian population of the State to which the conflict extended. If the intervening State gives its consent to serve as a base for the insurgents, it is inevitable to conclude that a parallel IAC will arise with the host State of the conflict, due to the fragmented analysis, since the insurgent group becomes part of its Armed Forces by virtue of global control.

The insurgent group establishing itself in the intervening State with its authorization, or even in a hidden manner, creates situations that may give rise to defensive action by the Host State of the conflict directly against the organized armed group or against it and the Armed Forces of the intervening State and, certainly, would not constitute aggression, that is, a violation of Chapter VII of the UNC.

Conclusions

Do the cases mentioned require a change in the concept of armed conflict? In our understanding, yes. It is unequivocal that new and complex conflict situations have emerged, mainly in the context of internal conflicts, which have culminated in profound conceptual changes in the jurisprudence of international courts, with repercussions on the RS, which, in turn, seems to have created another hypothesis of NIAC. Written international law must adapt to this new reality.

The distinction between NIAC and IAC, although it does not have major consequences from the point of view of the limits on the use of force, since the rules of Protocol I of 1977 are considered customary law, including for NIAC, the fact is that the effect of ICL, of the possible characterization of war crimes, including for NIAC, cannot be disregarded, whose normative basis, serious violations, have always existed only for IAC. However, ICL has come closer to criminal law and, as such, since the final consequence is the exercise of international criminal jurisdiction, whether by the ICC or any other international court, it is necessary that the conceptual basis of normative definition of international crimes be better clarified. Furthermore, it should be noted that there are extremely dubious situations that qualify as IAC or NIAC, as occurred in 2006 in Lebanon. Now, seen as IAC, the immediate consequence is to treat the non-state actor as a combatant, and the status of prisoner of war cannot be denied. In this sense, perhaps the best option today is to specifically conceptualize internationalized non-international armed conflicts.^[39]

Regarding the situations in which ILAC is applied to cases of chronic confrontations with organized crime, the general idea is that they do not qualify as NIAC. We have no doubt that they do qualify in many situations, such as in Mexico, Colombia and Brazil, especially in cases of confrontations against territorial gangs. In Brazil, armed violence by security forces, and sometimes with the use of the Armed Forces, began in the 1970s, with unequivocal intensity and a level of organization of criminals similar to that of political insurgent groups. It is worth noting that the concept of NIAC does not require it to be of a political nature.[40] These situations are very similar to combat against guerrillas, who use the civilian population as a shield, facilitating the occurrence of collateral damage. The application of the rules governing police activity in the repression of organized crime is often insufficient to protect the civilian population, given that these rules are primarily aimed at the person who is the target of police action. At the same time, these rules are insufficient to protect members of the security forces, increasing the asymmetry between them and criminals, given that they do not enjoy the legal protection of combatant status that the law of war confers on military personnel in combat.

In parallel, there is a situation that lies between the international protection of human rights and the ILAC, which deserves the attention of international law, but which would not prevent immediate regulation by the domestic law of nations, especially in Latin America. These are the so-called gray areas already mentioned. In fact, there are borderline situations between the two systems, notably in the fight against violent organized crime, in which the level of intensity exceeds and falls short of the intensity limit specific to the NIAC, that is, above internal disturbances and tensions.

These are situations where criminal law is applied, but of extreme gravity, with violence similar to armed conflicts, sometimes even more intense, but governed by the progressive use of force. Considering that the rules governing the progressive use of force by the police, originating from agreements on IHRL, do not contain the details of the rules that limit the use of force in the ILAC, especially because the concern, as mentioned above, is with who will be the target of the police action and not with the world around them, it would be very interesting if these rules were extended to conflicts involving the application of criminal law, but of great intensity, such as intense shootouts in densely populated areas, creating a separate system, including greater legal guarantees for agents of criminal law enforcement. We emphasize that a raid on a favela (slum) dominated by organized crime in Rio de Janeiro is not very different from an infantry confrontation in an armed conflict. The tactics are the same, the level of intensity is identical, the level of organization of the criminals is similar or identical to that of insurgent groups in civil wars, and the civilian population suffers the effects of confrontations between security forces and non-state actors in a similar way and, often, even worse. And the rules on the progressive use of force were not designed for situations of this kind, especially because confrontations of this magnitude, in the application of criminal law, did not exist when the agreements on NIAC were conceived.

In these situations, even if it is not considered to be a NIAC, there is nothing to prevent the creation of another concept of NIAC, or, what seems more appropriate, the creation of an intermediate system between the ILAC and the IHRL, which would have the merit of reaching the gray areas. What is not permitted in an armed conflict cannot be admitted in cases of application of criminal law. But this must be done by law, voted on by the representatives of the people, with broad debate in parliament, as it involves an in-depth and comparative study between two protective systems, that of the IHL and the IHRL. In Brazil, this was done through the Judiciary, with the decision handed down in the Claim of Noncompliance with a Fundamental Precept (ADPF) No. 635, proposed before the Brazilian Federal Supreme Court (Supremo Tribunal Federal –  STF), which aimed to reduce the lethality of police activity in Rio de Janeiro during the pandemic. In practice, the STF created this system, which within a democracy would only be possible with broad debate by the legitimate representatives of the people in the Houses of Congress. Several decisions were made, including: restrictions on the use of helicopters and armored vehicles; prohibition of police operations near schools; development of a plan to reduce police lethality; use of force in accordance with the rules of the basic principles for the use of force and firearms by law enforcement officials, with an emphasis on the exceptional nature of police operations, so that police operations could only occur in absolutely necessary circumstances, with prior immediate notification to the Public Prosecutor’s Office.^[41] After the decisions made in APF 635 numerous criminals from all states of the Federation moved to these locations and even emergency medical assistance for the population in the areas under their control was made impossible due to the barricades built by criminals to definitively prevent access by the police.

By mistakenly concluding that violence surrounding the application of criminal law in some situations did not reach the minimum threshold of the NIAC concept, it ends up failing to apply a body of norms that regulate the use of force and could better protect the civil population. The other consequence is that the police officer in these situations does not have the legal guarantees of a combatant, as provided for by the law of war, although, in practice, the risks are identical. Mutatis mutandis, this would be the same as saying that the American soldier in Afghanistan would not have the status of a combatant and should act based on the progressive use of force, like the police officers on the streets. Only the ILAC provides detailed rules on limits to the means and methods of combat, but nothing prevents these rules from being extended to these situations through the creation of a specific system, but through law and not through judicial decisions. And the creation of this intermediary system, so to speak, can be built internally by the law of nations, through specific legislation and taking care not to widen the asymmetry between members of the security forces and criminals, who act deliberately without any respect for the international protection of human rights and international humanitarian law, in the manner of terrorist groups.

This is a very sensitive issue that should be widely discussed in the Houses of Representatives of the people, whose creation of legal norms in this regard should also provide for the expansion of the concept of perpetrator of a crime, in the case of criminal organizations, which control criminal activity and act through interchangeable executors, to definitively establish the concept of authorship by domain of organization or authorship by domain of apparatus of power. The doctrine about the expansion of the concept of author, in this case, based on the domain of fact and mediate authorship, is the subject of countless academic works, which would already require another article[42]. The order of the leader of organized crime in the dominated areas is to kill anyone who enters without his authorization, regardless of who will die and which crime linked to him will carry out the deadly shot. Treating these hypotheses within the requirements of co-delinquency in penal law, the result will inevitably be impunity for the leader of organized crime, the indirect authorship, when it is not discovered who was the direct perpetrator of the crime, but it is known that it happened in the place dominated by the criminal organization.

References

Heather Alexander, “Justice for Rwanda: Toward a Universal Law of Armed Conflict.” Golden Gate University Law Review, Vol. 34, no. 2, 2004: https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1881&context=ggulrev.

Djemila Carron, “When is a conflict international? Time for new control tests in IHL.” International Review of the Red Cross, Vol. 98, no. 3, pp. 1019–1041, 2016: https://international-review.icrc.org/sites/default/files/irrc-903-16.pdf.

Antonio Casesse, “The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia.” European Journal of International Law, Vol. 18, no. 4, pp. 649–668, Sep. 2007: https://doi.org/10.1093/ejil/chm034.

Emily Crawford, “Blurring the Lines between International and Non-International Armed Conflicts – The Evolution of Customary International Law Applicable in Internal Armed Conflicts.” Australian International Law Journal, no. 15, p. 29–54, 2008: http://classic.austlii.edu.au/au/journals/AUIntLawJl/2008/3.html.

Yoram Dinstein, The Manual on the Law of Non-International Armed Conflict: With Commentary. Sanremo: International Institute of Humanitarian Law, 2006.

Yoram Dinstein, Non-International Armed Conflicts in International Law. Cambridge, UK: Cambridge University Press, 2014.

Tristan Ferraro, “The ICRC’s legal position on the notion of armed conflict involving foreign intervention and on determining the IHL applicable to this type of conflict.” International Review of the Red Cross, Vol. 97, no. 900, pp. 1227–1252, 2015: https://international-review.icrc.org/sites/default/files/irc_97_900-13.pdf/

Hans-Peter Grasser, “Internationalized non-international armed conflicts: Case studies of Afghanistan, Kampuchea, and Lebanon.” The American University Law Review, Vol. 33, pp. 145–161, 1983.

Jessica Honan, “Extending Prisoner of War Status to Belligerents in Non-International Armed Conflicts.” In: Human Security Centre, Global Governance and Human Rights, 8 Dec. 2020: http://www.hscentre.org/latest-articles/extending-prisoner-of-war-status-to-belligerents-in-non-international-armed-conflicts/.

non-derogable (ICTY), The Prosecutor v. Tadić, IT-94-1-AR72, Appeals Chamber, Decision, 2 October 1995.

“International Humanitarian Law and the Challenges of Contemporary Armed Conflicts: Recommitting to Protection in Armed Conflict on the 70th Anniversary of the Geneva Conventions.” Geneva: International Committee of the Red Cross. Publication 4427, 16 June 2020: https://www.icrc.org/en/publication/4427-international-humanitarian-law-and-challenges-contemporary-armed-conflicts

Claudia Jardim, “Uribe says attack against FARC in Ecuador was “necessary.” BBC News Brazil, 24 July 2010: https://www.bbc.com/portuguese/noticias/2010/07/100724_uribeequadorcjebc.

Ambreen Javed, “Resistance and its progression to insurgency.” Journal of Strategic Studies, Vol. 30, no, 1&2, January 2010, pp. 171–186: https://www.issi.org.pk/wp-content/uploads/2014/06/1299569767_89446052.pdf’

Ben McGuckin, “The Conflict Between Armed Conflicts: Dispensing with the Distinction Between International and Non-International Armed Conflicts,” p. 21. DGSi Working Paper nº 1, 2018: https://www.dur.ac.uk/media/durham-university/research-/research-institutes/durham-global-security-institute/pdfs/McGuckin2017TheConflictBetweenArmedConflicts-FinalforDGSI1.pdf.

Hussin O Mohmed and Talaat Lujay, “Definition of Internationalized Armed Conflicts and their Legal Nature.”Migration Letters, Vol. 20, no. S5, pp. 636–645, 2023. DOI: https://doi.org/10.59670/ml.v20iS5.4042.

Roberto Motta, “A Operação Traíra – O Dia Em Que o Exército Brasileiro Derrotou as FARC [Operation Traíra – The Day the Brazilian Army Defeated the FARC].” Roberto Motta, 1 March 2021:https://www.robertobmotta.com.br/artigos/a-operacao-traira-o-dia-em-que-o-exercito-brasileiro-derrotou-as-farc/.

“Non-International armed conflict. How does law protect in war?” Geneva: International Committee of the Red Cross, 2024: https://casebook.icrc.org/a_to_z/glossary/non-international-armed-conflict.

Carlos Frederico de Oliveira Pereira, Gangues territoriais e direito internacional dos conflitos armados [Territorial gangs and international law of armed conflicts]. Curitiba: Juruá, 2016.

Carlos Frederico de Oliveira Pereira, “Zonas cinzentas e repressão penal entre o direito internacional dos direitos humanos e o direito internacional dos conflitos armados [Gray areas and criminal repression between international human rights law and international law of armed conflict].” Revista do Ministério Público Militar, Vol. 46, no. 31, pp. 117–136, 2019.

Chiara Redaelli, “Military Intervention on Request in Jus ad Bellum and Jus in Bello and the Question of Recognition of Governments.” Goettingen Journal of International Law, Vol. 12, no. 1, pp. 105−143, 2022: https://www.gojil.eu/issues/121/Redealli.pdf.

Marco Sassoli, “Transnational Armed Groups and International Humanitarian Law,” Program on Humanitarian Policy and Conflict Research, Harvard University, Occasional Paper Series, Winter 2006, No. 6: https://hhi.harvard.edu/publications/transnational-armed-groups-and-international-humanitarian-law.

Dietrich Schindler, “International Humanitarian Law and Internationalized Internal Armed Conflicts.” International Review of Red Cross, no. 230, Oct. 1982: https://international-review.icrc.org/articles/international-humanitarian-law-and-internationalized-internal-armed-conflicts.

Gabriel Sestrem, “What are the impacts of the STF restrictions on police operations in Rio de Janeiro so far?” Gazeta do Povo. 30 July 2022: https://www.gazetadopovo.com.br/vida-e-cidadania/quais-os-impactos-restricoes-stf-operacoes-policiais-rio-de-janeiro-ate-agora-adpf635/.

Sandesh Sivakumaran, The Law of Non-International Armed Conflicts. Oxford: Oxford University Press, 2012.

John P. Sullivan, “Third Generation Street Gangs: Turf, Cartels, and NetWarriors,” Transnational Organized Crime, Vol 3, no. 2 (Autumn 1997), pp. 95–108: https://www.academia.edu/1117258/Third_Generation_Street_Gangs_Turf_Cartels_and_Net_Warriors.

John P. Sullivan, “The Challenges of Territorial Gangs: Civil Strife, Criminal Insurgencies and Crime Wars,” Revista do Ministério Público Militar, No. 31, 2019, https://www.academia.edu/40917684/The_Challenges_of_Territorial_Gangs_Civil_Strife_Criminal_Insurgencies_and_Crime_Wars.

John P. Sullivan, “Crime Wars: Operational Perspectives on Criminal Armed Groups in Mexico and Brazil,” International Review of the Red Cross, No. 923, June 2023, https://international-review.icrc.org/articles/crime-wars-operational-perspectives-9237.

John P. Sullivan and Robert J. Bunker, “Third Generation Gang Studies: An Introduction.” Journal of Gang Research, Vol. 14, no. 4, p. 1–10, Summer 2007: https://www.academia.edu/1113522/Third_generation_gang_studies_An_introduction

Sylvain Vité, “Typology of armed conflicts in international humanitarian law: legal concepts and actual situations.” International Review of the Red Cross, Vol. 91, no. 873, pp. 69–94, March 2009: https://www.icrc.org/sites/default/files/external/doc/en/assets/files/other/irrc-873-vite.pdf

“War on terror. How does law protect in war?” Geneva: International Committee of the Red Cross, 2024:https://casebook.icrc.org/a_to_z/glossary/war-terror.

Charles Zorgbibe, “Sources of the recognition of belligerent status: Part One – Recognition by the Government.” International Review of the Red Cross, no. 192, March 1977: https://internationalreview.icrc.org/sites/default/files/S0020860400021963a.pdf.

Endnotes

^[1]International doctrine considered recognition by other States possible, as long as the insurgent group had the capacity to replace the government it was fighting against. In this way, the insurgency had the appearance of a “virtual state.” To this end, the insurgent group was considered to have control of part of the territory, with the establishment of its own governance, if the insurgency was conducted by an organized armed group, in compliance with the laws and customs of the law of war. Something similar to the requirements of Protocol II of 1977 to have characterized an internal armed conflict, which we will see later. (See Charles Zorgbibe, “Sources of the recognition of belligerent status: Part One – Recognition by the Government.” International Review of the Red Cross, no. 192, March 1977.)

^[2]We use the term insurgency to refer to the armed rebellion movement of an organized group aiming at the forcible overthrow of the established government. (See Ambreen Javed, “Resistance and its progression to insurgency.” expression “insurgency,” normally used for conflicts of a political nature, can now also be used in the repression of common crime, as we will see below. It is the criminal insurgency, typical of 3rd generation territorial gangs. See also, John P. Sullivan, “The Challenges of Territorial Gangs,” Revista do Ministério Público Militar, No. 31, 2019.)

^[3]With the advent of Protocol I of 1977, wars of national liberation began to be treated as a case of CAI (article 1, 4).

^[4]On the historical evolution of the concept, See. “Non-international armed conflict. How does the law protect in war?”

^[5]Protocol II, Title I (Scope of this Protocol): “Article 1 – Scope of Material Application – 1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949, without modifying their present conditions of application, applies to all armed conflicts not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and occurring in the territory of a High Contracting Party between its armed forces and dissident armed forces or organized armed groups which, under the direction of a responsible command, exercise over a part of that territory such control as to enable them to conduct continuous and concentrated military operations and to apply this Protocol. 2. This Protocol does not apply to situations of internal tensions and disturbances, such as riots, sporadic and isolated acts of violence and other similar acts, which do not constitute armed conflicts.”

^[6]ICTY, The Prosecutor v. Tadić, IT-94-1-AR72, Appeals Chamber, Decision, 2 October 1995. Available at: https://casebook.icrc.org/case-study/icty-prosecutor-v-tadic .

^[7] “[…] It is odd that an instrument offering more protection to those involved in NIACs sets a higher threshold for these protections to apply. This goes against the object and purpose of IHL – to mitigate suffering during armed conflicts. While the treaties and international decisions show a growing humanisation of IHL, in practice, with this threshold of applicability, the humanization effort has stalled. Further, while Protocol II was meant to supplement CA3, it has in fact created a separate legal regime due to its threshold of applicability. Therefore, there are effectively two different legal regimes governing NIACs: CA3 and Protocol II. With CA3 offering minimal protection and Protocol II having a practically impossibly high threshold to reach, the law becomes vacuous and ineffective. It has also been argued that there is a third regime for NIACs, the threshold created by The Rome Statute of the International Criminal Court (henceforth: Rome Statute; Rome Statute of the International Criminal Court, adopted 1998, in force 2002). The Statute states that Article 8(2)(e) applies only to armed conflicts ‘that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups’ (Rome Statute: Article 8(2)(f)). All that needs to be noted here is that there are at least two, possibly three, different regimes governing NIACs. The current framework is confusing and can result in people falling between the gaps of legal protection. This is why a unified framework which does not recognise a distinction between IAC and NIAC must be seriously considered” (Ben McGuckin, “The Conflict Between Armed Conflicts: Dispensing with the Distinction Between International and Non-International Armed Conflicts.”.

^[8] “Article 8 War crimes [:]1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. (…) c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.”

^[9]There are only about prohibited weapons, both in some treaties and by virtue of customary law. Yoram Dinstein and others bring the following: relation: “2.2.2 Prohibited weapons Using the following weapons is absolutely prohibited: a) Poison and poisoned weapons; b) Biological and bacteriological weapons; c) Gas, and other chemical weapons, including riot control agents when such agents are used as a method of warfare; d) Exploding anti-personnel bullets; e) Weapons that mainly injure by fragments which escape detection by x-rays; and f) Laser weapons designed to cause permanent blindness” (Yoraam Dinstein, The Manual on the Law of Non-International Armed Conflict: With Commentary, p. 31). Further on, it brings the restriction of some specific weapons, such as some types of booby traps; anti-personnel mines and incendiary weapons (pp. 37–39).

^[10]They are basically two treatises: Basic Principles on the Use of Force and Firearms by Law Enforcement Officers (https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-use-force-and-firearms- law-enforcement } and the Code of Conduct for Law Enforcement Officers (https://www.ohchr.org/en/instruments-mechanisms/instruments/code-conduct-law-enforcement-officials ).

^[11]On the importance of international jurisprudence and customary law in this extension of concepts, largely based on principles such as distinction, the prohibition of indiscriminate attacks, proportionality, military necessity, the prohibition of causing unnecessary suffering, among others (See Emily Crawford, “Blurring the Lines between International and Non-International Armed Conflicts.”

^[12]One of the grounds for this extension of concepts is that the treatment given to the prisoner, due to his participation in the insurgency within an IAC, would be similar to the treatment under the law of war (See Jessica Honan, “Extending Prisoner of War Status to Belligerents in Non-International Armed Conflicts.” We do not agree with this understanding. Without a doubt, the treatment is similar from the perspective of the principle of humanity. The main difference is that the prisoner of war cannot be held responsible for participation in the conflict. It is absolutely unthinkable to extend this rule to IACs. It is enough to note that criminal repression can be included in some situations such as NAIC, as is the case in Mexico and, in our understanding, in some hypotheses of repression of organized crime with territorial domain.

[13] The progressive and selective use of force, based on the IHRL, is basically governed by two conventions: Basic Principles in the use of force and firearms by law enforcement officers¨ and the ¨Code of Conduct for Law enforcement officers, respectively: https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-use-force-and-firearms-law-enforcement ,   https://www.ohchr.org/en/instruments-mechanisms/instruments/code-conduct-law-enforcement-officials.

^[14]Some situations experienced in Brazil, in the repression of territorially organized crime, in our understanding, meet the requirements of international law and the jurisprudence of international courts to be considered NAIC (See Carlos Frederico de Oliveira Pereira, “Gangues territoriais e direito internacional dos perspectivas armados.” Today, there is extensive literature on this subject. These are the well-known third-generation gangs, according to the Sullivan classification (John P. Sullivan, “Third Generation Street Gangs: Turf, Cartels, and NetWarriors,” Transnational Organized Crime, 1997, John P. Sullivan and Robert J. Bunker, “Third Generation Gang Studies: An Introduction. Journal of Gang Research, 2007).

^[15] See Carlos Frederico de Oliveira Peieira, “Gray areas and criminal repression between international human rights law and international law of armed conflict.” Revista do Ministério Público Militar, 2019.

^[16]This is a much broader guarantee than the exclusion of crime from strict compliance with legal duty, as it prevents the initiation of proceedings against a public servant who acts within the limits of his/her functional attributions (See Legal Information Institute. “Qualified immunity,”  https://www.law.cornell.edu/wex/qualified_immunity ).

^[17] Sandesh Sivakumaran rejects the idea of this third category, although he recognizes that the intervention of a third State is a path through which a NIAC can be transformed into an IAC: “[…] The most common way in which a non-international armed conflict will be transformed into on international one is through the intervention on the part of an outside state. This takes two forms: intervention through troops from an outside state and outside state control over a non-state armed group. In respect of both forms of intervention, the facts will prove decisive.

In recent years, a third type of armed conflict has been posited, one that is described as a transnational armed conflict or an extra-state conflict. Proponents of this category of conflict take the view that they are neither international armed conflicts, as they are fought between a state and a non-state armed group, nor are they non-international armed conflicts, as they cross s state boundary. However, such conflicts are no more than a subset of non-international armed conflicts. Traditional ‘internal’ armed conflicts have not infrequently had some sort of cross-border component, with the armed group being based on the territory of an adjacent state or their being some sort of ‘overspill’. Although certain recent non-international armed conflicts have involved states and armed groups that are not situated in adjacent territory, the difference is one of degree rather than type.  Having explored the notion of a non-international armed conflict, the remainder of this part considers the substantive law that governs such conflicts, as well as the scope of application of that law” (Sandesh Sivakumaran, The Law of Non-International Armed Conflicts. Oxford: Oxford University Press, 2012. pp. 234–235).

^[18]In view of the events of 2006, notes Sylvian Vité that the UN Human Rights Council considered at the time that an IAC had occurred. We cannot agree with this conclusion, it is unacceptable to grant prisoner of war status and to extend the concept of combatant to terrorist groups:  “[…] The Commission of Inquiry set up by the United Nations Human Rights Council considered that an international armed conflict had taken place, although, in its view, the Lebanese armed forces had never taken part in the fighting. In its report dated November 2006, it considered that Hezbollah should be considered a militia ‘belonging to a Party to the conflict’, within the meaning of Article 4 A(2) of the Third Geneva Convention of 1949. In support of that position, it stressed that Hezbollah, as a legally established political party, was represented in parliament and in the Lebanese government. In addition, for several years Hezbollah had assumed the role of an anti-Israeli resistance movement in southern Lebanon, a fact acknowledged by the President of Lebanon himself, who had called the armed branches of that group ‘national resistance fighters.’ According to the Commission, the war in 2006 took on an international character by virtue of the organic link that existed between Hezbollah and the State of Lebanon at that time. One recent example is that of Lebanon in the summer of 2006. It may be recalled that a high-intensity armed conflict had begun on 12 July following various attacks by Hezbollah’s military component on positions and villages in Israeli territory. For instance, eight Israeli soldiers had been killed in the course of those operations and two others taken captive. Israeli authorities retaliated for launching a land, air and sea offensive in Lebanon. The hostilities continued until 14 August, when a ceasefire that had been agreed by the two governments concerned entered into effect” (Sylvian Vité, “Typology of armed conflicts in international humanitarian law: legal concepts and actual situations.” International Review of the Red Cross, No. 91, 2009).

^[19]For example, in the case of Rwanda, it was considered a non-international armed conflict. However, Uganda’s participation in that conflict was unequivocal, which could suggest a possible IAC (See. Heather Alexander, “Justice for Rwanda: Toward a Universal Law of Armed Conflict.” Golden Gate University Law Review, 2004.

^[20] Internationalization normally refers to this second hypothesis of intervention by another State, or group of States, in an internal conflict. “[…] The jurist James J. Stewart defines them as the internal hostilities that become international due to real and complicated circumstances that lead to this “internationalization.” They include war between two internal parties, each of which receives the support of different states. They also include direct hostilities between two foreign countries that intervene militarily in an internal armed conflict to support opposing parties, as well as war involving foreign intervention in support of a rebel group fighting an existing and established government. Moreover, internationalized armed conflicts are defined as a war that is fought between two internal parties, both supported by different states. Additionally, they refer to a war in which a foreign element intervenes to support the rebel group against the regular government. Among these conflicts is the intervention that happened when NATO intervened in the armed conflict between the Federal Union of Republic of Yugoslavia and the Kosovo Liberation Army in 1999, and the intervention that carried out by Rwanda, Zimbabwe and Uganda, in support of the opposing wings of the internal armed parties in the Democratic Republic of Congo in 1999…” (Hussin O. Mohmed and Talaat Lujay, “Definition of Internationalized Armed Conflicts and their Legal Nature.” Migration Letters, 2023).

^[21] Claudia Jardim, “Uribe says attack against FARC in Ecuador was “necessary.” BBC News Brasil, 24 July 2010.

^[22]Kinetic attack, as defined in Article 49.1 of the 1977 Protocol I. However, invasion with occupation also gives rise to the application of the rules of the Geneva Conventions for IAC, in light of Article 2 common to the aforementioned Conventions.

^[23] “[…] While the overwhelming majority of the scholarship supports the consent based approach, the rationale underpinning this position might be unclear in certain circumstances. It is not uncommon that foreign interventions crucially affect the population and the territorial State. For instance, while Israel targeted mainly Hezbollah, the Lebanese civilian population and state infrastructures were also exposed to the attacks. However, there might be cases where the need to classify the relationship between the two countries as an IAC might be less apparent. One example is the Colombian intervention in Ecuador in order to target members of the FARC in 2008. Unlike the Israeli intervention in Lebanon, which significantly affected the territorial State, the incursion of Colombia did not seem to have any negative effects on Ecuador. After all, the military operations took place in the remote jungle and did not have consequences on the civilian population. In such cases, affirming that there is an IAC between the intervening State and the territorial one might seem artificial. What is the practical relevance of qualifying cases such as the Ecuador/Colombia/FARC one as an IAC? The consent-based model has the merit of reflecting the reality on the ground, even if prima facie this might not seem the case. Even if the intervening State is only targeting a non-State actor, its intervention is unlawful inasmuch as it amounts to a use of force ‘against the territorial integrity or political independence’ of the state where the rebels are based. The consent-based approach is grounded on the pivotal precondition for the existence of an IAC, namely the resort to force between two States. Nevertheless, IHL does not require that both States engage in armed confrontation against each other in order to have an IAC. Instead, it is sufficient that one country uses force against the other. It might be objected that, in the aforementioned cases, the use of force was directed against the non-State actor, not against the State. Nevertheless, Article 2(4) of the UN Charter is violated whenever force is used on the territory of another State without its consent, regardless of whether the objective of the attack is an armed non-State actor. To affirm otherwise would mean to accept the paradoxical conclusion that there might be cases in which a State uses force on the territory of another country without its consent and that the attack might even amount to an act of aggression, and yet the rules designed to address these instances – namely IHL applicable to IACs – would not be applicable. […]” (Chiara Redaelli, “Military Intervention on Request in Jus ad Bellum and Jus in Bello and the Question of Recognition of Governments.” Goettingen Journal of International Law, 2022.

^[24] Roberto Motta, “Operation Traíra.”

^[25]Common Article 2, Part 2, of the 1949 Geneva Conventions and Article 3, “b,” of Protocol I of 1977.

^[26] “[…] This fragmentation in the application of legal regimes according to the parties involved in the armed conflict means that applicable IHL– law of IAC, law of NIAC or both–depends on the nature of the different bilateral relationships, as identified above, that can exist between belligerents in an armed conflict. In other words, according to this fragmented approach, when different types of actors– State and non-State– are involved in the same conflict, the rules of IHL applicable to them vary depending on the nature of the relationship that each belligerent has with each of the others. When a State party is engaged in military activities against one or more non-State parties, the relationship is governed by the law of NIAC. If this same State is also fighting against another State in the context of that same conflict, their relationship will be governed by the law of IAC. Accordingly, the direct intervention of a third State in support of one or more non-State parties does not internationalize all the relationships between the parties to the conflict, and the law of IAC does not apply to all the actors involved in that conflict. In this case, the intervention of a third power is a separate component added onto the pre-existing NIAC, leading to a situation in which there are two armed conflicts, different in nature, existing concurrently with each other in the same territory. […]” (Tristan Ferraro, “The ICRC’s legal position on the notion of armed conflict involving foreign intervention and on determining the IHL applicable to this type of conflict.” International Review of the Red Cross, no. 97, 2015).

^[27] At the time of the Vietnam War there was an understanding in this sense: “At the time of the Vietnam war in the 1960’s, two opinions were put forward regarding the applicability of international humanitarian law in internationalized civil wars. According to one, a civil war becomes an international armed conflict by the mere fact of military intervention by foreign powers. International humanitarian law would therefore be applicable in its entirety among all the parties to the conflict, even between the government of the State in which the civil war has broken out and the insurgents. The ICRC suggested this solution when, in June 1965, it requested all parties to the Vietnam conflict to apply the Geneva Conventions of 1949.1 One writer, Meyrowitz, maintained that humanitarian law in its entirety was applicable in the Vietnam war. […] 4. Meyrowitz, in 1967, brought forward a legal argument to affirm the international character of the relationship between the established government and the insurgents and between the State intervening on the side of the established government and the insurgents. He held that due to the American assistance to South Vietnam the centre of the military and political decisions in this war had shifted from Saigon to Washington”. Under these circumstances, in his opinion, to construe the relationship between Saigon and the Vietcong and that between the United States and the Vietcong as a civil war was to ignore realities. Still, Meyrowitz did not pursue this reasoning to extremes since he correctly held that the Vietcong was not bound by the Geneva Conventions. […] (Dietrich Schindler, “International Humanitarian Law and Internationalized Internal Armed Conflicts.” International Review of Red Cross, n. 230,1982.

^[28] Antonio Casesse, “The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia.” European Journal of International Law, 2007.

^[29] “Article 4(A) Prisoners of war are […] (2) Members of other militias or other voluntary bodies, including those of organized resistance movements, belonging to a Party to the conflict, operating outside or within its own territory. territory, even when occupied […].”

^[30]Considering that the ICJ does not analyze international crimes and the ICTY’s decision on control of the organized armed group initially aimed to conclude whether or not the conflict had become international, and not to analyze the crime, in practice, there is no ontological difference between the two analyses of control, since both end in the establishing whether or not of the Geneva Conventions for the intervening State, that is, both end in the conclusion on whether or not the conflict had become international. To explain it better, it is one thing to say that a State is responsible for serious violations of the law of war, in the face of attacks on the civilian population of another State in a context of NIAC (Articles 146 and 147 of the 4th Geneva Convention and Article 51.2 of Protocol 1 of 1977), without the consent of the State hosting the conflict and controlling the insurgent group acting under its orders; it is another thing to say that agents of the intervening State committed this war crime (Article 8, 2, b, i, ER). However, for both situations it will be necessary to demonstrate that the conflict has become international for the intervening State.

^[31]Occupation determines the automatic validity of the rules relating to the IACs. Article 2 common to the 1949 Geneva Conventions, second part: “The Convention shall also apply in all cases of total or partial occupation of the territory of a High Contracting Party, even if such occupation meets with no military resistance.”

^[32]The requirement for total control is appropriate in cases that involve the characterization of war crimes or other hypotheses of international crimes, that is, it is a DIPEN problem. In the case of Nicaragua, when the responsibility of the State and not of individuals for international crimes was discussed, the debate aimed to establish the type of relationship that arose in the United States due to its support for the insurgent group “Contras”, since, given the fragmented analysis, there was no doubt that, at the time, this group had a CANI with the newly established government (See Djemila Carron, “When is a conflict international? Time for new control tests in IHL. International Review of the Red Cross, v. 98, 2016.”

^[33]It is also controversial whether this would be possible: “[…] It is actually impossible to ensure public order and life in a territory, as required by Article 43 of the 1907 Hague Regulations, from outside. It would thus be paradoxical to require a State to fulfill its international obligations if it is unable to do so because it is not present in the area concerned. A similar interpretation would run counter to the basic tenets of the law of occupation […]” (Sylvain Vité, “Typology of armed conflicts in international humanitarian law: legal concepts and actual situations.” International Review of the Red Cross, v. 91, 2009. Without a doubt, the IV Geneva Convention itself is very difficult to consider without the presence of an insurgent group by a State. unthinkable, as happened with the “Contras,” who fought in Nicaragua, completely controlled by the USA.

^[34] “War on terror. How does law protect in war?” https://casebook.icrc.org/a_to_z/glossary/war-terror . This was an extremely important decision, due to the specific characteristics of the case. It is not normally considered that a terrorist group may be a party to an armed conflict, as it does not validly fulfill the concept of an organized armed group, so that the problems related to the repression of terrorism are a matter of application of criminal law. However, many States already applied the DICA in operations military counterterrorism (See “International Humanitarian Law and the Challenges of Contemporary Armed Conflicts: Recommitting to Protection in Armed Conflict on the 70th Anniversary of the Geneva Conventions,” p. 58. In this sense, at the time of the events, the US State Department considered that military action against al-Qaeda was not covered by Common Article 3, but the US Supreme Court understood that Common Article 3 of the Geneva Conventions covers conflicts that do not occur against States, such as case of al-Qaeda, a terrorist organization. For this reason, the internal conflict is distinguished from the international one much more by the parties than by taking into account the territorial criterion. In our understanding, a terrorist group cannot, under any circumstances, fulfill the concept of an organized armed group in the DICA. terrorist groups exist because of the direct attack on protective norms, on the civilian population. The violation of the law of war is part of the terrorist objective. Even worse is to place them under the protection of the Fourth Geneva Convention, or to treat them as ¨members of other militias¨ pursuant to Article 4(A)(1) or (3) of the Third Geneva Convention, which is excessive and unjustifiable good will. To combat them, it is sufficient to apply the protective norms of IHRL, which, in practice, do not differ much from common article 3, since no legal system authorizes torture and cruel treatment of prisoners (See Marco Sassoli, “Transnational Armed Groups and International Humanitarian Law,” Occasional Paper 6, Program on Humanitarian Policy and Conflict Research, Harvard University, Winter 2006, http://efaidnbmnnnibpcajpcglclefindmkaj/https://www.hpcrresearch.org/sites/default/files /publications/OccasionalPaper6.pdf.

^[35]Yoram Dinstein presents three possibilities: “IV. The applicable law. A. LONIAC or IAC jus in bello? 270. There are three possible scripts in case of foreign military intervention in a NIAC, and it is important to discern which legal regime of armed conflict is operative in each instance. The primary setting is that of Utopia militarily intervening by invitation of the incumbent Government or Ruritania against the insurgents. In such circumstances, the Utopian armed forces are taking part on the side of (Ruritanian) government in what is, legally speaking, a purely non-international conflict. 326. The law applicable to all parties to the conflict (Ruritania, Utopia and insurgents) is LONIAC.327 (…) 271. The second storyline is that arcadia militarily intervenes in Ruritania on behalf of insurgents and against the incumbent Government. Here the legal situation changes dramatically, producing an IAC between Ruritania and Arcadia. As a result, two armed conflicts will be running parallel: the Ruritanian/Arcadian IAC (regulated by the jus in bello) and Ruritanian NIAC (administered by LONIAC). On simultaneous IACs and NIACs, see supra 172 et seq. 272. The third strand of the narrative consists of foreign intervention and counter-intervention in The Ruritanian NIAC by both Utopia (on the side of the incumbent Government) and Arcadia (on the side of the insurgents). If the Arcadian and Utopian armed forces pound at each other, there will be an IAC (between arcadia and Ruritania) and side by side with NIAC (involving the insurgents and Ruritanian Government plus Utopia). The NIAC will be governed by LONIAC, but the law applicable to both IAC will be the jus in bello” (Yoram  Dinstein, Non-International Armed Conflicts in International Law.

^[36] See the ICRC’s legal position on the notion of armed conflict involving foreign intervention and on determining the IHL applicable to this type of conflict. Tristan Ferraro, “The evolution of warfare.” International Review of the Red Cross. No. 97, 2015.

^[37]See Chiara Redaelli, “Military Intervention on Request in Jus ad Bellum and Jus in Bello and the Question of Recognition of Governments.” Goettingen Journal of International Law, 2022. As well demonstrated in this excellent article, there is no specific rule on the recognition of intervention in the conflict, as a condition for its legality. An intervention without consent, in principle, constitutes a violation of Chapter VII of the UN Charter, that is, aggression, in addition to characterizing IAC as it creates conditions for an occupation or attack by one State against another. The question is who can validly give consent. The issue seems simple when analyzing a NIAC like the one in Colombia, but it becomes complicated in the face of a failed State or if an organized armed group takes power from a legitimately constituted one.

[38] See Cassese at Note 28.

^[39] As Hans-Peter Gasser concludes: “[…] Internationalized non-international armed conflicts, civil wars characterized by intervention of armed forces of a foreign power, are events within a country with international elements superimposed. They have special features that distinguish them from armed conflicts between states and from civil wars. Regrettably, the law of war has no special provisions applicable to this type of conflict. It might be desirable to develop interventional humanitarian law in this direction. […]” (Hans-Peter Grasser, “Internationalized non-international armed conflicts: Case studies of Afghanistan, Kampuchea, and Lebanon.” The American University Law Review, 1983).

[40] For a discussion of these issues in Mexico and Brazil, see John P. Sullivan, “Crime Wars: Operational Perspectives on Criminal Armed Groups in Mexico and Brazil,” International Review of the Red Cross, No. 923, June 2023.

^[41]However, the way it was done made police operations impossible in areas dominated by drug trafficking. It practically prevented drug traffickers from being caught red-handed in areas where they were controlled. The police were almost forced to make the planning of their operations public. With the police unable to carry out surprise operations, the entrenchment of crime in the favelas became definitive. Barricades multiplied. The places controlled by drug traffickers became territories where the people who live there began to formally live under the law of crime. The decisions deepened the asymmetry between the police and the criminals, since the security forces must act with the progressive use of force against criminals who defend their territory in the same way as guerrillas defend the territory they dominate. The Court forgot that criminals use the civilian population as a shield and that the police in these operations act like soldiers at war, but without the legal protection that the ILAC grants to combatants. What we see today is the transformation of the dominated areas into safe territory for criminals. Many organized crime leaders and criminals from other states began to live in these places, with the security of not being arrested. In practice, the criminals were the ones who benefited. The clandestine cemeteries in these locations were not deactivated; in fact, they may have been expanded (See Gabriel Sestrem. “What are the impacts of the STF’s restrictions on police operations in Rio de Janeiro so far?” Gazeta do Povo, 30 July 2022.

[42] See, for example, the main defender of the thesis, Claus Roxin.¨O domínio por organização como forma independente de autoria mediata [Dominion by organization as an independent form of mediate authorship].” Revista Eletrônica Acadêmica de Direito, Vol. 4, no. 3, 2009 or Kai Ambos: “Direito Penal: fins da pena, concurso de pessoas, antijuridicidade c outros aspectos [the purpose of the penalty, collective authorship, anti-legality and other aspects]” in Kai Ambos (tradução de [trans.] Pablo Rodrigo Alflen da Silva). Porto Alegre: Sérgio António Fabris Ed., 2006, pp. 47–78.