Non-Intervention in Non-International Armed Conflict (NIAC): Examination of the Law and the 21st Century Realities

Abstract

Non-International Armed Conflict (NIAC) is the prevalent type of armed conflict today and it is regulated by International Humanitarian Law (IHL) through treaties, customs and principles. NIAC adversely affects governance and the people especially the civilians. More often than not, NIACs occur in failed States or parts of the territory of the State that have failed. Additional Protocol II, however, prohibits intervention by other Sovereign States in NIACs and the prohibition is absolute. This brings us to the fulcrum of the matter which is the relationship between Public International Law (PIL) and International Humanitarian Law (IHL). This relationship is better expressed in the separation between jus ad bellum and jus in bello. These two areas of International Law are not mutually exclusive as they are only different sides of the same coin. Self-defence authority is not a “no law zone” and cannot be conducted without the regulatory scrutiny of the means and methods of warfare. The UNSC Resolutions 1456 of 2003 and 1566 of 2004 reinforce the fact that the centrality of IHL is applicable in the fight against terrorism. The law is that non-intervention is absolute in NIAC but the realities of the 21st Century do not support that position. This article seeks a middle ground whereby the international community does not keep silent in the face of massive violations of IHL by sovereign States in the name of non-intervention in NIACs. This is an urgent call to build a bridge between theory and practice in the regulation of the employment of military combat power and the protection of the victims taking into consideration the relationship between PIL and IHL.