Transatlantic Dialogue on Int'l Law and Armed Conflict: Lawrence Hill-Cawthorne Responds to Sarah Cleveland

A detailed, rule-by-rule consideration of the degree to which parity between the law of IAC and NIAC is practicable is a very useful endeavour. Indeed, historically this has been the method by which the law of NIAC has developed. It is clear why this should have been the case. When the first international humanitarian law (IHL) treaties were adopted in the mid-nineteenth century, international law was still, by and large, a law governing inter-State relations. Matters that did not directly engage such relations, including NIACs, were thus generally excluded. Customary rules did of course develop to govern certain NIACs, such as the doctrine of belligerency, but these often applied only where another, non-party State was affected by the conflict. As international law expanded to include the regulation of purely intra-State matters (reflected in human rights instruments, as well as the Genocide Convention, adopted in the aftermath of the Second World War), this basis for marginalising NIACs began to fall away. Rules traditionally applicable only in IACs could now move over into NIACs. And indeed this is what has happened: common Article 3 to the 1949 Geneva Conventions and Additional Protocol II were based on the law of IAC. This is also true of the customary rules recognised by the ICTY and ICRC. It is therefore only natural that we should look to the law of IAC in developing the law of NIAC. This post, however, will offer some words of caution in adopting this method of humanising NIACs. In particular, it will be argued that both general and specific arguments militate against this supposedly self-evident means by which to develop the law of NIAC.