INTERNATIONALIZED NONINTERNATIONAL ARMED
CONFLICTS: CASE STUDIES OF
AFGHANISTAN, KAMPUCHEA,
AND LEBANON
HANS-PETER GASSER*
INTRODUCTION
An internationalized non-international armed conflict is a civil war
characterized by the intervention of the armed forces of a foreign
power.' This form of armed conflict occurs with great frequency and
raises many questions of interest to the international lawyer. This paper
is limited to the applicability of international humanitarian law to such
situations and does not discuss the legitimacy of foreign intervention in
a civil war. The parties involved in civil wars with foreign intervention
rarely agree on either the facts or their interpretation. This paper,
therefore, is based on certain assumptions as to the factual situation,
assumptions for which proof cannot always be supplied.
I.
THE STATE OF THE LAW
The intervention of foreign armed forces in a non-international
armed conflict poses complex problems in relation to the law of war.
This is not suprising, given that the law of war is based on the distinction between international armed conflicts and non-international armed
conflicts. The set of rules that govern these two manifestations of organized violence differ greatly from each other. The intervention of foreign
armed forces in a civil war, therefore, is characterized by a juxtaposition
* Dr. iur., LL.M., Head of the Legal Division, International Committee of the Red Cross.
The opinions expressed in this Article are solely those of the author. This paper was prepared for
the 1982 American Red Cross-Washington College of Law Conference on International Humanitarian Law, It first appeared in 31 AM. U.L. REv. 809 (1982), and is reprinted here as originally
presented.
1. Intervention by the armed forces of a foreign country is not a clear and well-defined
phenomenon. The participation of entire military units in hostilities taking place on foreign soil is
military intervention; yet difficulties arise in cases such as logistical assistance and the presence of
military advisers. The problems frequently remain unsolved.
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of two vastly different situations that, in law, should remain well separated. Complications are inevitable.
A.
ProposedModifcations of the Law
Lest criticism should appear too easy, attention is drawn to the efforts
that have been made to settle this question in the sphere of the law of
armed conflicts. The Norwegian experts proposed an extreme solution
during the deliberations that resulted in the adoption, on June 8, 1977,
of the Protocols Additional to the Geneva Conventions by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, (Geneva,
1974-1977); namely to drop the two different categories and to formulate a single law for the two kinds of armed conflict. 2 Although it was
an interesting attempt to find a drastic solution for the issue, it did not
succeed: too great a divergence existed between the regulation that
states are prepared to accept for a conflict between states and the regulation that states consider acceptable for an internal armed conflict involving their sovereignty.
Six years earlier, the International Committee of the Red Cross
(ICRC) had submitted to the first Conference of Government Experts
for the Reaffirmation and Development of International Law, inter alia,
the draft of a proposition that was intended to make the whole corpus of
international humanitarian law applicable to a civil war if foreign
troops intervened. The ICRC stressed that such outside intervention
widened the scope of the hostilities and increased the number of victims.
The government experts did not endorse this innovation, making the
assessment that such a provision would encourage insurgents to seek foreign assistance to enhance their legal status. 3 The ICRC submitted a
second, more subtle proposition to the Conference of Government Experts in 1972. Once again, however, the ICRC did not succeed.4 After
these failures, the ICRC relinquished the idea of including any provision relating specifically to internationalized internal conflicts in the
draft Protocols submitted to the Diplomatic Conference. Thus, the debates of the Diplomatic Conference never touched on the problems
2. See DIPLOMATIC CONFERENCE ON THE REAFFIRMATION AND DEVELOPMENT OF INT'L
HUMANITARIAN LAW APPLICABLE IN ARMED CONFLICTS, OFFICIAL RECORDS, 5 SUMMARY RECORD 91 (CDDH/SR. 10) (1978); INT'L COMM. OF THE RED CROSS, REPORT ON THE WORK OF THE
CONFERENCE OF GOVERNMENT EXPERTS ON THE REAFFIRMATION AND DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW APPLICABLE IN ARMED CONFLICT 1 0.14-0.19, at 27 (1972)
[hereinafter cited as 1972 CONFERENCE OF EXPERTS].
3.
See INT'L COMM. OF THE RED CROSS, REPORT ON THE WORK OF THE CONFERENCE OF
GOVERNMENT EXPERTS ON THE REAFFIRMATION AND DEVELOPMENT OF INTERNATIONAL HuMANITARIAN LA, APPLICABLE IN ARMED CONFLICTS
290-311, at 50-52 (1971).
4.
See 1972 CONFERENCE OF EXPERTS, supra note 2, at
2.332-.353, at 97-100.
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NON-INTERNATIONAL ARMED CONFLICTS
caused by the intervention of foreign forces in a civil war; it was simply
a non-issue. The inescapable conclusion is that the international
lawmakers chose to leave in an uncertain state the international law
applicable in civil wars with foreign intervention.
B.
Views of InternationalLawyers
Many international lawyers have given their views on the applicability of international humanitarian law to internationalized civil war.- It
may be worthwhile to recall that their interest in this question grew
particularly during the Vietnam war, in the 1960's. Although Meyrowitz has held that the whole of humanitarian law applied to the Vietnam war, other commentators have used an approach that is based on
the idea of differentiation. In the opinion of the latter, the various relations between the parties to the conflict require distinct solutions. In
other words, the internationalized civil war must be broken down into
its international and its non-international components. The differentiation approach recognizes two international relationships: one is between
the foreign states that intervene on behalf of opposing sides of the civil
war and the other is between the established government and the foreign state intervening on the side of the insurgents. Each of these relationships indisputably possesses the character of an international armed
conflict. The whole of international humanitarian law is applicable to
both.
International lawyers have identified two further relationships. Common article 3 of the Geneva Conventions and, where relevant, Protocol
II, apply to the relationship between the established government and
the insurgents, the original parties to the conflict. A second distinct relationship, between the insurgents and a foreign state that has been invited by the established government to help it to overcome the rebellion,
gives rise to great difficulties in determining what law is applicable. The
traditional answer, which makes the situation subject to the rules of
non-international armed conflict, clashes with the undeniably international character of this type of relationship.
5. See A. RoSAS, THE LEGAL STATUS OF PRISONERS OF WAR §§ 7.4.8-.4.10, at 282-92
(1976); Bindschedler-Robert, A Reconsiderationof the Law ofArmed Conflicts, in CONFERENCE ON CONTEMPORARY PROBLEMS OF THE LAW OF ARMED CONFLICTS, THE LAW OF ARMED CONFLICTS 1
(1971); Meyrowitz, The Law of War in the Vietnamese Conflict, in 2 THE VIETNAM WAR AND INTERNA-
516 (R. Falk ed. 1969); Schindler, Die Anwendung der Genfer Rotkreuzabkommen seit 1949,
22 SCHWEIZERISCHES JAHRBUCH FOR INTERNATIONALES RECHT 75, 93-98 (1965); Schindler, The
Dtfrent Tpes of Armed Conflicts According to the Geneva Conventions and Protocols, 163 RECUEIL DES
COURs 117 (1979); Schindler, InternationalHumanitarianLaw and InternationalizedInternalArmed Conflicts, 22 INT'L REX'. OF THE RED CROSS 255 (1982).
TIONAL LAw
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II.
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EXAMPLES OF INTERNATIONALIZED CIVIL WARS
As a means of comparing the theoretical answers with the reality of
recent conflicts, the conflicts in Afghanistan, Kampuchea, and Lebanon
serve as a basis for discussing questions about the application of interna6
tional humanitarian law.
A.
Afghanistan
Beginning in the autumn of 1978, political opposition to the Taraki
government turned into armed resistance. The government obtained
the political and military support of the Soviet Union by concluding
and signing, on December 5, 1978, a treaty of friendship, good neighborliness, and cooperation. In September 1979 President Amin replaced
President Taraki. From the end of December 1979 events moved rapidly
and President Karmal replaced President Amin. Since then, the Soviet
Union has had a contingent of its armed forces in Afghanistan. The
armed conflict between the Kabul government and various groups of
insurgents has continued to cause considerable loss of life and destruction of property.
Prior to offering a legal analysis of this conflict, an explication of the
attitudes of the different actors will be helpful. The Afghan Government has never made an affirmative public statement on the legal character of the war it is waging against the insurgents, unless we use the
declarations made at the Sixth Emergency Special Session of the U.N.
General Assembly. At this session the Afghan delegate accused other
countries of armed interference that entitled his country to act in its own
legitimate defense and, thus, obliged it to ask for help from the Soviet
Union on the basis of the friendship treaty. Does this mean that there
was aggression by a foreign power-and therefore an international
armed conflict--before the arrival of Soviet troops? Who were or are the
parties to that alleged conflict? Were they the opposition movements?
These questions remain unanswered.
What might be a possible position of the Afghan authorities? It seems
that the government has no interest in stating that the participation of a
contingent of the Soviet armed forces in the hostilities has any influence
on the classification of the conflict between it and the insurgents. To
admit that the presence of Soviet forces internationalizes the conflict
would signify acceptance of the proposition that the Afghan situation
had become of international interest. Therefore, the Afghan Government will tend toward further denial of the international character of
6. This Article will not examine associated problems such as the effect on belligerence of
recognition by the legal government or by other states or the effect of insurgents being integrated
into the armed forces of the state intervening on their side in the conflict.
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NON-INTERNATIONAL ARMED CONFLICTS
the conflict, even though Soviet troops have entered the country. The
government may even continue to deny the existence of an armed conflict in Afghanistan.
The Soviet Government, in its guise as protector of Kabul's interests,
will probably endorse the Afghan position: the presence of Soviet troops
does not change the legal character of the conflict. In fact, the Soviet
Union does not seem ever to have acknowledged that its troops are taking part in the hostilities. Even if it admitted this, it would probably
justify its action as being taken exclusively in the context of bilateral
relations between two countries linked by a treaty of friendship. Other
interests would impel the Soviet Union, however, to opt for the application of the whole of international humanitarian law to the conflict. The
Soviet Union would indeed be especially concerned with having its
troops benefit from the greatest possible measure of protection. The law
on non-international armed conflicts does not provide any special status
for the combatants, even when captured. Only the law that is applicable to international conflicts, specifically the Third Geneva Convention
of 1949, protects the combatant and guarantees him favored status as a
prisoner of war. Thus, the Soviet Union should seek to have the rules of
international conflicts applied if the Soviet authorities are concerned
with the fate of their soldiers who fall into the insurgent's hands. Considerations of this kind might tempt an intervening power to opt for the
extensive protection by the rules governing international armed conflicts, even if this would require that power to abide by the same rules.
The opposition movements, however, have different concerns. One of
the prime interests of the insurgents might be to prove that their fight is
not merely the result of an internal quarrel affecting Afghans only, but
one with which the international community ought to concern itself.
The intervention of an outside state would provide them with proof of
the international nature of the struggle. The insurgents would argue
that the intervention of foreign armed forces alongside government
troops makes the conflict an international one. The insurgents would
have an interest in capturing members of the armed forces, calling them
"prisoners of war," and demanding that the adversaries adhere to the
same rules. Obviously, the rebel party-normally the underdog-has
every interest in ensuring the greatest possible protection for its combatants and the civilian population it controls.
Given these different positions, it would be unrealistic to expect the
three parties to the conflict to reach the same view on the legal aspects of
the dispute. Furthermore, it is unlikely that they would agree to observe
the complete set of rules of international humanitarian law and, thus,
implicitly to recognize the international nature of the conflict. The gov-
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ernments of Afghanistan and the Soviet Union, for instance, are not
willing to admit the existence of an armed conflict. From the outset,
they have claimed that the situation in Afghanistan is not subject to the
law of war. The attitudes of the various groups constituting the insurgent force, on the other hand, are difficult to understand within the
traditional legal framework.
The United Nations has not taken any stance on the legal character of
the conflict. The General Assembly's resolutions concerning the situation in Afghanistan speak of "foreign armed intervention in Afghanistan," without clarifying the effect of this for thejus in belo. 7
The position of the ICRC
On July 13, 1979, the International Committee of the Red Cross sent
a message to the Afghan Head of State, offering its services. A second
approach on September 5, 1979, expressly based on common article 3 of
the Conventions, was made also to the opposition movements. At the
outset, and before the events at the end of the year, the ICRC had categorized the conflict as non-international. 8 Further offers of services were
made. In January 1980, after the intervention of the Soviet armed
forces, an ICRC mission went to Kabul to "negotiate. . . the basis for
the ICRC's humanitarian action, that is, the specific activities of protection of combatants captured and civilians arrested in connection with
the events." 9 The Afghan Head of State assured the delegates that the
principles of the Geneva Conventions would be respected "and that all
armed forces on Afghan territory would comply with their obligations
under the Conventions."' 0 Authorization for the ICRC to carry out its
traditional duties in Afghanistan accompanied this commitment. After
a short period of activity, and in spite of the assurances received, the
delegation was forced to leave the country in June 1980, and has not
returned to date.
In its approach to the insurgent movements, the ICRC is continuing
to invoke common article 3 of the Geneva Conventions, and is attempting to negotiate formal guarantees that parties to the conflict will respect this provision. The delegates are attempting to go a step further
by insisting that the insurgent forces respect fundamental humanitarian
7. See G.A. Res. ES-6/2, U.N. GAOR Supp. (No. 1) at 2, U.N. Doc. A/ES-6/7 (1980) (Sixth
Emergency Special Session); G.A. Res. 35/37, U.N. GAOR Supp. (No. 48) at 11-13, U.N. Doc.
A/35/48 (1980); G.A. Res. 36/34, U.N. GAOR Supp. (No. 48) at 14-15, Press Release GA/6546
(1981).
8.
REPORT
ANNUAL
9.
For general information on these points, see INT'L COMM. OF THE RED CROSS, ANNUAL
44 (1980) [hereinafter cited as 1980 ANNUAL REPORT]; INT'L COMM. OF THE RED CROSS,
REPORT 39 (1979) [hereinafter cited as 1979 ANNUAL REPORT].
See 1980 ANNUAL REPORT, supra note 8, at 44.
10. Id
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rules. I
Because Soviet troops were active in Afghanistan, the ICRC also addressed itself to the government of the U.S.S.R.1 2 The ICRC set forth
two arguments of striking simplicity. First, there is an armed conflict in
Afghanistan. Second, Soviet armed forces are present in Afghanistan.
On the basis of these arguments, the ICRC concluded that the Soviet
forces must respect international humanitarian law while they are engaged in military operations. Adhering to the logic of its approach, the
ICRC addressed an appeal on September 16, 1980, to all parties to the
conflict: "The ICRC now appeals publicly to all the parties militarily
engaged in the conflict in Afghanistan to respect international humanitarian law and to allow the ICRC to carry out fully its traditional tasks
of protection and assistance." 13
In essence, the ICRC did no more than remind the intervening state
of the existence of an armed conflict in Afghanistan and of the intervenor's direct responsibility for ensuring that its armed forces respect
international humanitarian law. The ICRC did not, however, make any
judgments on the legal character of the conflict. The ICRC left it to
others to decide what law was applicable, first, to each party directly
concerned, and then to all parties to the Conventions who had undertaken, in accordance with common article 1 of the 1949 Conventions,
"to respect and to ensure respect for" the obligations they had assumed.
Mention should also be made of Resolution 4 of the Twenty-fourth
International Red Cross Conference (Manila 1981), entitled: "Humanitarian activities of the ICRC for the benefit of victims of armed conflicts." By this resolution, aimed at, among other things, the Afghan
situation, the Conference deplored the fact that the ICRC was unable to
exercise its humanitarian activities in Afghanistan although there was
an armed conflict in progress, and invited the parties to the conflict to
grant the ICRC the necessary facilities for accomplishing its task. 14
Arguably, the events that occurred in Afghanistan in the last days of
December 1979 qualify as manifestations of an international armed conflict between two parties to the Geneva Conventions. The new government's consent to the presence of Soviet armed forces in Afghanistan,
however, may have put an end to the conflict between these two countries. 15 The civil war, however, continued. Just as relations between the
M. Id at 45.
12.
13.
14.
Id.
See Int'l Comm. of the Red Cross, Press Release No. 1398 (Sept. 16, 1980) (app. 1 infra).
See 1981 INT'L REV. OF THE RED CROSS 321 (app. 2 infra).
15, This Article does not analyze the difficult legal problems that arise when a new government is installed after the arrival of a foreign power. Suffice it to state that the government currently established in Kabul is the only government claiming to represent the country-there is no
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Afghan Government and the insurgents are subject to common article 3
of the Geneva Conventions, the armed forces of the Soviet Union, if
engaged in military operations against insurgents, should be equally
committed to respecting at least that common article. The treaty of
friendship between Afghanistan and the U.S.S.R. may provide a legal
basis for the presence of these troops on Afghan soil, but it cannot free
the intervening party from its international obligations towards the
other party to an armed conflict. Neither a bilateral treaty pledging
assistance, including military aid, nor authorization in another form can
have any influence on the applicability of international humanitarian
law to the armed conflict.
In view of the opposing interests of the different parties to the conflict,
it would be wishful thinking to postulate the application of the whole
body of international humanitarian law to the relations between the intervening power and the insurgents. Nevertheless, humanitarian policy
demands protection for all actual and potential victims of the conflict.
Among the top priorities must be achieving greater respect for the civilian population, treating captured combatants similarly to prisoners of
war, and guaranteeing respect for the protective emblem. This is precisely what the ICRC attempts.
B.
Kampuchea
The facts of this conflict will be examined through the ICRC Annual
Reports. The 1975 Report speaks simply of "the end of ICRC activity
in Cambodia," the revolutionary forces having taken control of the capital on April 17, 1975.16 While there was nothing to report in 1976, the
report for 1977 indicated the ICRC's grave concern for the situation in
Democratic Kampuchea. 17 Early in 1978, fighting occurred on the frontier between Vietnam and Kampuchea. At that time the ICRC reminded the authorities of both countries of their obligation to respect
"the international humanitarian norms." After it had received confirmation that soldiers had been taken prisoner on both sides, the ICRC
called for respect of the Third Geneva Convention and asked the authorities for permission to visit the prisoners. The Vietnamese government replied on March 3 that it was abiding by the four Geneva
Conventions of 1949 "subject to its previously stated reservations and
government in exile--and that the international community has recognized it de facto: it is represented in the United Nations.
16.
INT'L COMM. OF THE RED CROSS, ANNUAL REPORT 16 (1975).
17.
INT'L COMM. OF THE RED CROSS, ANNUAL REPORT 21 (1976) [hereinafter cited as 1976
ANNUAL REPORT].
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NON-INTERNATIONAL ARMED CONFLICTS
local conditions." The authorities in Phnom Penh made no reply. 8 In
January 1979, hostilities intensified. On January 4, the ICRC asked the
parties to the conflict to apply the Geneva Conventions.' 9 On January
7, the armed forces of Vietnam and the Front uni de Sa/ut national du
Kampuchea took the city of Phnom Penh. A new government was established in Phnom Penh.
After long negotiations, the new government invited the ICRC to
send a mission to Phnom Penh. This was the beginning of an extraordinary campaign of assistance to save an entire people from the distress
inflicted by man. 20 Since then, however, the ICRC has said nothing
about the existence of an armed conflict in Kampuchea nor has it expressed an opinion on a possible classification of such a conflict.
In addition to the story as revealed by the annual reports of the
ICRC, it must be remembered that the exiled government of the Democratic Republic of Kampuchea continued to consider itself to be the
country's legal government. The United Nations upheld this claim by
majority votes in the General Assemblies of 1979, 1980, and 1981.21 The
press continues to report occasional fighting between the forces of the
Khmer Rouge and the Vietnamese army. The authorities in Phnom
Penh do not seem to be in control of the entire national territory.
Analyzing the situation in Kampuchea after 1979 is aided by distinguishing three phases in the conflict: the invasion by Vietnamese troops
and the capture of Phnom Penh; the control of a large part of the territory of Kampuchea by the authorities in Phnom Penh and the
Vietnamese forces, while the government in exile continued to be regarded by the international community as the legal representative of the
Kampuchean people; and the post-war period.
The implications of these three phases will be discussed solely in light
of the application of international humanitarian law. For reasons of
brevity, there will be no explicit analysis of the various interests involved. Nevertheless, the considerations presented in discussing the Afghan conflict also apply here.
The first phase, the invasion of Kampuchea by Vietnamese troops in
January 1979, and the fighting which preceded it, could be characterized as an international armed conflict between Vietnam and
Kampuchea, entailing the application of all the Geneva Conventions.
18.
INTr'L COMM. OF THE RED CROSS, ANNUAL REPORT 36 (1978) [hereinafter cited as 1978
ANNUAL REPORT].
19. 1979 ANNUAL REPORT, supra note 8, at app. 3 infra.
20. Id; 1980 ANNUAL REPORT, supra note 8, at 36.
21. G.A. Res. 36/5, U.N. GAOR Supp. (No. 48) at 2-5, Press Release GA/6546 (1981); G.A.
Res. 35/6, U.N. GAOR Supp. (No. 48) at 3-5, Press Release GA/6375 (1980); G.A. Res. 34/22,
U.N. GAOR Supp. (No. 46) at 16-17, U.N. Doe. A/34/L.13/Rev. 2 (1979).
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The ICRC made that assessment in its appeal of January 4, 1979.22 The
parties to the conflict did not affirm or invalidate this position; they
simply did not reply to this appeal. Nevertheless, in the beginning of
March, Vietnam informed the ICRC that all prisoners of the Democratic Republic of Kampuchea's armed forces captured by the
Vietnamese forces had been handed over to the government of the People's Republic of Kampuchea. It is unlikely that these captives were
able to lay claim to their status as prisoners of war.
During .the second phase of the conflict, after the fall of Phnom Penh
and the establishment of a government of the People's Republic of
Kampuchea, there were three parties involved: the government in
power, the Vietnamese forces stationed in Kampuchea, and the government of the Democratic Republic of Kampuchea, or the Khmer Rouge.
Other groups of Khmers also opposed the Vietnamese forces and the
authorities in Phnom Penh. According to the majority of members of
the United Nations, 23 the government in exile was the valid representative of Kampuchea. They regarded the "government of the People's
Republic of Kampuchea" as rebel authorities.
The preceding discussion implies that, in the relations between the
Vietnamese forces and the troops of the Khmer Rouge, the law of international armed conflicts should apply. These hostilities may be considered either a prolongation of the first phase of the conflict or the
consequence of the Vietnamese intervention in concert with a group of
insurgents, the United Front, that later became the government in
Phnom Penh. In conformity with the Third Geneva Convention,
Khmer Rouge combatants who are captured by the Vietnamese armed
forces should be granted prisoner-of-war status. The Vietnamese should
not hand them over to the authorities of Phnom Penh who would consider them to be nationals in rebellion and thus, ineligible for prisonerof-war status.
The foregoing conclusions are no different if we analyze the relations
between the invading forces and the civilian population of Kampuchea.
Taking the original hypothesis, these relations should be governed by
the legal provisions on occupation and particularly by the Fourth Geneva Convention on the Protection of the Civilian Population in Time
of War. As long as the Vietnamese armed forces exercise direct control
over the population, they are obliged to respect those provisions. Left
unresolved is whether the provisions apply if the invader establishes national authorities in the capital and major cities of the provinces and
22. See infra app. 3.
23. The resolutions adopted by the United Nations at the General Assemblies of 1979, 1980,
and 1981 take for granted the international nature of the conflict. See supra note 21.
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NON-INTERNATIONAL ARMED CONFLICTS
turns over administration of the country to them. Arguably, relations
between the Khmer authorities in Phnom Penh and the Khmer population that they control cannot possibly be subject to the law governing
occupation because the inimical character between "occupier" and "occupied" is lacking. It must be born in mind, however, that acts of this
"local" government may originate in fact from the invading Vietnamese
authorities, either through Vietnamese approval or Vietnamese "advice" to the Kampuchean authorities.
The legal analysis must begin with the postulate that a government
established by the occupying power cannot in law give its agreement to
the presence of the occupying troops in its territory and thereby transmute occupation by the armed forces of an outside state into the
friendly presence of an outside state. Article 47 of the Fourth Geneva
Convention mandates that protected persons who are in occupied territory may not be deprived of the benefits of the Convention in any way,
including "any change introduced . . . into the institutions of govern-
ment" of the territory in question.2 4 Thus, the occupying power remains
responsible for ensuring that the authorities it installs respect the rights
of protected persons. Under these circumstances, the Vietnamese armed
forces are under the obligation to respect international humanitarian
law, in particular the Fourth Geneva Convention, and to ensure its recognition wherever they exercise de facto control of Kampuchean
nationals.
In the relations between the armed forces of the authorities in Phnom
Penh and the Khmer Rouge the law of non-international armed conflicts, especially common article 3 of the Geneva Conventions, should
apply. The same is true of relations between the other Khmer groups
and Phnom Penh, the Vietnamese forces, and even among the Khmer
groups themselves.
The third phase of the conflict, the post-war period, is the hypothetical situation characterized by the majority of countries of the international community recognizing the legitimacy of the government in
power in Phnom Penh and abandoning the government of the Democratic Republic of Kampuchea. In this hypothesis, the presence of
Vietnamese armed forces in Cambodia, with the consent of the government of the People's Republic of Kampuchea, no longer would be subject to the law of war. As long as that government's armed forces were
involved in an armed conflict with the Khmer Rouge or other groups of
insurgents, common article 3 of the Geneva Conventions would remain
applicable. The majority of commentators would find that the relations
24. Partial impetus for this provision derived from the experience with the Quisling government in Norway during World War II.
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between the Vietnamese armed forces and the opposing parties likewise
would be subject to the law of non-international armed conflicts.
C
Lebanon
Since 1975, Lebanon has been battered by armed clashes between
government forces and armed groups and between rival opposition
groups. This conflict has all the features of a non-international armed
conflict; article 3 of the Conventions is applicable. The relations between the various groups fighting each other are also covered by common article 3.25
The ICRC has always based its action in Lebanon on the principles of
humanitarian law, without ever categorizing the conflict. Until now the
ICRC has adopted a pragmatic stance: it has made appeals for the respect of international humanitarian law in general and has often approached the authorities of the various parties in specific cases of
violations of this law. The ICRC, using general but urgent terms, has
reminded the various parties to the conflict of their humanitarian obligations.2 6 By following this approach it has obtained permission to visit
captured combatants and has succeeded in arranging the release and
repatriation of detainees.2 7 Its activities will continue as long as there
are victims of the armed hostilities in the war-torn country.
With reference to international humanitarian law, three developments deserve attention: the establishment of the Arab Peace-Keeping
Force, the 1978 intervention by Israel, and the presence of a special
U.N. force. The creation in Lebanon of an Arab Peace-Keeping Force,
following a decision of the Arab League on October 21, 1976, raised
special questions in relation to international humanitarian law. It
should be born in mind that from the time of the force's official formation, Syrian contingents constituted the majority, and units from other
Arab countries later withdrew. The Arab Peace-Keeping Force is in
Lebanon with the consent of the Lebanese Government and is under the
command of a Lebanese senior officer responsible to the Lebanese Head
of State. Groups opposed to the force's presence in Lebanon claim it is
an occupying force. In support of this theory, these opponents point to
the hostility of the Lebanese population towards the Syrian troops, who
are said to behave like occupying forces. Nevertheless, the legal argument may be made that the requisite inimical character, an essential
25. For examination of this question in the context of a different conflict, see Bothe, MV/kerrechihche Aspekte des Angola Xon/hzkis, 37 ZEITSCHRIFT FOR AUSLANDISCHES 6FFENTLICHES RECHT UND
VbLKERRECHT 572, 588-92 (1977).
26. See generally INT'L COMM. OF THE RED CROSS, ANNUAL REPORTS (1975-1982).
27. See 1979 ANNUAL REPORT, supra note 8, at 58; INT'L COMM. OF THE RED CROSS, ANNUAL REPORT 7 (1977); 1976 ANNUAL REPORT, supra note 17, at 6.
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aspect of a belligerent occupation, has been missing from the moment
the Arab Peace-Keeping Force was created with the consent of the Lebanese Government through the Riyadh Agreements of October 21,
1976. Moreover, talk of occupation of a country is hardly appropriate
when the so-called occupying troops are under the command of the
Head of State of the same country.
The second development, the intervention of Israeli armed forces in
the southern part of Lebanon in March 1978, qualifies as an international armed conflict accompanied by occupation. The approaches
made by the ICRC to the Israeli Government were aimed in particular
at reminding that government of its obligations under the Fourth Geneva Convention. Without taking a position on the legal aspect of the
situation, the Israeli authorities stated that they were willing to grant all
practical facilities to the ICRC delegates to enable them to accomplish
28
their mission in southern Lebanon.
The third development that raises legal questions was the establishment of the United Nations Interim Force in Lebanon (UNIFIL), an
event that occurred in connection with the cease-fire marking the end of
hostilities in the south of the country in March 1978.29 The chief source
of difficulty is defining the position of this force in relation to the various
parties to the conflict and in relation to rights and obligations under
international humanitarian law. This problem, as yet unresolved, demonstrates that all has not been made clear in terms of law.
CONCLUSION
Internationalized non-international armed conflicts, civil wars characterized by the 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 international humanitarian law in this direction.
Commentators have proposed solutions that either reflect the current
practice of the states or are not wholly satisfactory. In practice, internal
conflicts with foreign intervention are invariably the subject of fierce
controversy of a political nature. The result is that opinions about the
facts often differ widely. The governments concerned even go so far as
to deny from the outset the very existence of an armed conflict that
would be subject to the law of war. In these circumstances any legal
28. 1978 ANNUAL REPORT, supra note 18, at 26.
29. Id
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categorization is unlikely to be sound. The absence of any international
procedure enabling conflicts to be legally classified is felt sharply.
In the situations involving Afghanistan, Kampuchea, and Lebanon,
the ICRC has not explicitly categorized the conflicts. Yet it has never
concealed its opinion that the three situations are armed conflicts subject to the law of war. The ICRC demonstrates its position in several
ways: the presence of, or the attempt to place, an ICRC delegation in
the area of conflict; the attempts to obtain greater respect for the law;
and public appeals of a general nature. In certain situations, however,
the ICRC has remained silent and has given no indication of its attitude
with reference to the legal aspects of the situation. To understand this
policy, its rationale must be explained more fully.
Under the statutes of the International Red Cross, the ICRC "works
for the faithful application" of the Geneva Conventions. 30 Therefore,
the state of international humanitarian law is one of its concerns; the
fate of this law should not leave the ICRC unmoved. Having said this,
two comments are necessary. First, the duty quoted under the statutes
does not imply that the ICRC is vested with any quasi-judicial function.
Second, the ICRC has no duty either to pronounce judgment on the
controversies over facts or to arbitrate between contradictory legal approaches. The ICRC does not "lay down the law." That function
rightly belongs to the parties to the conflict and, in a subsidiary way, to
the states that are parties to the Geneva Conventions, either individually or assembled in the United Nations. Nevertheless, reality forces one
conclusion upon us: if the ICRC has no clear and distinct attitude, then
undoubtedly no stand will be taken on the obligations of the parties to
the conflict under humanitarian law, and the victims of the conflicts will
suffer most for the lack of such a posture. The statutory mandate of the
ICRC to work for the faithful application of the Geneva Conventions is
thus reinforced by a deficiency in the system for implementing the instruments of humanitarian law: the habit of parties to the Geneva Conventions 'who are not involved in a conflict to remain silent when
humanitarian law is ignored. From this perspective, the ICRC has an
obligation to speak out. The parties to the conflict need to be reminded
of the law, so that they will respect it and so that the existence of this law
will be affirmed and strengthened. Such action is intended to prevent
the provisions of the Geneva Conventions and the additional Protocols
from being forgotten.
The function of "custodian of humanitarian law" is only one of the
duties devolving on the ICRC in the event of conflict. Its principal
mandate is "to ensure the protection of and assistance to the military
30.
Statutes of the International Red Cross, art. 6, § 4.
1983]
NON-INTERNATIONAL ARMED CONFLICTS
and civilian victims" of armed conflicts.3 1 The external circumstances
of an action, especially the attitudes of the parties to the conflict, may
impel the ICRC to give low priority to the task of "laying down the
law." The ICRC will refer to the Conventions only if the legal argument is likely to produce immediate success. Otherwise it will choose a
"low profile" approach to legal categorization, particularly, but not
solely, if armed conflict is denied.
The ICRC occasionally has chosen an intermediate approach. Without settling on any category, it has appealed to the parties to the conflict
to respect "the principles of international humanitarian law." These
principles have not been defined by treaty. 32 A reference to them, instead of to precise standards, may involve the risk of diluting and devaluing this law and the obligations arising from it. Nevertheless, an appeal
to general principles may be the only alternative in a situation where
any precise qualification involves the risk of arousing the opposition of
the parties to the conflict and, thus, of hampering the humanitarian action of the ICRC.
31.
32.
national
RFx'. oF
Id art. 6,§5.
For an example of such rules, as developed by a group of jurists associated with the InterRed Cross, see FundamentalRules of Humanitartan Law Applicable m Armed Conftcts, 1978 INT'L
THE RED CROSS 247.
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Appendix 1
Afghanistan: Appeal by the International Committee of the Red Cross
Since the beginning of the armed conflict in Afghanistan, the International Committee of the
Red Cross (ICR) has been greatly concerned over the fate of the civilian and military victims of
the fighting. In accord with the mandate conferred on it by the Geneva Conventions of August
12th 1949, and by the Statutes of the International Red Cross, the ICRC on several occasions
reminded the parties militarily engaged in the conflict of their obligations under international humanitarian law. The ICRC also offered its services to bring protection and assistance to the
victims.
The ICRC was able to start these activities, but despite repeated approaches to the authorities in
Kabul, it was unable to expand them to reach all the victims. On top of that, its delegates were
refused permission to remain in Kabul after June 15th 1980.
During the few months it was present in Afghanistan, the ICRC had to limit its activities to two
visits to the prison of Puli Charki in Kabul (in February and April 1980), and to handing over a
small amount of medical relief supplies to hospitals in the capital.
Since its departures from Kabul, the ICRC has made several new approaches to the Afghan
authorities, in which it proposed sending to Kabul a high-level delegation to try to resolve the
problems preventing the development of its action. On July 26th, the Afghan government made it
clear that it was not prepared to receive the ICRC envoys.
In a message sent to President Babrak Karmal on August Ist, the ICRC called on the Afghan
authorities to reconsider their position; it stressed that its insistence on being allowed to work in
Afghanistan was prompted solely by its concern to aid the victims. Approaches were also made to
the government of the Soviet Union.
In the absence of a reply to its different initiatives, the ICRC now appeals publicly to all the
parties militarily engaged in the conflict in Afghanistan to respect international humanitarian law
and to allow the ICRC to carry out fully its traditional tasks of protection and assistance. In
particular, the ICRC asks the Afghan government for permission to recommence and develop the
activities it had undertaken from January to June this year.
All the States which are parties to the Geneva Conventions have an obligation to ensure that
these Conventions are respected. The ICRC therefore calls on them to give this appeal their full
support.
Press Release No. 1398
September 16, 1980
Appendix 2
XXIVth International Conference of the Red Cross, 1981, Manila (Philippines)
Resolution #IV
Humanitarian activities of the International Committee of the Red Cross for the benefit of
victims of armed conflicts
The XXIVth International Conference of the Red Cross
noting the persistence of international or non-international armed conflicts in which the ICRC is
partially or totally unable to fulfill its humanitarian tasks in situations covered by the Geneva
Conventions,
deploring in particular the fact that the ICRC is refused access to the captured combatants and
detained civilians in the armed conflicts of Western Sahara, Ogaden and later on Afghanistan,
urges all parties concerned to enable the International Committee of the Red Cross to protect and
assist persons captured, detained, wounded or sick and civilians affected by these conflicts.
1982 INTERNATIONAL REVIEW OF THE RED CROSS 321.
Appendix 3
CONFLICT IN CAMBODIA-ICRC OFFERS ITS SERVICES
Greatly concerned at the fighting in Cambodia and anxious to ease the suffering inflicted on civilian and military victims, the International Committee of the Red Cross (ICRC) has decided to
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161
remind all the parties involved of the provisions of the Geneva Conventions and to offer them its
services.
In particular, the ICRC hopes to visit the prisoners and to receive a full list of all persons
captured.
Press Release No. 1348
January 4, 1979