Expanding the borders of Common Article 3 in non-international armed conflicts : amending its geographical application through subsequent practice?

Abstract

The geographic footprint of contemporary warfare often challenges the existing understanding of the term ‘non-international armed conflict’, a term not defined in international humanitarian treaty law. This article examines whether the opening lines of Common Article 3 of the Geneva Conventions include a geographical requirement. Controversy surrounds this question which until recently has received little attention. The customary interpretation of Common Article 3 is that it has a geographical scope of application limited to non-international armed conflicts which take place exclusively within the borders of a single member state (internal armed conflict). The 2016 ICRC Commentaries to the First Geneva Conventions challenges this traditional view and argues in favour of a broader interpretation of the scope of application of Common Article 3. This re-interpretation recently has gained traction in scholarship. The ICRC’s position serves as a possible solution to prevent a lacuna in humanitarian protection in situations where conflicts fit neither the understanding of ‘international armed conflict’ nor ‘internal armed conflict’. By evaluating the merits of the arguments posed by the ICRC, the article assesses whether the phrase ‘conflict not of an international character’, as included in Common Article 3, conclusively limits its geographical application to an armed conflict occurring within the boundaries of a single state.