The International Committee of the Red Cross (ICRC), from an analysis of international instruments of international humanitarian law (IHL), defines non-international armed conflicts (NIAC) as protracted armed conflicts that occur between government armed forces and non-state armed groups. ., or between these groups, which arise on the territory of the state, at least two things must be checked: a) the armed conflict must reach a minimum level of intensity; and ib) the parties participating in the conflict must have minimal organization.

There are two important legal bases in this matter: a) Article 3 common to the Geneva Conventions from 1949; and, b) Article 1 of Additional Protocol II of the Geneva Convention. The difference between these two sources lies in the fact that the protocol adds another element to verify: that the dissident armed forces exercise control over part of the said territory in such a way that it enables them to carry out sustained and coordinated military operations. However, both concepts, broad and limited, are internationally accepted for the recognition of CANI.

military aid

As for the requirement to reach a level of intensity, international case law (Prosecutor v. Fatmir Limaj, judgment, IT-03-66-T) says that it is checked when the hostilities are of a collective nature or when the Government must resort to military force against the rebels, instead of resorting exclusively by police forces. As for the minimum level of organization, international jurisprudence – in the same cited case – says that these forces must be subject to a certain command structure and have the capacity to maintain military or armed operations.

International humanitarian law covers NIAC with a central objective: to limit the methods and means of war and to protect people who do not participate or have ceased to participate in hostilities, in other words, to protect civil society. The ICRC considers that IHL imposes equal obligations on both parties to the conflict, although it does not grant any legal status to armed opposition groups participating in hostilities.

Go for pessimism

Regarding the detainees in CANI, there are also several points of view: the ICRC is that the term “prisoner of war” refers to the special status granted by the Third Geneva Convention to captured enemy soldiers (“combatants”) exclusively in conflicts. international armed groups. In CANI, detainees must be subjected to the internal Criminal Code, adding that in the case of Ecuador, the entire section of the Criminal Code (fourth) is activated in the event that Ecuador declares an armed conflict and therefore these crimes from that section are currently in force to apply .

Finally, it is important to say that for the ICRC, the mere fact that an armed group – whether it is called a “criminal group”, “terrorists” or otherwise – is a party to an armed conflict does not give it a special status under IHL. (OR)