In IAC jus in bello, there is a basic distinction between combatants and civilians.288 The expression ‘combatants’ is not appropriate in a NIAC context289 (see infra 827). Relying on the phraseology of the 2006 San Remo Manual on the Law of Non-International Armed Conflict,290 an ICTY Trial Chamber in the 2007 Mrkšić case commented that ‘the term “fighter” now seems to be the appropriate term to be used as the equivalent for “combatants” in non-international armed conflict’.291 We shall accordingly use the term ‘fighters’ in this volume too. Fighters in NIAC hostilities are members of either Government armed forces or of non-State organized armed groups, with the exception of medical and religious personnel (see infra 539). An important point accentuated by the Appeals Chamber in the Galić case in 2006 is that, when fighters become hors de combat (for a definition of the term, see infra 613), they are entitled to humane treatment (see infra 479, 511) but do not thereby assume the mantle of civilians.292

We shall see in Chapter 3 that there is more than one threshold for NIACs. Yet, all NIACs are covered by the chapeau of Common Article 3 (quoted infra 479), which adverts tout court to an ‘armed conflict not of an international character’.

In the present chapter, we shall concentrate on NIAC war crimes. This is shorthand for serious violations of LONIAC for which individuals are personally accountable (see supra 44). We shall not canvass other international crimes that are possibly relevant to NIACs. In particular, we shall not enquire into crimes against humanity or genocide, although these international crimes can be – and have been – committed while a country is consumed by a NIAC. The elision is due to the fact that there is no built-in direct linkage between crimes against humanity or genocide and a NIAC.

Every State must have a Government. Possessing a Government is one of four conditions requisite of statehood, conjointly with (i) territory; (ii) nation, i.e. population; and (iii) sovereignty, viz. independence.533

There are quite a few treaties relating to LONIAC in addition to Common Article 3 and AP/II. In Chapter 10, we shall address the war crimes texts. In the present chapter, we shall take stock of other treaty provisions. We shall deal separately with those treaties that expressly appertain to NIACs and those that are applicable only inferentially. We shall also take a look at treaties – not governing NIACs – that may convey the meaning of undefined terms-of-art with which LONIAC is interspersed.

In the Kunarac Judgment of 2001, the ICTY Trial Chamber pressed the right button when it said that there is often a resemblance (and, in some aspects fusion) between LONIAC and human rights law ‘in terms of goals, values and terminology’.1369 All the same, one should not be carried away by the extent of that resemblance. It is necessary to beware the wish that is father to the thought – expressed by some scholars – that the norms of human rights law and the law of armed conflict can or should be unified.1370 This idea, which is not seriously considered by States, ignores the need to fine-tune different regimes of protection with a view to achieving their maximum performance in divergent sets of circumstances.

Below-the-threshold violence relates to ‘isolated and sporadic’ internal disturbances (see supra 66). These extend to all forms of disorganized – individual or mob – violence, which do not make the grade of an armed conflict, although they may cause mayhem and provoke savage crackdowns by governmental agencies. Grave internal disturbances may cause an incumbent Government to be reeling, and perhaps even force a political realignment or dissolution of the legislature, but that does not mean that a NIAC has been cut loose.

Chapter 3 theorizes border settlement as a bargaining process. Information and commitment problems as the most common obstacles to concluding border delimitation negotiations. Information exchange is facilitated by numerous mechanisms; commitment problems are driven by the value of the territory. Two broad categories of border territory are identified.Territory that contains a power endowment, defined as characteristics of the border capable of affecting state power, and territory that does not. The presence of these power endowments may trigger a commitment problem, making border settlement less likely. We identify alternative explanations for failed border settlement based on information problems.We also integrate expectations from theories of conflict management, with a focus on bilateral negotiations, third party mediation and legal methods. Bilateral negotiations help surmount the challenge of incomplete information, but cannot easily allay the fears underlying commitment problems. Third parties help with either challenge but, when addressing commitment problems, legal methods are more effective than mediation.