II. REQUIREMENTS, LIMITATIONS AND EFFECTS OF THE CONCURRENT APPLICABILITY OF
INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW IN ARMED CONFLICT
beyond the scope of this publication to examine the details of practice and
jurisprudence on this issue. However, regional and international courts,
ICRC and numerous academics have produced opinions that explain in
some detail how these criteria may be interpreted. In any case, it should
be noted that even if the stricter criteria of Protocol II are not entirely
met, a situation may still be covered by common article 3 as international
humanitarian law’s “minimum guarantee”.43 As indicated above, unlike
article 1 of Protocol II, common article 3 of the Geneva Conventions does
not make the same references to “responsible command”, “exercise of
control” or “organized armed groups” and, therefore, has a significantly
lower threshold of application. Under common article 3, an armed conflict
could potentially exist between two armed groups, without any involvement
of State forces. Common article 3 is, thus, seen as defining the lowest
threshold of armed conflict, below which there is no armed conflict and
international humanitarian law is not applicable.
Finally, it is important to recall, as indicated above, that in non-international
armed conflicts the intensity of hostilities plays a fundamental role in
triggering the application of international humanitarian law and, thus,
the concurrent applicability regime. So to distinguish an armed conflict
from other forms of violence, such as internal disturbances and tensions,
riots or acts of banditry, the situation must reach a certain threshold of
confrontation. This question is relevant because, as has already been
indicated, the application of international humanitarian law can be
triggered only through the existence of an armed conflict. There is, however,
no specific organ or authority with special responsibility for determining
whether an armed conflict is taking place or not. It is not necessary for
The International Court of Justice held that “article 3 which is common to all four
Geneva Conventions of 12 August 1949 defines certain rules to be applied in the
armed conflicts of a non-international character. There is no doubt that, in the event
of international armed conflicts, these rules also constitute a minimum yardstick, in
addition to the more elaborate rules which are also to apply to international conflicts;
and they are rules which, in the Court’s opinion, reflect what the Court in 1949 called
‘elementary considerations of humanity’.” Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J.
Reports 1986, para. 218.
43
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