Internal or Non-international Armed Conflict

Concept and Legal Character

A non-international armed conflict is an armed conflict occurring within a State, or otherwise not between States, in which governmental armed forces fight organized non-State armed groups, or organized armed groups fight each other. It is the principal IHL category for internal armed conflict.

The classification is factual and objective. A State's political description of the situation as rebellion, insurgency, terrorism, law-enforcement operation, public emergency, or peace-and-order problem does not control the IHL classification if the required level of violence and organization exists.

Recognition of belligerency is not required. Modern IHL applies to non-international armed conflicts without elevating the armed group to statehood, without recognizing it as a lawful government, and without depriving the State of its sovereignty or criminal jurisdiction.

The existence of a non-international armed conflict does not itself legalize the resort to arms by a non-State group. It only triggers humanitarian rules that regulate the conduct of all parties and protect persons who do not, or no longer, take part in hostilities.

In the Philippine setting, the same facts may be viewed simultaneously through different legal lenses: domestic criminal law may treat the acts as rebellion, terrorism, murder, kidnapping, arson, or other offenses, while IHL may classify the situation as a non-international armed conflict and impose humanitarian obligations on both State and non-State parties.

Minimum Threshold

Non-international armed conflict requires more than ordinary criminality, sporadic disorder, or political unrest. The accepted minimum threshold is protracted armed violence between governmental authorities and organized armed groups, or between such groups, with the armed groups possessing enough organization to conduct sustained military operations.

The two core indicators are intensity of hostilities and organization of the parties. Neither indicator is measured by a single fact; classification depends on the totality of circumstances.

Intensity of hostilities

Intensity refers to the seriousness, duration, spread, and military character of the violence. Relevant indicators include repeated armed encounters, use of military weapons and tactics, number of casualties, displacement of civilians, destruction of property, frequency of clashes, deployment of armed forces rather than ordinary police alone, and the need for coordinated military operations.

Isolated attacks may be serious crimes without amounting to armed conflict. Conversely, a series of coordinated attacks forming part of sustained hostilities may satisfy the intensity requirement even if the State refuses to describe the situation as war.

Organization of armed groups

Organization requires a structure capable of planning, commanding, and carrying out armed operations. Indicators include responsible command, internal discipline, identifiable units, capacity to recruit and train members, ability to procure weapons, capacity to speak or negotiate through representatives, and ability to implement IHL obligations.

A loose crowd, spontaneous riot, uncoordinated gang, or temporary mob ordinarily lacks the organization required for non-international armed conflict. An armed group need not control territory under the minimum threshold, but territorial control may strongly indicate organization and sustained operational capacity.

Stricter Protocol II Threshold

Additional Protocol II applies only to a narrower class of non-international armed conflicts. It requires fighting between State armed forces and dissident armed forces or other organized armed groups under responsible command that exercise such control over part of the territory as to enable them to carry out sustained and concerted military operations and implement the Protocol.

This stricter threshold does not cover conflicts solely between non-State armed groups. It also excludes internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature.

The practical point is that some internal conflicts may be covered by Common Article 3 and customary IHL even if they do not meet the higher requirements of Additional Protocol II. Common Article 3 is the humanitarian floor; Additional Protocol II adds more detailed protections when its conditions are present.

Humanitarian Floor in Internal Conflict

Common Article 3 of the Geneva Conventions supplies the basic minimum rules for non-international armed conflict. It protects persons taking no active part in hostilities, including civilians, members of armed forces who have laid down their arms, and persons placed hors de combat by sickness, wounds, detention, or any other cause.

The protected persons must be treated humanely, without adverse distinction based on race, color, religion, sex, birth, wealth, political opinion, or similar criteria. Humane treatment is not reciprocal; one party's violations do not release the other party from compliance.

The minimum prohibitions include violence to life and person, murder, mutilation, cruel treatment, torture, hostage-taking, outrages upon personal dignity, humiliating and degrading treatment, and executions or sentences without judgment by a regularly constituted court affording indispensable judicial guarantees.

The wounded and sick must be collected and cared for. This obligation applies regardless of allegiance and reflects the IHL principle that medical need, not military or political identity, governs priority of care.

An impartial humanitarian body may offer its services to the parties. Acceptance of humanitarian assistance does not change the legal status of the parties and does not imply recognition of the armed group as a government or belligerent State.

Status of Parties and Persons

In non-international armed conflict, the State remains the sovereign authority and retains law-enforcement and criminal jurisdiction. The armed group does not acquire international legal personality equivalent to a State merely because IHL binds it.

Members of non-State armed groups do not receive combatant immunity. If captured, they may be prosecuted under domestic law for taking up arms, rebellion-related conduct, terrorism-related offenses, murder, kidnapping, illegal possession of firearms, and other crimes, subject to constitutional, statutory, and human rights guarantees.

There is no prisoner-of-war status in non-international armed conflict as a matter of the law governing international armed conflicts. Captured fighters must nevertheless be treated humanely, protected from torture and cruel treatment, and tried only by courts respecting fundamental judicial guarantees.

Civilians are protected unless and for such time as they directly participate in hostilities. Direct participation covers acts likely to adversely affect enemy military operations or capacity, or to inflict death, injury, or destruction on protected persons or objects, when the act has a direct causal link to the harm and is specifically designed to support one party to the conflict against another.

Members of an organized armed group who assume a continuous combat function may be targeted based on that function while they remain part of the fighting force. Persons who merely sympathize, provide political support, or perform purely civilian roles remain civilians and may not be attacked on that basis.

Conduct of Hostilities

The principles of distinction, proportionality, and precautions apply in non-international armed conflict through customary IHL and domestic implementation. Parties must distinguish civilians from fighters and civilian objects from military objectives.

Attacks may be directed only against military objectives and persons who are lawful targets under IHL. Deliberate attacks against civilians, medical personnel, humanitarian personnel, or civilian objects are prohibited.

Proportionality prohibits an attack expected to cause incidental civilian death, injury, or damage excessive in relation to the concrete and direct military advantage anticipated. The rule does not prohibit all civilian harm, but it forbids excessive incidental harm.

Precautions require parties to verify targets, choose means and methods that reduce civilian harm, give effective advance warning when circumstances permit, and cancel or suspend attacks when it becomes apparent that the target is not a military objective or that expected civilian harm would be excessive.

Indiscriminate attacks are prohibited. These include attacks not directed at a specific military objective, attacks employing means or methods that cannot be directed at a specific military objective, and attacks whose effects cannot be limited as IHL requires.

Perfidy is prohibited because it kills, injures, or captures by abusing the adversary's confidence in IHL protection. Proper ruses of war, camouflage, deception, and misinformation are not prohibited when they do not misuse protected status.

Protection of Persons and Objects

Civilians must be protected against violence, threats, collective punishment, hostage-taking, terrorism, pillage, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other forms of sexual violence. These protections apply regardless of the perceived sympathy of the civilian population.

Children affected by armed conflict receive special protection. They must not be recruited or used in hostilities, must be given care and aid appropriate to their age and vulnerability, and must be treated primarily as victims when rescued, surrendered, or recovered from armed groups, subject to the rules of domestic law.

Medical units, medical transports, medical personnel, religious personnel, and humanitarian relief personnel must be respected and protected while performing their functions. Their protection is lost only if they are used, outside their humanitarian function, to commit acts harmful to a party, and only after warning when required by circumstances.

The dead must be handled with respect. Parties must take feasible measures to search for, collect, identify, and prevent despoiling of the dead, and to facilitate return of remains or information to families when possible.

Starvation of civilians as a method of warfare is prohibited. Objects indispensable to civilian survival, such as food supplies, agricultural areas, crops, livestock, drinking water installations, and irrigation works, must not be attacked, destroyed, removed, or rendered useless for the purpose of denying sustenance to the civilian population.

Forced displacement of civilians is prohibited unless required for civilian security or imperative military reasons. Displacement, when unavoidable, must be temporary, humane, and accompanied by measures for shelter, hygiene, health, safety, nutrition, and family unity as far as practicable.

Cultural property, places of worship, schools, hospitals, and other civilian objects are protected unless they become military objectives by their nature, location, purpose, or use. The mere presence of combatants in a town or area does not convert the entire area into a military objective.

Domestic Legal Consequences

Republic Act No. 9851 domesticates grave IHL violations, genocide, crimes against humanity, and war crimes, including serious violations committed in non-international armed conflicts. It reflects the Philippine rule that IHL violations may give rise to individual criminal responsibility.

War crimes in internal conflict may be committed by State agents, members of non-State armed groups, commanders, superiors, or persons who participate in the prohibited conduct. Official position does not by itself exempt a person from responsibility for international crimes.

Command responsibility may arise where a superior had effective command and control, knew or had reason to know that subordinates were committing or about to commit covered crimes, and failed to take necessary and reasonable measures to prevent, repress, or submit the matter for investigation and prosecution.

The existence of armed conflict is a contextual element for war crimes. The prohibited act must have a nexus to the armed conflict; a purely private crime committed during the same period does not become a war crime merely because hostilities exist elsewhere.

Domestic criminal charges and IHL charges may overlap. A killing may be analyzed as murder under domestic criminal law and as a war crime if committed against a protected person with the required nexus to the non-international armed conflict.

Military necessity is not a general excuse for violating IHL. It may justify only measures permitted by IHL and required for the legitimate weakening of the enemy's military capacity; it cannot justify torture, murder of persons hors de combat, hostage-taking, rape, deliberate attacks on civilians, or denial of fundamental judicial guarantees.

Human Rights Law and IHL Interaction

Human rights law continues to apply during non-international armed conflict, subject to lawful derogations and the special rules of IHL as the more specific body of law for hostilities. The State remains bound by constitutional rights and international human rights obligations in its operations, detention, investigation, and prosecution.

IHL does not displace due process. Persons detained or prosecuted in relation to the conflict must be protected against torture, enforced disappearance, arbitrary detention, and denial of essential judicial guarantees.

The use of force in actual hostilities is assessed primarily under IHL rules on targeting. The use of force in policing situations, checkpoints, arrests, custodial settings, and areas outside active hostilities remains strongly governed by human rights and law-enforcement standards.

Beginning and End of Application

IHL applies once the factual threshold of non-international armed conflict is reached. Formal declaration of war, proclamation of martial law, recognition of an armed group, or legislative characterization is unnecessary.

The law continues to apply until a peaceful settlement is achieved or hostilities have sufficiently ended, subject to continuing protections for persons detained, prosecuted, displaced, wounded, sick, or otherwise affected by the conflict.

A ceasefire, peace negotiation, localized truce, or unilateral suspension of offensive operations does not automatically terminate the conflict if organized parties retain capacity and intent to resume sustained hostilities. A genuine end to hostilities depends on facts, including demobilization, disarmament, reintegration, dismantling of fighting structures, or durable cessation of armed operations.

Operational Summary

The essence of internal or non-international armed conflict is that IHL regulates organized and intense internal hostilities without legitimizing rebellion or weakening State sovereignty. Its central legal effect is humanitarian: all parties must spare civilians, protect the wounded and detained, respect judicial guarantees, and avoid methods and means of warfare prohibited by IHL.

The controlling inquiry is not the label used by the parties, but whether organized armed actors are engaged in sufficiently intense and protracted armed violence. Once that threshold is crossed, Philippine law, treaty obligations, and customary IHL treat violations as matters of humanitarian responsibility and, for serious breaches, individual criminal liability.