Towards comprehensive civilian protection under Common Article 3 by addressing protection gaps in spill-over conflicts

Kevin Kipchirchir

Abstract

There is a proliferation of non-international armed conflicts across the
globe. Increasingly, these conflicts involve groups across two or more
borders or that involve cross-border clashes. This is termed as spill-over
conflict. The Middle East and Central Africa serve as salient examples to
this effect. A literal reading of Common Article 3 locks out the victims
of such conflicts from protected status. Common Article 3 restricts its
application to non-international armed conflicts occurring in the territory
of one high contracting party. The gap in protection occurs where the
groups do not meet the organisational threshold in Additional Protocol
II regarding the structure of the non-state actors’ organisation but are
engaged in conflicts spanning more than a single territory. This paper
examines the history of Common Article 3 and finds that the parties had
no intention of locking out the application of Common Article 3 based on territorial considerations. Secondly, this paper looks into customary
international law through state practice and jurisprudence. It finds that
state practice and emerging jurisprudence recognises the fundamental
principles that underpin Common Article 3. To this end, even where treaty
law is inapplicable, customary international humanitarian law shall apply
to provide protection to victims of spill-over non-international armed
conflict. It is against this backdrop that the paper proposes that the single
territory provision in Common Article 3 be amended to accommodate a
more inclusive cross border reading.