A Legal Study of the Notion of Internal Armed Conflict in International Humanitarian Law and Myanmar

Abstract

ABSTRACT

A Legal Study of the Notion of Internal Armed Conflict in International Humanitarian Law and Myanmar

WIN MIN HTUN

Under the supervision of Professor Lee Keun Gwan At the College of Law, Seoul National University in Seoul, Korea

Today, given the various scenes of serious armed conflict within States around the world, it has been proven that the problems of internal armed conflicts are rapidly supplanting formal wars between nations. These types of armed conflicts remain undeclared, and have caused a modern challenge to international peace. Consequently there are obligations to respect the provisions of humanitarian law. Unfortunately, most of the States are reluctant to recognize their internal armed violence as non-international armed conflict under the scope of Article 3 Common to the Geneva Conventions of 1949 and its Additional Protocol 2. They considered that such recognition of armed conflict not of an international character, could lead to the international legitimacy of the insurgent groups. In their view, these types of armed conflicts are just attacks against the government by rebels within a State, and thus they fall into the category of purely internal affairs of the State. In such events, understanding of the nature of Article 3 Common to the Geneva Conventions of 1949, and particularly its Additional Protocol 2, becomes essential in analyzing the notion of internal armed conflict with respect to the essence of International Humanitarian Law. Myanmar is a signatory of the Geneva Conventions, and famous for hosting one of the longest running and perhaps most complex conflicts on Earth. During which several different ethnic groups attempted to secede from the nation in the years following World War 2. Most of these groups continue the struggle to this day, along with political dissidents who took up arms after a 1962 and 1988 coup. As a consequence of a long history of internal armed conflict, the government faces allegations of human rights abuses and humanitarian issues by the international community

with the UN Myanmar expert saying that some violations may be war crimes. In April, 2011, the new government took the State authority from a military regime to a civil system, and they have taken a number of steps toward improving conditions. Yet, many serious human rights issues and conflicts remain to be solved. Among them, an armed conflict between the new government and the ethnic armed group, Kachin Independence Organization (KIO/KIA)

an ongoing issue is threatening the prospects of peace and stability in the northern highlands of Myanmar. Therefore, my dissertation focuses on the field of internal armed conflict in international humanitarian law. This type of conflict usually occurs within a single State, and may also pose as a serious challenge to the peace of the High Contracting Parties or States. This paper will examine the nature of internal armed conflict in international humanitarian law and demonstrate how law can guide the conduct of hostilities, and mitigate the consequences of the use of armed force between armed groups in a State. As a starting point, a general introduction of the notion of internal armed conflict, the rationale of internal armed conflict, why this topic was chosen and, the study objective are included in Chapter One. Additionally, some related legal issue can also be found in this chapter. Chapter Two briefly introduces the historical overview of armed conflicts in Myanmar and divides it into three parts, the situation before the colonial era, the post-independence situation, and the situation after 1990 to early 2012. International responses to the armed conflicts in Myanmar, the resolution of the UN, and the reports by Special Rapporteur to the Human Rights Council are also highlighted in this part. Moreover, the reactions of ASEAN (Association of South East Asia Nations), the role of ICRC (International Committee of the Red Cross) and the view of HRW (Human Rights Watch) will be discussed as a way to understand the response of the international community to the status of armed conflicts in Myanmar. Chapter Three examines the laws and legal framework of non international armed conflict in international humanitarian law. The first section addresses the major sources of the laws of war and the laws of Geneva and the Hague, beginning with an overview of the current armed conflict situation in Myanmar. Then, the development of the notion of armed conflict, the core provisions of internal armed conflicts, Common Article 3 and its Additional Protocol 2, and some relevant provisions from the Rome Statute are explored. Common Article 3 regarding non-international armed conflict has been developed by the assistance of the ICRC and it has become a mandatory obligation for all States. Thus, the role and practice of the ICRC is discussed before examining two main aspects of internal armed conflict. The aim is to complement the legal notion of internal armed conflict by referring to significant outcomes of former ad hoc Tribunals jurisdictions such as Tadic, Limaj, and others. Chapter Four evaluates the types of armed conflicts, beginning with the status of ethnic groups and the strength of ethnic armed groups in Myanmar. After that, causes of conflict and the changes to the nature of ethnic armed conflicts, extending to the continuous fighting between government armed forces (GAF) and the Kachin Independence Organization (KIO) in the northern highlands of Myanmar is discussed. There, some disputable humanitarian issues and alleged crimes arising from internal armed conflicts are explored. The objective is to clarify whether or not the nature of armed conflict in Myanmar has reached the threshold of Article 3 Common to the Geneva Conventions. And, at least, try to seek more effective attention to the fundamental humanitarian provisions of international law (according to Article 3 common to the Geneva Conventions) by armed groups. The last chapter, Chapter Five of the dissertation is divided into two parts. The first is analysis of the deficiency of understanding between armed groups, and an attempt to discover the possible root causes of persistent hostilities between the GAF and the KIO. In the second part, some possible solutions and recommendations are proposed as better means to reduce the negative effects of prolonged armed conflicts in Kachin State of Myanmar. To be a non-international armed conflict, the basic requirements for an armed conflict not of an international character have to be fulfilled within the scope of Common Article 3 and its Additional Protocol 2. More importantly, finding evidence for making decisions on internal armed conflict heavily relies on case-by-case analysis. Therefore, the critical analysis and suggestions of this dissertation are neither perfect nor complete, rather, a possible way of speculating on the notion of armed conflict and suggesting possible solutions for ending armed conflicts between KIO/KIA and GAF. The primary intention of this dissertation is to figure out the legal character of internal armed conflict in international humanitarian law and try to find some possible ways to reduce the implications of armed conflicts in Myanmar.