The Application of Principles and Rules of International Humanitarian Law to Other Situations Of Violence (Osvs)

Violence has become a less structured phenomenon. It is increasingly moving away from traditional notions of conflict and wars to more dynamic and unstructured phenomena, linked to criminal violence, terrorism and civil unrest. Other Situations of Violence (OSVs) are conflicts that do not meet the threshold of an armed conflict as it falls below the required base–line of an armed conflict. In actuality, OSVs have no universally acceptable legal definition but are describable. The term ‘OSVs’ is used to categorize conflicts that did not get to the threshold of an armed conflict. The state of Nigeria has witnessed various versions of conflict in which the root cause is traceable to corruption by the leadership in the country. OSVs take the form of civil disorder which includes civil unrest or civil strife caused by a group of people. Typically, a non–international armed conflict refers to a situation of violence involving protracted armed confrontations between governmental forces or more organized armed groups, or between such groups themselves, arising on the territory of a state. International humanitarian law (IHL) distinguishes between two types of armed conflicts, namely: international armed conflicts and non-international armed conflicts. International armed conflicts occur when two independent sovereign states engage in armed combat while non-international armed conflicts are armed conflict within the state between state actors and no-state actors or amongst non-state actors themselves. The existence of an armed conflict triggers the application of IHL, also known as the law of armed conflict, which sets limits on how the parties may conduct hostilities and protects all persons affected by the conflict. IHL requires that two criteria must be met for there to be a non – international armed conflict:

The armed groups involved must show a minimum degree of organization
The armed confrontations must reach a minimum level of intensity.

A non–international armed conflict is distinguished from lesser forms of collective violence such as civil unrest, riots, isolated acts of terrorism or other sporadic acts of violence. Civil disturbance is a symptom of and a form of protest against major socio–economic and political problems in the society.

However, Article 1 (2) of Additional Protocol II gives an insight and provides that:

This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, not being armed conflict.

An examination of this article will illuminate the topic and set the threshold to this work.

Internal Disturbances
This involves situations in which there is no international or non-international armed conflict as such, but there exists a confrontation within the country, which is characterized by a certain seriousness or duration and which involves acts of violence. These latter can assume various forms, all the way from the spontaneous generation of acts of revolt to the struggle between more or less organized groups and the authorities in power. In these situations, which do not necessarily degenerate into open armed struggle, the authorities in power call upon extensive police force, or even armed forces, to restore interim order. The high number of victims generated from this conflict has made it necessary for the application of a minimum standard of humanitarian rules.

Internal Strife
Internal strife is equivalent to internal disturbances and is described in Article 5(2)(b) of the Seville Agreement as follows:

Internal strife does not necessarily imply armed but serious acts of violence over a prolonged period or a latent situation of violence, whether of political, religious, racial, social, economic or other origin, accompanied by one or more features such as: mass arrests, forced disappearances, detention for security reasons, suspension of judicial guarantees, declaration of state of emergency, declaration of martial law.

Internal Tension
These could be said to include in particular situations of serious tension (political, religious, racial, social, economic, and so on), but also the sequel of armed conflict or of internal disturbances. These could include one or more of the following characteristics, if not at all the same time: large-scale arrests; a large number of political prisoners; the probable existence of ii-treatment or inhumane conditions of detention; the suspension of fundamental judicial guarantees, either as part of the promulgation of state of emergency or simply as a matter of fact; allegation of disappearances.

As indicated above, there are internal disturbances, without being an armed conflict, when the state uses armed force to maintain order; there are internal tensions, without being internal disturbances, when force is used as a preventive measure to maintain respect for law and order.

OSVs take the form of civil disorder which includes civil unrest, riots, state repression, post-election violence, gang violence, herdsmen or ethnic violent attacks and so on. This is a symptom of and a form of protest and conflicts against socio-economic, ethnic, religious and political problems inherent in a society.

Common Article 2 (1) of the Geneva Conventions describes international humanitarian law application to include:

all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the State of war is not recognized by one of them.

International Humanitarian Law (IHL) is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare that parties to a conflict may employ. It also restricts what weapons parties may employ and to ensure protection and humane treatment of persons who are not, or no longer taking a direct part in the hostilities. In short, IHL comprises those rules of international law which establish minimum standards humanity that must be respected in any situation of armed conflict.

IHL has too many shortcomings to properly address the complex situations that exist within OSVs. Although some particular issues can be regulated similarly to how IHL regulates armed conflict, the logic of this body of law does not permit an analogous application of its general standards and principles in cases of OSVs. Applying the legal framework of IHL to OSVs would mean that society has passively accepted the phenomenon.