In 1949, the inclusion of Common Article 3 to the four Geneva Conventions represented a significant advance in the regulation of armed hostilities. That article extended international humanitarian law to the realm of non-international armed conflicts. At that time, these conflicts were considered synonymous with intrastate conflicts such as civil wars. While the scope of applicability of Common Article 3 to internal threats and disturbances has witnessed what is arguably a significant evolution since that time, it is unclear whether and when this baseline humanitarian obligation – and the broader customary laws and customs of war applicable to non-international armed conflicts once this article is triggered – are applicable when a state confronts organised criminal gangs who possess a capability to engage in violence and wreak havoc that rivals, if not exceeds, that of traditional insurgent threats.
Much of this uncertainty derives from the fact that the response to criminal disturbances appears to have been specifically excluded from situations triggering Common Article 3 when it was adopted in 1949. However, it is unlikely that the drafters of the Conventions at that time anticipated the nature of organised criminal gangs and the destabilising effect these groups have today in many areas of the world. The nature of this threat has resulted in the increasingly common utilisation of regular military forces to restore government control in areas in which they operate. This results in the use of force and the exercise of incapacitation powers that far exceed normal law enforcement response authority. It is therefore the thesis of this article that when the nature of these threats exceeds the normal law enforcement response authority and compels the state to resort to regular military force to restore order, international humanitarian law, or the law of armed conflict, provides the only viable legal regulatory framework for such operations. However, it is also the view of the authors that the risk of excess of authority inherent in this legal framework necessitates a carefully tailored package of rules of engagement to mitigate the risk that the effort to restore order will result in the unjustified deprivation of life, liberty and property.