Common Article 3 at 70: Reappraising Revolution and Civil War in International Law

Publication Type:
Journal Article
Melbourne Journal of International Law, 2020, 21, (1)
Issue Date:
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Shortly after its adoption, Article 3 common to the Geneva Conventions of 1949 (‘Common Article 3’) was described as ‘striking’ and ‘revolutionary’, as well as a ‘legal heresy’ and ‘unconceivable, from a legal point of view’. 70 years after its adoption and coming into force, I seek to explore what type of a ‘revolution’ or ‘heresy’ Common Article 3 represented. I argue that Common Article 3 was not revolutionary or heretical merely because it applied international law to civil war and revolution or imposed international obligations on rebels. The law of alien protection and the doctrine of belligerency already did this. It was certainly the first multilateral treaty to do so, but such a change in form is not, I argue, revolutionary or heretical in itself. What was groundbreaking about Common Article 3 was that it applied international law to civil war and revolution and imposed international obligations on rebels within a new framing of internal conflict as a humanitarian — rather than a primarily commercial — problem. It took many decades, however, and the rise of international human rights law, for this framing to come to predominate and for international lawyers to take a serious interest in the obligations of rebels.
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