Lecture note: International Armed Conflict and Non-International Armed Conflicts

IHL Lecture note (11^th May)

International Armed Conflicts and Non- International Armed Conflicts

1. War and armed conflicts

War and armed conflict are forms of resolving political contradictions through armed violence, which differ in the degree of its application

 War and armed conflict are not the termination of the previous policy, but the continuation of it by other, i.e. violent means 

- The Falklands War: a case of war that happened without declaration - ceasefire

- Consequently, only States or groups of States can conduct war in accordance with the definition adopted in international law. Thus, war is an armed struggle between two or more States, which is characterized by the formal act of declaring it.

- As a rule, the applicability of the law of armed conflict (LOAC) is dependent on the existence of an armed conflict.

Situations of violence that do not amount to an ‘armed conflict’ in the legal sense are governed by international human rights law (IHRL). Assessing which regime applies in any particular situation is critical in that different standards and rules apply.

For example, most violence that occurs within a state’s borders would be regarded, first and foremost, as a law and order matter; consequently, any use of force by state authorities would be governed by human rights standards that restrict the use of lethal [hl1] force to self-defence.

By contrast, in armed conflict situations, LOAC allows for the use of lethal force between belligerents, although it limits the manner in which such force is used.

- The term ‘armed conflict’ is context-dependent in that the criteria for determining the existence of an armed conflict differ according to whether the armed violence is one fought

+ between two or more states (international armed conflict)

+ between a state and one or more organized non-state armed groups or between two or more such groups (non-international armed conflict).

          2. International armed conflict (IAC)

The generally accepted criteria for the existence of an IAC are derived from Common Article 2 of the 1949 Geneva Conventions, which provides that:

The present Convention shall apply to all cases of declared war or of 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. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

For the law applicable to IAC to apply, the conflict must involve two or more states as parties on opposing sides. The term ‘armed conflict’ presupposes the existence of hostilities between the armed forces of the belligerents. Whether a minimum level of violence is required for the hostilities between states to be considered an armed conflict remains contested[hl2] . At one end of the spectrum is the view exemplified by the International Committee of the Red Cross (ICRC) Commentary to Common Article 2 of the Geneva Conventions, which states, ‘Any difference arising between two States and leading to the intervention of armed forces is an armed conflict … It makes no difference how long the conflict lasts, or how much slaughter takes place.’ That said, state practice suggests that the threshold at which a violent exchange between states is regarded as amounting to an armed conflict rather than merely a series of armed ‘incidents’ may be relatively high.

[Yesterday 7:39 PM] Бисултанов Асланбек Камаудиевич

3. Non-international armed conflict (NIAC)

Treaty law, together with the ad hoc tribunals’ rich body of jurisprudence, provides detailed guidance as to when a situation of violence amounts to a NIAC and thus triggers the application of LOAC. Two instruments apply to NIAC: Common Article 3 of the Geneva Conventions (CA3) and the 1977 Additional Protocol II to the Geneva Conventions (APII). Of these, it is the latter that sets forth far more detailed rules, despite its narrower scope of application. As with IAC, there is no codified definition of NIAC, although treaty law does inform us as to what type of violence is not governed by LOAC.

Article 1(2) of APII identifies situations of violence that do not meet the ‘armed conflict’ threshold and includes in that category ‘internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature’.9 As elaborated in the Commentary to Article 1(2), even if the government is forced to deploy armed units, to the extent that the purpose is to restore law and order, such violence is considered not to constitute armed conflict in the legal sense.10 This threshold also applies to CA3.

CA3 applies to ‘armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties’. Although not spelled out in the text, it has always been assumed that the provision applies to hostilities between government forces and one or more armed groups as well as those between two or more such groups. Over the years, the international tribunals have contributed significantly to our understanding of the requisite criteria for determining the existence of a NIAC. In Tadić, the International Criminal Tribunal for the Former Yugoslavia (ICTY) affirmed that a NIAC exists when there is ‘protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’. This holding is widely accepted as establishing the two key criteria for qualification as a NIAC: i) intensity of the hostilities; and ii) the involvement of an organized armed group (OAG).

ARTICLE 3

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

          - The intensity threshold

Various indicative criteria have been suggested to facilitate the determination whether a given situation has met the required intensity threshold.

The ICTY has considered such factors as the following: the gravity of attacks and their recurrence;

the temporal and territorial expansion of violence and the collective character of hostilities; whether various parties were able to operate from a territory under their control;

an increase in the number of government forces;

the mobilization of volunteers and the distribution and type of weapons among both parties to the conflict; the displacement of a large number of people owing to the conflict;

and whether the conflict is subject to any relevant scrutiny or action by the UN Security Council.

          - [Yesterday 8:03 PM] Бисултанов Асланбек Камаудиевич

The organizational element 

As regards the second criterion, the non-state actors must be ‘armed’ to the extent that they have the capacity to mount attacks. Although there must be some degree of organization in order to be a party to the conflict, this does not have to reach the level of a conventional militarily unit. To determine whether this threshold has been met, the tribunals have assessed: the organization and structure of the armed group; the adoption of internal regulations; the nomination of a spokesperson; the issuing of orders, political statements and communiqués; the establishment of headquarters; the capacity to launch coordinated action between the armed units; the establishment of a military police and disciplinary rules; the ability to recruit new members; the capacity to provide military training; the creation of weapons distribution channels; the use of uniforms and various other equipment; and the participation by members of the group in political negotiations.

          3. ‘Internationalized’ NIAC

In some circumstances, an armed conflict between a state and an OAG is more appropriately qualified as an IAC given the involvement of another state in the conflict. Whether the actions of an OAG may be attributed to another state such that a conflict is deemed international was addressed by the Tadić Appeals Chamber Judgment in the context of the Balkan conflicts. In determining that Bosnian Serb units were sufficiently directed by the Federal Republic of Yugoslavia to conclude that an IAC existed, the tribunal reasoned:

[C]ontrol by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group.

The ‘overall control’ test has been adopted by courts and tribunals for the purpose of classification. State practice indicates that the overall control threshold is high and the evidence in support must be compelling.

4. ‘Internalized’ IAC

As demonstrated in Afghanistan and Iraq, an existing IAC may evolve into a NIAC under certain conditions, including when the government of the country in which the IAC is ongoing is replaced by a new government that consents to foreign intervention. This prompts questions pertaining to the ‘recognition’ of governments under international law, a practice that is not shared by all states.

The general rule for those states that do not recognize governments is to apply the principle of effectiveness. From this it would follow that, when it is clear from the facts on the ground that the new government is in effective control, the armed conflict would automatically become non-international. One commentator has proposed additional criteria, namely that the reclassification of the conflict would occur only when:

(1) The old regime has lost control over most of the country, and the likelihood of its regaining such control in the short to medium term is small or zero (negative element);

legitimized in an inclusive process that makes it broadly representative of the people (positive element); and

(3) The new regime achieves broad international recognition (external element).

Meeting only one of these criteria would not suffice since both the factual developments on the ground and the legitimacy of the new regime matter.

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