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Typology of armed conflicts in international humanitarian law: Legal concepts and actual situations
Abstract
Although international humanitarian law has as its aim the limitation of the effects of armed conflict, it does not include a full definition of those situations which fall within its material field of application. While it is true that the relevant conventions refer to various types of armed conflict and therefore afford a glimpse of the legal outlines of this multifaceted concept, these instruments do not propose criteria that are precise enough to determine the content of those categories unequivocally. A certain amount of clarity is nonetheless needed. In fact, depending on how the situations are legally defined, the rules that apply vary from one case to the next. By proposing a typology of armed conflicts from the perspective of international humanitarian law, this article seeks to show how the different categories of armed conflict anticipated by that legal regime can be interpreted in the light of recent developments in international legal practice. It also reviews some actual situations whose categorization under existing legal concepts has been debated.
... It brings the legal and moral frameworks to be comfortably invoked on conflict actions of belligerent parties (Chelimo, 2011). With its complexity, the classification of the Congolese conflict defied rigorous conventional labeling of armed conflicts as framed by the 1949 Conventions, a legal regime dependable on verifiable facts per objective criteria (Vité, 2009). ...
... Despite not clearly defining armed conflicts, international humanitarian law contains crucial legal orientations that help tally some (Vité, 2009). The Geneva Convention's regime identifies two categories of armed conflict: international armed conflicts (IAC) and non-international armed conflicts (NIAC). ...
... Although the Congolese government was one of the principal belligerents, the armed conflict in DR Congo underwent many episodes of armed confrontations directly between non-state actors and, especially, identity-based parties. These non-state armed confrontations became established, persistent, and severe in intensity and number of casualties, spreading its destructive reputation (Vité, 2009). The complex hostilities in the Congolese armed conflict reinforced the moral questioning of its legitimacy under international law and academic discussions about interstate, intrastate, and non-state conflict. ...
Purpose: This paper grapples with the complex and multifaceted nature of the Congolese armed conflict from 1993 to 2003 through literature and theoretical debates. It poses the intriguing question of how analytical views and theoretical assumptions on this Congolese armed conflict inform one about the impact of moral and rational considerations and proceeds to highlight the moral and rational layers of the conflict. The paper reflects on immoral and irrational mechanisms, processes, behaviors, and decisions as factors that made this conflict a deeply harrowing experience, with a staggering number of non-liable civilian deaths and devastating consequences since World War II. Methodology: This paper used content analysis to unravel the trajectory of the Congolese armed conflict through a comprehensive document review of its historical and theoretical analysis. It employed a unique approach of critical moral reasoning to dissect moral and rational questions of the conflict's various causes, dimensions, actors, networks, and involved interests, thereby providing a fresh perspective on the conflict. Findings: This paper revealed moral lapses in the Congolese armed conflict's occurrence, development, and resolution from its origins in local identity-based disputes to its transformation into one of the most protracted, deadly, and destructive cycles of violence. The paper found that the conflict's moral and rational aspects were, in their right, essential aggravating features because they impacted its status determination and development from its onset to the peacebuilding process, and a framed functional moral and rational inquiry is needed for a more structured explanation of this causation. Unique Contribution to Theory, Practice and Policy: With its critical moral reasoning, this paper extended the analytical and theoretical understanding of the Congolese armed conflict and offered practical implications for future analysis of African armed conflicts. By shedding light on the moral and rational features of the Congolese armed conflict, it advocates for a functional moral and rational inquiry framework to elucidate the functionality of relationships between moral and rational actions during the conflict and its development. The aim is to enhance the comprehension of the conflict and help define actionable tools for decision-makers during wars and peace processes in Africa, thereby making a tangible impact on the field.
... Por lo tanto, el criterio de la violencia armada prolongada ha sido interpretado en la práctica, incluso por la propia Sala de Primera Instancia de Tadić, en el sentido de que se refiere más (12) La traducción es propia, original en inglés. (13) Para mayor detalle de estas hipótesis y sus supuestos de aplicación véase Vité (2009) a la intensidad de la violencia armada que a su duración. Las Salas de Primera Instancia se han basado en factores indicativos pertinentes para evaluar el criterio de "intensidad", ninguno de los cuales es, en sí mismo, esencial para establecer que se cumple el criterio. ...
... (32) Véase, en ese sentido Corte Suprema, Rol 3125-2004;Corte Suprema, Rol 3452-2006;Corte Suprema, Rol 3587-2005;Corte Suprema, Rol 1528Corte Suprema, Rol 4662-2007;Corte Suprema, Rol 6212-2007;Corte Suprema, Rol 3907-2007;Corte Suprema, Rol 695-2008;Corte Suprema, Rol 4531-2008;Corte Suprema, Rol 921-2009;Corte Suprema, Rol 3378-2009;Corte Suprema, Rol 1984-2009. Los criterios examinados por Salinas han sido efectivamente considerados por el CICR y otros órganos internacionales en sus decisiones. Sin embargo, debe tenerse presente que el Comité (2020) ha sido enfático en señalar que ellos son elementos útiles para distinguir un conflicto armado de un acto de bandidaje o una insurrección no organizada, pero que no constituyen requisitos obligatorios. ...
... 38) CorteSuprema, Rol 2666-04; Corte Suprema, Rol 1528 Corte Suprema, Rol 6188-2006; Corte Suprema, Rol 1489 Corte Suprema, Rol 1528 Corte Suprema, Rol 6212-2007; Corte Suprema, Rol 4662-2007; Corte Suprema, Rol 3907-2007; Corte Suprema, Rol 4691-2007; Corte Suprema, Rol 695-2008; Corte Suprema, Rol 4531-2008; Corte Suprema, Rol 921-2009; Corte Suprema, Rol 3378-2009; Corte Suprema, Rol 1984-2009 Corte Suprema, Rol 5720-2010; Corte Suprema, Rol 30598-2014; Corte Suprema, Rol 8706-2015; Corte Suprema, Rol 27627-2019. (39) Compárese para estos efectos el artículo 8.2(a) y 8.2(b) del Estatuto de Roma, que establecen los crímenes de guerra aplicables a conflictos armados internacionales, con el artículo 8.2(c) y 8.2.(e) del mismo Estatuto, que establece una lista mucho más reducida de crímenes de guerra aplicables a conflictos armados no internacionales. ...
Este artículo examina las decisiones de la Corte Suprema chilena, que ha invocado y aplicado los Convenios de Ginebra a los hechos ocurridos durante la dictadura militar chilena que tuvo lugar entre 1973 y 1990. Como se explicará, dichas normas internacionales han permitido a la Corte dejar sin efecto las normas de amnistía dictadas por el régimen militar y no considerar la prescripción penal de los crímenes de encarcelamiento, tortura, asesinato y desaparición forzada, entre otros. Lo peculiar, sin embargo, es que la Corte Suprema ha pasado por alto los supuestos de aplicación del Derecho Internacional Humanitario, y se ha basado casi exclusivamente en la declaración de guerra dictada por la Junta de Gobierno en los primeros días de la dictadura. Ello le ha permitido dar una aplicación extensiva al Derecho Internacional Humanitario, que hace caso omiso a sus elementos fundamentales, incluyendo la distinción entre conflictos armados internacionales y no internacionales. En ese contexto, este trabajo cuestiona dicho razonamiento, exponiendo los riesgos que el mismo supone, y evidenciando la existencia de un régimen jurídico alternativo -el Derecho Internacional de los Derechos Humanos- que no solo otorga mayor protección, sino que además refleja adecuadamente la realidad de los hechos ocurridos durante la dictadura, y el abuso y violencia estatal del que fue víctima la población chilena, sin resistencia.
... There is substantial literature confirming climate events as one of many contributing drivers of conflict [26,41,71]. For example, climate change increases conflict risk through economic shocks and natural resource dependency, but potentially even more troubling is the inverse: that conflict increases vulnerability and worsens the impacts related to climate variability and change. ...
... We define conflict as an aggressive interaction between groups of people who perceive agreement (or disagreement) on political ideologies (or interest) resulting from natural resources, sectarian, or outsider interference, which involves armed responses [54,71]. To identify a set of representative countries for this review, we included 15 countries that have experienced protracted conflicts in recent decades and which have the largest operations by the International Committee of the Red Cross (ICRC) between 2015 and 2020 [33]. ...
People affected by conflict are particularly vulnerable to climate shocks and climate change, yet little is known about climate change adaptation in fragile contexts. While climate events are one of the many contributing drivers of conflict, feedback from conflict increases vulnerability, thereby creating conditions for a vicious cycle of conflict. In this study, we carry out a systematic review of peer-reviewed literature, taking from the Global Adaptation Mapping Initiative (GAMI) dataset to documenting climate change adaptation occurring in 15 conflict-affected countries and compare the findings with records of climate adaptation finance flows and climate-related disasters in each country. Academic literature is sparse for most conflict-affected countries, and available studies tend to have a narrow focus, particularly on agriculture-related adaptation in rural contexts and adaptation by low-income actors. In contrast, multilateral and bilateral funding for climate change adaptation addresses a greater diversity of adaptation needs, including water systems, humanitarian programming, and urban areas. Even among the conflict-affected countries selected, we find disparity, with several countries being the focus of substantial research and funding, and others seeing little to none. Results indicate that people in conflict-affected contexts are adapting to climate change, but there is a pressing need for diverse scholarship across various sectors that documents a broader range of adaptation types and their results.
... The regime of International Law uses the term "armed conflict" instead of "war" for various reasons, the primary being that war is political and formal in nature, whereas armed conflict is conceptually broader and more flexible with proper legal definition. While the concept of 'war' already existed since the development of human civilization and also in the oldest treaties of the IHL, the 1949 Conventions introduced the concept of "armed conflict" into this legal regime for the first time (Vite, 2009). This systematic codification and the jurisprudence developed by various international courts and criminal tribunals have commonly accepted that the situation of "armed conflict" exists whenever there is resort to armed force between states or protracted armed violence between state authorities and organized armed groups or between such groups within a state (Prosecutor v. Dusko Tadic, 1995, p. 32). ...
Transcending the traditional methods of warfare, which were fought on land, sea, and airspace, the dazzling scientific progress of recent decades has given rise to unprecedented means and methods of warfare. The conventional weapons are being replaced by combat robots, drones, cyberweapons, nanotechnologies, and artificial intelligence, among others. While the purpose of the old-school conflicts model was to weaken the opponent’s military power through physical use of force, the modern-day conflicts model, be it international or non-international, deviates in methods of warfare by weakening enemy forces through the use of advanced science and technologies. Cyberwarfare, under IHL, is a relatively new concept that relies on digital infrastructure to conduct hostilities on enemy forces, leading to the triggering of the definition of "attack" under Additional Protocol I and initiating the execution of humanitarian law. While there are numerous complex, unsolved, and unanswered questions, this paper aims to examine the applicability of existing IHL-related legal frameworks and principles to the cyber domain, elucidate the complexities involved in regulating such cyber operations under the purview of IHL, and identify the unique challenges that cyber warfare poses to the application of IHL in this digital realm, especially with regard to the non-kinetic nature of its attacking mechanism. While it is true that states have no common consensus regarding the regulation of war in the cyber domain, the assessment of primary and secondary sources like laws of war, textbooks, journal articles, commentaries, and notable cases ensures that IHL adjusts to the quickly evolving character of contemporary armed conflicts, such as cyber warfare.
... This abstract definition has made it difficult to make a clear distinction between a mere disturbance and an armed conflict, therefore relying heavily on the political will of states to classify the situation as an armed conflict. For a situation to be classified as a non-international armed conflict, it has to achieve two variables: first, the hostilities have to reach a certain minimum level of intensity (Vite, 2009) and form in a collective character; and second, there has to be a level of organization of the parties (p.70). Within the context of Nigeria, a good example is the activity of Boko Haram in the Northern part of Nigeria. ...
Conflict in Africa has been an intractable one especially from the period of struggling for independence and the post independent era. The nature of the conflict was predominantly interstate , but today it has become intra state in nature which has confirmed the arrival of new wars. These wars of armed conflict have not allowed development to be seen in Africa compared to what is obtainable in Europe. The conflict of underdevelopment has led to the current insurgency currently ravaging the Sahel and other parts of Africa. The new wars have devised means of armed conflict using what is now known as remote violence where violence can take place without the physical presence of the actors. This has changed the dimension of the armed conflict in Africa. This has further widened the existing challenge of violent conflict to the frontline of aid and humanitarian intervention and assistance. This study adopted qualitative research using content analysis to analysis the data collected. The study found that lack of commitment on the part of African leaders has been the main issue confronting meaningful development and this has caused poverty and other vices. The study recommends among other things those home-grown policies should be adopted both for economic and conflict resolutions if Africa must move out of the present predicament.
... International humanitarian law, particularly through the Geneva Conventions and their Additional Protocols, mandates that warring parties protect civilian infrastructure, which includes oil and gas facilities unless used for military purposes. Yet, in conflict zones such as Sudan and South Sudan, these facilities often become targets for military advantage or economic warfare [49]. Moreover, Ajiya [50] and Dobbins Zabyelina and Kustova [51] provide insights into the strategies used by state and non-state actors to secure energy facilities, with applications in both the Middle East and Africa. ...
The energy sector is a main driver of African growth, particularly in regions with geopolitical conflicts like Sudan and South Sudan. The oil and gas industry notably influences these regions' economy, politics, humanitarian situation, and social stability. This study seeks to investigate how the Khartoum War affected the energy sector of both Sudan and South Sudan, particularly looking at the disruptions caused by recent conflicts and their impact on oil production, economic stability, and environmental conditions. The study employs a multi-disciplinary approach, utilising different sources such as regional legal agreements, government reports, academic articles, and press releases from international organisations. The key methodology includes qualitative analysis of several documents and quantitative assessment of production data and economic reports. The study's key findings show a significant decline in oil production and transportation due to the shutdown of key oilfields and pipelines, intensifying economic and humanitarian crises. Additionally, the damage to oil infrastructure has presented serious environmental risks, highlighting the delicate balance between resource management and regional stability. In conclusion, the study's findings underscore the intense impact of the Khartoum War on the energy sector of Sudan and South Sudan, and the urgent need for policy recommendations to mitigate these effects and foster sustainable development.
... Debido a esta creciente complejidad en los conflictos del siglo XXI, en los últimos años se ha cuestionado la idoneidad del marco legal binario que distingue entre los CAI y los Conflictos Armados No Internacionales (CANI). Existen opiniones que sostienen que estos conflictos internacionalizados son nuevos tipos de conflictos armados o que constituyen una tercera categoría de conflicto armado, es decir, un conflicto armado transnacional o extraterritorial (Vité, 2009). 2 A principios del siglo XXI los patrones principales de los conflictos armados evolucionaron significativamente en términos de sus fuentes: realistas o no realistas 3 ; de su transformación: destructiva o constructiva; y por los tipos de enfrentamientos directos o indirectos, de gran escala, entre ejércitos convencionales o de baja escala. ...
Los conflictos armados internacionales en el siglo XXI se han vuelto cada vez más com- plejos en sus fuentes, evolución, tipos de enfrentamientos, escala, gestión y resolución. Este artículo analiza las características de los conflictos armados internacionales intratables con base en el enfoque de la transformación de los conflictos y la aplicación de los modelos de mapeo y curva de los conflictos. Se analizan el contexto, los actores, las causas, los pro- blemas y la dinámica de la guerra en curso entre Rusia y Ucrania para determinar si esta se perfila como un conflicto armado internacional intratable. Sin duda, la guerra entre Rusia y Ucrania es un conflicto armado internacional prolongado, con importantes posibilidades de que se transforme en un conflicto más amplio e intratable, por lo que es fundamental que los actores involucrados busquen alternativas a través de enfoques multifacéticos y diplomáticos para prevenir una escalada mayor y así encontrar soluciones sostenibles que promuevan la paz y la estabilidad en la región.
... Część doktryny uważa jednak, że odniesienie do Wysokiej Umawiającej się Strony zawarte w art. 3 wspólnym (jak również w PD II) miało na celu zapewnienie, że zastosowanie właściwych zasad i norm będzie się wiązać z zo-bowiązaniami państw wynikającymi z ratyfikacji wspomnianych traktatów 76 . Chodziło zatem o to, by odróżnić konflikty zbrojne toczące się na terytorium państw-stron KG od konfliktów, które toczą się na terytorium państw nie będących stronami wymienionych instrumentów prawnych. ...
SOME LEGAL COMMENTS ON “TRANSNATIONAL” ARMED CONFLICTS
The “global war on terrorism” announced by the United States turned out to be in practice not only a political metaphor, but also an indication of the military dimension of the fight against this phenomenon, conducted without any geographical limitations. From the perspective of international humanitarian law, this concept means the conduct of hostilities against armed non-state actors operating in various countries and scattered around the world. It would therefore be an armed conflict led by a given state against a non-state organized armed group (which is characteristic of non-international conflicts), but on the territory of another state (which resembles an international conflict). However, such a “mixed” conflict does not fit into the dichotomous division of armed conflicts in humanitarian law, therefore the doctrine formulates the concept of a “transnational” armed conflict that takes place on the territory of more than one state or occurs when one of the parties to the conflict crosses the border to conduct a military operation against the other party. This “new” category of conflicts, however, raises a number of legal doubts. First of all, it is not entirely clear what specific factual situations should be considered a transnational conflict. The very idea of creating a new type of armed conflict is also questioned. Therefore, attempts are made to “fit” transnational conflicts into the legal framework of international or non-international conflicts. In the case of recognizing transnational conflicts as non-international conflicts, the question arises what legal regime should be applied to them, taking into account their specific territorial scope.
... Війна як форма силового вирішення політичних конфліктів найвищого ступеня інтенсивності має такі критерії: систематичне застосування сили протягом певного часу; застосування в великому об'ємі збройних сил сторонами, що конфліктують; значні руйнування та жертви як наслідок конфлікту. Зокрема, дослідники Л. Вилхелсем, Х. Стренд зараховують міжнародний збройний конфлікт до категорії «війна», якщо його жертвами стали щонайменше 1000 людей на рік [3]. ...
... Порядку ведения международных вооруженных конфликтов и их правовым последствиям посвящены четыре Женевские конвенции о защите жертв войны 1949 года 12 и Дополнительный протокол I 1977 года. Содержание термина-понятия «международный вооруженный конфликт» в действующем международном праве не раскрывается, однако можно согласиться с утверждением о том, что международный вооруженный конфликт существует каждый раз, когда в результате применения силы в отношениях между государствами появляются раненые либо во власть противной стороны попадают военнопленные 13 (David, 2002:123) или происходит военная оккупация части территории другого воюющего государства (Silven, 2009). Иными словами, указанные ситуации создают условия применения Женевских конвенций 1949 года и Дополнительного протокола I 1977 года (Aliev, 2015:47-53;Artsibasov, 1975:298;David, 2002:123;Batyr', 2011:689;Kolb, Hyde, 2008) 14 . ...
Unconstitutional change of power in Ukraine as a result of the "Maidan revolution" in February 2014, with the subsequent power grab by Ukrainian radicals of local authorities under nationalist slogans, led to the establishment of control over parts of the territory of Donetsk and Lugansk regions by Donbass militias, and then to the ongoing fighting between the armed formations of the latter with units of the regular armed forces of Ukraine. The purpose of this publication is to establish the form of the armed conflict and its legal consequences from the standpoint of current international law, which has not yet found proper legal analysis and coverage in either domestic or foreign (including Ukrainian) legal doctrinе. In official statements and legislative acts of Ukraine, this conflict is declared as a "state of war with Russia", "aggression of Russia", and the Ukrainian doctrine of international law almost unanimously declares the need to apply to the conflict the norms of international humanitarian law and qualifies it as an international armed conflict. In this publication, on the basis of the analysis of existing international legal norms and legal doctrine, the qualification of existing forms of armed conflicts is carried out: war, international armed conflict, non-international armed conflict, internationalized armed conflict. This examines the legal consequences (or otherwise the obligations of the parties to the conflict) that are caused by each form of such armed conflict, that is concealed and ignored by the Ukrainian side. On the basis of the theoretical and legal analysis of the UN Charter, the relevant provisions of the Geneva conventions on the protection of victims of war of 1949 and Additional protocols I and II of 1977, the author qualifies the situation in the South-East of Ukraine as a non-international armed conflict and the obligation to comply with applicable legal norms by all parties to the conflict. At the same time, the author comes to the conclusion about the insolvency of the claims about the applicability of the rules governing other mentioned forms of armed conflicts.
... In 2005, Israel pulled out of Gaza. 214 Although those areas (especially Area "A") were reoccupied in the so-called "Operation Defensive Shield" in 2002, the areas do not witness a permanent Israeli military presence. Rather, the areas are placed under the PA's control. ...
... In 2005, Israel pulled out of Gaza. 214 Although those areas (especially Area "A") were reoccupied in the so-called "Operation Defensive Shield" in 2002, the areas do not witness a permanent Israeli military presence. Rather, the areas are placed under the PA's control. ...
Upon the 2014 State of Palestine's accession to Geneva Convention III, captured Palestinians who took part in belligerent acts against the occupier should be treated as prisoners of war due to the fact that they belong to a party to an armed conflict. These individuals fall under three categories: members of security forces, affiliates of armed resistance groups, and uprisers who fight the occupant spontaneously on an individual basis. Contrary to established rules of IHL, Israel does not make any distinction regarding the status of these three types. Unilateral Israeli treatment of its captives does not hold water under international law. Such actions may trigger liability based on international criminal law, particularly as the ICC decided in 2021 that it possesses jurisdiction to investigate crimes occurring in the territory of Palestine. The mere fact of confining prisoners of war after the cessation of hostilities may constitute a ground for criminal prosecution.
In armed conflicts, the deployment of human shields has frequently been a key subject matter in international law and history. There have been several occurrences throughout the history of warfare in which non-combatants have been ruthlessly killed with the intent to be used as human shields. “The term ‘human shields’ is described as the method of warfare that is used to shield military objectives from attack, or to shield, favor or hold back military operations.” This research aimed to investigate the legitimacy of human shields under International Humanitarian Law (IHL). Furthermore, it has examined the ethical and legal use of human shields during hostilities by exploring the principles and laws that regulate their conduct. Firstly, this paper begins by defining human shields and contrasting the differences between forced and voluntary human shields in purpose and consent and compares the evolving characteristics of contemporary armed conflicts and the possibility that non-combatants might unintentionally or voluntarily engage in hostilities. Secondly, this paper has focused on presenting an extensive conception of the complex moral issues surrounding the use of human shields by analyzing the significant elements of IHL, mainly outlined in the Additional Protocols of the Geneva Conventions. Moreover, the principles of distinction, proportionality, and necessity in the employment of human shields are analyzed. The research methodology for the paper is doctrinal. The researcher has used both the primary and secondary sources of humanitarian law, international conventions, treaties, statutes, scholarly articles, and online sources on the subject of IHL to gather data.
The Russian full-scale military aggression against Ukraine not only constitutes a crime of aggression under the ICC Rome Statute, but also leads to Russian troops committing other international crimes on the Ukrainian territory. Due to the Russian military aggression millions of Ukrainian citizens escaped to neighbouring countries, where they are entitled to apply for temporary protection, introduced due to the massive influx of third-country nationals into the EU, or for international protection due to the ongoing international armed conflict on the Ukrainian territory. The purpose of the article is to analyse the legal situation of Ukrainian citizens who applied for international protection in Poland before and after 24 February 2022, and to examine the reasons for which they are currently granted subsidiary protection.
The article examines the topical issues of doctrine and international judicial practice regarding the determination of the State's responsibility for international wrongful acts, in particular, those related to the activities of foreign non-State armed groups. The authors analyse the international legal framework of State responsibility for international wrongful acts, as well as individual criminal liability of individuals. The paper substantiates a set of economic and legal instruments for the implementation of international responsibility (reparations, satisfaction, restitution, economic sanctions) as a mechanism for ensuring compliance with international law by States. The study identifies the legal positions of the International Court of Justice, the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the European Court of Human Rights and other international judicial institutions on the application of the concepts of "effective control" and "overall control" in judicial practice, as well as problematic issues of law enforcement.
When do non-international armed conflicts (NIACs) end? Determining the existence of a NIAC requires a detailed, fact-intensive inquiry. Since the International Criminal Tribunal for the Former Yugoslavia's seminal decision in the Tadić case, international courts and tribunals have evaluated the existence of NIACs under the Tadić test's two-pronged inquiry into intensity and organization. Although that decision also pronounced that international humanitarian law (IHL) continues to apply until a “peaceful settlement is achieved,” neither international tribunals nor scholars have articulated a comparably widely accepted and well-developed test for determining the end of NIACs.
At the same time – and especially since 9/11 – States have increasingly relied on IHL to meet the threat posed by non-State actors, broadening the scope of conflict-related liabilities in armed conflict without conferring the privileges or immunities otherwise inherent in IHL. This one-sided approach twists the purpose of IHL and places members of organized armed groups into legal black holes without temporal limitations, as States resist the termination of “armed conflict” irrespective of the continuing intensity of violence or the level of organization of non-State actors. Ultimately, the current approach gives States broad discretion without appropriate safeguards, which undermines the proper application of human rights and humanitarian principles within conflict and prevents the establishment of a sustainable peace.
This paper argues that the most appropriate test for ascertaining the end of a NIAC is one that combines objective consideration of the diminution of organized and intense hostilities below the Tadić threshold with the likelihood that hostilities will not again rise above that threshold. It thus draws from but does not fully endorse the preferred approach of the International Committee of the Red Cross (ICRC), which focuses on the lasting termination of hostilities, ¹ while abjuring a general temporal limitation. Although commendable for its effort to avoid the legal uncertainty that attends the revolving conflict classification problem, the ICRC's approach unfortunately tends to encode existing uncertainty surrounding the termination of NIACs and to indistinctly prolong the application of IHL to erstwhile conflict situations. In contrast, the authors suggest that a test for the end of NIAC based on a specific period (five months following the diminution of organized and intense hostilities below the Tadić threshold), subject to an evaluation of the risk that those hostilities may resume, better balances certainty of legal application with the promotion of a return to peace. The authors will employ the facts of diverse case studies, including the FARC in Colombia, the LTTE in Sri Lanka, numerous armed groups in Mali, and the United States with Al-Qaeda, to build a legal standard that courts can use to determine IHL's continuing applicability to an erstwhile armed conflict.
How do analytical views and theoretical assumptions on the Congolese armed conflict, a complex and multifaceted event, inform one about the impact of moral and rational considerations on this conflict? This paper, constructed around this intriguing question, explores the moral and rational layers of the armed conflict in the Democratic Republic of Congo from 1993 to 2003 through literature and theoretical debates. What began as local identity-based disputes spiraled into one of the most protracted, deadly, and destructive cycles of violence amidst the country's social, economic, and political turmoil. The conflict involved various causes, dimensions, actors, and interests, prompting a critical examination of morality. Immoral and irrational mechanisms, processes, behaviors, and decisions made the conflict an extremely harmful experience for the Congolese population, with a high number of non-liable civilian deaths and devastating consequences since World War II. With its staggering toll on human life and the country's social and economic structures, the conflict has been a subject of extensive research and exploration, revealing moral lapses in its occurrence, development, and resolution. This paper reviews how the literature on conflict demonstrates the moral lapses in understanding and explaining its nature. The paper argues that the moral and rational aspects of the conflict were, in their right, essential aggravating features because they impacted its status determination and development from its onset to the peacebuilding process, and a functional moral and rational inquiry is needed for a framed explanation of their relationships.
In contrast to traditional wars fought between States, most armed conflicts under international law have been fought within the boundary of States. Non-international armed conflicts (NIAC) are those internal wars or armed conflicts that occur inside the border of a State and include conflict between the government of a State and armed groups or only between armed organizations. Since these internal armed conflicts mirrored war between States in nearly every way, a need arose for a set of laws that might put efforts to 'humanize' their conduct at the same level as the laws regulating international armed conflict (IAC). This article highlights the significant debate between international and non-international armed conflicts and whether the difference has been virtually removed. This paper then discusses how NIAC is governed by the body of laws known as international humanitarian law (IHL). Lastly, this research looks at the debate on the difference between international and non-international armed conflicts from the standpoint of international human rights law (IHRL) to understand the characterization of armed conflicts under IHL. Indeed, there is a great deal of ambiguity in borderline circumstances due to the sliding scale for applying IHL and IHRL in NIAC, which also imposes differing obligations on the government and armed groups. Adopting a harmonious and cooperative approach may prevent any detrimental effects on the development of IHL and IHRL.
This article addresses the question of whether the violence between Türkiye and the Kurdistan Worker’s Party (PKK) constitutes an armed conflict within the meaning of international humanitarian law. The article first explains the different non-international armed conflict descriptions provided by (i) the ICTY’s famous Tadić decision, (ii) Additional Protocol II, and (iii) the Rome Statute of the ICC and discusses the different applicability thresholds set by these sources. After noting that the terrorist nature of the acts of violence in a situation will not prevent them from being characterized as an armed conflict and that the application of the international humanitarian law norms would not in fact affect the legal status of the PKK, this article examines whether Türkiye’s struggle against the PKK could be classified as an armed conflict subject to international humanitarian law norms.
The aim of the Year in Review (YIR) is to present an overview of significant developments that occurred in 2022 with notable relevance to international humanitarian law (IHL)/the law of armed conflict (LOAC). Firstly, the YIR evaluates potential situations of armed conflict that took place in the year, assessing their legal classification as either international or non-international armed conflicts, belligerent occupation, or situations not meeting the relevant legal criteria for the application of IHL. Secondly, the YIR provides a summary of relevant proceedings and developments in the prosecution of serious violations of IHL, such as war crimes, before international, hybrid, and domestic courts and tribunals. Lastly, the YIR highlights developments in the fields of arms control and disarmament related to IHL.
As seen through the study, the goal is to use norms to examine the behavioural limitations of non-state armed groups. This chapter scrutinises whether norms, which are usually examined in the context of states, can also be explored within the context of non-state armed groups. Using the concepts of norms and norm diffusions discussed in Chap. 2, the status of non-state armed groups as actors within and affected international relations is explored in greater detail. Furthermore, the concept of non-state armed groups as pseudo-states, which have political and economic structures which interact with the international community, is established to underpin the examination of such actors as norm creators and followers.
شهدت العقود الأخيرة تزايدا كبيرا في عدد النزاعات المسلحة غير الدولية. وعلى الرغم من كثرة النزاعات المسلحة غير الدولية إلا أن قواعد القانون الدولي الإنساني المعنية بها محدودة. كما أن وضع هذه القواعد موضع التنفيذ تقابله صعوبات كثيرة. وينتج عن هذا تحول النزاع المسلح غير الدولي إلى حالة من الفوضى تؤدي إلى تدمير الدول، والقضاء على وحدتها الوطنية، ووقوع العديد من الضحايا المدنيين. وللحد من الآثار الوخيمة للنزاعات المسلحة غير الدولية، يهدف هذا البحث إلى تحديد آليات تنفيذ القانون الدولي الإنساني في النزاع المسلح غير الدولي، وتقييم فاعليتها.
The article seeks to raise awareness about the non-application of the norms of international humanitarian law (IHL) of international armed conflicts in situations of so-called internationalised armed conflicts – namely, when a non-state armed group (NSAG) that is engaged in an armed conflict against the territorial state enjoys a degree of support from another state. Debates in academic circles and international case law have focused largely on the appropriate test and threshold for establishing the relationship between the NSAG and the supporting state. Practice, however, shows that regardless of the legal test, the foreign state support to the NSAG in a (or an initially) non-international armed conflict is so politically charged that it leads to a complete non-application of the law of international armed conflict by the relevant actors. The article demonstrates its conceptual findings through four case studies: the armed conflicts in Donbas, Nagorno-Karabakh, Democratic Republic of the Congo, and Yemen. Regardless of strong indications of foreign state support to the NSAG in these armed conflicts, no relevant actors applied the IHL norms of international armed conflict. The article provides broader suggestions on the possible avenues for remedying the issue.
This book seeks to clarify the legal concept of proportionality in international humanitarian law, as it applies during armed conflict. It is argued in the book that a refocus of the interpretation of the proportionality rule is warranted to enhance the protection of civilians. More precisely, this book seeks to dissect the origins of the rule, determine how its components must be interpreted and how it is to be applied in practice. The book considers practical situations that may arise in the conduct of military operations and searches for the limits international humanitarian law sets to commanders' assessments of proportionality during armed conflict. The book concludes that proportionality is an inherently subjective and imprecise yardstick that nonetheless serves to protect civilians during armed conflict.
This article argues that since the Tadić case before the International Criminal Tribunal for the Former Yugoslavia, a new category of armed conflict has migrated from international criminal law to international humanitarian law: that of armed groups fighting each other within the borders of a state without the intervention of the armed forces of the latter. However, the extent to which the rules of this category of conflict cover issues that may arise in such a conflict has not been comprehensively examined. One may infer, from the war crimes that the Rome Statute of the International Criminal Court criminalizes in this type of conflict, a dozen rules of international humanitarian law. After giving an historical account of the codification of this category of armed conflict, the author argues that there is a need to further develop these rules in order to provide a more comprehensive humanitarian law regime applicable to conflict exclusively between non-state armed groups. The absence of such a comprehensive regime should not, however, be taken as evidence of a legal vacuum. The author suggests that a law enforcement regime resting on international human rights law should be applied to relations between the armed groups and the territorial state, while the warring relationship between the armed groups should fall under the law of armed conflict, including those core customary rules that are now recognized as being equally applicable to international and non-international armed conflict.
This article invites the reader on a journey through the legal arguments that would confirm the application of the United Nations (UN) climate change regime to belligerent occupations. Although the regime is silent on this issue, its application should not be limited to peacetime due to the seriousness of global climate change and its adverse effects on the environment and living entities. A harmonious interpretation and application of the UN climate change regime and the law of occupation would allow Occupying Powers to ensure the safety and well-being of the civilian population and contribute to the protection of the Earth's climate system.
This article critiques the articulation of the legal framework applicable to Australian Defence Force operations in Afghanistan found in the Inspector-General of the Australian Defence Force Afghanistan Inquiry Report (Brereton Report). In particular, using the Australian experience in Afghanistan as a case study, the article argues, on the basis of the rules of treaty interpretation, that where a foreign State party to Additional Protocol II (AP II) intervenes in a non-international armed conflict (NIAC) to which AP II applies, that foreign State is bound by AP II, in addition to the host State and non-State armed actors that are parties to the NIAC. The article concludes by outlining the reasons why the Brereton Report's silence in relation to AP II matters.
Fifty-two years ago, in 1971, President Nixon declared the “War on Drugs”, identifying drug abuse as a public enemy in the United States. Since then, US drug policy has been militarized and, more recently, privatized. Every year, the US government increasingly contracts private military and security companies to provide intelligence, logistical support and training to armed forces in drug-producing or drug-transit States. In Latin America, this militarization and privatization has increased the intensity of violence and has complexified domestic situations, to the extent that the existing international legal regimes now seem inappropriate to respond to the challenges posed by the War on Drugs. On the one hand, human rights law does not adequately address situations where the State faces organized crime groups that are able to control territory. On the other hand, international humanitarian law (IHL) was not created to address law enforcement situations, which the War on Drugs and the fight against organized crime ostensibly are.
This article examines the situation in Latin America, looking at examples of different types of situations through the lens of intensity and organization of the group involved and, in some cases, the group's control over territory. It discusses the application of IHL and human rights law (focusing on the inter-American system of human rights) in these situations and their complementarity, and debates how these bodies of law are adapting or may need to be adapted.
The information technologies development affects all spheres of human activity, including the military activities of States. The level of military information technologies development allows us to talk about a new theatre of military operations — the cyberspace. The likelihood of an armed conflict in cyberspace is also confirmed by the Tallinn Manual, developed in 2013 and updated in 2017 by experts from the NATO States with the participation of the International Committee of the Red Cross. In the context of the high probability of military action in cyberspace, the starting point for applying international humanitarian law to such situations is the definition of a cyber armed conflict. The research of this topical issue of modern international law of armed conflicts is the subject of this article. The author pays attention to the legal definition of cyberspace in general, and to related problems. In the absence of an international treaty regulating this area, it was suggested that such treaty should be developed and adopted. Because there is no definition of “classic” armed conflict in international humanitarian law, this article offers the author’s definition of “classic” armed conflict based on the analysis of the law of armed conflicts, relevant practice and international legal doctrine. Based on this definition, on detailed analysis of the relevant norms of international law, including the norms proposed by the Tallinn Manual on International Law Applicable to Cyber Operations, on the doctrine of international law, and taking into account the specifics of cyberspace, the author gives a comprehensive definition of armed conflict in cyberspace. The author substantiates the need to use the concept of cyber armed conflict, and not the terms “cyberwar” or “information war”. This article focuses on and evaluates the relevant provisions of the Tallinn Manual. The author also made suggestions on possible solutions to the problems discussed in this article.
This article aims to clarify how international humanitarian law (IHL) rules on targeting apply when drug cartels are party to a non-international armed conflict. The question of distinguishing between a cartel's armed forces and the rest of the cartel members is a pertinent matter. It is crucial to avoid considering every drug dealer a legitimate target, just as we do not consider that everyone working for the government is a legitimate target. Nevertheless, it is unclear at what point a member of a cartel would change from being a criminal to being a member of the armed wing of the cartel, hence becoming a legitimate target. The present article will suggest a teleological approach to solving this conundrum.
في منتصف العقد الثاني من القرن الحادي والعشرين شهد اليمن نزاعاتٍ مسلحةً تسببت في مآسي مؤلمةٍ وانعكست سَلبًا على مسارات الحياة كلِّها ومنها العملية التعليميِّة برمتها، وقد هدفت هذه الدراسة إلى التعرِّف على الدلالة والتأثير المباشر وغير المباشر لتداعيات النزاعات المسلحة على جودة خريجيِّ التعليم الفنيِّ والتدريب المهنيِّ اليمنيِّ في ظل الفجوة المعرفية، وقد استخدمَت هذه الدراسة منهجيةً مُختلَطةً، إذ تم أخذ عينة الدراسة من ثماني كلياتٍ بطريقةٍ طبقيةٍ قصديةٍ، وتكونت العينة من (637) مستجيب، منهم (352) ذكر، و(285) أنثى، موزعين من حيث العمل على (71) معلمًا، و(70) موظفًا، و(496) طالباً، وتم استخدام التحليل الوصفيِّ والصدق والموثوقية وتحليل العوامل الاستكشافية بواسطة برنامج الحُزَمِ الإحصائيّة للعلوم الاجتماعية، وتم فحص تحليل العوامل المؤكدة بواسطة برنامج أموس للتحقق من العوامل الأساسية التي تشكل مجموعة القياس لهذه الدراسة، وتم التحقق من أنَّ كل عاملٍ أحاديِّ البعد ولديه صدق التقارب، وصدق التمايز، والموثوقية المشتركة لاستقرار المفهوم، ووفق متطلبات نمذجة المعادلة الهيكلية التي تم بها التحقُّقُ من مسار التأثيرات المباشرة وغير المباشرة بين متغيرات وأبعاد الدراسة، ومقدار دلالة وتأثير كل فرضية، واستندت الدراسة النوعية إلى مقابلاتٍ مع ثلاث مجموعات بؤرية من الأكاديميين والإداريين المعنيين بالتعليم والتدريب التِّقنيِّ والمهنيِّ تتألف من (16) أكاديميًا وإداريًا، ووجدت الدراسة أن هناك تداعياتٍ سلبيةٍ مباشرةٍ للنزاعات المسلحة وأبعادها تؤثر على جودة خريجيِّ التعليم والتدريب التِّقنيِّ والمهنيِّ، وتداعيات سلبيةٍ مباشرةٍ للفجوة المعرفية تؤثر على جودة خريجيِّ التعليم والتدريب التِّقنيِّ والمهنيِّ، وهناك تداعياتٍ سلبيةٍ غير مباشرةٍ للنزاعات المسلحة وأبعادها تؤثر على جودة خريجيِّ التعليم والتدريب التِّقنيِّ والمهنيِّ عندما تتوسط فجوة المعرفة العلاقة بينهم، وهناك تداعياتٌ مباشرةٌ للنزاعات المسلحة وأبعادها تؤثر في فجوة المعرفة عزَّزت نتائج تحليل المقابلة النتائج التي تم الحصول عليها من تحليل البيانات الكمية، وأكدَّت العينة أن التأثير الأكبر كان على الجانب الاقتصادي والإداري والمعرفي كونها من أكثر الجوانب تأثيراً على جودة العملية التعليميِّة ككل، وخرجت الدراسة بتوصيات تهدف إلى تطوير أداء الكليات وتحسين جودة مخرجاتها
In the middle of the second decade of the twenty-first century, Yemen witnessed armed conflicts, which caused painful tragedies against people and land as well. This study aimed to investigate the significance of the direct and indirect effects of the repercussions of the armed conflicts on the quality of the graduates of technical education and vocational training to Yemen in light of the knowledge gap. This study used a mixed methodology. the study sample was taken from eight colleges in an intentional stratified method consisting of (637) respondents, including (352) males and (285) females, distributed in terms of work on (71) teachers, (70) employees, and (496) student. The results of the descriptive analysis, validity, reliability, and exploratory factors analysis were examined by Statistical Packages for Social Sciences, (SPSS). Confirmed factor analysis were examined (CFA) by (AMOS) Program to verify the underlying factors that make up the measurement group of this study, and it was verified that each factor is one-dimensional and has the sincerity of convergence, differentiation sincerity, and the combined reliability of concept stability. According to the requirements of modeling the structural equation (SEM), by which to verify the path of direct and indirect effects between the variables and dimensions of the study, and the amount of significance and impact of each hypothesis. The qualitative study was based on interviews with three focus groups of academics and administrators related to TVET, consisted of (16) academics and administrators. The study found that there are direct negative repercussions for armed conflicts and dimensions it affecting in the quality of TVET graduates, and direct negative repercussions of the knowledge gap affecting in the quality of TVET graduates. There is an indirect negative repercussion for armed conflicts and dimensions it affecting in the quality of TVET graduates when the knowledge gap mediates the relationship between them. There are direct repercussions for armed conflicts and dimensions it affecting in the knowledge gap. The results of the interview analysis strengthened the results obtained from the analysis of quantitative data and the sample confirmed the most effect was on the economic, administrative and knowledge being it's aspect are the most influential repercussions on the quality of the educational process as a whole. The study come of recommendations were drawn to develop the performance of faculties and improving the quality of its output.
In this chapter I identify, demonstrate, explain, and critique two narratives used, traditionally, in the writing of the past of international humanitarian law (IHL). One tells of IHL’s ineluctable progress, the other of its timeless, culture-less, universal immanence. These appear at odds: one narrates the dynamic process of restraining—and humanising—war through law; the other emphasises a constant and immutable idea of humanitarian restraint that inheres in any human civilisation. Culturally, nonetheless, these two narratives share the same function: both are used to affirm, to exogenous and endogenous audiences, faith in the project to humanise war. Deconstructing these narratives as forms of social memory suggests, however, that both types express and deal with epistemic anxieties about the present achievements of that project; both, in fact, allow IHL practitioners to come to terms with the present state of the project to humanise war by deferring the fulfilment of its promise to the indefinite future.
The Year in Review seeks to provide readers with an overview of developments with significant relevance to international humanitarian law (IHL)/the law of armed conflict (LOAC) that took place during 2021. More specifically, the Year in Review assesses: (i) potential situations of armed conflict, including a classification of them as international or non-international armed conflicts, belligerent occupation, or situations not meeting the relevant legal requirements for the application of IHL; (ii) a summary of relevant proceedings and developments relating to the prosecution of serious violations of IHL—war crimes—at international, hybrid, and domestic courts and tribunals; and, (iii) an overview of developments in the IHL-related fields of arms control and disarmament.
What norms apply to the determination of lawful targets? What persons and objects may be lawfully targeted in armed conflict? What are the reasons, both legal and extra-legal, of civilian losses? What principles must be observed when attacking military objectives? How can the protection of persons who are not participating in hostilities can be strengthened? Is it possible to develop a consistent approach to targeting in armed conflict regardless of the legal qualification of the armed conflict? This monograph answers these questions and many more. Taking into account both military objectives and civilian objects, it considers the extent of their protection in a range of contexts, providing an essential source of reference for scholars dealing with issues across international humanitarian law and armed conflict.
The laws of war are facing new challenges from emerging technologies and changing methods of warfare, as well as the growth of human rights and international criminal law. International mechanisms of accountability have increased and international criminal law has greater relevance in the calculations of political and military leaders, yet perpetrators often remain at large and the laws of war raise numerous normative, structural and systemic issues and problems. This edited collection brings together leading academic, military and professional experts to examine the key issues for the continuing role and relevance of the laws of war in the twenty-first century. Marking Professor Peter Rowe's contribution to the subject, this book re-examines the purposes of the laws of war and asks whether existing laws found in treaties and customs work to achieve these purposes and, if not, whether they can be fixed by specific reforms or wholesale revision.
The laws of war are facing new challenges from emerging technologies and changing methods of warfare, as well as the growth of human rights and international criminal law. International mechanisms of accountability have increased and international criminal law has greater relevance in the calculations of political and military leaders, yet perpetrators often remain at large and the laws of war raise numerous normative, structural and systemic issues and problems. This edited collection brings together leading academic, military and professional experts to examine the key issues for the continuing role and relevance of the laws of war in the twenty-first century. Marking Professor Peter Rowe's contribution to the subject, this book re-examines the purposes of the laws of war and asks whether existing laws found in treaties and customs work to achieve these purposes and, if not, whether they can be fixed by specific reforms or wholesale revision.
Correlational and bargaining failure approaches to the eruption of civil war have neglected the role of escalatory processes, whose analysis has to date been largely limited to sociology. Escalating violence involves mechanisms that are self-reinforcing and have a propensity to transform the political landscape by reshaping group boundaries and political identities, and prompting the formation of new actors. This article shows that such mechanisms should be considered as analytically distinct from structural causes and bargaining failures. Escalatory processes—that is, the combinations of these mechanisms—are often crucial to the eruption of full-scale civil war. But their causal significance in civil war onset varies with regard to two criteria: the speed of violent escalation and the extent to which it transforms the actor landscape. These two criteria form the basis for a typology of escalations into civil war that distinguishes civil wars erupting in revolutionary situations from deliberate escalation by organized belligerents and from gradual escalation through rebel group formation and counterinsurgency. I illustrate each ideal type with a case study that serves as a plausibility probe. Accounting for escalatory processes allows to distinguish between contrasting roads to civil war, each of which privileges its own explanatory variables.
This article addresses the situation of Mexican cartels in relation to the applicability of international humanitarian law (IHL). The analysis starts with a theoretical examination of the International Criminal Tribunal for the former Yugoslavia criteria on intensity of violence and level of organization established for assessing the existence of an organized armed group in the context of a non-international armed conflict. The article further examines legal and non-legal literature with the purpose of providing elements to consider the rightness of applying IHL to criminal organizations, also considering similar scenarios in Latin America. The aim of this assessment is to provide additional elements for the consideration of whether IHL is suitable when addressing confrontations between certain criminal gangs and States. Additionally, the article assesses how the commercial purposes of these groups affect their organization and the nature of the violence in which they engage.
This paper examines the notion of intensity in the context of common Article 3 and Additional Protocol II (AP II) to the Geneva Conventions in order to establish whether AP II demands a different intensity threshold from the minimum threshold of intensity contemplated in common Article 3. The paper considers the question of whether the inclusion of the term “sustained” in the phrase “sustained and concerted military operations” intrinsic to the threshold in Article 1(1) of AP II introduces a temporal requirement in addition to mere protracted armed violence. The paper argues that the inclusion of the term “sustained” in Article 1(1) of AP II potentially demands prolonged protracted armed violence. The research aims to contribute to the existing literature on the notion of intensity demanded by the scope of application inherent in AP II through an interrogation of the phrase “sustained” military operations by employing the rules of treaty interpretation and by examining relevant case law and scholarly debate. In this way, the author hopes to contribute towards filling a lacuna with regard to the minimum threshold for intensity in the context of treaty law concerned with the classification of non-international armed conflicts.
Temporal scope of international humanitarian law is of crucial importance to determine exactly when this body of law starts to apply in an armed conflict. It is much more difficult to determine the starting point of application of humanitarian law regarding non-international armed conflicts than international armed conflicts. Thus, there is an ongoing debate on whether or not an internal disturbance can be classified as a non-international armed conflict and the fact that when humanitarian law begins to apply in these conflicts. When intensity of the internal disturbance exceeds a certain threshold, it is acknowledged that humanitarian law can be applied to these conflicts, however it is not always straightforward to identify where an internal disturbance ends and when a non-international armed conflict starts. Therefore, this article investigates when the rules of international humanitarian law begin to apply in case of non-international armed conflicts.
While the rules of international humanitarian law (IHL) on humanitarian access are clear, implementing them at the national level can become challenging. To ensure full respect for those rules, States must strike a balance between preserving the security of the civilian population and humanitarian organizations and ensuring that people have access to goods and services that enable the full enjoyment of their rights. This article seeks to show how the IHL rules governing humanitarian access apply in the context of the Sahel region of Africa. First, it describes the multiplicity of armed actors that are present in the Sahel and the humanitarian situation in this region. Next, it addresses the legal framework applicable to humanitarian access under IHL applicable in non-international armed conflicts. The article then examines the measures that have been taken by the States of the Sahel to protect the civilian population and humanitarian organizations, such as the resort to declaration of states of emergency and to armed escorts. It is shown that these measures can hinder the delivery of impartial humanitarian assistance. Finally, the article describes some creative solutions that have been put forward by Sahelian States to facilitate humanitarian access. Examples of these include the creation of coordination mechanisms to foster dialogue on humanitarian access where all concerned actors are invited to participate; the adoption of domestic legal frameworks related to humanitarian access through which this access is proclaimed and its violation sanctioned; and the recognition of humanitarian exemptions in counterterrorism laws.
In the Sahel, host communities are among those most affected by recurrent internal displacement, but they are often ignored in responses to displacement. Furthermore, their situation has attracted little attention from researchers or other observers. The present article will argue that it is essential to provide these communities with adequate protection, especially as they play a leading role in providing humanitarian protection and assistance to internally displaced persons (IDPs). The article begins by examining the legal instruments that protect populations affected by forced displacement, in order to identify and present the legal protection they offer to IDP host communities. The article will then analyze and highlight the advantages of fully applying this protection. It will show that the recurrent violence and breaches of the law that these communities suffer are impeding the full realization of those advantages. Finally, the article shall propose solutions that would overcome the deficiencies noted and hence ensure enhanced protection for IDP host communities in Burkina Faso, Mali and Niger.
This article explores what it means for peace to be transformative and discusses what it takes for a peace project and its institutions to enable transformative peace. To address these questions the article offers a theoretical and conceptual approach and draws on some examples from case studies, especially Colombia.
The article deals with the resistance that transformative projects might face from the victims they are meant to benefit. It promotes an understanding of conflict and resistance as essential dimensions to bring about positive transformations in violent contexts. In so doing, the author shows that the possibilities offered by normative-based frameworks to build transformative peace are curtailed by principles such as neutrality and impartiality of international law. These principles have resulted in institutional gender and race blindness that precludes the possibilities of a peace project being transformative.Thus, she offers a debate on two aspects that might condition or enable transformative forms of peace: the temporalities of peacebuilding and the inclusion of dissensus. Building on this the author proposes an understanding of transformative peace as an orientation that has on its horizon people’s emancipation from structural oppressions. This understanding will allow peace institutions more realistic time-space scales and the opportunity to benefit from the difference and dissensus that the practice of peacemaking might have left aside.
The International Committee of the Red Cross and the International Criminal Court are two very different entities that simultaneously apply international humanitarian law but do so after their own perspectives. This article proposes a cautious yet critical approach to some of their divergent interpretations (conflict classification, the difference between direct and active participation in hostilities, intra-party sexual and gender-based violence, and the notion of attack) and examines how the broader legal system copes with these points of divergence. The analysis considers the institutional characteristics of these two organizations and the pluralistic nature of international humanitarian law as well as its dynamic rapport with international criminal law in order to highlight the versatility needed to face the challenges posed by contemporary armed conflicts.
International humanitarian law provides for fundamental guarantees, the content of which is similar irrespective of the nature of the armed conflict, and which are applicable to individuals even if they do not fall into the categories of specifically protected persons under the 1949 Geneva Conventions. Those guarantees, all of which derive from the general requirement of human treatment, include prohibitions of specific types of conduct against persons, such as murder, cruel treatment, torture and sexual violence, or against property, such as pillaging. However, it is traditionally held that entitlement to those guarantees depends upon two requirements: the ‘status requirement’, which basically means that the concerned persons must not or must no longer take a direct part in hostilities, and the ‘control requirement’, which basically means that the concerned persons or properties must be under the control of a party to the armed conflict. This study argues in favour of breaking with these two requirements, in light of the existing ICC case law. The study is divided into two parts, with each part devoted to one requirement and made the object of a specific paper. The two papers follow the same structure. They start with general observations on the requirement concerned, examine the relevant ICC case law and put forward several arguments in favour of an extensive approach to the personal scope of the fundamental guarantees. The first paper, which is published in this issue, deals with the status requirement. It especially delves into the ICC decisions in the Ntaganda case with respect to the issue of protection against intra-party violence. It advocates for the applicability of the fundamental guarantees in such a context by rejecting the requirement of a legal status, on the basis of several arguments. Those arguments rely on IHL provisions protecting specific persons, on the potential for humanizing IHL on the matter and on the approach making the status requirement relevant only when the fundamental guarantees apply in the conduct of hostilities. The second paper, which will be published in a coming issue, deals with the control requirement. It examines several ICC cases in detail, including the Katanga and Ntaganda cases, in relation to the issue of the applicability of the fundamental guarantees in the conduct of hostilities. It is argued that the entitlement to those guarantees is not dependent upon any general control requirement, and that, as a result, some of these guarantees (mainly those whose application or constitutive elements do not imply any physical control over the concerned persons or properties) may apply in the conduct of hostilities.
Discrimination and sexual and gender-based violence committed against lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI) detainees remains one of the most pressing contemporary humanitarian challenges. This article focuses on the interpretation of the phrase “or any other similar criteria” as contained in Article 3 common to the four Geneva Conventions, upon which adverse distinction is prohibited, in order to qualify sexual orientation and gender identity as prohibited grounds of adverse distinction. The interpretation of “or any other similar criteria” will be embarked upon by employing the general rule of treaty interpretation provided for in the Vienna Convention on the Law of Treaties, so as to qualify sexual orientation and gender identity as “any other similar criteria” and ultimately to realize the protection of LGBTQI detainees against discrimination and sexual and gender-based violence during non-international armed conflict.
For more than fifty years following the 1949 revision of the Geneva Conventions, the articles that defined when the protections of these treaties came into force - Common Articles 2 and 3 - were understood as the exclusive standard for determining application of the laws of war. From these two articles emerged an "either/or" law-applicability paradigm: inter-state, or international, armed conflicts triggered the full corpus of the laws of war; intra-state, or internal, armed conflicts triggered the limited humanitarian protection reflected in the terms of Common Article 3. The military response to the terrorist attacks of September 11, 2001 threw this paradigm into disarray. These events exposed the gap in legal regulation of armed conflict. Although the U.S. Supreme Court decision in Hamdan v. Rumsfeld rejected the Bush administration's reliance on this "either/or" law-triggering paradigm as a basis to deny the applicability of the humane treatment mandate to captured al Qaeda personnel, that decision did not address regulation of hostilities. It was, instead, the conflict between Israel and Hezbollah that exposed the unacceptable consequences of this gap in legal regulation. While numerous voices from the international community invoked law of war as a basis to condemn both parties, there was virtually no consideration of the reality that, like the global war on terror, the conflict defied traditional categorization under the Common Article 2/3 paradigm. This Article asserts that the changing nature of warfare necessitates recognition of a hybrid category of "transnational armed conflict." This category is based on the de facto existence of armed conflict, regardless of geographic scope. The such armed conflicts trigger for application of the foundational principles of the laws of war, and how such application is derived from the history of regulating warfare, the purposes of the Geneva Conventions, and the pragmatic logic that animated the adoption of national military policies mandating application of these principles to all military operations.
This article puts forward an argument for a particular approach to the interpretation of the definition of non-international
armed conflict in the Rome Statute of the International Criminal Court. Focusing on the meaning of Article 8(2)(f), it is
contended that this provision possesses a threshold of an application equivalent to that of Article 3 common to the four Geneva
Conventions of 1949. In supporting this position, the first half of the article analyses the travaux preparatoires of the Rome Statute. Here relevant clauses relating to non-international armed conflict are analysed in order to highlight
the threshold of application intended by their drafters. Following on from the travaux preparatoires of the Rome Statute, the second half of the article puts forward an interpretation of the threshold contained in Article
8(2)(f) as one applicable to all situations of non-international armed conflict subject to the court's jurisdiction. Drawing,
among other things, on the conventional usage of the term ‘armed conflict not of an international character’ and the customary
status of non-international armed conflict provisions in the Rome Statute, an argument is advanced for an understanding of
the threshold contained in Article 8(2)(f) as the one identical to that of common Article 3.
[T]he experience of operations in the Persian Gulf suggests the need for a collective reflection on questions relating to the future use of the powers vested in the Security Council under Chapter VII. In order to preclude controversy, these questions should include the mechanisms required for the Council to satisfy itself that the rule of proportionality in the employment of armed force is observed and the rules of humanitarian law applicable in armed conflicts are complied with. 1.
The customary law of belligerent occupation goes back to the Hague and Geneva Conventions. Recent instances of such occupation include Iraq, the former Yugoslavia, the Congo and Eritrea. But the paradigmatic illustration is the Israeli occupation, lasting for over 40 years. There is now case law of the International Court of Justice and other judicial bodies, both international and domestic. There are Security Council resolutions and a vast literature. Still, numerous controversial points remain. How is belligerent occupation defined? How is it started and when is it terminated? What is the interaction with human rights law? Who is protected under belligerent occupation, and what is the scope of the protection? Conversely, what measures can an occupying power lawfully resort to when encountering forcible resistance from inhabitants of the occupied territory? This book examines the legislative, judicial and executive rights of the occupying power and its obligations to the civilian population.
The centennial of the Hague Convention (No. II; No. IV in the 1907 version) on the Laws and Customs of War on Land and the fiftieth anniversary of the four Geneva Conventions for the Protection of Victims of War of August 12, 1949, present an opportunity to reflect on the direction in which the law of war, or international humanitarian law, has been evolving. This essay focuses on the humanization of that law, a process driven to a large extent by human rights and the principles of humanity. As the subject is vast, major issues must inevitably be left out of my discussion, including the impact of the prohibitions on unnecessary suffering and indiscriminate warfare on the regulation of weapons, the proscription of antipersonnel land mines and blinding laser weapons, and the progression of international humanitarian law from largely protecting noncombatants to protecting combatants as well.
Internationalized internal armed conflicts have become a common feature of the past decades. In numerous civil wars foreign armed forces have intervened in favour of one or the other party and thereby attempted to influence the outcome of the conflict. Various causes have led to this development. One of them is the increased interdependence of States, as a consequence of which every civil war will affect other States and, conversely, the attitudes of other States may have an impact on the outcome of the civil war, even without any intervention. Another cause can be found in the world's ideological cleavage which divides nations and results in the overlapping of internal and international conflicts. Among further causes we can mention the existence of military blocs and of regional groupings which have an interest in preventing the overthrow of régimes within the bloc and tend to encourage alterations in other blocs. Another factor to be taken into consideration is the prohibition of the use of force in international relations. Whereas in earlier times States waged open wars in order to increase their power, today, due to the prohibition of the use of force, they rather endeavour to achieve the same result by interfering in the internal affairs of other States. Interference in internal conflicts is often a substitute for an international war. The instability of many contemporary régimes, mainly of the Third World, further favours the internationalization of internal conflicts.
Recent decades have presented us with a significant increase in cases of ongoing hostilities between a non-state actor and a state that are not limited to the territory of the state involved (extra-state hostilities). This Article addresses the classification and regulation of extra-state hostilities and in so doing, makes three claims. First, it is the law of armed conflicts, and not that of peace, that should be the frame of reference for the regulation of extra-state hostilities. Second, the Article calls for the creation of a new category of armed conflict in international law for such situations - extra-state armed conflict - since such hostilities have unique features rendering their classification into traditional categories of intra or inter-state armed conflict inappropriate. Finally, the Article argues that recognition of this new category of armed conflicts does not result in a legal void. Extra-state armed conflicts are governed by specific rules that are derived from an interpretation of the general principles of international humanitarian law in the unique context of such conflicts, and are therefore tailored to their dynamics. Such interpretation must take account of two major conceptual pillars. First, in the case of extra-state armed conflicts the justification for the use of force is more limited than the justification to use force in other situations of armed conflict. Thus, it is possible that the application of the general principles of international humanitarian law to extra-state armed conflicts will lead to rules that impose grater restrictions on the party using force. Second, the way in which the general principles of international humanitarian law should be interpreted in the context of extra-state armed conflict should take into account the way in which the same principles have been interpreted and applied in the context of inter-state and intra-state armed conflicts. Thus, if, for example, nothing distinguishes the need for protection of civilians in extra-state armed conflicts from the need for protection of civilians in intra-state armed conflicts, then there is no reason to interpret the basic principles any differently in these two contexts.
In its recent Genocide judgment, the International Court of Justice discussed the question of whether the acts of genocide carried out at Srebrenica by Bosnian Serb armed forces must be attributed to the Federal Republic of Yugoslavia (FRY), as claimed by Bosnia. It applied the ‘effective control’ test set out in Nicaragua, reaching a negative conclusion. The Court also held that the broader ‘overall control’ test enunciated by the International Criminal Court for the former Yugoslavia (ICTY) in Tadić did not apply, on two grounds. First, the test had been suggested by the ICTY with respect to the question of determining whether an armed conflict was international and not with regard to the different issue of state responsibility; secondly, in any case the test would have overly broadened the scope of state responsibility. The author argues that the ICTY admittedly had to establish in Tadić whether the armed conflict in Bosnia was internal or international. However, as no rules of international humanitarian law were of assistance for such determination, the Tribunal explicitly decided to rely upon international rules on state responsibility. The ICTY thus advanced the ‘overall control’ test as a criterion generally valid for imputation of conduct of organized armed groups to a particular state. The test was based on judicial precedents and state practice. In addition, the ICTY did not exclude the applicability of the ‘effective control’ standard, stating however that it only applied for the attribution to a state of conduct by single private individuals. Judicial decisions, even subsequent to Tadić, support the view that whenever conduct of organized armed groups or military units is at stake it suffices to show that the state to which they may be linked exercises ‘overall control’ over them, in order for the conduct of those groups or units to be legally attributed to the state. Hence, any sound critique of Tadić should not suggest that it dealt with a matter different from state responsibility. It should instead be capable of showing that state and judicial practice do not corroborate that test.
Recent events, including the “war on terror,” have sparked a debate on what constitutes an armed conflict under international law. Currently there is no authoritative definition of armed conflict in international law, and the debate focuses almost exclusively on how the term “armed conflict” is used in the Geneva Conventions. It has become clear that when a conflict falls outside a core situation of armed conflict, the Geneva Conventions cannot provide a definitive answer as to whether or not it is an armed conflict.This article looks beyond the Geneva Conventions to the interaction between international humanitarian law (IHL) and international human rights law (HRL) to fashion a new approach to this question. The international community takes the view that IHL is the lex specialis or more specific law and takes precedence over HRL in armed conflict. Professor Balendra draws on this dynamic and on the canon of construction that calls for exceptions to rules to be interpreted narrowly, to develop a two pronged framework. First, in situations in which the application of IHL would lead to derogation from HRL, i.e., IHL acts as an exception to HRL, the term “armed conflict”, as the trigger for IHL, has to be interpreted narrowly. Second, once IHL is triggered, the applicable rules have to be interpreted to deviate as little as possible from HRL. The article concludes that in the context of the “war against terror,” the term “armed conflict” has to be interpreted narrowly but that a more expansive interpretation of armed conflict would be permissible if the protections of IHL were modified to better fit that expanded interpretation. The article concludes by examining how the second prong of the framework is activated if an expanded definition of armed conflict is adopted in the face of contemporary threats to peace and security.
The events of recent years have prompted a closer examination of the legal complexities arising from transnational armed conflicts pitting a state against a non-state organized armed group based outside the state's territory. For much of the Twentieth Century it remained unclear whether human rights law apply to a state's conduct during armed conflict or occupation. Despite continuing objections on the part of a handful of states, a consensus is evolving in favor of the view that human rights law applies in full alongside humanitarian law.
Once it is settled that human rights law does not cease to apply by reason of the inception of a state of armed conflict, it is easy to see how this body of law would apply alongside humanitarian law in an internal armed conflict. The situation becomes more complex, however, when a state is engaged in a non-international armed conflict taking place outside of that state's territory.
Unlike human rights law, the law of armed conflict was designed to apply primarily in an inter-state context. Thus, the vast majority of its provisions clearly apply to a state's extraterritorial conduct, specifically in the territory of the opposing state. But what of that branch of humanitarian law that developed to regulate non-international (i.e., non-inter-state) armed conflict? Recently, controversy arose as to whether Common Article 3 applies only to internal conflicts. The question of the extraterritorial application of Common Article 3 must be examined in light of the more general evolution in humanitarian law in favor of recognizing rights of individuals as such.
There has been a substantial degree of convergence between the law of international armed conflict and the law of non-international armed conflict. A result of this convergence has been that individuals involved in a non-international armed conflict can now benefit from many of the protections once available only in the context of inter-state conflicts.
At the same time, some have relied on this convergence to extend to non-international armed conflicts not only the prohibitions of the law of international armed conflict, but also, controversially, authorizations. In any event, notwithstanding continuing controversy over its content, there seems to be a general consensus supporting the proposition that the law of non-international armed conflict applies extraterritorially. As noted above, demonstrating the applicability of humanitarian law outside of a state's territory is facilitated by the fact that the bulk of the law of armed conflict was designed to apply in an interstate context, presupposing that states would be acting on each other's territory. That some of these rules are now deemed to apply even in an internal setting does not lessen the presumption that they will still apply extraterritorially, at least insofar as they consist of prohibitions and do not purport to impose obligations on third states.
The situation is more complex under human rights law, which was not primarily designed to apply extraterritorially. In order to ascertain whether human rights law is applicable in the context of transnational conflicts with non-state groups, it is essential to consider the extent to which human rights law is applicable in relation to individuals outside the state's territory.
Most of the jurisprudence of human rights bodies, which have greatly elaborated on the content of states' obligations under the various human rights treaties, has been developed in the context of alleged violations committed on the territory of the respective state party. Can these same standards be transposed onto the state's conduct abroad?
Thus, it would seem that there may be an identifiable trend toward recognizing varying levels of obligation. In particular, it may be that negative obligations apply whenever a state acts extraterritorially (at least with respect to intentional human rights violations, as opposed to indirect consequences), but that the degree of positive obligations will be dependent upon the type and degree of control (or power or authority) exercised by the state. Such obligations are limited by a scope of reasonableness even when applied to a state's conduct within its territory; there is no reason why application to a state's extraterritorial conduct would not similarly be bounded by a scope of reasonableness, such that the adoption of affirmative measures is only required when and to the extent that the relevant party de jure or de facto enjoys a position of control that would make the adoption of such measures reasonable. This approach would preserve the integrity of the respective treaties and would vindicate the universal nature of human rights, which is proclaimed in the preambles of all of the human rights treaties considered in this analysis. At the same time, it would not place unreasonable burdens on states parties. From its inception, the international law of armed conflict followed the projection of power. The jus in bello would apply to armed conflicts irrespective of physical location, so long as opposability as between the warring parties was satisfied. The same could be said of the law of state responsibility for injury to aliens. While the application of both bodies of law clearly extended beyond the state's jurisdictional reach, neither could penetrate into the sphere of the state's domestic jurisdiction in the narrowest sense. Human Rights law was developed to fill that gap.
But just as humanitarian law ultimately began to press inward against that external membrane of a state's domestic jurisdiction, human rights law has now begun to exert outward pressure against the inner wall of the state's jurisdiction. Indeed, these two processes—of inward penetration and outward projection—can be seen along a single continuum with a common seam. That seam is manifested in the structural evolution of the international legal system that was consolidated in the years immediately following World War II. The principal structural development of that period was the emergence of the individual human being as a subject of international law, capable of bearing international rights and duties.
This structural development corresponded to a coalescence of values around a principle conceived as transcendental and universal—human dignity. Recognition by the newly reconceived international community that the dignity of the individual human being was something entitled to legal protection led to the transformation of this principle into positive law. It is this conception of human rights as both transcendental and universal that pushes against the concept of jurisdiction—pushing simultaneously into the domestic sphere and out of it—and underscores both its artificiality and diminished existence. It is this conception, far more than the force of legal reasoning from positive law that has enabled both human rights law and humanitarian law to grasp the outer and inner reaches of the power of the state.
To the extent these rules are designed to protect individuals from abuses of state power, realization of that design entails application coextensive with the projection of that power. While the exact contours of their application may not be settled, the traditional principles of good faith and reasonableness in the circumstances provide ample guidance for shaping those contours.
Is Gaza Still Occupied Territory?
- Scobbie
The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols
- Schindler
Beginning and End of Occupation
- Bothe