Introduction

International Humanitarian Law is based on the concepts of jus in bello. It lays

down the laws of warfare. This means that the laws involved should remain active
during an ongoing armed conflict or war. International Humanitarian law seeks for
humanitarian reasons to control the effects of armed conflict. International
Humanitarian Law is a part of International law. It covers mainly two areas:
1. The protection of those who are not taking part in the armed conflict or have
ceased taking part in the armed conflict
2. Restrictions on the means of warfare and specifically- weapons and the
methods of warfare like military tactics.
International Humanitarian Law has recognized two types of armed conflicts
which are International Armed conflict and Non-International Armed conflict.
According to the Geneva Conventions of 1949, Common Article 2 says that they
apply to all cases of declared war or of any other armed conflict which may arise
between two or more High Contracting Parties, even if the state of war is not
declared by one of them. The Conventions shall also apply to all or any cases of
partial or total occupation of the territory of a High Contracting Party even if the
said occupation has not met with any armed resistance. This means that the
occurrence of “international armed conflict” would mean to be a conflict between
legal armed forces of two or more states. “High Contracting Parties’ ‘means the
States that are party to the Conventions. A High Contracting Party is held to meet
the obligations of the Conventions even if the other party involved in the armed
conflict is not bound by the Geneva Conventions. An example of an International
Armed conflict is North-Korean and South-Korean war in 1950.
According to Common Article 3 of the Geneva Conventions, non-international
armed conflicts or internal armed conflicts are conflicts that are non-international
in nature and are occurring in one of the High Contracting Parties. This means that
at least one of the parties involved is not backed by the government. For a conflict
to amount to an internal armed conflict, two variables should be
present- first, protracted armed violence is taking place which has raised the
hostility to a certain minimum level of intensity and second, the parties involved
must exhibit a certain degree of organization. A good example of internal armed
conflict would be the Syrian Civil War.
The term “armed conflict” has been used as a declaration of war is an explicit
affirmation of a state of war between two parties and the use of such declarations
of war has become rare mainly because of certain political agendas of parties
involved.
We will be dealing with the second type of armed conflicts i.e. Non-international
or internal armed conflicts.
Meaning of “internal armed conflicts”
Not all situations of armed violence within a state classifies as a non-international
armed conflict or internal armed conflict. When a situation of violence is only civil
unrest, banditry, riot, unorganized terrorist activity or any other sporadic act of
violence, the 1949 Geneva Conventions are not applicable to it. The assessment of
whether a situation amounts to internal armed conflict is based on a factual
situation, not on characterization given by parties involved.
The concept of non-international armed conflict or internal armed conflict in
international humanitarian law must be analysed on the basis of two main treaty
texts: Article 1 of Additional Protocol II of 1977 and Common Article 3 to the
Geneva Conventions of 1949.
Article 3 common to the 1949 Geneva Conventions
Article 3 common to the 1949 Geneva Conventions are applicable in the case of a
non-international type of armed conflict. This provision starts with a negative
expression, talking about the armed conflict of “not of an international character”
and does not provide a definition. So, referring back to Article 2, armed conflicts
that are not of an international character comprise those conflicts in which at least
one of the parties involved is non-governmental. Common Article 3 also assumes
that international humanitarian laws do not apply to a situation of violence until it
has reached a distinguished level i.e. situations of internal disturbances and isolated
acts of violence are not of a similar nature. The International Criminal Tribunal for
the Former Yugoslavia stated that the threshold for an internal armed conflict
reaches when the situation can be defined as “protracted armed violence”. There
are thus two main elements constituting an internal armed conflict:
 A certain intensity of the armed violence
 A certain degree of organization of the parties
Both these components for the determination of internal armed conflict cannot be
expressed in abstract terms rather they are to be evaluated on a case by case basis
weighing up a collection of indicative data. Indicative factors to assess
the intensity of a conflict used by international jurisprudence include the aggregate
nature of the fighting or the fact that the State is prompted to resort to its army as a
result of incapability of its police to deal with the situation on their own,
prolongation of the conflict, recurrence of the acts of violence and operations, type
of weapons used, displacement of civilians, extent of territorial control by rival
forces, the number of victims, reaction and involvement of the international
community and several more factors. These are just assessment factors to decide
whether the threshold has been attained in each case. They are not explicit
conditions that should exist concurrently.
As for the second factor, there must be a minimum level of organization of the
parties involved. Government authorities are presumed to meet this requirement
and it’s not necessary to carry out an evaluation in each case as they are having the
armed forces already. As for non-governmental forces, international jurisprudence
has come up with a series of indicative factors to evaluate their organization like
the existence of an organizational chart specifying a command structure including
general staff or spokespersons, operational capacity of the armed group, the
capability of recruiting and training new fighters or the existence of internal rules.
Though the criterion of the organization is necessary for ensuring the applicability
of international humanitarian law, the armed groups need not carry a level of
organization as that of the state’s armed forces. As long as these groups carry a
capable structure to function over time, they may still meet the required criterion of
organization. Usually, armed groups function illegally and in secrecy, so it is
improbable to know their exact composition.
When any of these two criteria are not met, a situation involving violence may well
be called as internal disturbances or internal tensions. Both these criteria which
designate the types of social instability have never been defined in law, in spite of
the fact that they are referred to explicitly in Additional Protocol II.
Article 1 of Additional Protocol II
Additional Protocol II is applicable to non-international armed conflicts which
happen in the territory of a High Contracting Party between its armed forces and
rival armed forces or between organized armed groups which by functioning under
responsible command, exert such control over a portion of its territory as to enable
them to execute sustained and concerted military operations. However, this does
not apply to wars of national liberation because they are equated with international
armed conflicts with reference to Article 1(4) of Additional Protocol I. Article 3
when combined with Additional Protocol II defines a more limited field of
application of international humanitarian law by implying that a particularly high
level of organization is required in the sense that they must operate ‘under
responsible command’ and exercise territorial control, allowing them ‘to carry out
sustained and concerted military operations and to implement this Protocol’.
Although the Common Article also conveys that a certain degree of organization is
required, it does not require that these groups should be able to exercise control of
a part of a territory. Practically, a conflict may fall under Common Article 3
without fulfilling conditions determined by Additional Protocol II. All the armed
conflicts covered by Additional Protocol II have been covered by Common Article
3. Generally, it is often difficult to determine situations that comply with the
criteria of Additional Protocol II. The required degree of territorial control varies
from case to case. If Article 1(1) is to be interpreted strictly, only those non-
governmental parties would be covered which exercise similar control to that of a
State, hence the nature of conflict would be similar to that of international armed
conflict. The ICRC (International Committee of the Red Cross) seems to choose a
middle path on the territorial issue. It comments that sometimes territorial control
can be relative, for example, when rural areas escape the government hands while
urban areas remain in their authority. Additional Protocol II restricts its field of
application to armed conflicts between government forces and dissident armed
forces unlike Common Article 3 which extends to conflicts solely between non-
governmental groups. Lastly, Additional Protocol II repeats the criteria already
given in Common Article 3 that they cover only non-international armed conflicts
occurring in any one High Contracting Party.
Irrelevance of purpose
Taking into account the motives(e.g. terrorists or criminal gangs) of armed groups
and characterizing them legally or politically is not relevant in determining
whether there is an armed conflict under international humanitarian law or not.
Similarly, in international armed conflicts, it is irrelevant whether the parties to a
conflict have a particular motive or not for engaging in armed violence. In the
current state of humanitarian law, this particular detail does not hold ground.
The ICTY had occasion to emphasize this while considering the nature of fighting
that took place between Serbian forces and the Kosovo Liberation Army in 1998.
In Prosecutor v. Limaj et al., the defence had challenged the idea of constituting
the fighting into an armed conflict by arguing that the operations carried out by the
Serbian forces were not intended to combat the rival army but to perform ethnic
cleansing in Kosovo. That argument was declined by the tribunal stating that to
determine the existence of armed conflict, only two criteria are there – the intensity
of the conflict and organization of parties.
Therefore, the purpose or motive of the armed forces to indulge in acts of violence
remains “irrelevant”. The motives of armed groups are not always uniform and
cannot be clearly identified. Many armed groups usually carry out criminal
activities along with pursuing a particular political objective. Sometimes, criminal
organizations also exercise power pertaining to the political sphere.
Difference between non-international armed conflict and civil war
There is no real difference between civil war and non-international armed conflict
or internal armed conflict. As such, the term “civil war” doesn’t have a legal
meaning. For referring to a non-international armed conflict, it is used sometimes.
Article 3 common to the Geneva Conventions are called “common” because it
applies in a similar manner to each of the four Geneva Conventions. It does not use
the term “civil war” anywhere but refers to the term ‘armed conflict, not of an
international character’. The international tribunals and Red Cross Society speak
“non-international” or “internal armed conflicts” instead of using the term “civil
war” as those expressions reflect the terms used in Common Article 3.
What happens if the parties do not respect their obligations under IHL
Every party to an internal armed conflict is required to respect and ensure for
Internal Humanitarian Laws (IHL) by acting on its instructions, directions or
control. Each party must respect IHL even if its enemy does not. Hence, the
obligation to respect IHL is not dependent on reciprocity. In regards to serious
violations of International Humanitarian Laws occurring in an internal armed
conflict, also known as war crimes, States must criminally prosecute persons
charged with committing such violations. In certain cases, alleged war criminals
can be referred to the International Criminal Court as well.
Are the captured enemy fighters considered prisoners of war
No, the term” prisoner of war” is conferred to enemy soldiers captured in
international armed conflicts only under the Third Geneva Convention. Prisoners
of war cannot be prosecuted under International Humanitarian Laws (for instance,
for having attacked the enemy fighters). Whereas, in a non-international armed
conflict, IHL encourages governments to grant the maximum possible amnesties to
the rebel fighters at the end of armed conflict but persons suspected of, sentenced
for or accused of war crimes are excluded from this. However, IHL does not
prevent the prosecution of the captured rebel fighters.
Classification controversy
Armed conflicts are not as clearly defined as in the legal categories in reality.
Some of them may not exactly meet the criteria of any of these concepts envisaged
in international humanitarian law. This begs a question of whether such armed
conflicts end up in a legal vacuum. This section will analyse some dilemmas
occurring in practice by referring to two types of situations: Control of territory
without an apparent military presence on the ground and Foreign intervention in
non-international armed conflict.
Control of territory without a military presence on the ground
Despite the fact that the Hague Regulations 1907 and 1949 Geneva Conventions
give some clarifications to the concept of occupation, in reality, it is not that easy
to identify the situations that fall under the concept. The example of the Gaza Strip
after the Israeli withdrawal shows such difficulties that may arise in classification.
On 12 September, the Israeli troops finished withdrawing from that region of Gaza
Strip where they had maintained a continuous military presence since the Six-Day
War in 1967. This was in the exercise of the Disengagement Plan that the Israeli
government had endorsed in the parliament on 25 October of that same year. The
intention of that plan was to put an end to their responsibilities regarding the
people residing in that territory. So, the situation begs the question: Should it,
therefore, be concluded that those measures marked the end of the occupation of
that region? Was the physical withdrawal rendered enough to admit that the
effective control of the territory no longer existed at that time?
Some observers are of a negative view. It was recalled that Israel retained control
over the Gaza Strip even though its troops were no longer physically present in that
area.
The Disengagement Plan expressly stated that Israel was to continue to exercise its
control over the borders of that territory in addition to its air space and coastal
region, even though it has retracted its troops. Israel had the advantage of accessing
the Palestinian territory anytime to maintain public order. That interpretation is
supported by Article 42(2) of the 1907 Hague Regulations, which clarifies that
occupation exists when the authority of a hostile army has been established and it
exercises its power. This interprets that potential authority is sufficient to confirm
the reality of occupation. Thus, it was considered by the United Nations Secretary-
General that the actions of the Israeli Defence Forces in respect to the Gaza Strip
have clearly demonstrated that modern technology allows an occupying power
without a military presence. Following that position, the occupation of the Gaza
Strip would therefore not be considered to be ceased with the withdrawal of Israeli
troops in 2005, as Israel was still exercising its power from a distance equivalent to
“effective control” under the law of occupation.
However, other observers consider that the element of occupation i.e. ability of an
occupier to exert its authority cannot be detached from its physical presence in the
territory that’s under its control. Though Article 42 of the 1907 Hague Regulations
says that occupation exists when the rival’s authority ‘can be exercised’, it clarifies
that the authority must be ‘established’ first which forms an inseparable link
between the establishment of authority and the ability to extend that authority to
the whole territory. Establishment of authority, in this case, would be the
deployment of a presence in the territory. The International Court of
Justice recalled that effective control becomes apparent as a result of the
substitution of powers. So, a similar threshold cannot be achieved if the powers are
situated outside the region in a particular case. Also, it is not possible to implement
most of the rules of occupation if there is not a presence in the territory. It is
impossible to control and ensure public order and life in the territory from outside
which is a prerequisite laid in Article 43 of the 1907 Hague Regulations.
The case of Gaza shows to what extent the concept of occupation exercises
difficulties in interpreting it practically. It is thus not possible to deal with all the
issues within the limited framework of this article.
Foreign intervention in a Non-International Armed Conflict
There are two different types of interventions:
1. Where one or more States get involved in a non-international armed conflict
in support of one or other off the parties to the conflict (that originally
involved in the conflict)
2. Where multinational forces in the course of a peacekeeping operation get
involved in a non-international armed conflict.
The intervention of one or more third state in a Non-International Armed
Conflict
It is sometimes referred to as “mixed conflict” as it is a combination of the
characteristic of both International and Non-International Armed Conflict which
upon the configuration of parties involved – i.e. whether the fighting in the field is
between the forces of international state and intervening state, or between
government forces and (of the territorial state or of the third state) and non-
governmental armed groups or between armed groups only, or the third state
fighting on both sides of the front line. This raises an issue of the legal definition of
those situations that do not fall under any of the standard categories of the conflicts
as defined by the international humanitarian law.
Therefore, the ICRC considers that depending upon the warring parties, the law
applicable to each case will be different depending on the case. Inter-State relations
are governed by the laws given under international armed conflict while other
situations are governed by the laws of non-international armed conflict. Thus if a
Foreign third State intervenes in support of a non-governmental armed group
which is opposed to State forces, it results in the ‘internationalization’ of the
existing internal conflict.
The International Court of Justice also favoured this fragmented application of
international humanitarian law in the case related to military and paramilitary
activities in and against Nicaragua: Analysing the conflict, the International Court
of Justice distinguished between,
1. the conflict between the Nicaraguan government and the rebels, and
2. the conflict between the Nicaraguan government and the government of the
United States separately.
However, this differentiated approach towards such application also raises certain
practical problems. In various cases, it has been noticed that the difference between
conflicts derived from any of the two types of armed conflict is not genuine and
leads to results that are difficult to accept. For example, in a conflict where there is
an alliance of foreign government forces and rebel groups, the following prominent
questions are raised:
What shall be the status given to the civilians who had been held captive by foreign
forces and then handed over to the local group? Should the rules of the Fourth
Geneva Convention apply to them (considering that there is an armed conflict
between the third foreign intervening State and the territorial State) or the rules
from the law governing non-international armed conflict (as they are held by a
non-governmental armed group) apply? In other words, the question is whether a
different set of rules need to be applied or not considering those persons were
arrested by the foreign forces and not directly by the local group? Regarding these
difficulties, the question then arises whether it is sensible to intend an adaptation of
international humanitarian law as applicable to non-international armed conflicts
characterized by foreign military intervention. Some observers suggest applying
the law of international armed conflict in every case where a power foreign to the
territorial state operates on behalf of one or other of the parties. In one of the
proposals made by the ICRC in its 1971 Report on the Protection of Victims of
Non-International Armed Conflicts, this concept was supported. However, that
proposal was rejected by the experts by whom the ICRC’s draft was studied. It was
argued that it would make these conflicts even worse, as then the non-
governmental groups would deliberately try to attract the Foreign States in
conflicts in order to benefit from the International Armed Conflict law’s
application.
The intervention of multinational forces in a Non-International Armed
Conflict
This needs to be understood that a mere presence of international forces in the
above context does not make them parties to the conflict. Usually, it has been seen
that these troops are not in the territory to engage in the fighting, but are deployed
mostly with the aim of conventional peace-keeping. Their powers or functions, in
that case, does not authorize them to provide support for one or other parties but is
quite limited to interposition or mere observation. Even if they engage in using
armed force, they may only do so in case of an act of self-defence. But
multinational forces should be considered parties to the conflict in the following
two cases/situations:
1. When they directly take part in the ongoing conflict by supporting one of the
parties to the conflict. The following situation can be taken as an example-
When The United Nations Organization Mission in the Democratic Republic
of Congo extended military support to the government of the Democratic
Republic of Congo to fight and defend the armed opposition.
2. The case where International troops are deployed without supporting one of
the Parties to the conflict, their status is determined according to the criteria
that are normally used to evaluate whether a conflict is a non-international
armed conflict or not. The troops so deployed should be deemed a party to
the conflict if the degree of their involvement reaches or crosses the required
degree of intensity. As mentioned earlier, in this case too, if the troops got
engaged in armed force only as a means of self-defence shall not be
considered as a party to the conflict.
Therefore the determination of the nature of the armed conflict considered here is a
little controversial. Many authors consider that these situations should be treated as
international armed conflicts because these operations were defined, decided and
conducted by organisations that were international in nature irrespective of the fact
that the opposing party is a State or Non-government group.
However, the application of the laws of the International Armed Conflict poses
certain problems.
For example, a hypothesis where the conflict takes place between multinational
forces and unstructured armed groups, it seems quite difficult for them to abide by
the Third Geneva Convention of 1949. However, there is another approach which
is also followed by the ICRC in which a differentiated application of humanitarian
law is followed for different cases of conflicts and considering the behaviour of the
parties in the field.
Therefore, the law of international armed conflict must be applicable where the
international troops clash with government forces. But if the fighting is between
those troops and non-government forces, the laws of non-international armed
conflict must be applied.
Therefore the legal regime that will be applicable in a case varies depending who
the adversaries are in each situation.

Internal armed conflicts, often referred to as civil wars or intrastate conflicts,

represent some of the most devastating and complex challenges facing societies
worldwide. These conflicts are characterized by violence and hostilities between
various factions within a single country, tearing apart the social fabric,
undermining governance structures, and causing immense suffering to civilian
populations. The causes of internal armed conflicts are multifaceted and often
rooted in a combination of political, economic, social, and ethnic factors, creating a
volatile environment conducive to violence and instability.

One of the primary drivers of internal armed conflict is political instability, which
can arise from a range of factors, including authoritarian governance, contested
elections, or the collapse of state institutions. When governments fail to address the
grievances of marginalized groups or resort to repressive measures to maintain
power, it can fuel resentment and resistance, leading to armed rebellion or
insurgency. This was evident in the Arab Spring uprisings that swept across the
Middle East and North Africa, where populations rose up against autocratic
regimes in pursuit of greater political freedoms and economic opportunities.

Economic inequality and poverty also play a significant role in fueling internal
armed conflicts. In many cases, marginalized communities, particularly those in
rural areas, face systematic discrimination and lack access to basic services such as
education, healthcare, and employment opportunities. Economic grievances,
coupled with a sense of marginalization and exclusion, can drive individuals to join
rebel groups or engage in criminal activities as a means of survival. The
exploitation of natural resources, such as oil, diamonds, or minerals, often
exacerbates these tensions, as competition for control over lucrative assets fuels
violence and instability.

Ethnic and religious divisions are another common catalyst for internal armed
conflicts, particularly in countries with diverse populations. When political elites
manipulate ethnic or religious identities for their own gain or fail to address
grievances related to discrimination or exclusion, it can lead to intercommunal
violence and civil strife. The genocide in Rwanda in 1994, where Hutu extremists
targeted Tutsis and moderate Hutus, serves as a tragic example of how ethnic
tensions can escalate into widespread violence and mass atrocities, claiming
hundreds of thousands of lives in a matter of months.

The proliferation of small arms and light weapons also exacerbates internal armed
conflicts by making it easier for non-state actors to challenge government authority
and engage in acts of violence. Illicit arms trafficking networks supply rebel
groups, militias, and criminal organizations with the weapons they need to sustain
their operations, prolonging conflicts and increasing the risk to civilian
populations. The availability of arms also undermines efforts to negotiate peaceful
settlements and build sustainable peace, as armed groups have little incentive to
disarm or pursue political dialogue when they possess the means to continue
fighting.

The impact of internal armed conflicts on civilian populations is profound and far-
reaching, resulting in widespread displacement, loss of life, and the erosion of
social cohesion. Civilians are often caught in the crossfire, facing indiscriminate
violence, forced displacement, sexual violence, and other human rights abuses
perpetrated by both state and non-state actors. The destruction of infrastructure and
the disruption of essential services further compound the humanitarian crisis,
leaving communities vulnerable to disease, hunger, and poverty. Women and
children are particularly vulnerable during armed conflicts, facing heightened risks
of sexual violence, forced recruitment, and exploitation.

The international community plays a crucial role in addressing internal armed

conflicts and promoting peace and stability within conflict-affected countries.
Diplomatic efforts, mediated negotiations, and peacekeeping operations are
essential tools for resolving conflicts, facilitating dialogue between warring parties,
and fostering reconciliation. International humanitarian organizations provide
lifesaving assistance to affected populations, delivering food, shelter, healthcare,
and protection services to those in need. Development assistance and
peacebuilding initiatives aim to address the root causes of conflict, promote
economic recovery, and strengthen institutions to prevent a relapse into violence.

Despite these efforts, internal armed conflicts continue to pose significant

challenges to peace and security globally. The protracted nature of many conflicts,
coupled with the proliferation of non-state armed groups and the absence of
effective governance structures, complicates efforts to achieve sustainable peace.
Addressing the root causes of conflict, promoting inclusive governance, and
addressing grievances related to political, economic, and social marginalization are
essential for breaking the cycle of violence and building a more peaceful and
prosperous future for conflict-affected societies. By investing in conflict
prevention, peacebuilding, and sustainable development, the international
community can help mitigate the drivers of internal armed conflicts and create
conditions conducive to peace, stability, and inclusive growth.
International Armed Conflict
Introduction: International armed conflict represents a complex and multifaceted
phenomenon that has shaped the course of human history and continues to
influence global geopolitics. This comprehensive exploration seeks to delve into
the various dimensions of international armed conflict, encompassing its historical
roots, contemporary manifestations, legal frameworks, humanitarian implications,
and prospects for peace. By examining the dynamics and complexities of
international armed conflict, we aim to gain a deeper understanding of its drivers,
consequences, and potential avenues for resolution.
Historical Perspectives: The origins of international armed conflict can be traced
back to antiquity, where clashes between empires and kingdoms were common
occurrences. Over the centuries, the evolution of warfare, statecraft, and
technology has transformed the nature and scale of international conflicts. From
the Napoleonic Wars to the World Wars of the 20th century, major powers have
engaged in devastating confrontations that reshaped the global order. The Cold
War era witnessed ideological rivalries and proxy conflicts between the United
States and the Soviet Union, underscoring the geopolitical tensions inherent in
international relations. Post-Cold War, new forms of conflict emerged, including
intrastate conflicts fueled by ethnic, religious, and ideological divisions, often
exacerbated by external interventions.
Contemporary Dynamics: In the contemporary era, international armed conflict
manifests through a variety of mechanisms, ranging from conventional warfare
between nation-states to asymmetric conflicts involving state and non-state actors.
The proliferation of non-state actors, such as terrorist organizations and insurgent
groups, has added complexity to the conflict landscape, blurring traditional
boundaries between war and peace. The rise of cyber warfare and hybrid tactics
further complicates the dynamics of international conflict, challenging established
norms and frameworks for conflict resolution. Moreover, transnational issues such
as climate change, resource scarcity, and pandemics have the potential to
exacerbate tensions and trigger conflicts between states competing for limited
resources.
Legal Frameworks: International humanitarian law (IHL) provides the legal
framework governing international armed conflict, offering guidelines for the
conduct of hostilities and the protection of civilians and combatants. The four
Geneva Conventions of 1949 and their Additional Protocols establish fundamental
principles such as distinction, proportionality, and humane treatment, aiming to
mitigate the human cost of war. These legal instruments impose obligations on
states to respect the rights of civilians, including the provision of humanitarian
assistance and protection from indiscriminate violence. The International Criminal
Court (ICC) serves as a key mechanism for accountability, prosecuting individuals
responsible for war crimes, genocide, and crimes against humanity committed
during armed conflicts.
Humanitarian Implications: The humanitarian consequences of international armed
conflict are profound and far-reaching, affecting millions of civilians caught in the
crossfire. Armed conflicts disrupt essential services such as healthcare, education,
and access to clean water, exacerbating humanitarian crises and displacement.
Civilians are often subjected to indiscriminate violence, forced displacement, and
human rights abuses, including sexual violence, torture, and recruitment of child
soldiers. Humanitarian organizations play a crucial role in providing lifesaving
assistance, protection, and advocacy for vulnerable populations affected by armed
conflict. However, humanitarian actors face numerous challenges, including access
constraints, insecurity, and attacks on humanitarian workers, which impede their
ability to reach those in need.
Peacebuilding and Conflict Resolution: Efforts to mitigate and resolve
international armed conflicts require a comprehensive approach encompassing
diplomacy, mediation, peacebuilding, and conflict resolution mechanisms. The
United Nations, regional organizations, and civil society play pivotal roles in
facilitating dialogue, negotiation, and reconciliation processes aimed at addressing
the root causes of conflict and building sustainable peace. Diplomatic initiatives
such as peace agreements, ceasefires, and peacekeeping operations seek to de-
escalate tensions, foster trust between warring parties, and create conditions
conducive to long-term stability. Transitional justice mechanisms, including truth
commissions and accountability measures, contribute to addressing grievances,
fostering reconciliation, and preventing future cycles of violence.
Challenges and Future Perspectives: Despite efforts to address international armed
conflict, numerous challenges persist, posing obstacles to lasting peace and
stability. The proliferation of weapons, illicit arms trade, and external support for
belligerent actors fuel protracted conflicts and undermine peacebuilding efforts.
The instrumentalization of religion, ethnicity, and identity politics exacerbates
divisions and perpetuates cycles of violence, hindering efforts to foster inclusive
and sustainable peace. Moreover, geopolitical rivalries, great power competition,
and strategic interests often impede international cooperation and collective action
to resolve conflicts. In an increasingly interconnected world, addressing
transnational threats such as terrorism, organized crime, and pandemics requires
multilateral cooperation, dialogue, and shared responsibility.
Conclusion: International armed conflict remains a persistent challenge with far-
reaching implications for global security, human rights, and development. By
understanding the dynamics, drivers, and consequences of armed conflict, the
international community can develop more effective strategies for conflict
prevention, mitigation, and resolution. Upholding the principles of international
humanitarian law, promoting dialogue and reconciliation, and addressing root
causes of conflict are essential steps towards building a more peaceful and just
world. Despite the formidable obstacles ahead, concerted efforts to promote peace,
justice, and human dignity offer hope for a future free from the scourge of war.
 Functions of International Criminal Court (ICC)

The functions of the ICC are listed below:

o The International Criminal Court (ICC) investigates and, where

warranted, tries individuals charged with the gravest crimes of
concern to the international community: genocide, war crimes, crimes
against humanity, and crimes of aggression.
o It acts as a court of last resort and it seeks to complement, however,
not replace, the national Courts.
o The prosecutor’s office, headed since 2021 by British attorney Karim
A.A. Khan, former assistant secretary-general of the United Nations,
investigates the court.

Four Core International Crimes on which ICC has Jurisdiction as per Rome Statute
S.No Crime Article Description
It is characterised by the specific intent to destroy in whole or in part a
Article national, ethnic, racial, or religious group by killing its members or by
1 Genocide
6 other means: causing serious bodily or mental harm to members of the
group;
Crimes International Criminal Court (ICC) can prosecute crimes against
Article
2 Against humanity, which are serious violations committed as part of a large-scale
7
Humanity attack against any civilian population.
War crimes are grave breaches of the Geneva Conventions in the context
of armed conflict and include the use of child soldiers for the killing or
War Article
3 torture of persons such as civilians or prisoners of war. War crimes fall
Crimes 8
under ICC jurisdiction when the crime is committed as a part of a plan,
policy, or on a large scale.
 It is the use of armed force by a State against the sovereignty, integrity,
or independence of another State. The definition of this crime was
adopted by amending the Rome Statute at the first Review Conference of
the Statute in Kampala, Uganda, in 2010.
Crimes of
Article
4 Aggressio
8 bis “Crime of aggression” refers to the planning, preparation, initiation, or
n execution of an act of aggression that, by its character, gravity, or scale,
constitutes a manifest violation of the United Nations Charter by a person
who effectively controls or directs the political or military action of a
State.

Organisational Structure of the International Criminal Court (ICC)

o In a number of nations where investigations are taking place, the

International Criminal Court (ICC) operates field offices.
o Affected Communities: People who the ICC has arrested are kept in a
safe, secure, and humane environment in the International Criminal
Court (ICC) detention facility. As the Detention Center’s inspection
authority, the International Committee of the Red Cross (ICRC) has
unrestricted access and may examine during unannounced visits.
o Trust Fund for Victims was established in accordance with article 79 of
the Rome Statute, the Assembly of States Parties in 2004 to provide
support, assistance, and reparations to victims.
o The representatives of the States that have ratified or acceded to the
Rome Statute make up the Assembly of States Parties, which serves as
the Court’s administrative, oversight, and legislative body.
o Defence: A strong defence is the main component of a fair trial. The
defence teams stand up for and defend the accused’s rights (suspect
and accused).
o Victims: Victims are people who have experienced an injury as a result
of any crime committed under the Court’s jurisdiction.
o Witnesses: The ICC staff provides witnesses with a variety of practical
support services, including setting up video link services so that
witnesses can testify from their homes and securing visas so that they
can travel to the seat of the Court.
 Organs of the International Criminal Court

There are four organs of the International Criminal Court (ICC). The organs
are listed in the table below:

Four Organs of International Criminal Court

S.No Organ Provisions
Conducts external relations with States, coordinates judicial matters such as
1 Presidency assigning judges, situations, and cases to divisions, and oversees the Registry’s
administrative work
There are 18 judges in ICC, elected by the Assembly of States Parties, and serve
Judicial
2 a 9-year term, which is not renewable. The International Criminal Court (ICC)
Divisions
President and two Vice-Presidents are elected who head the Court.

This is an independent organ of the Court.

Office of It is in charge of looking into cases under the Court’s jurisdiction where
3 the genocide, crimes against humanity, war crimes, and aggression appear to have
Prosecutor been perpetrated, as well as conducting inquiries into and bringing charges
against those believed to be most guilty.
The Registry is a neutral organ of the Court that offers support to the other
4 Registry organs so that the International Criminal Court (ICC) can operate and hold fair
public hearings.

Jurisdiction and Working of the International Criminal Court (ICC)

The pointers, including the working and jurisdiction of the International

Criminal Court, are listed below:

o Crimes: The Rome Statute, the founding treaty of the court, grants the
International Criminal Court (ICC) jurisdiction over four main crimes:
genocide, crimes against humanity, war crimes, and crimes of
aggression.
o Legal process: The legal process of the International Criminal Court
(ICC) is different from any other court.
 o Example investigation and case from start to finish: This includes the
detailed investigation and cases after the crime has occurred.
o Jurisdiction: In cases where genocide, crimes against humanity, or war
crimes occurred on or after July 1, 2002, the Court may exercise
jurisdiction. The crimes were committed by a citizen of a State Party,
on its territory, or in a State that has accepted the Court’s jurisdiction.
o Complementarity: The ICC only prosecutes cases when States are
genuinely unwilling or unable to do so; it is meant to complement,
not replace, national criminal systems.
o Cooperation: The International Criminal Court (ICC) relies on
international cooperation for support because it lacks a police force
or other enforcement agency of its own.

Study in detail about Hague Code of Conduct with this link!

Limitations of the International Criminal Court

o The International Criminal Court (ICC) relies on international

cooperation for support because it does not have a police force or
other enforcement agency of its own. ICC chooses cases
inconsistently, is unable to take on challenging cases, and loses
credibility.
o According to Human Rights Watch, an international NGO, the USA is
openly supporting individuals who violate human rights and covering
them up by punishing war crimes investigators. When warranted by
the seriousness of the crime, the ICC may instead impose severe
sentences of up to 30 years in jail or life. 2020 will mark the year that
the USA approved penalties on International Criminal Court (ICC)
investigators looking into potential war crimes committed by US
forces and its allies.
o Only crimes committed on a state’s territory that has ratified the
treaty, by citizens of those states, or when a matter is referred to the
International Criminal Court (ICC) by the UN Security Council fall
under the ICC’s automatic jurisdiction.
o ICC also struggles with a lack of funding and human resources.
 o As the 1998 Rome Statute only applied to crimes committed after 1
July 2002, the ICC Court has no retroactive jurisdiction.

Also, check out the article on International Organisational Reports with this
link!

Criticism of the International Criminal Court

The ICC has made progress in drawing attention to the need for
accountability in cases emerging out of investigations in the Central African
Republic, Darfur, Sudan, Democratic Republic of Congo, and Uganda.
However, the court had issues with performance, such as the prosecution’s
inability to provide enough evidence for convictions.

o The ICC has also seen severe political criticism and legal setbacks,
such as resistance to making arrests and insufficient funding from
International Criminal Court (ICC) member nations to handle its
expanding caseload.
o The court’s mandate has proven to be both more necessary and more
difficult to carry out than its creators anticipated as international
crimes defined by human rights crises increase.
o The International Criminal Court (ICC) has been charged with being
an instrument of Western imperialism and bias in favour of strong
nations against weak ones. Numerous African nations have frequently
criticised the ICC for being overly political and concentrating on
African issues.
o The effectiveness of the ICC has been questioned due to procedural
and substantive errors that have caused delays and low conviction
rates.
o Due to its complete reliance on member states for the arrest and
transfer of defendants, the ICC also experiences issues with pre-trial
enforcement. It is unclear whether States would be willing to remove
an oppressive leader from their nation using military or economic
force.
 o ICC is given a budget that only permits a few prosecutions each year.
The ICC can only hear a certain number of cases at any given time
due to the limited number of sitting judges.

The Effects doctrine

The “effects” doctrine is a foundation of jurisdiction that was developed to

reach foreign nationals whose actions take place outside the enforcement
State’s borders but have an impact there. It was born out of the territorial
principle’s “objective” application.

Instruments of Interpretation of the Rome Statute and Article12(2)(a)

Instruments of Interpretation of the Rome Statute and Article 12 (2)(a) state

how the Statute’s norms of interpretation should be applied, with a focus
on Article 21(3) and the legality principle. Finally, some foundational
submissions justifying the choice of rules of interpretation will be made.

Study in detail about United Nations Organs with this link!

What is the difference between ICJ and ICC?

The following table provides key differences between ICC and ICJ.

International Court of Justice

SNo. International Criminal Court (ICC)
(ICJ)
1 ICC was established in 2002. ICJ was established in 1946
The International Court of
It deals with the cases related to the Criminal Justice deals with cases related
2
prosecution of individuals. to disputes between parties,
and advisory opinions
ICJ is an official court of the
International Criminal Court is not a part of the
3 United Nations and is also
United Nations.
known as Worlds Court.
The ICC is funded by voluntary payments from
the UN, governments, businesses, and other It is funded by the United
4
organisations, as well as contributions from Nations.
parties to the Rome Statute.
 The subject matter involved in
ICJ cases is natural resources,
ICC deals with the prosecution of serious
trade, treaty violations and
5 international crimes like genocide, war crimes,
treaty interpretations, Maritime
and crimes against humanity and aggression
disputes, sovereignty, human
rights, etc.

India and the International Criminal Court (ICC)

India did not sign the Rome Statute and thus, is not a member of the ICC
because of State sovereignty of states, Difficulty in the collection of
evidence, not a proper definition of crime, National interests, and problem
in finding impartial prosecutors

Case Studies
 Landmark cases before the ICC: e.g., Lubanga, Katanga, Ongwen, and Al
Mahdi cases
 Analysis of judicial decisions and their impact on international law
 Challenges in prosecuting high-ranking officials and securing convictions
 The role of victims in ICC proceedings and reparations
Criticisms and Challenges
 Allegations of bias and politicization in case selection
 Limited resources and backlog of cases
 Withdrawals and non-cooperation by some states parties (e.g., Burundi,
Philippines)
 Critiques from major powers, including the United States, China, and Russia
 Perceived inefficiency and lack of effectiveness in deterring crimes
 Exploring avenues for universal ratification of the Rome Statute