INTERNATIONAL AND

NON-INTERNAITONAL
ARMED CONFLICTS

WEEK TWO
Reading Materials
 I. INTRODUCTION

IHL applies in two very different types of situations: international armed conflicts and non-
international armed conflicts. The two categories have to be distinguished according to the
parties involved rather than by the territorial scope of the conflict.

a. International armed conflict

According to the four Geneva Conventions, Art. 2 (1), The IHL relating to
international armed conflicts applies “to all cases of declared war or of any other
armed conflict which may arise between two or more of the High Contracting
Parties, even if the state of war is not recognized by one of them.” The notion of
“armed conflict” has, from 1949 onwards, replaced the traditional notion of “war”.

Also, according to the Commentary of the First Geneva Convention, “[t]he

substitution of this much more general expression (‘armed conflict’) for the word
‘war’ was deliberate. One may argue almost endlessly about the legal definition of
‘war’. A State can always pretend, when it commits a hostile act against another State,
that it is not making war, but merely engaging in a police action, or acting in
legitimate self-defense. The expression ‘armed conflict’ makes such arguments less
easy. Any difference arising between two States and leading to the intervention of
armed forces is an armed conflict [...] even if one of the Parties denies the existence of
a state of war [...].” The ICTY confirmed in the Tadic case that “an armed conflict
exists whenever there is a resort to armed force between States […]”. This definition
has since been used several times by the ICTY’s Chambers and by other international
bodies. When the armed forces of two States are involved, suffice it for one shot to be
fired or one person captured (in conformity with government instructions) for IHL to
apply, while in other cases (e.g. a summary execution by a secret agent sent by his
government abroad), a higher level of violence is necessary.

The same set of provisions also applies “to all cases of partial or total occupation of
the territory of a High Contracting Party, even if the said occupation meets with no
resistance [...].” Additionally, a conflict between governmental forces and rebel forces
within a single country becomes of international character if the rebel forces are de
facto agents of a third State. In this event, the latter’s conduct is attributable to the
 third State and governed by the IHL of international armed conflicts. Moreover,
according to the traditional doctrine, the notion of international armed conflict was
thus limited to armed contests between States. During the Diplomatic Conference of
1974-1977, which lead to the adoption of the two Additional Protocols of 1977, this
conception was challenged and it was finally recognized that “wars of national
liberation” should also be considered as international armed conflicts. Wars of
national liberation are now classed by international law as civil wars but are now
regarded as international armed conflict and therefore regulated as such by
international humanitarian law. They are armed conflicts in which peoples are
fighting against colonial domination and alien occupation and against racist regimes
in the exercise of their right to self-determination.

b. Non-international armed conflict

Traditionally, non-international armed conflicts (or “civil wars”) were considered as

purely internal matters for States, in which no international law provisions applied.
This view was radically modified with the adoption of Article 3 common to the four
Geneva Conventions of 1949. For the first time the society of States agreed on a set of
minimal guarantees to be respected during non-international armed conflicts. Unlike
violence between the armed forces of States, not every act of violence within a State
(even if directed at security forces) constitutes an armed conflict.

The threshold of violence needed for the IHL of non-international armed conflicts to
apply is therefore higher than for international armed conflicts. In spite of the extreme
importance of defining this lower threshold below which IHL does not apply at all,
Article 3 does not offer a clear definition of the notion of non-international armed
conflict. During the Diplomatic Conference, the need for a comprehensive definition
of the notion of non-international armed conflict was reaffirmed and dealt with
accordingly in Article 1 of Additional Protocol II to the Geneva Conventions relating
to the protection of victims of non-international armed conflicts. According to that
provision, it was agreed that Protocol II “[s]hall apply to all armed conflicts not
covered by Article 1 [...] of Protocol I and which take place in the territory of a High
Contracting Party between its armed forces and dissident armed forces or other
organized armed groups which, under responsible command, exercise such control
 over a part of its territory as to enable them to carry out sustained and concerted
military operations and to implement this Protocol [...]”. It should be noted that this
fairly restrictive definition applies only to Protocol II. It does not apply to Article 3
common to the four Geneva Conventions. Practically, there are thus situations of non-
international armed conflict in which only common Article 3 will apply, because the
level of organization of the dissident groups is insufficient for Protocol II to apply, or
the fighting is between non-State armed groups. Conversely, common Article 3 will
apply to all situations where Protocol II is applicable.

The conflict must, however, be protracted (i.e. long period of time) and the armed
groups must be organized. The jurisprudence of the ICTY has, in correctly, replaced
the conflict’s protracted character by a requirement of intensity. It requires a high
degree of organization and violence for any situation to be classified as an armed
conflict not of an international character. Today, there is a general tendency to reduce
the difference between IHL applicable in international and in non-international armed
conflicts. The jurisprudence of international criminal tribunals, the influence of human
rights and even some treaty rules adopted by States have moved the law of non-
international armed conflicts closer to the law of international armed conflicts, and it
has even been suggested in some quarters that the difference be eliminated altogether.
In the many fields where the treaty rules still differ, this convergence has been
rationalized by claiming that under customary international law the differences
between the two categories of conflict have gradually disappeared. The ICRC study
on customary International Humanitarian Law comes, after ten years of research, to
the conclusion that 136 (and arguably even 141) out of 161 rules of customary
humanitarian law, many of which are based on rules of Protocol I applicable as a
treaty to international armed conflicts, apply equally to non-international armed
conflicts.

c. Other situations
IHL is not applicable in situations of internal violence and tension which do not meet
the threshold of non-international armed conflicts. This point has been clearly made in
Article 1(2) of Additional Protocol II, which states: “This Protocol shall not apply to
situations of internal disturbances and tensions, such as riots, isolated and sporadic
acts of violence and other acts of a similar nature, as not being armed conflicts [...].”
 The non-applicability of IHL does not necessarily mean lesser protection for the
persons concerned. In such cases, human rights rules and peacetime domestic law
would apply.

d. ICRC view on Internationalization of Armed Conflicts:

The expression “internationalized armed conflicts” is not a legal expression as such

and does not imply a third category of armed conflicts. The expression rather
describes situations of non-international armed conflicts with a dimension that is said
to be “international”. This dimension can take several forms: scenarios:

1) One or more third States or an international/regional organization (the States or the

organization acting through a multinational force) intervene in support of a state
involved in an armed conflict against an organized armed group

2) One or more third States or an international/regional organization (the States or the

organization acting through a multinational force) intervene in support (through
overall control) of an organized armed group involved in an armed conflict against a
State

P.S. Internalization of armed conflicts: an IAC can become a NIAC through a change
of government in one of the state actors and subsequent consent to the presence of
foreign armed forces (e.g. Afghanistan, Iraq, Libya).

Tadić Case:
Tadić case has proved to be a fundamental and landmark case in the field of the
Law of Armed Conflict. The case contributes immensely to the development of
international humanitarian law, of international criminal law and of some aspects
of general international law. In 1993, the International Criminal Tribunal for the
former Yugoslavia (ICTY) was created— the first such tribunal since World War
II . The International Tribunal’s scope of application concerned “war crimes” (i.e.
IHL) amongst other international and national crimes. It therefore presented the
opportunity for the judicial deliberations that would clarify. The case has clarified
my issues within IHL and helped to establish precedents within gray areas.
International Judges within the International Criminal Tribunal for Former
Yugoslavia, contemplated various issues of laws such as the definition of war
itself which was defined as “any armed conflict exists whenever there is a resort
to armed force between States”- Paragraph 70, Tadić case Appeals Chamber. It
also helped provide requirements for when a conflict is of non-international
character, and the duration of when an armed conflict exists and the end of an
armed conflict and subsequently that of IHL application.

On 15 July 1999, the ICTY Appeals Chamber delivered its judgment in the Tadić
case. It adapted critics will say, it has blurred the distinction between international
and non-international armed conflicts in international humanitarian law. It updated
critics will say, manipulated the concept of protected persons in the 1949 Geneva
Conventions.
Key Points:
Classification of Armed Conflicts:

IHL distinguishes between international armed conflicts and non-international armed

conflicts

1. International armed conflict IAC

Personal Scope (ratione personae) : state v. state

Subject Matter (ratione materiae): according to common art. 2 of GC I-IV, the rules of IAC

apply to the following types of armed conflicts:

a. declared war

b. occupation: effective control + no consent of the occupied state

c. any other armed conflict: there are two schools of thoughts on the level of

hostilities needed. The minority view is that a certain threshold of violence

must be met in order for an IAC to exist. The majority view is any resort to

force triggers the existence of an IAC (one shot rule). There is no need to fight

back.

d. wars of national liberation

 applicable law: HR 1907, GC I-IV, AP I, CIHL

 end of IAC: acc. to art. 6 GC IV and art. 3(b) AP I, IHL ceases to apply with the

general close of military operations. Regarding occupations, the one-year-rule acc. to

art. 6 GC IV has been overruled by CIHL. The law of occupation still applies as long

as the occupation hasn’t ceased.

2. Non-international armed conflict NIAC

Personal Scope (ratione persone): state v. OAG, OAG v. OAG

  Note that the OAG might not be within the territory of the state actor

Subject Matter (ratione materiae): according to the ICTY, a NIAC exists once there is

“protracted armed violence between governmental authorities and organized armed groups

or between such groups within a State“ (Tadic case, para. 70)  interpretation of art. 3 GC

I-IV

In order for a NIAC to exist, the threshold of intensity and organization of OAG must

be met.

a. intensity: there must be an exchange of heavy violence between two armed

groups over a distinct period of time. Both parties must engage in hostilities,

be armed and capable of inflicting a certain degree of violence.

b. organization: is already implicit in the qualification as an OAG.

 applicable law: Common art. 3 GC I-IV, CIHL, Additional Protocol II.

 end of NIAC: acc. to the ICTY, IHL ceases to apply when a peaceful settlement is

achieved. (Tadic case, para. 70).

 bear in mind that the aim of IHL is to protect the parties of an NIAC. Therefore, it

makes sense to extend the application of IHL until a peaceful settlement has been

reached)

3. Change of classification
 Internationalization of armed conflicts: a NIAC can become an IAC through the
involvement of another state. For instance: Tadić case, a NIAC can be rendered to an
IAC if a foreign state exercises overall control over the OAG.

 Internalization of armed conflicts: an IAC can become a NIAC through a change of

government in one of the state actors and subsequent consent to the presence of
foreign armed forces.