i UNIVERSITY OF AMSTERDAM FACULTY OF LAW P.O. BOX 1030 AMSTERDAM 2016/2017
A thesis submitted in partial fulfillment of the academic
requirements for the award of a Master Degree in International
and European Law with the Title of Master of Laws (LLM)
By Frank BARIGYE
Supervisor: Prof. T.D. Gill
Amsterdam, June 2017
The Role of Territorial State Consent to the
Classification of Armed Conflicts Under
International Humanitarian Law
ii
DECLARATIONS
I, Frank BARIGYE, hereby declare that this research work entitled “The Role of territorial State Consent to the Classification of Armed Conflicts under International Humanitarian Law” is to the best of my knowledge and belief of original, except where I have acknowledged in the text, and has not been submitted to any academic institution for the award of a Degree or Diploma.
Frank BARIGYE June 2017
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DEDICATION
To the Almighty God
To my lovely wife UWINGERI A Sandra To my daughter IRISA A Comfort
To my relatives and friends To all creative thinkers and researchers;
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ACKNOWLEDGEMENTS
This Thesis is a level of achievement that leaves me highly thankful to The Almighty God for his blessings. I passionately thank the Netherlands Defence Forces in cooperation with the Rwanda Defence Forces for their financial and moral support towards my educational success.
Special thanks go to Prof T.D. Gill for having accepted the idea of this research and committed his time with a good heart to guide me throughout. His mentorship and precious availability enabled me to accomplish this work in a calm environment.
I express my most sincere gratitude to the University of Amsterdam (UvA) for having offered me the Amsterdam Merit Scholarship and for having ensured through the Faculty of Law the ample knowledge which contributed to my academic success.
Lastly, my deep appreciation goes to my learned friends in the International and European Law Program 2016/2017, especially those in Public International Law Track whom we used to share constructive ideas in discussions.
I thank you all for having contributed to the realization of my dreams, May God bless you!
Frank BARIGYE June 2017
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LIST OF ABBREVIATIONS AND ACRONYMS
ADF Allied Democratic Forces
AJIL American Journal of International Law
AJIL Arizona Journal of International Law
AP. I/II Additional Protocol I/II
CAR Central Africa Republic
CA2 Common Article 2
CA3 Common Article 3
CIHL Customary International Humanitarian Law
CUP Cambridge University Press
DRC Democratic Republic of Congo
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
Edn Edition
Eds Editors
EJIL European Journal of International Law
Et al. And others
FARC Revolutionary Armed Forces of Colombia-People’s Army
GCs Geneva Conventions
GJIL Georgetown Journal of International Law
IAC International Armed Conflict
ICC International Criminal Court
ICJ International Court of Justice
ICCPR International covenant on civil and political rights
ICRC International Committee of the Red Cross
ICTY International Criminal Tribunal for the Former Yugoslavia
ICTR International Criminal Tribunal for Rwanda
Ibid. Ibidem
IHL International Humanitarian Law
IHRL International Human Rights Law
IJSR International Journal of Socialist Renewal
ILC International Law Commission
ILS International Law Studies
IRRC International Review of the Red Cross
ISIL Islamic State of Iraq
ISIS Islamic State of Syria
JIHLS Journal of International Humanitarian Legal Studies
LOAC Law of Armed Conflict
MONUSCO United Nations Organization Stabilization Mission in Congo
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N Note (Footnote)
N Number
NIAC Non-International Armed Conflict
NATO North Atlantic Treaty Organization
NSA(s) Non-State Actor(s)
NSAG Non-State Armed Group
OAG(s) Organized Armed Group(s)
OUP Oxford University Press
p./pp. Page/Pages
Para./Paras. Paragraph(s)
YPG People's Protection Units forces
PKK Kurdistan Workers’ Party
PoW(s) Prisoner(s) of War
Res. Resolution
TNAG(s) Trans-National Armed Group(s)
UK United Kingdom
UN United Nations
UNGA United Nations General Assembly
UNSC United Nations Security Council
UNTS United Nations Treaty Series
US United States
VCLT Vienna Convention on the Law of Treaties
Vol. Volume
vii
TABLE OF INTERNATIONAL INSTRUMENTS
26 June 1945 Charter of the United Nations, entered into force 24 October 1945, 892 UNTS 119 (UN Charter).
17 July 1998 Statute of the International Criminal Court, 2187 UNTS 38544 (Rome Statute).
12 August 1949 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention I).
12 August 1949 Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva Convention II).
12 August 1949 Convention Relative to the Treatment of Prisoners of War (Geneva Convention III).
12 August 1949 Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV).
8 June 1977 Additional protocol I to the Geneva Conventions of 12 August 1949, relating to the protection of victims of international armed conflicts (Protocol I).
8 June 1977 Additional protocol II to the Geneva Conventions of 12 August 1949, relating to the protection of victims of non-international armed conflicts (Protocol II).
22 May 1969 Vienna Convention on the Law of Treaties, entered into force 27 January 1980, 1155 UNTS 331 (VCLT)
14 May 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention).
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16 December 1966 International Covenant on Civil and Political Rights, entered into force 23 March 1976, 999 UNTS 171 (ICCPR)
TABLE OF JUDGMENTS
A. International Court of Justice
ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA), Judgment, 27-June-1986, Merits, ICJ Reports 1986.
ICJ, Armed Activities on the Territory of the Congo (DRC v Uganda), Judgment, 19-December-2005, ICJ Reports 2005.
ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9-July-2004, ICJ Rep 2004.
B. International Criminal Court
ICC, Prosecutor v Jean-Pierre Bemba, Case No. ICC-01/05-01/08, Pre-Trial Chamber II Judgment, 15-6-2009.
ICC, Prosecutor v Thomas Lubanga, Case No. ICC01/0401/06, Trial Chamber I Judgment, 14 -3- 2012.
C. International Criminal Tribunal for the Former Yugoslavia
ICTY, Prosecutor v Tadic, Case No. IT-94-1, Appeals Chamber Judgment, 2-10-1995.
ICTY, Prosecutor v Fatmir Limaj, Case No. IT-0366-T, Judgment, 30-11-2005.
ICTY, Prosecutor v Haradinaj et al., Case No. IT-04-84-T, Trial Chamber I Judgement, 3-4-2008.
ix
ICTY, Prosecutor v Furundzija, Case No. IT-95-17/1-T, Trial Chamber Judgment, 10-12-1998.
ICTY, Prosecutor v Tadic, IT-94-1, Appeals Chamber Judgment, 15-7-1999.
D. International Criminal Tribunal for Rwanda
ICTR, Prosecutor v Akayesu, Case No. 96 - 4 – T, Trial Chamber Judgment, 2 October 1998.
E. European Court of Human Rights
ECtHR, Jaloud v the Netherlands, Case No. 47708/08, Grand Chamber Judgement, 20 November 2014.
F. US Supreme Court
US Supreme Court, Hamdan v Rumsfeld, Secretary of Defense et al., Case No. 05–184, Judgment, 29-6-2006.
x ABSTRACT
Under IHL, the concept of consent is not expressly set out as a factor that influences the classification of armed conflicts simply because neither the pertinent articles in the Geneva Conventions namely CA2 and CA3 nor ICRC original commentaries thereto make any mention of consent or its lack by the territorial State as a determinant factor for conflicts classification. The lack of any mention of consent in the treaty law applicable (i.e. GCs of 1949) to conflicts classification creates a legal lacuna. Accordingly, the Doctrine, Jurisprudence and State practice put forward that when foreign States intervene in a prima facie NIAC with the consent of a legitimate government of a State fighting against an OAG, such conflict remains a NIAC in nature. Nevertheless, when a foreign State intervenes directly in pre-existing NIAC upon consent of the OAG against the State, a conflict may be NIAC, IAC or both but when the intervention is indirect, the conflict becomes IAC.
Nonetheless, in situations where a non-consensual foreign military intervention is directed against an independent OAG based on the territory of one State but conducting attacks against the intervening State or her allies is still so controversial whereby some scholars, international judicial bodies, and ICRC in its new commentary to 1949 GCs set out that such unconsented interventions automatically trigger an IAC between the territorial and the intervening States. In contrast, State practice and some part of the relevant legal scholarship point out that even if such interventions are unconsented, the conflicts remain NIACs except where other considerations are met to qualify them as IACs. Consequently, given the lack of a clear-cut position regarding the role played by the territorial State consent vis à vis classification of such conflicts, this thesis is geared towards analyzing whether consent or its lack by the territorial State’s matters in relation to the classification of such conflicts under IHL.
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TABLE OF CONTENTS
DECLARATIONS ... ii
DEDICATION ... iii
ACKNOWLEDGEMENTS ... iv
LIST OF ABBREVIATIONS AND ACRONYMS ... v
TABLE OF INTERNATIONAL INSTRUMENTS ... vii
TABLE OF JUDGMENTS ... viii
ABSTRACT ... x
GENERAL INTRODUCTION (RESEARCH DESIGN) ... 1
I. Introduction ... 1
II. Problem Statement ... 2
III. Research Questions ... 3
IV. Hypotheses ... 3
V. The Connection Between Problem Statement and Research Sub-Questions ... 4
VI. Research Objectives ... 5
VII. Research Methodology ... 5
VIII. Scope of the Study ... 5
IX. Research Outline ... 5
CHAPTER 1: CLASSIFICATION OF ARMED CONFLICTS UNDER IHL ... 6
1.1. Introduction ... 6
1.2. International Armed Conflicts (IACs) ... 6
A. Declared Wars ... 7
B. Armed Clashes Between States ... 8
C. Belligerent Occupation ... 9
D. National Liberation Wars ... 9
1.3. Non-International Armed Conflicts (NIACs) ... 10
A. Armed Conflict Fought Between a State and OAG(s) ...10
B. Armed Conflict Fought Between OAGs Only ...10
C. Spillover NIAC ...11
F. Multinational NIAC ...11
H. Transnational NIAC ...12
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J. Criteria for Existence of NIACs ...13
1.4. Conclusion ... 15
CHAPTER 2: CONSEQUENCES OF CONFLICTS CLASSIFICATION AND CHALLENGES AFFECTING CLASSIFICATION OF SOME SITUATIONS UNDER IHL ... 16
2.1. General……….16
2.2. Consequences of Conflicts Classification Under IHL ... 16
A. Determination of the Applicable Law ...16
B. Determination of Legal Geography of Armed Conflict ...18
C. Concurrent Application of IHL and Human Rights Law in Armed Conflicts ...20
2.3. Challenges Facing Classification of Some Situations Under IHL ... 21
A. Classification of Violent Situations Resulting from Demonstrations ...21
B. Classification of Violent Situations Arising from Organized Crime ...23
C. Fragmented Structure and Operations of Armed Groups Involved in an Armed Conflict ...24
2.4. Conclusion ... 25
CHAPTER 3: CONSENT AS AN ELEMENT IN CONFLICTS CLASSIFICATION UNDER IHL ... 26
3.1. General……….26
3.2. Foreign Military Intervention with Consent of a State Involved in a NIAC with the OAG ... 27
3.3. Foreign Military Intervention with Consent of the OAG Involved in a NIAC with a State ... 28
A. Direct Intervention in a Prima facie NIAC on the Side of the OAG ...28
B. Indirect Intervention in a Prima facie NIAC on the Side of the OAG ...28
3.4. Territorial State’s Consent in Determining Classification of Conflicts Involving Foreign Powers Against an Independent OAG ... 30
A. Intervention Against an Independent OAG with Consent of the Territorial State ...30
B. Intervention Against an Independent OAG without Consent of the Territorial State ...30
i. Claim for Violation of Sovereignty ...30
ii. Nature of the Parties and the Conduct of Operation ...33
iii. State Practice and Lack of International Condemnation ...34
3.5. Conclusion ... 35
4. GENERAL CONCLUSION ... 35
5. BIBLIOGRAPHY ... 388
1
GENERAL INTRODUCTION (RESEARCH DESIGN)
I. Introduction
The world of today is facing situations of armed violence where States are increasingly using force against OAGs outside their own territories without the consent of the host states. For example, following the renewed conflict between Turkey and PKK, Turkey has been launching airstrikes and has conducted ground operations against PKK in the northern territory of Iraq without the consent of Iraq government.1 Consequent to the Hezbollah’s involvement in the Syrian conflict on the side of the Assad government in January 2015, Israel launched a targeted airstrike against Hezbollah in which prominent Hezbollah military leaders were killed inside the Syria-held part of Golan without Syria’s knowledge and consent.2 The US in direct support of
Iraq’s government is also currently engaged in conflict with ISIL in the territory of Syria without the latter’s consent.3
However, amongst these conflicts, neither the intervening state nor the territorial state has publicly stated that they are involved in a conflict. Certainly, the classification of these conflicts is controversial due to the nature of actors involved and how they are conducted. As such, they cannot just be viewed simply as armed conflicts taking place between government forces and rebels.4 The major controversial issue involved is the role of territorial states’ consent or its lack vis à vis classification of such conflicts in the context of the IHL. The question arises whether these armed conflicts are IACs, NIACs, both or neither. The question matters because the answer
1 LULAC, International Armed Conflict in Iraq: Classification, Geneva Academy, (updated on 13th January 2017)
available at <http://www.rulac.org/browse/conflicts/international-armed-conflict-in-iraq#collapse2accord> accessed on 27 March 2017.
2 M Karadjis, The Syrian war, Israel, Hezbollah and the US-Iran romance: Is Israel changing its view on the war?
IJSR, 2015. Available <http://links.org.au/> accessed on 27 March 2017.
3 B Egan, International law, Legal Diplomacy, and the Counter-ISIL campaign: Some Observations, ILS, Vol. 92,
No.235, 2016, pp. 235-248. Available at <http://stockton.usnwc.edu/cgi/viewcontent.cgi?article=1668&context=ils> accessed on 27 March 2017.
4 MG Janaby, The Legal Status of Hezbollah in the Syrian Conflict: An IHL Perspective, AJIL, Vol. 33, No. 2, 2016,
pp. 383-384. Available <http://arizonajournal.org/wp-content/uploads/2016/11/03_Janaby_383.pdf> at accessed on 27 March 2017.
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will, in turn, determine which international legal rules apply to these conflicts and regulate their conduct.5
II. Problem Statement
At present, there is no settled position under international law about the classification of armed conflicts in which a foreign state intervenes militarily on the territory of another without the latter’s prior consent but specifically directs its attacks against an independent OAG. The relevant legal scholarship depicts two divergent contentious views, where one school of thought holds that any state intervention on the territory of another state without the latter’s consent automatically entails an IAC.6
However, other scholars take the position that an unconsented intervention by a state on the territory of another state but specifically directed against an independent OAG without affecting any of the territorial state’s organs or assets, assuming the territorial state no longer has control over those assets, such intervention cannot be against the state but only against the OAG. Consequently, the conflict remains a NIAC between the interveners and the OAG despite the lack of consent by the territorial state.7
The ICRC in its new commentary to GCs of 1949 has stated a position that an IAC arises between the territorial state and the intervening state whenever force is used on the former’s territory without its prior express consent, even if force is directed exclusively at an OAG.8 Nevertheless, some States who are involved in such armed conflicts take their own view that these conflicts remain NIACs. For instance, the Obama administration affirmed in 2016 that their armed conflict with ISIL on Syrian territory is a NIAC because they are only engaged in an
5 AA Haque, The United States is at war with Syria (according to the ICRC’s New GCs Commentary), Blog of the
EJIL, 2016. Available at < https://www.ejiltalk.org/the-united-states-is-at-war-with-syria-according-to-the-icrcs-new-geneva-convention-commentary/> accessed on 27 March 2017.
6 D Akande, ‘Classification of Armed Conflicts: Relevant Legal Concepts’, Ch. 3 in E. Wilmshurst (ed), International Law and the Classification of Conflicts, (OUP 2012), p. 75.
7 TD Gill, Classifying the Conflict in Syria, International Law Studies (Naval War College), Vol. 92 (2016) p. 367,
Available at <https://pure.uva.nl/ws/files/2807052/177096_92IntlLStudSerUSNavalWarC.pdf> accessed on 27 March 2017.
8 Commentary to the GCI for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
3
armed conflict against a NSA, and that the international law governing their military operations is the LOAC covering NIACs.9
The release of the ICRC’s new Commentary has been followed by heated debates on whether aspects of the situations under discussion should be considered as IACs rather than simply NIACs. Questions have also arisen as to whether the ICRC’s new approach to conflict classification is correct.10 Therefore, the present research will focus on the role played by consent of territorial state to the classification of armed conflicts under IHL and will evaluate whether the lack of such consent affects the classification of a situation of violence into the recognized categories of armed conflicts vis-à-vis other factors that influence conflicts classification including but not limited to the nature of the parties taking part in the hostilities.
III. Research Questions
In view of the above controversy, the main question and sub-questions arise. Thus, after consulting different related scholarly works, doctrines and jurisprudence, the following main question will be answered:
a. Is the consent of the territorial state pertinent to the classification of the armed conflicts under IHL? and if so how does it relate to other factors?
While attempting to answer the main question, the following sub-questions will also be answered:
a. How does IHL classify armed conflicts?
b. What are the implications of classifying armed conflicts under IHL?
c. Can there be an armed conflict between two or more states without military confrontations between their respective armed forces?
IV. Hypotheses
Most states engaged in hostilities with OAGs whether in the context of transnational or spillover conflicts claim that such conflicts remain NIACs since the intervention is only directed against
9 B Egan (n 3). 10 AA Haque (n 5).
4
OAGs and not against the host state.11 However, the ICJ in DRC v Uganda case has implicitly
taken a different view where it ruled that the conflict was IAC because the Ugandan military actions on the territory of Congo were conducted without the latter’s consent though Uganda claimed that its military actions were only directed against rebel groups and not against the armed forces of Congo.12
Moreover, the ICRC in its recent commentary to GCs of 1949 puts forward the lack of consent by the territorial state as a crucial factor for automatically classifying the conflicts as IACs whenever a foreign power intervenes militarily on the territory of another state without the latter’s express consent, even if such intervention is only directed at an OAG.13
However, some writers opine that even though such interventions are non-consensual, the lack of consent in and of itself does not suffice to classify the conflict as an IAC as such, they argue that the conflict remains a NIAC between the intervening State and the OAG except where other conditions are fulfilled to qualify it as an IAC opposing the territorial and intervening States.14 Mainly, their view is based on the identity of the parties engaged in hostilities and factual situation characterizing the conflict rather than the host state’s lack of consent.
V. The Connection Between Problem Statement and Research
Sub-Questions
Looking at the situations of armed conflicts today, where states are increasingly using force against OAGs on the territories of other states without their consent, the research study’s problem statement pertains to the scrutiny of the role played by consent of territorial states and its lack in classifying armed conflicts under IHL. In that vein, the sub-questions are useful to better understand other factors relevant for qualification of conflicts and to analyze whether the lack of consent matters vis-à-vis conflicts classification under IHL.
11 B Egan (n 3).
12 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) Judgment, ICJ Rep
2005, paras. 108 & 146.
13 ICRC New Commentary (n 8) p. 262.
14 N Lubell, Extraterritorial use of force against NSAs, OUP, 2010, pp. 92-134. A Paulus & M Vashakmadze, Asymmetrical war and the notion of armed conflict: a tentative conceptualization, Vol. 91, No. 873, IRRC, 2009,
5
VI. Research Objectives
The research specifically aims to analyze the role of territorial state consent in classifying armed conflicts under IHL by evaluating whether the lack of such consent would affect the classification of conflicts.
Moreover, the research is quite significant, because while much has been written about the classification of armed conflicts under IHL, fewer attempts have been made to analyze the role of territorial State consent in conflicts classification, although it is an obscure concept under IHL. Finally, this research paper intends to reach the conclusion that even though the intervention is non-consensual, where the intervening State only directs its hostilities at an OAG, without any indication of affecting the territorial State, the conflict remains a NIAC between the intervening State and the OAG.
VII. Research Methodology
The research methodology adopted in this research is a theoretical legal approach to elaborate the concept of territorial State consent in the classification of armed conflicts under IHL. Throughout the process, it is based upon a study of legal instruments, case law, and legal literature specifically related to the role of territorial state consent in the classification of armed conflicts under IHL. In this research, internet sources like journal articles and other relevant publications available online will also be consulted.
VIII. Scope of the Study
Because this research falls in the field of public international law, particularly in the domain of IHL, it will be limited to the confines of those branches of law. More specifically, this research work will be limited to the role of territorial State consent in classifying armed conflicts under IHL.
IX. Research Outline
The first part considers the general introduction, which includes the definition of the topic and the description of the research or in other words research design. The First chapter discusses the recognized classifications of armed conflicts under IHL. Subsequently, Chapter Two attempts to
6
address the consequences of conflicts classification and current challenges facing classification of some situations under IHL. Furthermore, Chapter Three discusses the consent as an element in conflicts classification under IHL. Finally, Chapter Four endeavors to provide some conclusions based on the analysis in the preceding chapters.
CHAPTER 1: CLASSIFICATION OF ARMED CONFLICTS UNDER IHL
1.1. Introduction
This chapter attempts to provide a general overview of the recognized classifications of armed conflicts under IHL. It also sets out various criteria for determining the occurrence of any type of armed conflict. In that context, it analyses the law to be applied in each type of armed conflict. Indeed, as IHL applies in times of armed conflict to regulate how belligerents behave, it is imperative to evaluate first whether the situation has amounted to an “armed conflict”.15 It is
undisputable that IHL does not specifically define the term “armed conflict”, it only recognizes and explains the two types of armed conflicts such as IAC and NIAC.16
However, the ICTY in Tadic case, the recognized leading judgment on classification of armed conflicts under IHL has suggested a general definition of what is an armed conflict where it states that “an armed conflict exists whenever there is a resort to armed force between States or
protracted armed violence between governmental forces and one or more OAGs or between such armed groups only within a state”.17 Apparently, the latter definition set out by the tribunal
includes both IAC and NIAC. Thus, the proceeding sections will explicate more on each type of armed conflict for the overall purpose of having a coherent understanding.
1.2. International Armed Conflict (IAC)
The notion of IAC is not a new phenomenon, it was developed long time ago whereby the eminent scholars such as Samuel von Pufendorf, Hugo Grotius, and Emmerich de Vattel have attempted to differentiate armed conflicts between States from those fought against private
15 ICRC, The Distinction Between IACs and NIACs: Challenges for IHL? The beginning of IAC and NIAC for the
purpose of the applicability of IHL, XXXVIII Round Table on Current Issues of IHL, International Institute of Humanitarian Law, (Sanremo, 3rd-5th September 2015) p. 1.
16 D Akande (n 6) p. 32.
17 Prosecutor v Tadic, IT-94-1-A, ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory
7
individuals”18 where they opined that only States as sovereign powers were real enemies and if a
conflict opposing them was accompanied by formalities such as declaration of war, it was considered as an IAC. In principle, only IACs were regulated by IHL because international law was designed to regulate relations between States.19
Currently, the API of 1977 and the GCs of 1949 plus relevant CIHL rules govern the situations of armed confrontations that amount to IACs, where CA2 to GCs provides that
“…. the present convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the high contracting parties, even when the state of war is not recognized by one of them. The convention shall also apply to all cases of partial or total occupation of the territory of a high contracting party, even if the said occupation meets with no armed resistance. Although one of the powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereto”.20
Apparently, the foregoing provision which has acquired a customary rule status is the starting point of qualifying a situation of armed violence as an IAC as such, different forms of IAC can be drawn from its text:21
A. Declared Wars
The abovementioned CA2 implies that qualification of a situation of armed confrontations between the parties thereto as an IAC requires a formal declaration of war. This means that where the parties fail to consider themselves at war, they would escape the application of the laws of war, however, the later view is no longer relevant to the current practice whereby the existence of an IAC does not require a formal declaration of war or recognition of the situation as an armed conflict by either side of the conflicting parties, it rather depends on the factual
18 ICRC Report (n 15) p. 2. 19 ibid.
20 Geneva Conventions of 1949, Common Article 2. 21 ICRC Report (n 15).
8
situation of the conflict. Example is where a state does not recognize the government of the adversary, an IAC still exists between them on the simple basis of the factual situation.22
B. Armed Clashes Between States
The provisions of CA2 indicated above also describe that IACs are those conflicts of any kind fought between sovereign States.23 This view has been confirmed by the ICTY in Tadic case, where it has determined that “an armed conflict exists whenever there is a resort to armed force
between States”.24 ICRC in its updated commentary to the GCs of 1949 has also established that
an armed conflict within the meaning and scope of CA2 occurs whenever a state uses force against another state, although the latter does not respond militarily.25
Moreover, it is argued that even when one or more States use armed force against another State, irrespective of the motives or the level of violence, such conflict qualifies as an IAC.26 Furthermore, it is said that IACs in the sense of CA2 take place between states even if the state of war is not recognized by one of them, more so, the generally held position is that IHL applies to the situations of armed conflicts even if neither party recognizes a state of war.27 In addition, it is opined that an armed conflict in the sense of CA2 occurs whenever parts of the armed forces of two States clash with each other.28
Nevertheless, other scholars argue that the inconsequential intrusion by the armed forces of a state into another state will not amount to an IAC, simply because the occurrence of an IAC depends on the factual circumstances of the military operation on the ground.29 This approach
further suggests that the occurrence of an IAC depends on the significant use of force by one state against another or concerted and sustained hostilities between their respective armed forces.30 But Prof. T.D. Gill has criticized this view arguing that it creates a legal lacuna while
22 ICRC, ‘how the term armed conflict is defined in international humanitarian law’ (opinion paper) (2008) p. 1.
Available at <https://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf> accessed on 04th March
2017.
23 ibid 24 Tadic (n 17).
25 ICRC New Commentary (n 8). 26 ICRC Opinion Paper (n 22).
27 C Greenwood, ‘The Concept of War in Modern International Law’, International and Comparative Law Quarterly,
Vol. 36, No. 2, (1987) p. 283.
28 ICRC Opinion Paper (n 22).
29 JK Kleffner, ‘Human Rights and International Humanitarian Law: General Isssues’ Ch. 3 in TD Gill & D Fleck et
al (eds), The Handbook of the International Law of Military Operations, (2nd edn OUP London 2015) p. 38. 30 T.D. Gill (n 7) p. 363.
9
supporting the low threshold which offers more protection.31Arguably, what is most important
today is the factual situation describing the conflict rather than its formal status.32
C. Belligerent Occupation
Furthermore, the IACs in sense of CA2 cover the situations of the occupation of another state’s territory either in whole or in part even though such occupation does not meet any armed resistance.33 This view was well set out in the ICJ Wall Advisory Opinion that even in a situation where a foreign territory is occupied without armed confrontations the rules of IAC laid down in CA2 paragraph 2 will apply. It is argued that the rationale behind this kind of interpretation is to give full protection to the civilian population who find themselves under the authority of the foreign occupying power.34
D. National Liberation Wars
In addition to the forms of IACs laid down in CA2, the text of API also includes in the definition of IACs the “…. conflicts in which peoples are fighting against colonial domination, alien
occupation, or racist regimes in the exercise of their right to self-determination…”.35 The preceding depicts the assumption that wars of national liberation are also taken as IACs.36 It has been argued that a formal international recognition of an OAG engaged in a war of national liberation is not a requirement for application of article 1 paragraph 4 of API.37
In view of the above, it is notable that qualification of a situation as an IAC is largely a matter of fact rather than a matter of legal form simply because any kind of armed violence occurring between armed forces of two or more states even if at a very low threshold will lead to the occurrence of an IAC.
31 ibid.
32 C Greenwood (n 27). 33 ICRC Report (n 15) p. 4.
34 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (ICJ Advisory Opinion)
ICJ Rep 2004, para. 95.
35 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts, art. 1 para. 4, (Protocol I) 8 June 1977 [hereinafter AP I].
36 D Fleck “The Law of Non-International Armed Conflict” Ch 12 in D Fleck et al (eds) The Handbook of International Humanitarian Law (3rd edn OUP London 2013) p. 583.
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1.3. Non-International Armed Conflicts (NIACs)
Conventionally, NIACs are governed by CA3 to the GCs of 1949, AP II of 1977 and applicable rules of Customary IHL. The wording of CA3 states that “in the case of armed conflict not of an
international character occurring in the territory of one of the High Contracting parties, each party to the conflict shall be bound to apply as a minimum, the following provisions….)”38
The preceding provision implies that NIACs must occur on the territory of a sovereign state and that in any case, one of the parties involved in such conflicts must be a NSA.39 Presently however, all 04 GCs of 1949 have universally been ratified whereby the requirement that such conflicts must occur “in the territory of one of the High Contracting Parties” will apply a literal reading of this provision in a variety of situations. However, a NIAC must occur on the territory of a State party to the Conventions.40 Therefore, according to J. Pejic different forms of NIACs
can be inferred from the sense of CA3:41
A. Armed Conflict Fought Between a State and OAG(s)
The first form of NIAC is a conflict which occurs when armed forces of a government are
fighting one or more OAGs on the territory of a sovereign state.42 The qualification of this kind of situation does not depend on whether the OAG has a political program or not, what is important however is whether the OAG has a certain level of organization and the armed violence is of high level.43 Example is a conflict between the Colombian government and various rebel groups including FARC in which the requirements of the intensity of hostilities and organization of parties involved therein were obvious.
B. Armed Conflict Fought Between OAGs Only
The second form of NIAC is a conflict which takes place when two or more OAGs are fighting
each other on the territory of a single state,44 either in the struggle for power or control of key parts of a territory. A current example is a conflict between YPG and ISIS over control of Syrian
38 Geneva Conventions of 1949, Common Article 3. 39 T.D. Gill (n 7)
40 ICRC Opinion Paper (n 22).
41 J Pejic, The protective scope of Common Article 3: More than meets the eye, Selected Article On International
Humanitarian Law, International Review of ICRC, Vol. 93, No. 881, 2011, pp. 193-195.
42 Tadic (n 17).
43 Prosecutor v Fatmir Limaj, IT-0366-T, ICTY Judgment, 30 November 2005, para. 84. 44 Tadic (n 17).
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border crossings with Turkey.45 It can be argued that this kind of conflict arises especially in
situations where the central administration of the state is unable to eliminate such OAGs on its territory.
C. Spillover NIAC
The third form of NIAC is a “spillover armed conflict” which occurs when a conflict originally taking place on the territory of one state between government armed forces and one or more OAGs spills over to the territory of a neighboring state(s). Examples include, the Kenyan armed forces in response to the attacks by Al-Shabaab Militias on its territory, have crossed Kenyan border with Somalia.46 Colombian armed forces infiltration into the Ecuadorian territory against FARC,47 and Turkey’s attacks against PKK in the northern parts of Iraq.48
It has been argued that such spilled-over conflicts will be treated as NIACs if a sufficient nexus is established that the spilled-over component is still clearly between parties engaged in the main NIAC and the hostilities in the two adjacent territories cannot be wholly separated.49 It can be argued that the spilling over of a NIAC to the territory of a bordering state should not affect its qualification if the parties are still the same and such conflict has not affected the territorial State in anyway.
F. Multinational NIAC
The fourth form of NIACs is a “multinational armed conflict” which especially arises when a state or a coalition of states are fighting alongside the armed forces of a territorial state against the OAG on that state’s territory.50 Despite such foreign involvement, since the armed conflict
does not oppose sovereign states and all state actors are fighting on the same side, it is argued that such conflict qualifies as a NIAC. A clear example is the intervention of France and the
45 T.D. Gill (n 7) p. 360.
46 ND White and H Christian, Research Handbook on International Conflict, and Security Law: Jus ad bellum, Jus in
bello and Jus post bellum, 2013, p. 290.
47 T.D. Gill (n 7) p. 371. 48 ibid.
49 ND White and H Christian (n 46) p. 291.
50 F Magret, IHL and Multilateral Forces IV: Crucial Questions, (ICRC) 2013. Available at
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several African States in Mali conflict in 2013 in direct support of Mali government to fight Islamic rebels on the territory of Mali.51
Moreover, “multinational NIACs” occurs when UN forces or forces under the control of a regional organization such as AU are fighting in support of a territorial state against an OAG on the territory of the host State.52 It is observed that the moment such multilateral force becomes a party to a pre-existing NIAC, they are bound by the applicable IHL rules and the conflict continues to be qualified as a NIAC. The recent example is the involvement of MONUSCO intervention brigade in support of Congolese government armed forces against M23 and other OAGs in Eastern Congo.53
H. Transnational NIAC
The last form of NIAC is the so-called “transnational armed conflict” which is fought between States and OAGs operating in the territories of different States.54 Example is the conflict between the US and Al Qaeda and its affiliates.55 In 2004, the Bush administration qualified the latter conflict as a “global war on terror” where it argued that such conflict cannot be qualified as an IAC regulated by GCs of 1949 because Al-Qaeda is not a state and it cannot be a NIAC as it was beyond a territory of a single state.56 Nevertheless, in Hamdan case, the US Supreme Court has indeed overturned the latter US government’s view and qualified that conflict as a NIAC regulated by CA3 because of US treaty obligation of providing minimal protection under the GCs to “individuals associated with a non-signatory Power who are involved in a conflict in the
territory of a signatory”.57 Arguably, TNACs against independent OAGs can be classified as
either IACs, NIACs or both.58
51 FC Onuoha & A Thurston, Franco-African Military Intervention in the Mali Crisis, and Evolving Security
Concerns, (Report) Aljazeera Center for Studies, (19 February 2013) p. 7.
52 AJ Carswell, IHL and Multilateral Forces V: Diverse Views Reflect need for Clarity (ICRC) 2013. Available at
<http://intercrossblog.icrc.org/blog/ihl-and-multinational-forces-v-diverse-views-reflect-need-for-clarity> accessed on 5 April 2017.
53 D Whittle, “Peacekeeping in Conflict: The Intervention Brigade, MONUSCO, and the Application of IHL to
United Nations Force”, Georgetown Journal of International Law, Vol. 46, 2015, pp. 842-846.
54 D Carron, Transnational Armed Conflicts: An Argument for a Single Classification of NIAC, Journal of
International Humanitarian Legal Studies, Vol. 7, No. 1, 2016, pp. 5-31.
55 D Fleck (n 36) p. 584. 56 ibid.
57 Hamdan V Rumsfeld, Secretary of Defense et al., No. 05–184, (US Supreme Court) 2006, pp. 628-631. 58 D Carron (n 54).
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I. NIACs in the sense of AP II
The AP II while attempting to differentiate NIACs in the sense of CA3 from less serious forms of violence such as internal disturbances, it suggests that the situation has to reach at least a certain level of violence, as laid down in its Article 1(2) that “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”.59 Certainly, this
provision which totally excludes internal turbulences and tensions from the definition of NIACs also applies to conflicts in the meaning of CA3. However, it can be argued that this depicts a higher threshold for the existence of a NIAC.
Additionally, the text of Article 1(1) of AP II indicates a limited definition of NIACs where it provides that “This Protocol …... shall apply to all armed conflicts which are not covered by
Article 1 of API …... 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”.60
Indeed, the foregoing implies a narrow definition compared to the notion of NIACs laid down in CA3 in two perspectives. First, it brings a new requisite of territorial control, where is establishes that the OAG must exercise control over part of the State territory. Secondly, it introduces another specialty of applying only to the conflicts between governmental armed forces and OAGs only.61 Accordingly, the definition of NIACs established by the Protocol excludes armed
conflicts involving OAGs fighting each other even if occurring on the territory of one of the contracting parties.62
J. Criteria for Existence of NIACs
The ICTY has attempted to elaborate more on the definition of NIACs where it has determined in Tadic case that a NIAC exists “whenever there is protracted armed violence between
governmental authorities and organized armed groups or between such armed groups within a
59 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
Non-International Armed Conflicts, art. 1 para. 2, (Protocol II) 8 June 1977 [hereinafter AP II].
60 ibid. art. 1 para 1. 61 ibid.
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State”.63 The latter definition has indeed become general and the starting point for evaluating
whether any violent situation qualifies as a NIAC in the judgments that followed. Notably, Limaj
case has emphasized two requirements of intensity and organization for the existence of a
NIAC,64 where it states that the OAG taking part in hostilities must be regarded as “party to the
conflict”. This implies that the group must have a well-organized army, under a recognized
command structure and capable of conducting concerted and sustained military operations.65 And the “hostilities must reach a certain level of intensity”.66
Moreover, one of the leading judgments on the conditional requisites for assessing both criteria of intensity and organization which are necessary for the occurrence of a NIAC is Haradinaj
judgment which lists almost all the necessary indicative factors that constitute each criterion. On
the criteria of intensity, the judgment sets out the following standards:
“The indicative factors include the number, duration, and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the intensity of a conflict”.67
About the organization of the parties to the conflict, Haradinaj judgment lays down the inter alia standards:
“The existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troops movements and logistics; its ability to define a unified military
63 Tadic (n 17). 64 Fatmir Limaj (n 43). 65 ibid. paras. 94-134. 66 ibid. paras. 135-170.
67 Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, ICTY Trial Chamber I, Case No. IT-04-84-T,
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strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords”.68
Undisputedly, the foregoing indicators suggested by ICTY are not exhaustive. Nevertheless, they are important criteria to use in assessing whether the hostilities have reached intensity and the parties involved therein are well organized, in order to determine whether a situation amounts to a NIAC and also differentiating it from other internal less violent conflicts which do not amount to NIACs.69
1.4. Conclusion
To conclude, the present chapter has revealed that IHL recognizes two types of armed conflicts, each of which is governed by a separate legal regime. The first, IAC which opposes sovereign States, is governed by all applicable conventional rules to which the opposing States are party and all rules of customary IHL relating to IACs. The threshold for the occurrence of an IAC is generally low, simply because any kind of armed confrontations occurring between armed forces of two or more States even if at a very low-level lead to the existence of an IAC.
The second is NIAC which is a protracted armed violence between armed forces of a government and the OAGs or fought between such groups only within the territory of a single state. Although NIACs take different forms as discussed above, it is necessary that one of the parties engaged in the conflict must be a NSAG. The threshold for the occurrence of a NIAC is generally higher because it demands parties engaged therein to have a certain level of organization to enable them to conduct concerted and sustained military operations and a sufficient level of intensity of violence beyond the less violent internal strife.
Having observed that a conflict can either be classified as IAC or NIAC depending on the structure of the parties involved and or the factual situation. It is imperative to recall that upon the classification of any situation of violence as an armed conflict some consequences follow and at times such classification encounters some challenges. In this regard, the next chapter will embark on the consequences of conflicts classification and challenges facing such classification under IHL.
68 ibid. para. 60.
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CHAPTER 2: CONSEQUENCES OF CONFLICTS CLASSIFICATION AND
CHALLENGES AFFECTING CLASSIFICATION OF SOME SITUATIONS UNDER IHL
2.1. General
It is indispensable to understand the consequences that follow from the classification of a situation of violence as an armed conflict under IHL. In principle, IHL applies during the times of armed conflict as such, upon determining that a violent situation qualifies as an armed conflict falling under the two recognized types of armed conflicts under the law of armed conflict, namely, IACs which are fought between sovereign states and NIACs which take place between armed forces of a state and one or more armed opposition groups or between such groups within the confines of a single state,70 a specific IHL legal regime will be applicable to regulate its
conduct. On the other hand, classification of conflicts under IHL has gradually become intricate due to the current situations of armed violence which do not neatly fit into the latter two categories. This chapter attempts to shed lights on the consequences of conflicts classification and the challenges affecting classification of some situations under IHL.
2.2. Consequences of Conflicts Classification Under IHL
A. Determination of the Applicable Law
The classification of a conflict as either IAC or NIAC will determine the pertinent legal regime applicable to govern its conduct. The treaty law applicable to each time of conflict is different.71 Where the GCs of 1949, The Hague Conventions of 1907 and AP I of 1977 apply to IACs. Indeed, the latter treaties contain numerous provisions which establish a detailed body of rules relating to the conduct of hostilities as well as ‘rules relating to the protection of those who do not, or no longer take part in hostilities’.72 On the other hand, the treaty law applicable to NIACs
is restricted to CA3 to the 1949 GCs and AP II of 1977 which are only “limited to basic
protection of those who do not, or no longer take part in hostilities and has no rules regulating
70 Tadic (n 17)
71 S Verhoeven, ‘International and Non-International Armed Conflicts’ Ch. 5 in J Wouters et al (eds) Armed
Conflicts and the law (1st edn, vol. 17, Intersentia, 2016) pp. 151-152. D Akande (n 6) pp. 34-35. 72 D Akande (n 6) p. 35.
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the conduct of hostilities”73 and also Article 8 of the ICC Statute which criminalizes violations of
IHL in NIACs.74
Nevertheless, the gap between the regimes governing both types of armed conflicts has been narrowed to offer more favorable protection to the protected persons and objects because some recent treaties that regulate the conduct of parties during hostilities apply similarly both to IACs and NIACs such as, the 1972 Biological Weapons Convention, the 1993 Chemical Weapons Convention, the 1997 Anti-Personnel Land Mines Convention, Conventional Weapons Convention amended in 2001 and its protocols which extend to NIACs and the 1954 Cultural Property Convention and two protocols thereto which oblige the parties involved in a NIAC taking place on the territory of a State party to the Convention to respect cultural property.75 Moreover, Verhoeven has argued that majority of CIHL rules apply in NIACs and fill the gaps left by the applicable treaty law to eliminate the division in regulation of IACs and NIACs.76 The ICTY Appeals Chamber confirmed this view in Tadić case where it ruled that
“....it cannot be denied that customary rules have developed to govern internal strife. …. cover such areas as protection of civilians during hostilities from indiscriminate attacks, protection of civilian objects, in particular cultural property, protection of all those who do not (or no longer) take active part in hostilities, as well as prohibition of means of warfare proscribed in NIACs and ban of certain methods of conducting hostilities”.77
Furthermore, the ICRC has found thatout of 161 rules of CIHL identified in its 2005 study, 142 rules apply similarly to both types of armed conflicts to fill the gaps left by the applicable treaty
73 ibid.
74 ibid; Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187
UNTS 38544 (Rome Statute) Art. 8(2) (c) and (e).
75 D Akande (n 6) p. 35. Convention for the Protection of Cultural Property in the Event of Armed Conflict (14 May
1954), (The Hague Convention), arts. 4 and 19; R O’keefe, ‘Protection of Cultural Property’ Ch. 9 in TD Gill & D Fleck et al (eds), The Handbook of the International Law of Military Operations, (2nd edn OUP London 2015) p.434. 76 S Verhoeven (n 71) 154.
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law in order to eliminate the division in regulation of IACs and NIACs78 especially as regard the
conduct of hostilities.79
However, as D. Fleck puts it, the rules of CIHL have not eliminated that gap completely because differences still exist where for instance the parties to an IAC may to some extent resort to belligerent reprisals while the parties to a NIAC are not permitted to do so, parties to an IAC may seize public property such as military equipment of the adversary but in NIACs such seizure is not provided for. Also in IACs combatants enjoy POW status upon capture and they cannot be prosecuted because they have combatant immunity save for the acts that violate IHL. By contrast, in NIACs fighters of the OAG do not have POW status but they can at least enjoy procedural safeguards provided by Human Rights law. Moreover, in IACs POWs should be released without delay upon cessation of hostilities. Contrary, under IHL regime governing NIACs there is no regulation of time to release detained persons but from the practice of UNSC and other regional organizations through their resolutions, detained persons should be released immediately when the reasons for their detention are no longer in place.80
B. Determination of Legal Geography of Armed Conflict
With regard to the legal geography of an armed conflict as a consequence of classification, ICTY has determined that when a situation is conclusively classified as an IAC, the IHL regime governing IACs will apply in the entire territories of all the states taking part in the hostilities “until a general conclusion of peace is reached”.81 It is also argued that whenever hostilities or
exercise of belligerent rights occur in the international sea and airspace outside the territory of neutral states, the regime of IHL pertaining to IACs applies. However, the question whether the individuals and objects can be targeted in the territory of all the states engaged in an IAC is not wholly settled.82
78 JM Henckaerts and L Doswald-Beck, Customary International Humanitarian Law Study, 2005, P.107; S
Verhoeven (n 76) 154.
79 J Ballinger and W Haynes, ‘A US Government Response to the ICRC Study on Customary International
Humanitarian Law’ (2007) IRRC 89 (866), p. 443
80 D Fleck (n 36) pp. 603-604. 81 Tadic (n 17).
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Moreover, the existence of an IAC triggers the law of neutrality, simply because the latter applies once an armed conflict occurs between sovereign states.83 In that vein, the territory of
neutral states is regulated by the rules governing neutrality and is inviolable to the extent that the neutral states respect their neutrality obligations.84 While, the rules of neutrality can be altered by the enforcement action authorized by the UNSC acting under Chapter VII of the UN Charter because such action is regulated by various specific rules distinct from the regime of neutrality, in practice this relates more to the enforcement action of a non-military character than to hostilities.85
On the other hand, when a conflict is classified as a NIAC, the regime of IHL regulating NIACs not only applies to the parts of a state’s territory where a conflict is ongoing but to the entire territory under the control of that state, regardless of whether the actual military operations occur therein.86 This view was also taken by ICTR in Akayesu case where it ruled that
“…. the mere fact that Rwanda was engaged in an armed conflict meeting the threshold requirements of CA3 and AP II means that these instruments would apply over the whole territory hence encompassing massacres which occurred away from the war front. From this follows that it is not possible to apply rules in one part of the country (i.e. CA3) and other rules in other parts of the country (i.e. CA3 and AP II)”.87
The foregoing implies that the applicability of the law of NIAC extends to the whole territory of the state engaged in such conflict, the legal geography of IHL regime relating to NIACs is therefore not limited to the areas of actual combat or their vicinities.88
From the above, it is observed that the NIAC regime is applicable within the State where a conflict is ongoing. But for the purposes of this thesis, the NIACs regime should extend to the
83 ibid.
84 M Bothe, ‘The law of Neutrality’ Ch 11 in D Fleck et al (eds) The Handbook of International Humanitarian Law
(3rd edn OUP London 2013) pp. 552-553. 85 ibid.
86 Tadic (n 17).
87 ICTR, Prosecutor v Akayesu (2 October 1998) paras. 635-636.
88 JK Kleffner, ‘Scope of Application of international Humanitarian Law’, Ch. 2 in Dieter Fleck et at., The Handbook of International Humanitarian Law, OUP, 2013, p. 59.
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territory of other States in the framework of “spillover” or “transnational” armed conflicts against OAGs.
C. Concurrent Application of IHL and Human Rights Law in Armed Conflicts
It is true that IHL applies only during an armed conflict because it was designed to govern the conduct warfare, whereas IHRL applies both in peacetime and wartime, ICJ confirmed this view in Wall Advisory Opinion where it suggested that “…the Court considers that the protection
offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the ICCPR…”,89 when
these two bodies of law are applied concurrently during an armed conflict, they complement each other and offer more advantages as regards the protection of persons.90
Undeniably, when a situation of armed violence is classified as an IAC which opposes sovereign States, all parties will be equally bound to observe IHL and IHRL applicable.91 However, when a conflict is qualified as a NIAC fought between a State and one or more OAGs on the territory of a single State, a State will be bound to abide by relevant provisions of IHL and IHRL whereas the OAG will only be bound by IHL.92 This so because HR treaties do not create legal obligations for OAGs.93 Arguably however, in situations where the OAG controls part of a territory or where it has accepted to be bound by HR obligations through signing an agreement, it has the capacity to act like governmental authority and would be expected to respect HR.94
By contrast, IHL governing NIACs expressly binds both States and OAGs,95 where it establishes
the ‘equality of rights and obligations between states and OAGs for the benefit of all persons who may be affected by their conduct during hostilities’.96
Further, it is uncontroversial that IHL applies extraterritorially whether in IACs or NIACs with extraterritorial elements particularly in regard to the protection of persons.97 Moreover, it has
89 ICJ Wall Advisory Opinion (n 34) para. 106. 90 JK Kleffner (n 29) pp. 57-58.
91 ibid. pp. 45, 51.
92 L Zegveld, Accountability of Armed Opposition Groups in International Law, CUP, 2002, p. 42.
93 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) art 2; L Zegveld (n 92) pp. 39-40.
94 L Zegveld (n 92) pp. 47, 49-51. 95 JK Kleffner (n 29) p. 45.
96 CA3 to the GCs of 1949 elaborates the obligations of all parties to a NIAC to protect civilians. 97 ibid. p. 15.
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also been opined that HR treaties such as the ECHR apply extraterritorially when States parties exercise physical control over persons, exercise effective control over territory or exercise governmental authority like that of territorial State.98 However, the issue of extraterritorial
application of IHRL is only applicable for states, it is not yet established that the OAGs have such extraterritorial HR obligations when they engage in cross-border NIACs.99
Therefore, it can be argued that the indicated irregularities as regards the range of rules the belligerent parties must respect depict some disparities to the concurrent application of two bodies of law because they provide an advantage to the OAGs which are only bound by IHL whereas States are required to respect both legal regimes.
2.3. Challenges Facing Classification of Some Situations Under IHL
As discussed earlier in Chapter Two and in the preceding sections of this Chapter, IHL recognizes two types of armed conflicts. Notably, international and non-international armed conflicts, and most especially qualification of each is mainly premised on the identity of the parties involved in hostilities. However, the questions remain as to when does a situation of violence particularly those resulting from internal demonstrations and organized crime and other similar situations amount to an armed conflict under the latter categories recognized by IHL.100 As such, this section discusses challenges that affect the classification of some situations under IHL.
A. Classification of Violent Situations Resulting from Demonstrations
As discussed earlier in Chapter Two, the ICTY has held that a NIAC in the sense of CA3 occurs when there is “protracted armed violence between governmental forces and one or more
organized armed groups or between such armed groups only within a state”.101 The tribunal in
its subsequent judgments, while applying Tadic as the starting point to assess whether a given
98 Case of Jaloud v the Netherlands, ECtHR (Grand Chamber), Application no. 47708/08, 20 November 2014,
Judgement (Merits and Just Satisfaction), (Jaloud Case), para.152.
99 JK Kleffner (n 29) p. 52. 100 ICRC Report (n 15) p. 6. 101 Tadic (n 17).
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violent situation has amounted to an armed conflict,102 has underlined two requirements of
intensity and organization for the existence of a NIAC.103
Both legal doctrine and jurisprudence have gone further to elaborate on the indicative factors that form each criterion, where the indicia of organization which is the concern here include “the
existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations…..104
However, some conflicts begin as demonstrations but the degree of violence escalates very fast to the required level of intensity for NIACs because both the government and protestors resort to violent actions. Shortly, the protestors form an armed group and acquire some degree of organization which at least enables them to conduct coordinated attacks. Example is the 2011 Libyan conflict which started as peaceful demonstrations part of Arab spring but the protestors later formed the National Transitional Council of Libya and the conflict became violent.105
In most cases, the requisite of AP II that the group should control a certain part of a territory as an indicative factor of organization exists. But the degree of organization is difficult to establish especially in the early stages of the conflict because some indicative elements are not fulfilled such as the presence of a command structure and disciplinary rules and other mechanisms governing the group among others, hence, to ascertain the existence of a NIAC based on the organization criteria becomes intricate and delays classification until mature stages of the conflict.
Nevertheless, considering that the purpose of conflicts classification is to identify the applicable legal framework to be observed in the use of force for humanitarian purposes, the high demands pertaining to the organization requirement are impractical and should be adjusted to meet the reality of today’s conflicts. Otherwise, the most present conflicts with high intensity and calamitous effects would fall below the threshold of IHL due to organization requirement.
102 Prosecutor v Furundzija, Case No. IT-95-17/1-T, ICTY Trial Chamber Judgment, 10 December 1998, para 59. 103 Fatmir Limaj (n 43).
104 Prosecutor v Ramush Haradinaj et al (n 67); JK Kleffner (n 29) p. 40.
