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FACULTYOF LAW

Armed Conflict or Internal Disturbances?

The Lower Threshold of Non-International Armed Conflicts and Recent Conflicts in The Americas

Submitted by:

Sophia Zademack

Student Number: 12897949 Email: sophia.zademack@uzh.ch

Submitted on the 24 July 2020

Master Thesis International and European Law: Public International Law Supervisor: Dhr. Mr. Dr. J.C. van den Boogaard

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Geneva Academy. Two New Non-International Armed Conflicts in Mexico involving the Sinaloa Drug Carte. 10 March 2020. <https://www.geneva-academy.ch/news/detail/314-two-new-non-international-armed-conflicts-in-mexico-involving-the-sinaloa-drug-cartel> (last accessed on 17 July 2020)

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Human Rights Watch, Mexico, Events of 2018, available at: <https://www.hrw.org/world-report/ 2019/country-chapters/mexico> (last accessed on 17 July 2020)

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ICC, Office of the Prosecutor, Interim Report on the Situation in Colombia, November 2012 (herein after: Interim Report Colombia)

ICC, Report on Preliminary Examination Activities 2013, November 2013, available at: <https:// www.icc-cpi.int/OTP%20Reports/otp-report-2013.aspx> (last accessed: 9 July 2020)

(herein after: Report on Preliminary Examination Activities)

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UN Commission on Human Rights, Minimum Humanitarian Standards, Analytical Report of the

Secretary-General Submitted pursuant to Commission on Human Rights Res. 1997/21, 5 January

1998, UN Doc. E/CN.4/1998/87. (herein after: UN Doc. E/CN.4/1998/87

UN Commission on Human Rights, Minimum Humanitarian Standards: Analytical Report of the

Secretary-General Submitted pursuant to Commission on Human Rights Res. 1997/21, 3 March

1995, UN Doc. E/CN.4/1998/87

(herein after: UN Doc. E/CN.4/1998/87

UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Summary Record of the 35th Meeting, 20 November 1998, A/CONF.183/C.1/SR.35. (herein after: A/CONF.183/C.1/SR.35)

UN General Assembly, Preparatory Committee on the Establishment of an International Criminal Court, Decisions Taken by the Preparatory Committee at its Session Held 11 to 21 February 1997, 12 March 1997, A/AC.249/1997/L.5.

(herein after: A/AC.249/1997/L.5)

UN General Assembly, Report of the Ad Hoc Committee on the Establishment of an International

Criminal Court; 6 September 1995, GA, 50th Session, Supplement No. 22, A/50/22

(herein after: Supplement No. 22, A/50/22)

UN General Assembly, Situation of human rights and fundamental freedoms in El Salvador

resolution / adopted by the General Assembly, 17 December 1991, A/RES/46/133 (1991)

(herein after: A/RES/46/133 (1991)

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resolution / adopted by the General Assembly, 18 December 1990, A/RES/45/172 (1990)

(herein after: A/RES/45/172 (1990)

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for Human Rights and reports of the Office of the High Commissioner and the Secretary-General,

Report of the United Nations High Commissioner for Human Rights on the situation of Human rights in the Bolivarian Republic of Venezuela, A/HRC/41/18

(herein after: A/HRC/41/18)

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(herein after: Definitions, Uppsala University)

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TABLEOF CONTENTS

Introduction

_________________________________________________

2

Chapter 1: Legal Framework

___________________________________

4

A. General Remarks 4

B. Legal Provisions applying to NIACs or Internal Disturbances 5 C. Legal Threshold of the Geneva Conventions, the Additional Protocol II, the

ICTY and the Rome Statute 7

a) Common Article 3 7

a. General Considerations 7

b. Requirements 8

c. State Practice 9

b) Art. 1 Additional Protocol II 11

a. General Considerations 11

b. Requirements 12

c. State Practice 14

c) ICTY & Tadić Case 15

a. General Considerations 15

b. Requirements 15

d) Rome Statute 18

a. General Considerations 18

b. Art. 8(2)(c) and Art. 8(2)(f) Rome Statute 18

c. Requirements 20

Chapter 2: Analysis

__________________________________________

23

A. Common Article 3 and Additional Protocol II 23

B. Tadić & ICTY 26

C. Rome Statute 28

D. Comparison Between Different Thresholds 29

E. Critique 30

F. Alternatives presented in doctrine 32

Chapter 3: Situation in Latin and South America

_________________

34

A. Political Situation in Venezuela 34

B. Presence of Armed Groups in Venezuela 35

a) Organization of the Colectivos 35

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b) Intensity Threshold 36 c) Presence of a Conflict 37

C. Alternative Approach applied to Venezuela 38

D. Interim Conclusion 39

E. Comparison to Mexico 40

a) Overview over the Mexican Situation 40 b) Organizational Requirement 41 c) Intensity Requirement 42 d) Alternative Approaches 42 F. Comparison to Chile 43

Conclusion

__________________________________________________

44

XX

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ABBREVIATIONS

AP I Additional Protocol I

AP II Additional Protocol II

ARSIWA Draft Articles on Responsibility of States for

Internationally Wrongful Acts

Art. Article

CA3 Common Article 3

CAT Convention Against Torture

CIHL Customary International Humanitarian Law

CJEU Court of Justice of the European Union

Doc. Document

e.g. [exempli gratia] for example

ed./eds Editor(s)

ELN Ejército de Liberación Nacional (National

Liberation Army)

Et al. And others

EU European Union

f./ff. and the following page(s)

FARC Fuerzas Armadas Revolucionarias de Colombia

(Revolutionary Armed Forces of Colombia)

GC I Geneva Convention I

GC II Geneva Convention II

GC III Geneva Convention III

GC IV Geneva Convention IV

IAC International Armed Conflict

IACHR Inter-American Court of Human Rights

ICC International Criminal Court

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ICCPR International Covenant on Civil and Political Rights

ICJ International Court of Justice

ICL International Criminal Law

ICRC International Committee of the Red Cross

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the former

Yugoslavia

IHL International Humanitarian Law

IHRL International Human Rights Law

NIAC Non International Armed Conflict

No. Number

OFV Other forms of violence

p. Page

para(s) Paragraph(s)

Res. Resolution

SIPRI Stockholm International Peace Research

Institute

UN United Nations

UNGA United Nations General Assembly

UNSC United Nations Security Council

US United States of America

v. [versus] against

VCLT Vienna Convention for the Law of the Treaties

Vol. Volume

WWI World War I

WWII World War II

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IL International Law

HDI Human Development Index

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ABSTRACT

Looking at today’s conflicts, it becomes apparent that the threshold of non-international armed conflicts (NIAC) entailed in Common Article 3 and the Additional Protocol II is often not explicit enough and too blurry. Both legal provisions do not offer an objective definition of the threshold of a NIAC. When considering its necessary requirements, intensity and organization, the assessment is often done on a case-by-case basis, without clear, objective criteria to asses. In this regard, the Tadić decision by the International Criminal Tribunal for the former Yugoslavia (ICTY) aimed to shed light into the dark. The clarifications, however, brought up more questions than answers and even though the Tadić threshold is seen today as customary law, the exact line between internal

disturbances and a non-international armed conflict remains debated. The distinction between the two situations is crucial since different law regimes apply depending on the classification of the situation. While International Human Rights Law applies to internal disturbances, International Humanitarian Law applies once the situation qualifies as a NIAC.

This thesis mainly focusses on three questions: First, it elaborates the requirements for the existence of a NIAC. Subsequently, several subquestions will be elaborated: How are the requirements

interpreted and applied in todays conflicts? How do the legal provisions interact and contradict each other? Is the threshold sufficiently clear and, if not, are there alternative proposals?

This thesis will first elaborate on the legal provisions determining a NIAC and then evaluate how those provisions are designed. Subsequently, the different thresholds will be compared with each other and it will be shown where they contradict or interact with each other. Additionally,

alternative approaches in doctrine will be discovered and evaluated. The current legal framework as well as alternative approaches in doctrine will then be applied to the current situation in Venezuela, Mexico, and Chile.

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Introduction

“The most difficult problem regarding the application of Common Article 3 […] [is that] the line separating an especially violent situation of internal disturbances from the ‘lowest’ level Article 3 armed conflict may sometimes be blurred and, thus, not easily determined.“ 1 Since the drafting of the Geneva Conventions (GCs), the way international and internal conflicts are fought and debated has changed. The number of internal conflicts has increased, with the number of international conflicts decreasing. Nowadays, a lot of armed conflicts can be 2

described as “internationalized conflicts“, raising the question whether the distinction between NIACs and IACs is necessary. 3

The distinction between IAC and NIAC seems crucial, as the GCs and the Additional Protocols thereto make a clear distinction between IACs and NIACs. However, CA3 and APII do not provide details when internal riots turn into an armed conflict and a NIAC begins. They also lack precise criteria regarding the distinction between NIACs and other forms of internal violence (OFV). Until today, the distinction between internal conflicts and “unorganized and short lived 4

insurrections or terrorist activities“ remains unclear. Both CA3 and Art. 1 APII establish definitions 5

for NIACs. However, those paragraphs often raise more questions than they answer, or - as SASSOLI

states - “a clear definition of this [NIAC] threshold is not possible.“ 6

The distinction between NIACs and OFV at the time of the conflict is, however, essential, since different law regimes apply, depending on the qualification of the situation. While IHRL applies to internal disturbances, IHL applies to NIACs. Actors of the conflict have thus different rights and duties, especially regarding the use of force.

LaTablada, para. 153.

1

compare Conflict Barometer 2019.

2 STEWART, 328. 3 McDonald, 121. KRETZMER, 40. 4 BOND, p. 51.

Tadić, Opinion and Judgement, para 562.

5

FARER, 26.

SASSOLI and NAGLER, 181.

6

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This thesis is divided into three chapters. In chapter one the ways of interpreting the

threshold are shown, focussing on CA3, APII, the Tadić Decision and the relevant provisions in the Rome Statute. Here, the different requirements and their application in jurisprudence and state practice will be elaborated. In Chapter two the different thresholds are analyzed by comparing them to each other. Alternative approaches to the qualification of NIACs are presented and discussed. Recent conflicts in South and Latin America are analyzed in the third chapter. The thesis focusses particularly on the situation of Venezuela and whether the current acts by the Colectivos amount to a NIAC or can be considered OFV. The Venezuelan situation will be compared to actions

undertaken by the Sinaloa Cartel in Mexico and recent demonstrations in Chile. In this analysis the current legal provisions and alternative approaches presented in doctrine will be applied, showing how their application can change the perception of the conflict. In the conclusion, a summary of the main findings is given, picking up on the main concerns voiced throughout the thesis. Also, an analogy derived from EU law will be presented, showing how an alternative approach could be designed.

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Chapter 1: Legal Framework

A. General Remarks

CA3 and Art. 1 AP II encompass different thresholds of NIACs. The ICTY developed in the

Tadić decision a third threshold, often considered as an intermediate thresholds to CA3 and APII. 7

Consequently, three thresholds exist, which establish different criteria and entail a different scope.

CA3 applies to conflicts between one or more non state actors and governmental forces, as well as it applies to conflicts between several non state actors without the involvement of

governmental forces. Consequently, CA3 has the broadest scope and contains the lowest threshold of NIACs.

The threshold in Art. 1 APII has a narrower definition and is the highest threshold for NIACs. APII offers more protection, but its threshold is often not reached. One of the main reasons is that APII does not apply to situations where several non state actors are fighting against each other. In order to apply APII, governmental forces have to take active part in the conflict. If APII 8

applies, its provisions apply additionally to CA3.

The ICTY has developed a new threshold that lies in between the thresholds of CA3 and APII. This threshold has been further developed by the ICC, entailing a threshold that is higher than the threshold in CA3. Consequently, when an internal conflict fulfills the criteria in CA3, the ICC will not (yet) consider the situation as a NIAC.

These different thresholds lead to legal uncertainty for the actors involved in the conflict. Indeed, the question whether the threshold for a NIAC was reached is difficult to answer. If

positively answered, this first question is also followed by others: which threshold has been crossed and what are the legal consequences thereto?

Tadić, Decision on the Defense Motion for Interlocutory Appeal, para. 70.

7

see Art. 1(1) AP II.

8

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B. Legal Provisions applying to NIACs or Internal Disturbances

Historically speaking, internal situations - regardless of whether characterized as internal disturbances or NIACs - were only of concern to the country the situation took place in. This 9

derives from the principle of national sovereignty which entails the right and power of a state to regulate its internal affairs without foreign interference. Consequently, IL had no say in issues 10

which related to the relationship between governors and governed, unless the legitimate government decided so. Since the introduction of IHRL and IHL, internal affairs do not remain entirely 11

internal anymore and are subject to international regulations. In situations of internal disturbances, IHRL applies in addition to internal laws, but it is debated which entities are bound by it. While 12

IHL binds “all parties to the conflict“, it is still disputed whether IHRL also applies to non state actors. Furthermore, states have the possibility to derogate from IHRL in situations of public 13

emergencies. A state can therefore dismiss the application of such right to the extent that is 14

required by the emergency situation. 15

Once a NIAC exists, the IHL regime is triggered and enables states to take forceful action, 16

for instance the use of lethal force against “fighters“ and persons directly participating in hostilities. IHL tolerates the incidental killings and injuring of civilians that do not participate 17

directly in hostilities, as long as the proportionality requirement is adhered to. IHRL, on the 18

contrary, only accepts the killing of people if there is an imminent danger to the person acting. 19

WILSON, 23. 9 STEINBERGER, 397-418. 10 BOELAERT-SUOMINEN, 632. BARTELS, 65. KRETZMER, 1. 11

SASSOLI, double standards, 311.

SASSOLI and OLSON, 603.

12

see CA3 and DROEGE, 336.

13 DROEGE, 318. 14 CARSWELL, 147. Art. 4 ICCPR. DROEGE, 318. 15

IHL and IHRL complement each other and general principles of law apply (eg. Lex specialis).

16

(Construction of a Wall, AO, para. 106). IHL Yearbook 2017, p. 40. 17 DROEGE, 345. 18 ibid. 19 MATTHEWS, 634. 5

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This boils down to a crucial difference: under IHL, operations carried out with the aim of killing somebody are legitimate, as long as the targeted person qualifies as fighter, combatant or civilian directly participating in hostilities. Under IHRL, operations with the purpose of killing somebody 20

are never lawful and only allowed if it is unavoidable to protect life. Consequently, IHL is 21

considered as an amalgamation of military necessity and humanitarian concerns during armed conflicts, while IHRL offers protection in situation that do not constitute an armed conflict.

Additionally, the IHL regime is less protective than the IHRL regime and the application of IHL can be contradictory to the state’s obligations under IHRL. 22

Under IHL, states can no longer treat non state actors as mere criminals. Furthermore, the 23

absolute prohibition of torture in IL is designed differently in IHL and IHRL. IHRL concerns torture carried out by a public official or a person acting in an official capacity, while IHL also prohibits torture carried out by armed opposition groups and thus has an extended scope. Consequently, the 24

prohibition of torture is less far-reaching in internal disturbances than during NIACs.

CA3, Art. 43 API.

20

ICRC, IHL and IHRL. Kalidhass, 8-10.

DROEGE, 346.

21

SASSOLI and OLSON, 601.

MATTHEWS, 634.

22

SASSOLI and NAGLER, 183.

KRETZMER, 21.

23

AP II, Art. 6(5). Art. 1 CAT.

24

Kunarac, Kovac and Vukovic, Trial Judgement, para. 491.

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C. Legal Threshold of the Geneva Conventions, the Additional

Protocol II, the ICTY and the Rome Statute

a) Common Article 3 a. General Considerations

CA3 of the GCs defines a NIAC as “armed conflict not of an international character

occurring in the territory of one of the High Contracting Parties“ and is described as a „convention in miniature“. However, CA3 does not define the term “armed conflict.“ During the negotiations 25

of CA3, “armed conflict“ was seen as “cases of civil war, colonies conflicts of wars of religion.“ 26

This clarified that CA3 referred to civil war and not to mere riots or disturbances. States should not be obliged to consider rebels as belligerents from the moment rebellion arose within their territory. 27

When making these clarifications, there was no clear statement from what point onwards a conflict could be considered a NIAC that would lead to the application of the GCs. Even though the aim 28

was for CA3 to apply once a civil war had begun in the territory, such clarifications have not been included in CA3. 29

Considering the travaux préparatoires of the GCs and pursuing a historical interpretation, the scope of application of CA3 was planned to be far narrower than what it is currently applied to. Changes in IHL interpretation have evolved in light of recent developments in conduct of 30

warfare. In the past sixty years the interpretation of what constitutes an armed conflict has 31

changed significantly. The scope of application of CA3 is still disputed and the lack of a definition 32

in the article itself has allowed some latitude for the interpretation, taking into account developments in the conduct of hostilities. 33

ibid, 49.

25

RODENHÄUSER, 35.

ibid, 42.

26

Final Record, Vol. II, Sec. B, p. 129.

27 ibid. 28 RODENHÄUSER, 38. 29 CULLEN, 49. 30 CULLEN, 51. 31 ibid. 32 ibid., 50. 33 7

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Looking at the history of the interpretation of CA3, it does not give a clear answer when a situation crosses the threshold of CA3, becomes a NIAC, and subject to IHL. 34

b. Requirements

The assessment of whether a situation amounts to a NIAC depends on two cumulative criteria: there must be a minimum degree of organization of the armed group(s) and the conflict must reach a certain level of intensity. Even though the criteria are cumulative, conclusions can 35

be drawn from one criterion to the other. 36

Generally, there is the presumption of state armed forces being organized. To become a 37

party to the conflict as a non-state armed group, the possession of organized armed forces with the ability to conduct hostilities is required. Organized armed forces “have to be under a certain 38

command structure, possess a certain level of hierarchy and discipline, and the ability to implement the basic obligations of IHL.“ 39

The necessary level of intensity is reached when the “hostilities are of a collective

character.“ Alternatively, the use of military force by the government against the non state actor, 40

fulfills the intensity threshold. Additionally, duration is seen as an indicative factor when 41

interpreting the intensity requirement. Conflicts with a short duration, can thus fulfill the intensity 42

requirement, depending on the circumstances. Regarding such circumstances, the ICRC 43

Commentary offers a list of indicative, non-exclusive, and non-obligatory criteria to assess whether

Commentary 2016, para. 415. 34 ibid., para. 421. 35 ibid., para. 434. 36 ibid., para. 429. 37 ibid., para. 429. 38

ICRC Interpretative Guidance, 32. DROEGE, 2012, 550.

39

ICRC, Challenges of Contemporary Armed Conflicts, 19. ICRC, ‚Armed Conflict’, 3.

ICRC, ‘Armed Conflict’, 3.

40 ibid. 41 ibid., para. 440. 42 ibid., para. 440. 43 8

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an armed conflict is present. Those are, for instance, the conflict being admitted to the agenda of the UN or the non state actor having de facto authority over a certain territory. 44

c. State Practice

One of the main problems of the implementation of CA3 in state practice is the reluctance of governments recognizing the situation as an armed conflict. Governments often rather treat the 45

conflict as internal disturbance and suppress it actively, relying on their monopoly of power. 46

Recognizing a conflict as a NIAC has a certain political importance to all parties to the conflict. 47

Generally, governments consider the recognition of a NIAC as a disadvantage for their own politics as they have to admit the loss over the monopoly of power. It shows that the state failed to prevent 48

the escalation of internal riots to a conflict. States may fear to contribute to the recognition of the 49

non state actor as “legitimate combatants“ and increase their authority. 50

This understanding of CA3 and NIACs is wrong and dangerous. Looking at the last clause of CA3, it states “the application of the preceding provisions shall not affect the legal status of the parties to the conflict.“ The application of CA3 thus has no effect on the legal status of the non state actor. Yet, recognizing the conflict as a NIAC triggers the application of IHL and limits the state's 51

possibility to use repressive measures. 52

Even though the recognition of a NIAC does not contribute to the legal status of the combatants, states are often reluctant to admit the presence of a NIAC. It is feared that the

Commentary 1952, 49. 44 CULLEN, 56. 45 WULF, 87. 46 CULLEN, 56.

CLAPHAM, Human Rights, 112.

47 CULLEN, 57. 48 CARSWELL, 150. CULLEN, 57. 49

CLAPHAM, Non State Actors, 272.

CULLEN, 57 uses the word combatant here, even though combatant status does not exist in NIACs,

50

yet it exemplifies the perception that might develop when a state recognizes the conflict as a NIAC. CULLEN, 56.

51

MATTHEWS, 635.

CULLEN, 57.

52

CLAPHAM, Non State Actors, 272.

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recognition of the applicability of IHL could be perceived as “favoring political opponents“ or contributing to the “legitimacy of combatants.“ The policy argument can thus be most striking 53

when states debate about the recognition of a conflict. It often might be easier to justify arrests and use violence against terrorists and criminals than against non state actors that are portrayed with a certain legitimacy. 54

This also shows that the recognition of the conflict as a NIAC is desirable for the non state actor, as it draws the attention of the international community to the NIAC. Apart from that, the 55

application of CA3 also reinforces the role of the ICRC. However, the conflicting parties do not 56

need to accept the services of the ICRC and even if they accept, there is no written provision in CA3 guaranteeing the respect for ICRC facilities or personnel. 57

Since there is no clear definition of a NIAC in CA3 or a clear-cut scope of application, the act of recognizing the NIAC is left to the discretion of the concerned government authorities. In 58

conclusion, states have the possibility to hide behind the lack of a definition for NIACs to deny their mere existence and the application of IHL. 59

MOIR, 34.

53

RODENHÄUSER, 17.

54

CLAPHAM, Human Rights, 112.

55 ibid. 56 WILSON, 45. 57 MENON, 109–137. 58 MOIR, 34. 59 10

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b) Art. 1 Additional Protocol II a. General Considerations

The provision in Art. 1 APII applies to NIACs on the territory of a state between the states’ armed forces and dissident armed forces. As mentioned in Chapter 1, C., the application of CA3 60

has proven to be difficult. Art. 1 APII aims to change this, by clarifying the concept of a NIAC. 61

The drafters aimed to include three concerns into their work: Firstly, the establishment of an upper and a lower threshold to establish the existence of a NIAC, secondly, to provide elements of a definition, and lastly, to ensure that the achievements of CA3 will remain. 62

Regarding the upper threshold of application, a reference was made to Art. 1 AP I. To keep the meaning and wording of CA3 and to prevent undercutting the scope of CA3, APII was drafted as a self-contained instrument. Consequently, two types of NIACs existed with one reaching the 63

threshold of CA3 but not the one of APII. The other type reaches both: the threshold of CA3 and APII. Therefore, in the latter situation APII and CA3 are applied while in the former situation solely CA3 is applied. 64

Art. 1(1) APII provides a positive definition of a NIAC and sets up several requirements for a NIAC to be present. Those consist of the following: responsible command, control over part of 65

the territory that enables the non state actor to carry out sustained and concerted military operations, and the ability to implement the Protocol. The main motivation for these criteria was the idea of 66

establishing objective requirements which are not subject to other considerations. In other words, 67

APII aimed to establish a checklist with criteria clearly showing the presence of a NIAC. Once the

Yearbook of IHL 2015, 73.

60

Commentary APII, para. 4449.

61

ibid.. 4451.

62

Commentary APII, para. 4454.

63

Yearbook of IHL 2015, 74.

64

Commentary APII, para. 4457,

ASBJØRN, Internal Disturbances and Tensions, 51.

65

ASBJØRN et al, Combating Lawlessness, 215.

Art. 1(2) APII.

66

Commentary APII, para. 4453.

67

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mentioned criteria is fulfilled, the Protocol applies automatically. This automatic application aims 68

at the protection of victims without arbitrary decisions of the authorities concerned. 69

Art. 1(2) APII entails a negative definition and the lower threshold of NIACs, stating that APII “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.“ 70

According to the ICRC Commentary on APII, the application of the term “armed conflict“ requires “the existence of open hostilities between armed forces which are organized to a greater or lesser degree.“ In this regard, internal disturbances and tensions which are characterized by isolated or 71

sporadic acts of violence, do not constitute an armed conflict. However, the meaning of “internal 72

disturbances and tensions“ was not clarified in APII. The ICRC Commentary gives a list of 73

indicative examples, including situations such as isolated and sporadic acts of violence or

demonstrations without a concerted plan from the outset. This, however, does still not draw a clear 74

line between NIACs and OFV.

b. Requirements

Art. 1 APII sets four cumulative criteria which will be elaborated in the following:

responsible command, the ability to carry out sustained and concerted military operations, control over part of the territory of the state, and the ability to implement APII.

Responsible command presupposes a certain degree of organization that enables the group to engage in hostilities and maintain an internal system of discipline. However, this does not mean 75

that there is a “hierarchical system of military organization similar to that of regular armed ibid., para. 4459.

68

ibid., para. 4459.

69

ASBJØRN, Internal Disturbances and Tensions, p. 51.

70

ASBJØRN et al. Combating Lawlessness, p. 215.

ibid., para. 4341.

71

CLAPHAM, Non State Actors, p. 277.

72

Commentary APII, para. 4341. compare wording APII.

73 ibid., para. 4474. ibid., para. 4474. 74 KRETZMER, 41. 75 12

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forces.“ It requires the group to plan and carry out sustained and concerted military operations and 76

to impose discipline “in the name of the de facto authority.“ 77

The ability to carry out sustained and concerted military operations has been specified by the ICRC Commentary. The maxim of “sustained“ stands for the ability to keep operations going, which emphasizes the continuity and persistence of the operation. 78

A concerted operation means that this operation was agreed upon, planned, and contrived. This 79

criterion is crucial as it is usually not fulfilled in the beginning of operations by a non state actor. 80

It also shows why the interaction with CA3 is decisive: initially, most operations will qualify as NIAC under CA3, but not under APII. With the continuation of the operations, their character might become more organized and planned which then reaches the threshold of APII. The threshold of 81

sustained and concerted military operations consequently rules out all low-intensity armed

conflicts. However, it also shows that the idea of pure objective criteria applying to the threshold 82

of APII did not transfer into reality, as this requirement can not be assessed purely objective. 83

Additionally, the organization must have control over part of the territory of the state in question, outside the control of government armed forces. To rule out short term control over 84

changing parts of the territory, some degree of stability in their control over the area of land is required. This is reaffirmed by the last requirement, which expects the ability of the group to 85

implement APII in the territory they control. Obviously, this is only possible when a certain degree of command and control is established. This is however impossible if the control and the territory over which the organization has control, always changes. 86

Commentary APII, para. 4463.

76

ibid.

77

Commentary APII, para. 4469.

78 ibid. 79 ibid. 80 ibid. 81 CULLEN, 105. 82 PROVOST, 264. 83

Commentary APII, para. 4467.

84 ibid. 85 ibid. 86 13

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c. State Practice

APII shows a more substantive application than CA3, but both face the same obstacles. As 87

BAXTER argues “the first line of defense against International Humanitarian Law is to deny that it

applies at all.“ States tend to deny the application of APII and are basically “given a “carte 88

blanche“ to decide when the Protocol [...] should be invoked.“ Additionally, the high intensity 89

required by APII limits its scope of application. 90

Also, there is no impartial body to decide whether the criteria to apply APII are met and it is usually left to the concerned government to apply APII. Naturally, some states are reluctant to 91

recognize the application of APII since admitting its application is often seen as an implicit

confession of lack of effective control in the country. An armed conflict within the state’s territory 92

is perceived as weakness of a state which is unable to control the conflicts within its own territory. 93

The assumption that a state recognizing the application of APII is portrayed as weak is wrong from a legal perspective and puts a threat to the humanitarian protection of the victims of the conflict. 94

In conclusion, APII sets a narrow scope for its application and not every armed conflict amounts to the required intensity threshold. Yet, the rules of APII have the potential of applying to 95

situations which do not amount to a civil war. Not applying the Protocol to conflicts of a lower 96

intensity leads to a restriction in the provided protection. 
97

Baxter, 2. 87 ibid. 88 RWELAMIRA, 236. 89 CULLEN, 109. 90

eg. UN Doc. E/CN.4/1998/87, para. 79.

91

CULLEN p. 109.

92

eg. UN Doc. E/CN.4/1998/87, para. 79. UN Doc. E/CN.4/1998/87, para. 79.

93

CULLEN, p. 111.

94

ASBJØRN, New Humanitarian Law, 299.

95 ibid. 96 ibid. 97 14

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c) ICTY & Tadić Case a. General Considerations

The ICTY decided about the existence of a NIAC in the Tadić case. It set a new standard of NIACs, requiring “protracted armed violence between governmental authorities and organized armed groups or between such groups within a state.” With this decision, a third threshold of 98

NIACs was created. It entails a broader scope than considered by the drafters of the GCs and is contradictory to what the state parties agreed on. Nevertheless, the concept set out by the ICTY is 99

considered to be the “most authoritative formulation of the threshold associated with CA3.“ 100

The requirements set out by the Tadić case were mentioned by several courts such as the ICTY Trial Chamber , the ICTR , the ICJ , and the ICC , and are understood as customary law. 101 102 103 104

b. Requirements

According to the ICTY, territorial control of the non state actor is not needed. Due to the 105

distinction between the ius ad bellum and the ius in bello, the purpose of the armed forces to engage in hostilities or to achieve further objectives is irrelevant. The exclusion of this criterion serves to 106

keep the determination of a NIAC objective. If the aim of the non state actor would become 107

relevant, the denial of a certain objective would mean that the threshold is not reached. Applying objective criteria ensures that IHL is applied once an armed conflict is established and not when the parties to the situation recognize it as a conflict. 108

Tadić, para 70. 98 ASH, 275. 99 IHL Yearbook 2017, 55. CULLEN, 122. 100

Delalic et al. Trial Judgement, para. 183,

101

Akayesu, Trial Judgement, para. 619.

102

Armed Activities, Separate Opinion, Judge Simma, para. 23.

103

Lubanga, Decision on confirmation of charges, para. 233.

104

Milosevic, Decision on the Motion, para. 36.

105

Limaj et al., Trial Judgement, para 170.

106

Akayesu, Trial Judgement, para. 603.

107

Akayesu, Trial Judgment, para. 603.

108

(39)

The Tadić definition focusses on two aspects of a conflict: First, the existence of an organized group and second, the intensity of the conflict. 109

The ICTY did not deliver an exact definition of what is understood as an organized group, but the Milosevic case presents some indicative factors. The Trial Chamber names characteristics 110

such as command structure, the establishment of headquarters, and the ability to procure, transport and distribute arms. Further indicators were named in the Limaj trial which focussed on the role 111

of the general staff with the ability to appoint commanders or distribute regulations to units. 112

Considering those indicators and the different nature of each NIAC, it becomes clear that the analysis has to be based on a case-by-case approach. 113

The intensity requirement serves to distinguish cases of civil unrest or terrorist activities from a NIAC. Therefore, it focusses on the protracted character of the fighting. The wording of 114 115

this requirement indicates that a time element is implemented. Further case law also shows that 116

the time element should be interpreted in a flexible manner and that „protracted“ does not mean “sustained.“ Consequently, military operations do not have to be carried out in a continuous 117

manner to qualify the situation as a NIAC. Yet, the hostilities need to extend over a certain 118

amount of time. When assessing this requirement, the entire period from the beginning to the 119

cessation of the hostilities is considered. 120

Tadić, Opinion and Judgement, para. 562.

109

Milosevic, Decision on the Motion, para. 23.

110

Prosecutor v. Slobodan Miloševi, Trial Chamber Decision, para. 23.

111

Limaj, Trial Judgement, paras. 94–134.

112

Rutaganda, Judgement and Sentence, para. 93.

113

Delalic et al., Trial Judgement, para. 184.

114

Kordic and Cerkez, Appeal Judgement, para. 341.

115 BOELAERT-SUOMINEN, 635. 116 ibid., 634. 117 BOELAERT-SUOMINEN, 634. 118

THAHZIBLIE and SWAAK-GOLDMAN, 248.

119

ibid., 248.

120

CULLEN, 128.

(40)

It is important that the level of armed violence is high enough to exclude civil unrest such as isolated acts of violence. But it also must be low enough to take conflicts into account, where 121

hostilities do not happen on a continuous basis. In this regard, the Milosevic decision listed 122

indicative factors for the evaluation of the intensity requirement such as the seriousness of armed clashes and the increase in governmental forces sent to Kosovo. Nevertheless, the Chamber 123

pointed out that the existence of civilian authority or control over territory are no necessary

requirements for a NIAC, even though both indicators were present in casu. The Limaj case listed 124

different indicators, such as the mobilization of troops by the government and the displacement of local population. This again shows that the intensity requirement must be judged on a case-by-125

case basis. 126

CULLEN, 128.

121

CULLEN, 128.

122

Milosevic, Decision on the Motion, paras. 28-31.

123

ibid., paras. 34 -36.

124

Limaj et al., Trial Judgement, paras. 135, 150, 166, 142, 176, 134.

125

CULLEN, 131.

126

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