Paper Odermatt

8/21/2019 Paper Odermatt

1/20

1

New Wars and the International/Non-international ArmedConflict Dichotomy

Jed Odermatt

I. The Changing Nature of Armed Conflict

II. New Wars and the International/Non-international Dichotomy

III. Re-thinking the International/Non-international Dichotomy

I. The Changing Nature of Armed Conflict

It is undeniable that the nature of warfare is changing. Wars that take place in the Third

World, in particular sub-Saharan Africa, are different from the wars that took place in the

twentieth century on the European continent. The methods and weapons employed by the

belligerents, the goals of the fighters and the nature of the parties involved in wars are

quite different to the classical warfare that took place in Europe and elsewhere.1 To some,

the difference between old and new wars is over-stated, arguing that the so-called new

conflicts simply represent a return to normal patterns of armed conflict after the end of the

Cold War.2

1 SeeKaldor, M.,New and Old Wars: Organised Violence in a Global Era, Stanford University Press, 1999.

However, one aspect of modern wars seems to distinguish them from conflicts

of earlier eras, that is, their complex combination of international and internal elements.

Modern wars are rarely categorsised as being purely international or purely in non-

international in character, but are rather a mixture of internal and international conflict,

taking place in a globalised context, involving both state and non-state actors. This pattern

of conflict is far more complicated than the Clausewitzian notion of warfare in which state-

controlled armies battle for control of territory. In some cases, the state is battling rebelswho wish to take control of the state or secede from it, in others there is a struggle over

control of natural resources or is fuelled by ethnic hatred. In reality, the modern war is

often a mixture of all of these: profit making, criminal activity, foreign intervention and

ethnic conflict. The one thing common to these conflicts, however, is that the civilian

population is often subject to gross human rights violations.

2 Kalyvas, S., New and Old Civil Wars: A Valid Distinction?, World Politics, vol.54, 2001, pp.99-118; Hermann

I., and Palmieri, D., Les nouveux conflits: une modernit archaque?,International Review of the Red Cross, vol.

85, no. 849, March 2003.


2/20

2

Reydams summarises that modern warfare is characterised

by a constant switching of friends and foes and by a breakdown of the institutionalauthorities (such as the military and the police) responsible for ordering and having recourseto the use of force. In this context, acts of war and criminality become indistinguishable andthe war drags on with no prospect of a peace accord to end it. Such wars, which had alreadymultiplied in the 1980s and 1990s, look set along with guerrilla-terrorist wars todetermine the course of violence in the twenty-first century in many parts of the world.

3

It is precisely these circumstances that create a problem for international humanitarian law

(IHL). IHL continues to apply in these complex situations. Yet one aspect of these wars

which is of particular significance to IHL is the legal significance of a conflict being

categorised as either international or non-international in character. In modern warfare, the

distinction between internal and international armed conflict, or between state and non-

state actors, distinctions upon which much of the law of war is premised, are breaking

down. How, then, do the laws of war apply and remain relevant to situations of mixed

conflicts which do not fit into any neat legal category?

Mixed conflicts

A closer examination of the types of conflicts taking place demonstrate that, in fact, even

purely internal conflicts take place in a globalised setting in which belligerents battle not

only for political power but recognition from the international community, access to

international markets and trade in natural resources. Some conflicts that would be deemed

as purely internal include large groups of fighters from abroad, financial and military

backing from foreign governments, or incursions into and even occupation of foreign

territory. Internal armed conflicts are in reality often mixed conflicts, that is, they take

place largely within the territory of one state, but take place in an internationalised setting

with a high level of foreign intervention. These conflicts both affect and are affected by the

actions of neighbouring states and the international community at large. It is becoming

increasingly difficult to categorise these conflicts as either international or non-

international in character.

3 Reydams, L., A la guerre comme a la guerre: Patterns of armed conflict, humanitarian law responses and new

challenges,International Review of the Red Cross, vol. 88, no. 864, December 2006.


3/20

3

For instance, the conflicts in the Great Lakes region of Africa have been deemed to be an

internal conflict by some commentators. Bassiouni states that [t]he conflicts in Rwanda

and in the Great Lakes area of Africa, including the Congo and Uganda, are characterized

as internal ethnic and tribal warfare, notwithstanding the involvement of combatants from

several states.4 However, these conflicts have elements of international armed conflict.

The International Criminal Court has examined this specific issue in the pre-trial stages of

the cases Prosecutor v. Thomas Lubanga Dyilo 5and Prosecutor v. Germain Katanga and Mathieu

Ngudjolo Chui6,both relating to the situation in Democratic Republic of Congo (DRC). In

these cases, the Pre-Trial Chamber held that there were substantial grounds to believe that

the Ituri conflict in north eastern DRC was of international character. This was because the

of the direct intervention of the Ugandan Peoples Armed Forces as well as Uganda's

substantial contribution of weapons and ammunition to armed groups in DRC. 7 The

Chamber relied on the determination upheld in the Lubangacase, that an internal armed

conflict can exist alongside an international armed conflict when (i) another State

intervenes in that conflict through its troops (direct intervention), or if (ii) some of the

participants in the internal armed conflict act on behalf of that other State (indirect

intervention).8 This was also a view supported by the ICJ in Case Concerning Armed

Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda).9

If one examines the conflicts in which international criminal prosecution is taking place, it

becomes quite evident that these conflicts have both internal and international elements.

Jean-Pierre Bemba Gombo, President and Commander in Chief of the Mouvement de

libration du Congo (MLC) is accused by the ICC of committing crimes against humanity

4 Bassiouni, C., The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors,

The Journal of Criminal Law and Criminology, vol. 98, no. 3, 2008, p. 748.5 International Criminal Court, Prosecutor v. Thomas Lubanga Dyilo, Decision on the confirmation of charges, 29

January 2007, No. ICC-01/04-01/06, at 72. The Pre-Trial Chamber held that Ugandas presence as an occupying

power from July 2002 until June 2003 made the conflict of an international character, however, there was

insufficient evidence to establish reasonable grounds to believe that Rwanda had a direct intervention in the Ituriconflict.

6 International Criminal Court, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the

Confirmation of Charges, 26 September 2008, No. ICC-01/04-01/07, at 71.7 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Confirmation of Charges, paras. 239-

240.8 Prosecutor v. Thomas Lubanga Dyilo, Decision on the confirmation of charges, para. 209.9 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda).

Judgment of 19 December 2005, [2005] ICJ Rep. , para. 345.


4/20

4

and war crimes, not in DRC, but in the neighbouring Central African Republic. 10 The

operation against the LRA, a rebel group in Uganda whose leaders are wanted by the ICC,

includes forces from neighbouring DRC and Sudan. 11Current operations taking place in

eastern Congo involve troops from neighbouring Rwanda, Uganda and South Sudan. 12

With regard to the situation in Darfur, Sudan, the OTP has presented evidence of attacks

by rebels upon African Union peacekeepers. 13Both Chad and Sudan have accused each

other of actively supporting rebels in each others internal conflicts, and it is believed that

much of the Janjaweed is made up of fighters from Libya and Chad. 14Charles Taylor, the

former President of Liberia, is on trial at the Special Court for Sierra Leone in relation to

crimes committed on the territory of neighbouring Sierra Leone. 15

Although these conflicts

may be categorised as being internal armed conflicts under international law, there is no

doubt that they have considerable international elements.

These conflicts all have an international dimension they include foreign fighters who

have intervened and occupied territory in a neighbouring state or political and economic

support of rebel groups by foreign states. Moreover, the conflicts themselves are often

more about access to resources and international markets than internal grievances. How,

then, can these conflicts be deemed to be merely internal tribal conflicts? They are perhaps

best seen as mixed conflicts. They are not international conflicts in the traditional sense,

involving large standing armies and declarations of war. Nor do they meet the strict legal

criteria of being considered an international armed conflict. Yet the level of direct foreign

intervention in these wars makes them something more than merely tribal conflicts.

10 International Criminal Court, Warrant of Arrest for Jean-Pierre Bemba Gombo, 10 June 2008 No. ICC-01-/05-

01/08. The Prosecution in that case has argued that the conflict in Central African Republic from October 2002 toMarch 2003 was an armed conflict of a non-internationalcharacter. Prosecutor v. Jean-Pierre Bemba Gombo,

Transcript of confirmation of charges hearing, 13 January 2009, T. 120-1.Under international law, a conflict is not

necessarily international in character if a third state intervenes on behalf of a state. See Fleck, The Law of Non-

International Armed Conflict,p. 605.11 Uganda to Continue LRA hunt, BBC News, 5 March 2009. .12 Michael Kavanagh, 'Letter From Goma, Is Rwanda the Only Chance For Peace in Eastern Congo?' Foreign Affairs,

April 29 2009 ; 'DRC Outsources its

Military', BBC News, 27 February 2009,.13 Press Release, Attacks on peacekeepers will not be tolerated. ICC Prosecutor presents evidence in third case in

Darfur 20-11-2008 ICC-OTP-20081120-PR374.14 The International Commission of Inquiry on Darfur has stated there was credible evidence that members of the

Janjaweed included fighters from neighbouring Libya and Chad. See Report of the International Commission of

Inquiry on Darfur to the United Nations Secretary-General, Geneva, 25 January 2005, p. 32.15 Taylor is charged with, inter alia, war crimes as violations of Common Article 3 and Additional Protocol II to the

Geneva Conventions, see Special Court for Sierra Leone, Prosecutor v. Charles Taylor, Prosecutions Second

Amended Indictment, 29 May 2007, SCSL-03-01-PT.
http://news.bbc.co.uk/2/hi/africa/7926173.stmhttp://news.bbc.co.uk/2/hi/africa/7926173.stmhttp://www.foreignaffairs.com/features/letters-from/letter-from-gomahttp://www.foreignaffairs.com/features/letters-from/letter-from-gomahttp://www.foreignaffairs.com/features/letters-from/letter-from-gomahttp://news.bbc.co.uk/2/hi/africa/7910081.stmhttp://news.bbc.co.uk/2/hi/africa/7910081.stmhttp://news.bbc.co.uk/2/hi/africa/7910081.stmhttp://www.foreignaffairs.com/features/letters-from/letter-from-gomahttp://news.bbc.co.uk/2/hi/africa/7926173.stm


5/20

5

II. New Wars and the International/Non-international Dichotomy

The dichotomy between international and non-international armed conflicts in

international humanitarian law has been widely criticised. 16

Despite this criticism, the

distinction is still firmly placed in the law of armed conflict and it is unlikely that a single

body of law applicable to all armed conflicts will develop in the foreseeable future, despite

the fact that customary international law is indeed developing in that direction.

Although there are significant problems with the dichotomous nature of the law of war

crimes, states have continued to cling to such a distinction. Writers have often dismissed

this as simply based on political reasons, arguing that states are unwilling to apply the

laws of war to internal armed conflicts as this may have the effect of legitimising rebels,

terrorists and other armed groups. However, these concerns are not entirely unjustified,

since the relationship between the states and non-state actors is markedly different from

inter-state relationships, and that states are unlikely to accept a single body of IHL to

apply to their internal situations.

The law of war historically only applied to sovereign states that fought against each

other. 17

16 SeeStewart. J., Towards a single definition of armed conflict in international humanitarian law : a critique of

internationalized armed conflict,International Review of the Red Cross, 85 (2003), no. 850, 313; Bassiouni, C.,The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors, The Journal of

Criminal Law and Criminology, vol. 98, no. 3, 2008, p. 748.

Although internal conflicts certainly took place, they remained an internal matter

for that state, and were covered by the domestic law of the state involved. However, over

time it became clear that there needed to be a level of regulation that applied to internal

wars. Events such as the Spanish Civil War demonstrated a need for rules of warfare that

could exist when a conflict did not fit the classical model of inter-state warfare. The

International Committee of the Red Cross presented a report in 1948 which recommended

that the Geneva Conventions apply international humanitarian law [i]n all cases of armed

conflict which are not of an international character, especially cases of civil war, colonial

17 In Western thought, there was a long tradition of regarding civil conflict as fundamentally different from true war...

this meant that none of the rituals associated with war-making and war-waging was applicable to struggles againstmere law breakers. Nor did the rules on the conduct of war apply... The result was a clear dichotomy between

domestic enforcement and true war. Neff, S., War and the Law of Nations, A General History, Cambridge, 2005,

p.250-1.


6/20

6

conflicts, or wars of religion, which may occur in the territory of one or more of the High

Contracting Parties. 18 This proposal was rejected in favour of Common Article 3 to the

Geneva Conventions which clearly establishes that the application of rules of humanitarian

law will depend on the nature of the conflict taking place on the territory of the Party.

Common Article 3 was primarily developed in order to regulate non-international

conflicts. In comparison with the rest of the Geneva Conventions, which contain a high

degree of regulation of armed conflict, Common Article 3 contains a relatively modest

degree of regulation. It contains only what are seen to be the core elements of the Geneva

Conventions, such as the humane treatment of those who are not taking part in combat

and the care for the sick and the wounded. 19It is beyond doubt that these rules contained

in Common Article 3 represent customary international law and will apply in an armed

conflict irrespective of whether it is international or non-international in character.

20

The modest regulation contained in Article 3 is certainly a weakness. A further weakness is

the difficulty in its application. It contains no definition of conflict not of an international

character. Some have argued that the lack of a definition is a positive development, as it

allows the law to change as circumstances themselves change, and therefore does not

overly limit the application of Common Article 3. 21

The lack of definition, however, has

allowed many states to simply deny that the Article applies to their conflict. They may

argue that Article 3 does not apply because the conflict has not reached the level of being

considered an armed conflict. Furthermore, it is difficult to ascertain, especially in the

light of modern conflict, what not of an international character in fact means. When does

a riot or civil disturbance within a state become a non-international armed conflict? At

what point will a states support for separatists in a neighbouring state turn a conflict into

an international conflict?

Interestingly, whether or not a situation is an armed conflict will depend largely on

18 J. Pictet (ed.), Commentaries on the Geneva Conventions of 12 August 1949, Vol. III: Geneva Convention relative to

the Treatment of Prisoners of War, ICRC, Geneva, 1960, p. 31, quoted in Stewart. J., Towards a single definition of

armed conflict in international humanitarian law: a critique of internationalized armed conflict,International

Review of the Red Cross, 85 (2003), no. 850, p. 313.19 For detail on the substantive legal differences between international and non-international armed conflict, see

Stewart, Towards a single definition of armed conflict in international humanitarian law, pp. 319-323.20 Moir, L., The Law of Internal Armed Conflict, Cambridge University Press, Cambridge, 2002, p. 273.21 See Moir, p. 32; Cullen, A., Key Developments Affecting the Scope of Internal Armed Conflict in International

Humanitarian LawMilitary Law Review, vol. 183, no. 66, 2005.


7/20

7

whether it is considered international or non-international. For instance, even a minor use

of force between sovereign states may be considered an armed conflict: The magnitude of

the use of force is irrelevant; international humanitarian law, and thus the law of war

crimes, is applicable even to minor skirmishes (first shot). 22

However, in the case of

internal conflict there is a higher threshold, whereby a situation must reach a certain level

of intensity before it becomes an armed conflict. The Rome Statute, for instance, sets out

that the law applying to non-international armed conflict:

does not apply to situations of internal disturbances and tensions, such as riots, isolated andsporadic acts of violence or other acts of a similar nature. It applies to armed conflicts thattake place in the territory of a state when there is protracted armed conflict betweengovernmental authorities and organized armed groups or between such groups.

23

This definition stems from the explanation of armed conflict used in the ICTYs Tadi

decision:

[A]n armed conflict exists whenever there is a resort to armed conflict between states orprotracted armed violence between governmental authorities and organised armed groups orbetween such groups within a State.

24

Thus, for the law to apply to an internal armed conflict the situation must meet some basicrequirements; the situation must be protracted and must take place between organised

armed groups. The conflict must also have reached a certain level of intensity. The Rome

Statute explicitly excludes application to riots and sporadic acts of violence of a similar

situation. Werle argues that the law of war crimes can only come into play if an intra-

state conflict is comparable to an inter-state conflict,due to the organisation of the parties and

the increased power and amenability to control of belligerents connected with it. 25

22 Werle, G., Principles of International Criminal Law, TMC Asser Press, The Hague, 2005, p. 287.

However, this raises the question of what comparable to an inter-state conflict in fact

means. There is no longer any typical form of interstate conflict, as there is no typical

internal conflict. Werle explains that the distinction is necessary because in an inter-state

conflict two armies face each other, the danger of escalation with incalculable

consequences begins with the first shot, whereas scattered outbreaks of violence in

23 Rome Statute of the International Criminal Court(U.N. Doc. A/CONF.183/9) (Rome Statute), Art 8 (f).24 ICTY, The Prosecutor v. Dusko Tadi, Decision on the Defence Motion for Interlocutory Appeal on

Jurisdiction, IT-94-1-A, 2 October 1995, para.70.25 Werle,Principles of International Criminal Law,p. 290.


8/20

8

intra-state conflicts do not endanger world peace. 26This reasoning seems to be based on a

mis-characterisation of modern internal conflicts. It is entirely possible that an isolated or

sporadic act of violence may also threaten world peace. Indeed, major international armed

conflicts can stem from events that escalated from mere internal disturbances. The

question then becomes: at what point does a sporadic act of violence become an armed

conflict? This becomes increasingly difficult to answer due to the nature of modern

warfare, where guerrilla tactics and terrorism are employed by belligerents who rely on

sporadic acts of violence as part of their military strategy. As the nature of armed conflict

changes, the meaning given to armed conflict will necessarily have to be adapted. In

Prosecutor v. Rutaganda, it was stated that the definition of armed conflict established by

the ICTY is still termed in the abstract, and whether or not a situation can be described as

an armed conflict, meeting the criteria of Article 3, is to be decided upon a case-by-case

basis.

27

In many cases the question of whether an armed conflict exists will be straightforward.

The more problematic legal question arises in determining whether the conflict is

international or non-international in nature. This question is made more difficult to

answer given the nature of modern conflict and the internationalisation of modern wars.

The very question of whether a conflict is international in character was discussed in Tadi.

The conflict in Yugoslavia was a very complicated one and can also be categorised as a

mixed conflict, with both international and internal elements. For instance, the support

that Federal Republic of Yugoslavia (FRY) gave to the Bosnian Serbs in Bosnia

Herzegovina changed over the course of the conflict. This form of international armed

conflict does not meet the typical pattern of inter-state war. The ICTY held that a conflict

may become international if the rebel group is acting as the agents of another state. The

Chamber looked at whether the Bosnian Serb forces could be regarded as being agents of

Yugoslaviait asked whether Yugoslavia had sufficiently distanced itself from the VRS

[Bosnian Serb Army] so that those forces could not be regarded as de facto organs or agents

of the VJ [Federal Yugoslav Army] and hence the Federal Republic of Yugoslavia. 28

26 Ibid.

The

27 ICTR, Prosecutor v Rutaganda, ICTR-96-3, Judgment of 6 December 1999,para 91.28 ICTY, Prosecutor v Dusko Tadi(a/k/a Dule) No IT-94-1-T, Judgement, 7 May, 1997, para 587.


9/20

9

Appeals Chamber summarised its position that

in case of an internal armed conflict breaking out on the territory of a State, it may be becomeinternational (or, depending on the circumstances, be international in character alongside aninternal armed conflict) if (i) another State intervenes in that conflict through its troops, or

alternatively if (ii) some of the participants in the internal armed conflict act on behalf of thatother state

29

The precise question arose from the issue of whether the Grave Breaches regime would

apply. The Chamber accepted that Grave Breaches applied only to international conflicts

it was therefore important to determine whether or not the conflict could be regarded as

international in character. 30The Appeals Chamber decided that the conflict remained an

international in nature throughout the conflict due to the continued support of the

Republic of Yugoslavia. However, a subsequent decision by the International Court of

Justice seems to have diminished the direct role of the FRY in supporting the Republika

Srpska and the VRS, saying that the latter were not organs of the FRY 31, nor did it exercise

effective control over operations in which certain crimes were committed. 32In reality, the

war in the former Yugoslavia was a mixed conflict; at times irregular forces operated with

considerable financial and logistical backing from foreign armies, yet this support changed

and dissipated over time. The ICTY has been asked to consider in numerous trials whetherthe conflict was international in character. However, the set of criteria established in Tadi

has been notoriously difficult to apply, as it gives little guidance as to the requisite level

and type of intervention required by a state to categorise a conflict as international.

33

Additional Protocol II

The problems with Article 3 discussed above were to be addressed by further protocols

that would apply to non-international conflict, thereby strengthening the regulation of

internal conflicts. Addition Protocol II 1977 (APII) was developed for this purpose. APII

29 ICTY, Prosecutor v. Dusko Tadi, No IT-94-1-A, Appeals Judgement,15 July, 1999, para. 84.30 ICTY, Prosecutor v. Dusko Tadi, No IT-94-1-A, Appeals Judgement,15 July, 1999, para 80.31 ICJ, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of

Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),I.C.J. Reports 2007 para 388.32 BiH v. Serbia, para. 413.33 Regrettably, the possibility of direct military intervention that only indirectly involves an internal armed conflict as

in theBlaskic and Kordic & Cerkez Judgements, and the absence of any meaningful threshold test for what extent of

direct military intervention will internationalize a conflict, suggests the absence of a principled basis fordistinguishing internationalized armed conflicts from those international in character alongside an internal armed

conflict. Stewart, Towards a single definition of armed conflict in international humanitarian law, p. 330.


10/20

10

extends the regulation of armed conflict in internal wars considerably. However, not only

has APII been ratified by a relatively small number of states, it only applies in very limited

circumstances. Its application is restricted to only the most intense internal armed conflicts.

The Protocol applies to

all armed conflicts which are not covered by Article 1 of the Protocol Additional to theGeneva Conventions of 12 August 1949 () (Protocol I) and which take place in the territoryof a High Contracting Party between its armed forces and dissident armed forces or otherorganized armed groups which, under responsible command, exercise such control over apart of its territory as to enable them to carry out sustained and concerted military operationsand to implement this Protocol.

It is clear from that provision that APII would only apply in very limited circumstances.

The belligerents must have a high degree of organisation and must also control territory.

The Protocol, although it adds to substantive legal rules covering internal conflict, is even

more restrictive in its application that Common Article 3. Like Common Article 3 it is only

to apply in circumstances where rebels have reached a stage where they look and act like a

state. In modern warfare, where control of territory is now far less important that in

previous eras and belligerents are less likely to have an organised command structure, the

Additional Protocol is unlikely to apply.

Customary International Law

There is therefore a significant legal difference between international and non-international

armed conflicts within conventional law. However, it is possible that the distinction is

being blurred by the development of customary international law. The rules pertaining to

international armed conflict are beginning to reach a level by which they were regarded as

applicable in all armed conflict.

The notion that customary international law has developed to cover non-international

armed conflict was discussed in Tadi. The Appeals Chamber stated that some rules

applied to both international as well as not international armed conflicts, including:

[the] protection of civilians from hostilities, in particular 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 warfareproscribed in international armed conflicts and ban of certain methods of conducting


11/20

11

hostilities34

According to the Appeals Chamber, however, not all rules have reached customary status.

Furthermore, the Appeals Chamber pointed out that it is not the rules themselves, but the

essence of the rules that have been transposed into customary law. It stated that only anumber of rules and principles governing international armed conflicts have gradually

been extended to apply to internal conflicts, and that this extension has not taken place in

the form of a full and mechanical transplant of those rules to internal conflicts; rather, the

general essence of those rules, and not the detailed regulation they may contain, has

become applicable to internal conflicts. 35

The codification of war crimes that took place in the drafting of the Rome statute has gone

a long way in identifying the categories of war crimes that are applicable in non-

international armed conflicts and was one of the main developments in the blurring of the

international /non-international distinction. The Statute codifies many of the laws of war,

and by doing so has transposed many of the crimes once applying only to international

conflict to the realm of non-international conflict. 36

This is a strong indication that these

crimes have reached the status of customary law and apply to all situations of armed

conflict. However, the Rome Statue still retains a distinction between international and

non-international armed conflict. Article 8 sets out the crimes applicable in international

armed conflicts (Art. 8 (2)(a)&(b)) and those that apply in a non-international conflict (Art.

8 (2) (c) & (e)). The decision to retain the distinction in the statute demonstrates that there is

still a view that there are different bodies of law which apply to international and non-

international conflict. Although the development of customary law is blurring the

distinction between these types of conflicts, the Rome statute shows that such a distinction

still exists.

Despite the convergence between the two bodies of law, some argue that the current state

of the law represents a significant lacuna. Willmott gives examples of certain types of

conduct that are not covered by Article 3 or customary international law. He argues that

34

Tadi(Jurisdiction)para 127.35 Tadi(Jurisdiction) para 126.36 Some examples of crimes that are now included to apply to all armed conflict include: Rape and Sexual Violence

8(2)(d)(vi); Pillaging a town or place 8(2)(d)(v); and Declaring that no quarter will be given 8(2)(d)(x).


12/20

12

atrocities such as the use of certain types of weapons, widespread damage to the

environment, use of human shields, improper use of flags and use of starvation as a

method of warfare cannot be prosecuted at the ICC for internal conflicts. 37Werle, on the

other hand, argues that since the creation of the ICC statute, there is no longer a relevant

difference between international and non-international conflict: under the ICC statute and

in accordance with customary international law, protection of persons in non-international

armed conflict is largely comparable to their protection in international armed conflict. 38

Others have argued that the distinction is no longer of any practical difference. Cassese

rightly points out that there has been a convergence of the two bodies on international law

with the result that internal strife is now governed to a large extent by the rules and

principles which had traditionally only applied to international conflicts. 39

There is still no single body of law that applies to all armed conflict, despite the

development of customary law is moving in that direction. 40

States have been reluctant to

apply laws of international armed conflict to their internal situations. Moreover, the

drafters of the Statute establishing the International Criminal Court chose to retain the

clear distinction between international and non-international conflicts in the text of the

statute. Why is it then, that states feel a need to retain the distinction? Are there real andvalid reasons for states to seek to retain the dichotomy, or is it simply away of avoiding

responsibilities with respect to internal armed conflict? Are laws applying to international

armed conflict appropriate to internal wars?

III. Re-thinking the International/Non-international dichotomy

Although experts disagree on the legal or practical significance of the legal dichotomy

described above, the distinction has been widely criticised. From a moral point of view,

37 Willmott D., Removing the Distinction between International and Non-International Armed Conflict in the Rome

Statute of the International Criminal Court,Melbourne International Law Review, vol. 8 , 2004.38 Werle Principles of International Criminal Law, p. 284.39

Memorandum of 22 March 1996 to the Preparatory Committee for the Establishment of theInternational Criminal Court, quoted in Stewart. J., Towards a single definition of armed conflict in international

humanitarian : a critique of internationalized armed conflict,International Review of the Red Cross, 85 (2003), no.

850, pp. 322.

40 Willmott D., Removing the Distinction between International and Non-International Armed Conflict in the RomeStatute of the International Criminal Court,Melbourne International Law Review, vol. 8 , 2004; Chandrahasan, N.,

Internal Armed Conflicts and the Expanding Jurisdiction of International Humanitarian Law, Sri Lanka Journal of

International Law, 12 (2000), pp. 129-137.


13/20

13

there seems to be no reason for distinguishing between acts that have taken place in an

international or non-international armed conflict. The ICTY has pointed out that the

dichotomy makes little sense when it comes to the goal of protecting human beings:

Why protect civilians from belligerent violence, or ban rape, torture or the wanton destructionhospitals, churches, museums or private property, as well as proscribe weapons causingunnecessary suffering when two sovereign states are engaged in war, and yet refrain fromenacting the same bans or providing the same protection when armed violence has eruptedonly within the territory of a single state? If international law, while of course dulysafeguarding the legitimate interests of states, must gradually turn to the protection of humanbeings, it is only natural that the aforementioned dichotomy should gradually lose its

weight.

41

Legal commentators have also widely criticised the legal dichotomy. Some argue that

there should be a single body of international law that applies to armed conflict,

irrespective of the categorisation of the conflict. Bassiouni argues that

It is anachronistic that these different legal regimes and sub-regimes apply to the same

socially protected interests and reflect the same human and social values, but differ in their

applications depending on the legal characterization of the type of conflict. Governmentsmaintain these distinctions for purely political reasons, namely, to avoid giving insurgents

any claim or appearance of legal legitimacy.

42

Lawyers Committee for Human Rights argued that [i]t is untenable to argue that theperpetrators of atrocities committed in non-international armed conflict should be shielded

from international justice just because their victims were of the same nationality. 43

Reisman and Silk go further, arguing that:

The distinction between international wars and internal conflicts is no longer factuallytenable or compatible with the thrust of humanitarian law, as the contemporary law of armedconflict has come to be known. One of the consequences of the nuclear stalemate is that mostinternational conflict now takes the guise of internal conflict, much of it conducted covertly orat a level of low intensity. Paying lip service to the alleged distinction simply frustrates thehumanitarian purpose of the law of war in most of the instances in which war now occurs.

44

These comments represent a broad view among international legal scholars that the

41 Tadi(Jurisdiction), para 97.

42 Bassiouni, New Wars and the Crisis of Compliance, p. 731. Bassiouni recommends that there be a new Protocol

drafted to the Geneva Conventions that would eliminate the disparities in protections between all forms of

conflicts, and to give combatants willing to abide by IHL the status of lawful combatant and that of POW.

43 Lawyers Committee for Human Rights, Establishing an International Criminal Court: Major Unresolved Issues inthe Draft Statute (New York, 1998) section IV.

44 Reisman, W. and Silk,J., Which law applies to the Afghan conflict?,American Journal of International Law, Vol.

82, 1988 p. 465.


14/20

14

category of conflict should no longer make a difference to the criminalisation of atrocities

in armed conflict.

Despite the abovementioned criticisms, states continue to view the dichotomy as a relevant

part of IHL. The Statute of the International Criminal Court, for instance, retains the

dichotomy. This could have been a chance for states to largely do away with the distinction

between international and non-international conflict. For instance, Cryer et al argue that

there should have been a list of war crimes that apply to all armed conflicts, supplemented

by a list of crimes that apply only to international conflicts. 45

However, at some level,

states continue to view the legal dichotomy as having legal significance.

In criticising the dichotomy, legal commentators have largely overlooked the reasons

behind its creation and its continued application. Why is it that states continue to cling to

the international/non-international distinction? The reason is that international conflicts

and non-international conflicts are considered as being different in nature, since the status

of the belligerents in the two types of conflict are different. Moir argues that the two

streams of law developed separately because the relationship between the belligerents is

fundamentally different in internal wars.

The situation is markedly different in that the position within a State is not analogous to itsinternational relations. It is clearly unusual for a state to employ force in its relations withother states. In contrast, force is frequently used within the States own territory and againstits own citizens, ranging from everyday enforcement action against common criminals tolarge-scale operations aimed at quelling riots or other civil disturbances 46

The nature of the parties to the conflict is different in the two categories of conflict. The

Geneva Conventions were originally developed with the view that they would apply only

to states parties. 47

45 Cryer, R., Friman, H, et al,An Introduction to International Criminal Law and Procedure, Cambridge University

Press, Cambridge, 2007, p. 232: Such a list would not entail any change in customary law, but simply a clearer

presentation of the existing legal situation.

States are assumed as being fully capable of fulfilling their obligations

under international law and have international legal personality. In contrast, rebel groups,

secessionists or armed militias have limited international legal personality and are less

46 Moir,Internal Armed Conflict, p. 34.47 Meron, T. ,'International Criminalisation of Internal Atrocities,American Journal of International Law, 89 (1995),

no. 3, pp. 554-577.


15/20

15

likely to be capable of implementing these obligations. This is because states are more

likely to have a developed military command structure, to have military manuals that set

out legal obligations of their fighters, and to have courts or military tribunals that can

prosecute those who breach these rules. The approach that has been taken with regards to

rebel groups is that legal obligations begin to apply only when they have reached a level of

organisation and control that is comparable to that of a state and apply to groups that

take part in the fighting. The laws of war may be inapplicable or inappropriate to

circumstances in which the belligerents are not comparable to a state since they are

relatively unorganised or irregular.

Not only are the groups taking part in the conflict different in internal conflict, but also

their relationship with each other is fundamentally different. At the international level,

states are regarded as legally equal entities. When one state goes to war against another,

the conflict is between two sovereign entities. In an internal war the relationship is

markedly different. Rather than being between legal equals, the conflict takes place

between legal unequals. According to the Weberian definition of statehood, the State is set

of institutions that maintain a monopoly over the legitimate use of coercive force within a

territory. In an internal war, the use of force by insurgents is seen as illegitimate as only

the State has the right to use coercive force within its territory. The State will maintain that

it has the prerogative to treat fighters as criminals and to prosecute them under the states

criminal law. However, under IHL, the fighters are given at least some level of legal status,

and acquire rights and duties as belligerents. A state that wishes to put down a rebellion or

prevent civil war will not tolerate treating those who threaten state authority as legal

equals, and will not bestow upon the other party any status other than criminal.

One could argue that these distinctions should have no relevance when it comes to

international humanitarian law, since it makes no difference to the victim of a war crime

whether the conflict is an international or non-international conflict. This is certainly true,

and from a moral point of view, there is absolutely no difference between attacking

civilians of another state and attacking civilians within the borders of the state. However,

from a practical viewpoint, states and insurgents alike have routinely dismissed the

application of IHL to their conflicts. For IHL to be effective, the belligerents must feel that


16/20

16

they are legally bound by a set of rules. It is evident from the atrocities that have taken

place in internal conflicts that this is not the case.

Indeed, many states are unwilling to categorise their internal disturbances as armed

conflicts attracting the application of IHL. For example the Russian Federation and Turkey

do not consider their internal conflicts with separatists as armed conflicts. In dealing with

the Chechen or Kurdish separatists, these states see themselves as conducting internal

operations against terrorists rather than anything comparable to an armed conflict and

therefore denied the application of international humanitarian law to their situations.

Abresch points out that this decision is due to political rather than legal considerations:

The problem is that to apply humanitarian law is to tacitly concede that there is another

party wielding power in the putatively sovereign state.

48

Solomon argues that the main reason for the distinction is the concern of states that their

ability to deal with internal unrest will be weakened if they apply rules of armed conflict to

internal situations: the distinction was also deeply rooted in the view that the rules of

international armed conflict would, if applied to civil wars, affect the status of insurgents

and the territory they hold. 49

The fear is that by applying the rules of armed conflict, and

not only the domestic laws of the state, the insurgents would gain an invaluable

commodity in internal conflicts: status. By treating a situation as an armed conflict the

State is not only conceding that the situation has become out of control, but it also implies

that the armed group has obtained a status other than a mere rebel, insurgent or terrorist.

Although the Conventions state that the application of IHL does not affect the status of the

parties, states continue to feel that it does. This concern about status should not be

underestimated, particularly in weak and failing states that find it increasingly difficult to

assert their sovereignty.

The concern, then, is not so much restriction on the States use of force, but the message

that the application of international humanitarian law sends about the nature of the parties

48 Abresch, W., A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in

Chechnya, Center for Human Rights and Global Justice Working Paper, Extrajudicial Executions Series, No. 4,2005, p. 17.

49 Solomon, S., Internal Conflicts : Dilemmas and Developments, The George Washington International Law

Review, 38 (2006), no. 3, p. 582.


17/20

17

to the conflict. As Fleck points out,

Importantly, the concern that the application of the laws of war in internal situations wouldor could obstruct the governments ability to prosecute the conflict was not fundamentallybased on anxiety about restrictions related to methods and means of conflict. The concern

was based, instead, on uneasiness about the laws implications for the status of parties to theconflict, and, in particular, on states concerns about restrictions on their ability to sanctionindividuals under domestic law for their belligerent acts.

50

For instance, although Article 3 contains legal provisions to apply the basic elements of

IHL to internal conflicts, the Article has rarely been applied by states. Moir points out that

states have been unwilling to admit that these basic legal provisions apply to their

conflicts:

When faced with internal difficulties, States tend to disregard the provisions of commonArticle 3, often denying that the situation is an armed conflict at all. Article 3 may assert thatits application has no effect on the legal status of the parties to the conflict, but States fear theopposite, and to an extent they are right to do sothe insurgents must receive some measureof legal personality to the extent they gain rights and obligations under the article.

51

In some cases, international humanitarian law is simply unsuited to internal armed

conflict, since the application of rules developed for international conflicts may not be so

easily applied to an internal war. 52 As Stewart points out, much of the Geneva

Conventions simply cannot be applied in civil conflicts because their operation turns on

notions of belligerent occupation of territory and enemy nationality, concepts that are alien

to civil conflicts. 53The methods used may also differ. In an internal conflict, the methods

employed may be closer to counter-terrorism, riot control or general law enforcement than

what is considered the means and methods envisaged by IHL. 54

50 Fleck, The Law of Non-International Armed Conflict,p. 612.

Simply applying the law

of international armed conflict to all armed conflicts, regardless of their status, is unlikely

to occur in the near future. States will continue to view the two types of conflicts as

fundamentally different, both in the legal status of the parties to the conflict, and the

51 Moir,Internal Armed Conflictp. 274.52 Law enforcement operations in internal disturbances will generally follow specific rules which are not fully

comparable to military operations in an armed conflict. Fleck, The Law of Non-International Armed Conflict,p.

618.53 Stewart. J., Towards a single definition of armed conflict in international humanitarian : a critique of

internationalized armed conflict,International Review of the Red Cross, 85 (2003), no. 850, p. 345.54 Law enforcement operations in internal disturbances will generally follow specific rules which are not fully

comparable to military operations in an armed conflict. Fleck, The Law of Non-International Armed Conflict, p.

618.


18/20

18

methods and means used to execute the two types of conflicts.

A Human Rights Approach?

Rather than seeking to simply apply IHL to all armed conflicts, it has been argued that the

application of international human rights law (IHRL) would be more appropriate in some

circumstances. 55

In contrast to IHL which generally regulates conduct between states,

IHRL law is a system that regulates the relationship between the State and its citizens. It is

therefore arguably more appropriate in regulating internal wars. In this case, the State

maintains its prerogative to fight those who challenge state authority, but the way in which

it does so is regulated by international IHRL. Furthermore, by applying IHRL, there is less

of a concern that it will bestow status upon internal rivals, as there is with IHL. Abresch

makes the convincing argument that in certain situations, IHRL may be more capable of

applying to an internal conflict than IHL, giving the example of the ECtHRs use of the

right to life article in cases of armed conflict within the Council of Europe:

The ECtHRs approach has the potential to induce greater compliance, because it applies thesame rules to fights with common criminals, bandits, and terrorists as to fights with rebels,insurgents, and liberation movements. To apply human rights law does not entail admittingthat the situation is out of control or even out of the ordinary.

56

Although there is a good argument to apply IHRL to some internal conflicts, there are

some apparent problems with applying it to internal armed conflict. Firstly, the law

generally binds states who are a party to the Conventions, but does not establish corollary

duties on its citizens. Although it has been argued that IHRL equally applies to non-state

actors such as rebel groups as it does to states 57

55 Abresch, A Human Rights Law of Internal Armed Conflict, p. 28.

, it has proved difficult to apply the IHRL

to non-state groups. This is in contrast to IHL, which establishes rights and duties upon

both sides. Secondly, IHRL is capable of derogation in times up public emergency and war,

whereas IHL only applies in times of war, and can therefore be seen as a specialised form

of IHRL that applies during armed conflict as lex specialis. This may become less of a

56 Abresch, A Human Rights Law of Internal Armed Conflict, p. 18.57 See Tomuschat, The Applicability of Human Rights Law to Insurgent Movements, in Crisis Management and

Humanitarian Protection, Berliner Wissenschafts-Verlag, (2004), pp.588-581. Fleck, The Law of Non-International

Armed Conflict,p. 621: Whereas the binding effect of international humanitarian law on non-state actors was never

seriously disputed, the extent to which this would also apply to underlying human rights norms was shadowed by awidely believed myth according to which human rights could be claimed against the state, but not against

individuals. That myth may have been supported by a limited textual understanding of human rights conventions,

but it was never keeping with custom, neither with practice, and cannot be upheld.


19/20

19

concern since there is a growing view among experts that IHL and IHRL are able to co-

exist are not mutually exclusive areas of law. Despite these criticisms, IHRL is appropriate

in regulating many of these conflicts simply because states routinely dismiss the

application of IHL to their internal conflicts. In the conflicts referred to aboveUnited

Kingdom, Turkey and Russiathese states denied application of IHL, but IHRL was still

able to regulate the conflict through applications to the European Court of Human

Rights. 58Applying IHRL may be the best way to promote compliance with a set of legal

norms during armed conflict where states and rebels alike have determined that they are

not bound by IHL.

59

The end of the distinction?

Moir argues that the distinction between international and non-international conflicts is

becoming less relevant:

we would appear to be moving tentatively towards the position whereby the legal distinction between

international and non-international armed conflict is becoming outmoded. What will matter as regards

legal regulation will not be whether an armed conflict is international or internal, but simply whether an

armed conflict existsper se.60

Indeed, many writers advocate the view that one body of IHL should apply to all armed

conflicts, no matter how they are categorised. 61

58 Isayeva, Yusupova and Bazayeva v. Russia, ECtHR, App. Nos. 5794749/00 (Feb. 24, 2005); Gle v. Turkey,

ECtHR, App. No. 21593/93 (July 27, 1998);McCann and Others v. United Kingdom, ECtHR, App. No. 18984/91

(Sept. 27, 1995).

However, despite there being a move

towards a single body of law, the legal distinction remains. More importantly, states

continue to see a need to distinguish between internal conflicts and international conflicts,

and the distinction will likely exist in some form in the near future. This primarily stems

from the nature of the relationship between the parties in the conflictStates are reluctant

to recognise rights and establish obligations with regards to their internal situations.

Boelaert-Suominen, summarises the current situation:

59 Even in internal armed conflict, where the taking of human life becomes a daily reality, a minimum of legal

protection shall be maintained. However, although IHL is the primary legal instrument designed to provide

protection during armed conflict, human rights are not replaced altogether. IHL takes precedence whenever there is aconflict between the two sets of norms. But there are many blank spaces where IHL has not established any specific

rules. In such instances, general human rights obligations can be invoked. Tomuschat, The Applicability of Human

Rights Law to Insurgent Movements, p. 575.

60 Moir,Internal Armed Conflict, p. 51.61 Bassiouni recconmends that A Protocol to the Geneva Conventions should be added to eliminate the disparities in

protections between all forms of conflicts, and to give combatants willing to abide by IHL the status of lawful

combatant and that of POW. New Wars and the Crisis of Compliance, p. 808.


20/20

the recent Diplomatic conferences do not indicate that the distinction between internationaland internal armed conflict has been eliminated, nor that it will be eliminated soon. Theobligation of states to apply a uniform set of rules (substantive or procedural) in relation to allarmed conflicts, regardless of their characterisation, is still a distant prospect. 62

Although international legal scholars may think of the distinction between internal and

non-international conflicts as largely immaterial, this is not a view held by states

themselves, who see the two types of conflicts as fundamentally different. However, the

distinction that exists in IHL does not match the messy situation of modern armed conflict,

which sits somewhere in between the two categories of classical inter-state conflict and

internal armed conflict. Any changes to the laws of war must take into account the

important concerns states have about their ability to put down internal challenges, yet theymust not be able to simply ignore the application of IHL to their conflicts. New wars and

the mixed conflicts of the post-Cold War era have seen some of the greatest violations of

fundamental human rights. Applying IHL in a way that the belligerents, both state and

non-state actors, actually feel bound by its rules remains a significant challenge.

62 Boelaert-Suominen, S., Grave breaches, universal jurisdiction and internal armed conflict: Is customary lawmoving towards a uniform enforcement mechanism for all armed conflicts?Journal of Conflict and Security Law,

Vol. 5, No. 63, 2000, p. 88-89.

Paper Odermatt

Documents

Transcript of Paper Odermatt