When does IHL apply?

International humanitarian law (IHL) applies only to situations of armed conflict. Legally
there are two types of armed conflict: international armed conflicts; and non-international
armed conflicts.

Types of Armed Conflict

IHL applies in all situations of armed conflict. Within armed conflict there are two legal
classifications of conflict: international armed conflict (IAC) and non-international armed
conflict (NIAC). As we will see this can become complicated as in some situations both an IAC
and NIAC can exist in one location, or one can develop into the other depending on the evolving
facts.

Challenges and Importance of Classification of Conflicts

Under IHL different rules apply to the different types of conflict. As such, classifying the type of
conflict is crucial in order to know which rules can be applied. There tends to be much more
codification of rules applicable to IAC, compared to NIAC.

The definition of IAC differs to that of NIAC.

In addition there are sub categories of both NIAC and IAC that have different applicable rules.
For example, within international armed conflicts, there are more extensive rules that apply to
situations of occupation than with general IAC where there is no occupation. Within internal
conflicts, territorial control is a required element to apply the Second Additional Protocol, but
this is not required for the application of Common Article 3.

Defining International Armed Conflict

The basic requirement for an IAC is that there must be an armed conflict between two or more
states. Common Article Two of the Geneva Conventions sets out the commonly accepted
definition of an IAC:
“In addition to the provisions which shall be implemented in peace-time, the present Convention
shall apply to all cases of declared war or of any other armed conflict which may arise between
two or more of the High Contracting Parties, even if the state of war is not recognised by one of
them. The Convention shall also apply to all cases of partial or total occupation of the territory of
a High Contracting Party, even if the said occupation meets with no armed resistance.”

Threshold of violence

Aside from occupation, where there needs to be no armed resistance, the level of violence
needed between two states to have a situation of armed conflict is generally undefined but it is
generally accepted that even “two shots” fired across a border could lead to the application of
IHL. It remains a factual assessment and a question of relevance. For example, if during a
training exercise an army patrol accidently went into the territory of another state and returned
without any engagement with the other state, IHL would have no role to play. However if that
mistake led to an exchange of fire between the two armed forces, the applicable rules of IHL
would apply.

It is important to note that the rules covering international armed conflicts are more extensive
and more detailed than those covering internal armed conflicts, given that they include those set
out in the Hague Conventions of 1907, the four Geneva Conventions and the First Additional
Protocol to the Geneva Conventions of 1977.

Occupation

Occupation is a concept that only applies in the context of an IAC. Occupation is not defined in
the 1949 Geneva Conventions. However the 1907 Hague Convention IV sets out the following
definition:
“Territory is considered occupied when it is actually placed under the authority of the hostile
army. The occupation extends only to the territory where such authority has been established and
can be exercised”

Read more about the law of occupation.

Defining non international armed conflicts

The majority of today’s armed conflicts are non-international armed conflicts. The reluctance of
states to accept international legal oversight into their internal affairs often means that the
threshold of violence and organisation required to define a situation as an armed conflict is
significantly higher than what would be needed for a IAC.

General Definition of a NIAC

Common Article 3 tells us what does not qualify as an armed conflict, namely: internal
disturbances or tensions. Internal disturbances are riots, demonstrations, and isolated, sporadic
acts of violence, that take place inside the territory of a state, however it does not does not
provide a definition of a NIAC.
However case law, especially that at the International Criminal Tribunal for the Former
Yugoslavia (ICTY) has clarified the elements, allowing for the assertion that a non-international
armed conflict exists when there is a situation of“ protracted armed violence between
governmental authorities and organized armed groups or between such groups within a State.”

Hence, there are two keys elements needed for a NIAC: protracted armed violence, and the
involvement of an organised armed group. The case of Haradinaj set out some possible factual
indicators to help in the assessment of the existence of a NIAC.

Protraction of violence

The following are indicative of the level of protraction and intensity of violence needed for a
NIAC:

The number, duration and intensity of individual confrontations;

The type of weapons and other military equipment used;

The number and calibre of munitions fired;

The number of persons and type of forces partaking in the fighting;

The number of casualties;

The extent of material destruction;

The number of civilians fleeing combat zones;

The involvement of the UN Security Council may also be a reflection of the intensity of a
conflict.

Organisation

The following factors would be indicative of the level of organisation of an armed group:

The existence of a command structure and disciplinary rules and mechanisms;

The existence of a headquarters;

The ability to gain access to weapons, other military equipment and training;

The ability to plan, coordinate and carry out military operations;

the ability to define a unified military strategy and use military tactics;

The ability to speak with one voice and negotiate and conclude agreements such as cease-fires or
peace accords.

Additional Criteria for NIAC in Additional Protocol II

The Second Additional Protocol (APII) of 1977 also deals with internal armed conflicts. In order
to apply the provisions of APII the NIAC must be between a state and an armed group
(possibility of two armed groups for CA3 ruled out). In addition the conflict has to be in the
territory of a High Contracting Party to the Geneva Conventions, and the armed group has to
control a part of the territory.