Welcome to this lecture on conflict classification.

Today, we will discuss two special cases.

First, the situation of foreign intervention and second the spill over of a non-
international armed conflict.

At the end of this lecture, we will also touch upon situations which do not reach the
threshold of an armed conflict.

There are only two categories of conflicts covered by IHL. International armed
conflicts on the one hand, and non-international armed conflicts on the other.

There are nevertheless situations where a non-international armed conflict can turn
into an international armed conflict under specific circumstances.

You may have noticed that with the growing number of non-international armed
conflicts after World War II, it has become a recurring phenomenon that third
states are intervening in civil wars. These third states intervene either on behalf
of the government or in order to support the rebel groups with the intention
to overthrow the respective government in power.

One recent example is how Russia continues to support Syrian armed forces at the
request of President Assad and his fight against several rebel groups. We might
also think further back to when the United States supported the Contra rebels in
Nicaragua against the Nicaraguan armed forces of the Sandinista regime in the
1980s. Or we can consider the possible involvement of Russia in the conflict in
eastern Ukraine between the Ukrainian armed forces and pro-Russian rebels.
Finally, we can think of how the French Air Force has attacked Isis fighters in
Raqqa, Syria.

Does foreign intervention change the character, in other words, the

classification of a conflict? Where the state intervenes in support of the territorial
government's battle against the rebellion in that country, such as the case of Russia
operating in Syria, the conflict remains non-international in nature. But when a
third intervening state supports the rebels against the territorial state, such as was
the case in the United States operating in Nicaragua, the situation might actually
change the character of a conflict. In this case, a conflict has the potential to
become international, if the intervening state exercises a certain amount of control
over the rebels. The International Court of Justice in its famous 1986 Nicaragua
judgement, stated that for this to happen the third state needs to have effective
control over the rebel group. This means that third states must give clear
instructions to the respective rebel group.

In the Nicaragua case, the judges of the International Court of Justice ruled that the
United States did not exercise effective control over the rebels in Nicaragua, as it
had merely provided training and financial support to these rebels. As a result, the
conflict in Nicaragua remained a civil war and thus non-international in nature.

However, it is questionable whether effective control is the decisive criterion

today for classifying such conflicts. This is because the International Criminal
Tribunal for the former Yugoslavia used a different test in it's well-known 1999
Tadic appeals judgment.

Instead of effective control, the tribunal applied the less-demanding overall

control standard with regards to organized armed groups in order to assess
whether the conflicts in Bosnia-Herzegovina had changed as a result of
Serbia's influence on the Bosnian Serbs.

The Tribunal ruled that the overall control test was fulfilled because the
Serbian government provided financial and operational support to the
organized armed group of the Bosnian Serbs and helped them with the
coordination and general planning of their military activities. As a result of
the application of this lower threshold of overall control, the civil war in
Bosnia-Herzegovina transformed into an international armed conflict between
Bosnia-Herzegovina and Serbia. This divergence of jurisprudence of the
International Court of Justice and the International Tribunal for the former
Yugoslavia created some controversy amongst international academics and
practitioners. Still, the overall control Standard seems to have been accepted
in the meantime as the decisive criterion for the characterization of armed
conflicts and has been repeatedly confirmed by other courts and tribunals.
Such as the International Criminal Court in the Lubanga case.
Now, we would like to introduce you to another special situation: That of a non-
international armed conflict which spills over into a neighboring country. Let us
imagine that a civil war is being fought in the Netherlands between the Dutch
armed forces and a rebel group which wants to become independent from the
Netherlands and intends to join Belgium. One day, some of these rebels take refuge
in Belgium and the armed forces of the Netherlands start to attack these rebels. Can
this so-called NIAC spill-over turn the underlying situation into an international
armed conflict between the Netherlands and Belgium? If Belgium consents to the
armed activities of the Dutch armed forces on its territory, Belgium would
have to be considered part of the conflict between the Netherlands and the
rebels and will be supporting the Netherlands. In this case, the conflict would
remain non-international in character since it would not be fought between two
states. If on the other hand, Belgium does not provide its consent, the
extraterritorial operations by the Netherlands on foreign territory may be
characterized as an international armed conflict, even in cases where the attacks are
not directly aimed at Belgium government buildings or agencies.

At least this reasoning follows the 2016 edition of the official commentary of the
International Committee of the Red Cross on the first Geneva Convention.

Finally, we would like to discuss situations which fall below the threshold of
armed conflict. The consequence of the relatively strict organization and intensity
requirements for the existence of a non-international armed conflict under
Common Article 3 is that all situations which fall below this threshold are not
covered by international humanitarian law. Rather, in these situations, we are faced
with matters of law enforcement which in most cases are governed by the domestic
legal regime and international human rights law.

This viewpoint is further supported by Additional Protocol II. If we look at

Article 1, paragraph two, we can see that this protocol shall not apply to
situations of internal disturbances and tensions, such as riots, isolated and
sporadic acts of violence, and other acts of a similar nature as not being
armed conflict. This could mean that attacks from terrorists or attacks
against possible terrorist suspects are not covered by the law of armed conflict
when they only happen sporadically and are not linked to an armed conflict.
Two special situations governed by IHL. Namely, foreign intervention and NIAC
spillover. We discovered that a third state might intervene in a non-international
armed conflict and that this can internationalize the conflict depending on the type
of control exercised by the intervening state. We saw that a NIAC can spillover
thereby turning into an international armed conflict. This is important because the
rules applicable to an IAC are far more extensive. Finally, we noticed that some
situations are not regulated by international humanitarian law, such as riots and
sporadic terrorist acts and that domestic law and human rights law usually apply to
these situations.