Concept and definition of Armed conflict:

The test for armed conflict was set out by the Appeals Chamber in the Tadic Jurisdiction
Decision: "An armed conflict exists whenever there is a resort to Armed force between states or
protracted armed violence between Government and authorities and organized armed groups or
between such groups within a state." International humanitarian law is a special branch of law
covering situations of armed conflict.

Armed conflict is a situation where there is sustained fighting between at least two organized
groups or forces, which may involve the use of firearms, explosives or other weapons. The
definition of armed conflict under International Humanitarian Law (IHL) is important because it
determines the application of the law and the protection afforded to those involved.

Though IHL regulates the situation of armed conflict but it does not prescribe any definition
of ‘armed conflict’. Also, there is no consensus about what constitutes armed conflict. The issue
is intensively debated by experts in international law. Normally armed conflict means armed
confrontation between two or more parties.

“A political conflict in which armed combat involves the armed forces of at least one state (or one
or more-armed factions seeking to gain control of all or part of the state), and in which at least
1,000 people have been killed by the fighting during the course of the conflict.”

“An armed conflict is a contested incompatibility that concerns government and/or territory where
the use of armed force between two parties, of which at least one is the government of a state,
results in at least 25 battle-related deaths in one calendar year. Comment: ‘Armed conflict’ is also
referred to as ‘state-based conflict’, as opposed to ‘non-state conflict’, in which none of the warring
parties is a government.”

“An armed conflict exists whenever there is a resort to armed force between States or protracted
armed violence between governmental authorities and organized armed groups or between such
groups within a state.”

According to the Commentary to Common Article 2 of the Geneva Conventions exemplified by

the International Committee of the Red Cross (ICRC), ‘Any difference arising between two States
and leading to the intervention of armed forces is an armed conflict.
Classification of Armed Conflict:

International humanitarian law (IHL), also known as the law of armed conflict or the law of war,
is a body of international law that regulates armed conflict. There are three types of conflicts that
are recognized by IHL:
1) International armed conflict (IAC)
2) Non-international armed conflict (NIAC)
3) Internationalized non-international armed conflict (INIAC)

 International Armed Conflict (IAC)

International armed conflicts are those in which at least two states are involved. A single incident
involving the armed forces of two states may be sufficient to be considered on international armed
conflict. The generally accepted criteria for the existence of an IAC are derived from Common
Article 2 of the 1949 Geneva Conventions, which provides that,
“The present Convention shall apply to all cases of declared war or of any armed conflict
that may arise between two or more high contracting parties, even if the state of war is not
recognized, 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''.
This means that the occurrence of IAC is clear, that is, it would be a conflict between the legal
armed forces of two different states. A good example would be the North Korean- South Korean
war of 1950.

According to the Article I Para 4 of the Additional Protocol I, IAC also includes situations in which
people are fighting against colonial domination and alien occupation and against racist regimes in
the exercise of their right of self-determination.

An International armed conflict occurs when one or more states have recourse to armed forces
against another states, regardless of the reason or the intensity of this confrontation. Relevant rules
of IHL may be applicable even in the absence of open hostilities. Moreover, no formal declaration
of war or recognition of the situation is required.

Apart from regular, inter-state conflicts, additional protocol I extends the definition of IAC to
include armed conflicts in which peoples are fighting against colonial domination, alien occupation
or racist regimes in the exercise of their right to self-determination (wars of national liberalization).

Status of the conflict between Russia and Ukraine:

From the above discussion I think the conflict between Russia and Ukraine can be classified as an
international armed conflict. It began in 2014 when Russia annexed Crimea, and has since involved
ongoing military hostilities between Ukrainian armed forces and pro-Russian separatist groups in
eastern Ukraine. The conflict has also seen direct involvement from Russian military forces,
including the provision of military equipment, support, and personnel to the separatist groups. The
international community, including the United Nations and most countries, considers the situation
in eastern Ukraine as a violation of Ukraine's territorial integrity and sovereignty by Russia.

 Non- International Armed Conflict (NIAC)

An armed conflict that takes place within the territory of a state between its armed forces and one
or more non-state armed groups or between such groups is considered a non-international armed
conflict. IHL applies to such conflicts only to the extent that they are "protracted and sufficiently
intense."

Two main legal sources must be examined in order to determine what a NIAC under international
humanitarian law is:
a) Common Article 3 to the Geneva Conventions of 1949;
b) Article 1 of Additional Protocol II

a) Non-International Armed Conflicts within the Meaning of Common Article 3

Common Article 3 applies to "armed conflicts not of an international character occurring in the
territory of one of the High Contracting Parties". These include armed conflicts in which one or
more non-governmental armed groups are involved. Depending on the situation, hostilities may
occur between governmental armed forces and non-governmental armed groups or between such
groups only. As the four Geneva Conventions have universally been ratified now, the requirement
that the armed conflict must occur "in the territory of one of the High Contracting Parties" has
lost its importance in practice. Indeed, any armed conflict between governmental armed forces and
armed groups or between such groups cannot but take place on the territory of one of the Parties
to the Convention.
In order to distinguish an armed conflict, in the meaning of common Article 3, from less serious
forms of violence, such as internal disturbances and tensions, riots or acts of banditry, the situation
must reach a certain threshold of confrontation. It has been generally accepted that the lower
threshold found in Article 1(2) of APII, which excludes internal disturbances and tensions from
the definition of NIAC, also applies to common Article 3.

b) Non-International Armed Conflicts in the Meaning of Art. 1 of Additional Protocol II

A more restrictive definition of NIAC was adopted for the specific purpose of Additional Protocol
II. This instrument applies to armed conflicts
"-which take place in the territory of a High Contracting Party between its armed forces and
dissident armed forces or other organized armed groups which, under responsible command,
exercise such control over a part of its territory as to enable them to carry out sustained and
concerted military operations and to implement this Protocol".

This definition is narrower than the notion of NIAC under common Article 3 in two aspects.
Firstly, it introduces a requirement of territorial control, by providing that non-governmental
parties must exercise such territorial control "as to enable them to carry out sustained and
concerted military operations and to implement this Protocol".
Secondly, Additional Protocol II expressly applies only to armed conflicts between State armed
forces and dissident armed forces or other organised armed groups. Contrary to common Article
3, the Protocol does not apply to armed conflicts occurring only between non-State armed groups.
Over the years, the international tribunals have contributed significantly to our understanding of
the requisite criteria for determining the existence of a NIAC. In Tadić case, the International
Criminal Tribunal for the Former Yugoslavia (ICTY) affirmed that a NIAC exists when there is
‘protracted armed violence between governmental authorities and organized armed groups or
between such groups within a State’. This holding is widely accepted as establishing the two key
criteria for qualification as a NIAC: i) intensity of the hostilities; and ii) the involvement of an
organized armed group (OAG).

Two criteria are usually used NIAC:

(i) the hostilities must reach a minimum level of intensity. This may be the case, for
example, when the hostilities are of a collective character or when the government is
obliged to use military force against the insurgents, instead of mere police forces.
(ii) non-governmental groups involved in the conflict must be considered as "parties to the
conflict", meaning that they possess organized armed forces. This means for example
that these forces have to be under a certain command structure and have the capacity
to sustain military operations.

The intensity threshold

Various indicative criteria have been suggested to facilitate the determination whether a given
situation has met the required intensity threshold. The ICTY has considered such factors as the
following: the gravity of attacks and their recurrence; the temporal and territorial expansion of
violence and the collective character of hostilities; whether various parties were able to operate
from a territory under their control; an increase in the number of government forces; the
mobilization of volunteers and the distribution and type of weapons among both parties to the
conflict; the displacement of a large number of people owing to the conflict; and whether the
conflict is subject to any relevant scrutiny or action by the UN Security Council.

The Organizational Element

As regards the second criterion, the non-state actors must be ‘armed’ to the extent that they have
the capacity to mount attacks. Although there must be some degree of organization in order to be
a party to the conflict, this does not have to reach the level of a conventional militarily unit. To
determine whether this threshold has been met, the tribunals have assessed: the organization and
structure of the armed group; the adoption of internal regulations; the nomination of a
spokesperson; the issuing of orders, political statements and communiqués; the establishment of
headquarters; the capacity to launch coordinated action between the armed units; the establishment
of a military police and disciplinary rules; the ability to recruit new members; the capacity to
provide military training; the creation of weapons distribution channels; the use of uniforms and
various other equipment; and the participation by members of the group in political negotiations.

Political will to recognise NIAC/ State Sovereignty

The politics behind classification of armed conflicts as often brought about the failure of
international humanitarian law in playing its part. Because of states’ interests, conflicts continue
to happen with breaches of human rights and destruction of property continuing to happen. For
international humanitarian law to play a crucial part, it needs to adapt and continuously evolve to
cater for the changing dynamics of conflicts experienced today.
In practice, the State(s) involved in a situation of violence are the ones who decide whether
that situation constitutes an armed conflict; and if so, whether the nature of the armed
conflict is international or non-international. It is of fundamental importance that this
determination be made objectively on the basis of the facts available, and not on the basis of
political considerations.

Status of the Sudan Conflict:

Regarding the war in Sudan, it's important to note that Sudan has experienced several
conflicts throughout its history, and there have been multiple instances of armed conflict
within the country.

In recent years, Sudan has been undergoing significant political and security changes,
including the separation of South Sudan in 2011. The conflict in Darfur, which began in 2003,
can be classified as a non-international armed conflict between the Sudanese government
forces and rebel groups. The conflict in Darfur involved widespread violence, displacement
of civilians, and allegations of war crimes and crimes against humanity.

 Internationalized non-international armed conflict (INIAC)

An internationalized armed conflict can arise when a war occurs internally between different
factions, with one faction receiving support from one or more foreign states. In some cases, the
fighting between parties involved in a non-international armed conflict may extend to the territory
of one or more third states, with the consent, either explicit or implicit, of the governments
concerned. This is known as an "exported" or "delocalized" conflict or an "extraterritorial" non-
international armed conflict. In such situations, there is no international armed conflict because
there is no conflict between two or more states, as required by international law. The intervening
state acts with the permission of the territorial sovereign. The legal framework applicable to these
conflicts is a subject of debate. Some scholars argue that these conflicts constitute a distinct form
of conflict and propose the development of a new set of rules known as a third legal system, in
addition to the laws governing international armed conflicts and non-international armed conflicts.
They argue that, from the perspective of the parties involved, these armed conflicts resemble non-
international armed conflicts as they involve government forces fighting against armed groups.
However, from a territorial standpoint, these conflicts are characterized by "internationalization"
as they transcend the borders of a single state and involve multiple states. The conflict in the
Democratic Republic of Congo in 1998, with the intervention of forces from Rwanda, Angola,
Zimbabwe, and Uganda, is a prominent example of an internationalized armed conflict. As seen in
cases like Afghanistan and Iraq, an ongoing international armed conflict may transform into a non-
international armed conflict under certain circumstances, such as when a new government,
consenting to foreign intervention, replaces the existing government of the country. This raises
questions regarding the "recognition" of governments under international law, a practice not
universally followed by all states. States that do not recognize governments generally apply the
principle of effectiveness, meaning that if it is evident that the new government is effectively in
control, the armed conflict would automatically be considered non-international.
The actual nature of armed conflicts often does not fit neatly into the predefined legal categories.
There are situations that may not align perfectly with the concepts outlined in international
humanitarian law. This raises concerns about whether these categories should be expanded or
adjusted to prevent these situations from falling into a legal void.

Controversial Classification of Certain Armed Conflicts

Armed conflicts are in reality not as clearly defined as the legal categories. Some of them may not
exactly tally with any of the concepts envisaged in international humanitarian law. This raises the
question of whether those categories need to be supplemented or adapted with a view to ensuring
that these situations do not end up in a legal vacuum. There are three types of situation whose
qualifications are controversial:

control of a territory without military presence on the ground;

foreign intervention in non-international armed conflict; and
non-international armed conflicts on the territory of several States.

1. Control of a territory without military presence on the ground

Despite the clarifications contributed by the 1907 Hague Regulations and the 1949 Geneva
Convention to the notion of occupation, it is not always easy in practice to identify the situations
that are covered by that concept. As Roberts points out, ‘the core meaning of the term is obvious
enough; but as usually happens with abstract concepts, its frontiers are less clear’. The example of
the Gaza Strip following the Israeli withdrawal illustrates those difficulties with particular acuity.
On 12 September 2005, the last Israeli troops finished withdrawing from that region in which they
had maintained a continuous presence since the Six-Day War in 1967. In doing so, they were
helping to implement a ‘Disengagement Plan’ adopted by the Israeli government on 6 June 2004
and endorsed by parliament on 25 October of that same year.54 By virtue of that plan, the
authorities’ intention was to put an end to their responsibilities vis-a `vis the people living in that
territory. Should it therefore be concluded that those measures marked the end of the occupation
of the region in question? In other words, was the physical withdrawal of the Israeli forces enough
to admit that effective territorial control characteristic of occupation did not exist any longer at that
time? Some observers answer that question in the negative. It was thus recalled that Israel retained
substantial control over the Gaza Strip, although its troops were no longer physically deployed in
that area. The Disengagement Plan clearly stated that Israel was to continue to exercise control
over the borders of that territory, as well as over its air space and coastal region. Moreover, Israel
has the advantage of being able to enter Palestinian territory at any time in order to maintain public
order. This power is made greater by the small size of the territory of Gaza and the military means
available. That interpretation would also find some support in Article 42(2) of the 1907 Hague
Regulations, which makes it clear that occupation exists when the authority of the hostile army
‘has been established and can be exercised’ (our emphasis). That ‘ability’ could be interpreted as
meaning that potential authority would suffice as confirmation of the reality of occupation. The
United Nations Secretary General thus considered that ‘the actions of IDF in respect of Gaza have
clearly demonstrated that modern technology allows an occupying Power to effectively control a
territory even without a military presence’. According to that position, occupation of the Gaza
Strip would therefore not have ceased with the withdrawal of troops in 2005, as Israel could be
said to continue to exercise from a distance a power equivalent to the ‘effective control’ required
under the law of occupation. However, other observers consider that a closer study of the treaty
texts shows that the ability of an occupier to impose its authority cannot be separated from its
physical presence in the territory under its control. While Article 42 of the 1907 Hague Regulations
accepts that occupation exists when the adversary’s authority ‘can be exercised’, it makes it clear
that that authority must first be ‘established’. It thus forges an indissociable link between the
establishment of authority, implying the deployment of a presence in the territory in question, and
the ability to extend that authority to the entire territory. As was recalled by the International Court
of Justice, effective control becomes apparent as a result of a substitution of powers. Obviously, a
similar threshold of application cannot be achieved if the foreign forces are located outside the
region in question. Moreover, it is impossible to conceive of the implementation of most of the
rules of occupation unless there is a presence in the territory. It is actually impossible to ensure
public order and life in a territory, as required by Article 43 of the 1907 Hague Regulations, from
outside. It would thus be paradoxical to require a State to fulfil its international obligations if it is
unable to do so because it is not present in the area concerned. A similar interpretation would run
counter to the basic tenets of the law of occupation. The example of Gaza shows to what extent
the concept of occupation poses difficulties of interpretation when it comes to applying it in
practice. It would be impossible within the limited framework of this article to deal with all the
issues associated with that concept. The ICRC is currently carrying out a consultation process that
will help to clarify a number of still controversial points.

2. Foreign intervention in non-international armed conflict

Two different forms of intervention may be distinguished here: (a) when one (or more) third
State(s) become involved in a non-international armed conflict in support of one or other of the
parties to the conflict; (b) when multinational forces become involved in a non-international armed
conflict in the course of a peacekeeping operation.

The intervention of one or more third States in a non-international armed conflict

This scenario, which is sometimes referred to as a ‘mixed conflict’, combines characteristics which
may derive from both international armed conflicts and non international armed conflicts.
Depending on the configuration of the parties involved, fighting in the field may be between the
forces of the territorial State and those of an intervening State, between intervening States taking
action on both sides of the front line, between government forces (of the territorial State or of a
third State) and non-governmental armed groups or between armed groups only. This raises the
issue of the legal definition of those situations that do not fit into the standard categories of
conflicts established by international humanitarian law. In its work, the ICRC considers that,
depending on the warring parties, the law that applies in such situations varies from one case to
the next. Inter-State relations are governed by the law of international armed conflict, whereas
other scenarios are subject to the law of non-international armed conflict. Thus intervention by a
third State in support of a non-governmental armed group opposed to State forces results in the
‘internationalization’ of the existing internal conflict. This fragmented application of international
humanitarian law was implicitly favoured by the International Court of Justice in the Case
concerning Military and Paramilitary Activities in and against Nicaragua: in its analysis of the
conflict, the Court differentiated between, on the one hand, the conflict between the Nicaraguan
government and the contras, and, on the other, the conflict between that same government and the
government of the United States. However, this differentiated approach also raises certain practical
problems. In many cases, the distinction between conflicts deriving from one or other of the two
types of armed conflict is artificial or leads to results that are difficult to accept. When there is an
alliance of foreign government forces and rebel troops, the following questions are raised, for
example: What status needs to be given to civilians taken captive by foreign forces and then handed
over to the local group? Are the relevant rules of the Fourth Geneva Convention to be applied to
them (to the extent that there is an armed conflict between the intervening State and the territorial
State) or the rules stemming from the law of non-international armed conflict (since they are held
by a non-governmental armed group)? In other words, does a different set of rules need to be
applied depending on whether those persons were arrested by the foreign forces or directly by the
local group? In the light of these difficulties, the question is then raised of whether it is desirable
to envisage an adaptation of international humanitarian law as applicable to non-international
armed conflicts characterized by foreign military intervention.

The intervention of multinational forces in a non-international armed conflict

We need to begin by recalling that the presence of multinational forces in this context does not
necessarily transform them into parties to the conflict. Usually, these troops are not there to take
part in the fighting, but are deployed with the aim of conventional peace-keeping. Their mandate
does not authorize them in that case to provide support for one or other of the adversaries, but is
limited to interposition or observation. Moreover, they may only resort to using armed force in the
case of self-defense. Multinational forces must, however, be considered parties to the conflict in
two hypotheses. First, it may so happen that they take part directly in the ongoing hostilities by
supporting one of the warring entities. The United Nations Organization Mission in the Democratic
Republic of Congo (MONUC), for example, provided military support for the government of the
Democratic Republic of the Congo in order to repel the offensives launched by the armed
opposition. Secondly, when international troops are deployed without supporting one of the
warring camps, their status will be determined in accordance with the criteria normally used to
evaluate the existence of a non-international armed conflict. Those troops must be considered as a
party to the conflict if their level of involvement reaches the required degree of intensity. This is
not the case if recourse to force is limited to the context of self-defence. The nature of the armed
conflicts considered here is controversial.
 3. Non-international armed conflicts taking place on the territory of several States
Both Article 3 common to the Geneva Conventions and Additional Protocol II specify their
respective fields of application by clearly stating that the conflict in question takes place on the
territory of a State party to those instruments. However, many conflicts between a government and
an armed group are in practice carried out on the territory of two or even of several States. Some
authors consider that this is a new type of conflict that is not taken into account in the texts currently
in force. They refer to such conflicts as ‘transnational armed conflicts’ or ‘extra-State conflicts’
and consider that a specific type of international humanitarian law must apply to them. It is useful
in this respect to differentiate between various scenarios. Example: ISIS

4. Cross-border non-international armed conflicts

Another possibility is that State forces enter into conflict with a non-governmental armed group
located in the territory of a neighbouring State. In that case, there is thus no spillover or exportation
of a pre-existing conflict. The hostilities take place on a cross-border basis. If the armed group acts
under the control of its State of residence, the fighting falls within the definition of an international
armed conflict between the two States concerned. If, however, this group acts on its own initiative,
without being at the service of a government party, it becomes more difficult to categorize the
situation. Does an international armed conflict necessarily exist because a State uses armed force
on the territory of another State? If that is so, should members of the armed group be considered
to be civilians taking part directly in the hostilities? Is it more appropriate to consider that situation
to be a cross-border non-international armed conflict even if a parallel international armed conflict
between the two States may also be taking place? By contrast, must a non-international armed
conflict be deemed to exist solely in the hypothesis according to which the State of residence of
the armed group accepts or tolerates intervention by its neighbouring State, the absence of consent
leading it to be classified as an international armed conflict? Lastly, should this be considered a
new type of conflict, requiring a specific legal regime that has yet to be defined?
One recent example is that of Lebanon in the summer of 2006. It may be recalled that a high-
intensity armed conflict had begun on 12 July following various attacks by Hezbollah’s military
component on positions and villages in Israeli territory. For instance, eight Israeli soldiers had been
killed in the course of those operations and two others taken captive. The Israeli authorities
retaliated by launching a ground, air and sea offensive on Lebanon. The hostilities continued until
14 August, when a ceasefire that had been agreed by the two governments concerned entered into
effect. The Commission of Inquiry set up by the United Nations Human Rights Council considered
that an international armed conflict had taken place, although, in its view, the Lebanese armed
forces had never taken part in the fighting. In its report dated November 2006, it considered that
Hezbollah should be considered a militia ‘belonging to a Party to the conflict’, within the meaning
of Article 4A(2) of the Third Geneva Convention of 1949. In support of that position, it stressed
that Hezbollah, as a legally established political party, was represented in parliament and in the
Lebanese government. In addition, for several years Hezbollah had assumed the role of an anti-
Israeli resistance movement in southern Lebanon, a fact acknowledged by the President of
Lebanon himself, who had called the armed branches of that group ‘national resistance fighters’.
According to the Commission, the war in 2006 thus assumed an international character by virtue
of the organic link existing between Hezbollah and the State of Lebanon at that time. There is
nonetheless some doubt about whether the arguments put forward by the Commission really do
allow the conclusion to be reached that the hypothesis of Article 4A(2) of the Third Geneva
Convention had been realized in the case in point. Actually, those arguments are not enough to
show a sufficiently narrow link between the Hezbollah combatants and the Lebanese government.
For that link to exist, those combatants need to have been acting ‘on behalf of’ the latter. Expressed
differently, ‘[i]n order for irregulars to qualify as lawful combatants, it appears that international
rules and State practice […] require control over them by a Party to an international armed conflict
and, by the same token, a relationship of dependence and allegiance of these irregulars vis-a `-vis
that Party to the conflict’. This is how the expression ‘belonging to a Party to the conflict’ must be
understood in Article 4A(2) of the Third Geneva Convention. 3 In the case in question, it seems
that the required degree of control was not achieved. On the contrary, the Lebanese authorities
stated on several occasions that they had not been aware of the attacks that were at the origin of
the conflict and that they did not approve of them. They made this statement officially in a letter
addressed to the Secretary General and the Security Council of the United Nations. Consequently,
in this case a double legal classification probably needs to be retained. Alongside an international
armed conflict between Israel and Lebanon, the war in 2006 constituted a non-international armed
conflict between Israel and Hezbollah, whose distinctive feature was that it took place across a
border. 5 It is therefore the nature of the belligerents rather than the transborder character of the
situation which in this case constitutes the decisive criterion for classifying the conflict. That
position nonetheless raises certain questions about the application of the law, particularly in
connection with combatants who are taken captive. It implies that the Fourth Geneva Convention
would have to apply to detained members of Hezbollah to the extent that they were nationals of
Lebanon or of a State not entertaining diplomatic relations with Israel. However, the Israeli soldiers
detained by the armed group would benefit only from the protection granted by the law of non-
international armed conflicts. That position therefore raises a problem with regard to the equality
of the belligerents. If, however, one considers that the law of non-international armed conflict also
applies to those detained in Israeli hands, equality has been upheld, but at the cost of a weakening
of the applicable standards. Other observers propose further different readings of the Lebanese
conflict. Some of them consider, for instance, that this example is illustrative of a new type of
armed conflict, which cannot be classified as an international armed conflict or as a non-
international armed conflict, and which, hence, implies the application of a specific international
humanitarian law.

5. War against Terrorism

After the September 11 attacks, United States declared a war on terror on transnational
organizations more specifically Al Qaeda. In political terms, the war on terror is correct but there
have been controversies as to whether international law recognizes it as an armed conflict. As
stated earlier, international humanitarian law comes into force when a situation is classified as an
armed conflict, but the modern dynamics of differentiating terrorism and an armed conflict is
vague. Secondly, the status of the individual is complex as it is hard to differentiate a terrorist from
a freedom fighter.
There is no clear definition of what terrorism is exactly, the definitions that are in existent are
based on a state’s interest. For example, the American definition of terrorism is; ‘premeditated,
politically motivated violence perpetrated against noncombatant targets by sub national groups or
clandestine agents while a terrorist group is defined as any group, or which has significant
subgroups which practice international terrorism (international terrorism being terrorism involving
citizens or the territory of more than one country’
The most controversial definition is the UN definition that states that terrorism is attempting to
bring about political and/or social change by deliberately attacking civilians. This definition has
made it difficult especially in trying to differentiate resistance movements that oppose forms of
occupation and a terrorist organization that both often use violence to obtain a political change.
For example, during the colonial period in Kenya, the Mau Mau fighters attacked Europeans in
their farms and stole their goods, if the same situation was to be replayed in the 21 st century then
many scholars would consider the Mau Mau as a terrorist organization.
However, in international law, ‘acts of terrorism are clearly defined’, according to the Geneva
Convention (1937), an act of terrorism is defined as “criminal acts directed against a State or
intended to create a state of terror in the minds of particular persons, or a group of persons, or the
general public” (Article 1, para. 1) “any willful act calculated to endanger the lives of members of
the public” (Article 2, para. 3), “willful destruction of or damage to public property” (Article 2,
para. 2), and “manufacture, obtaining, possession or supplying of arms or ammunition, explosives
or harmful substances with a view to the commission in any country whatsoever” (Article 2, para.
5).
Terrorism in international law is also seen as a form of aggression, aggression is defined as “the
use of armed force by a State against the sovereignty, territorial integrity or political independence
of another State”, (United Nations General Assembly Resolution 3314), more specifically in article
3(g) it states that aggression can be “the sending by or on behalf of a State of armed bands, groups,
irregulars or mercenaries, which carry out acts of armed force against another State of such gravity
as to amount to the acts listed above, or its substantial involvement therein.”
The UN resolution (Resolution 3314) does give justification for an armed attack to be pursued
against the state; however, the issue is that modern international terrorism does not involve the
direct participation of state. As reiterated earlier, international humanitarian law recognizes only
three forms of armed conflict, an international armed conflict where it involves the belligerents
being two legal armed forces of two different states (Geneva Convention, common article 2).
International terrorism seems to have a different dynamics as a government is fighting against a
transnational group that does not have any links with a state, according to the ICRC commentary,
humanitarian law does not recognize an international armed conflict between states and non state
actors as this would accord armed groups the same privileges enjoyed by members of regular
armed forces.

Changing Dynamics of Conflict

Modern conflicts have drastically changed over the last few years with the introduction of new
actors in conflict zones such as private military companies, multinational corporations, and
transnational armed groups such as Al Qaeda and drug cartels. The main challenge has been that
international humanitarian law has not yet evolved to comprehensively adapt to these new
dynamics.

Asymmetric conflicts and the challenge to non-reciprocity/ Grullia war

Since the end of the Cold War, armed conflicts have become increasingly asymmetric, typically
pitting overwhelmingly powerful States against often poorly organized and equipped armed
groups. Prime examples of such conflicts are the multinational campaign against the Taliban in
Afghanistan and recurrent Israeli operations against Hamas in the Gaza Strip. The enormous
technological and military superiority of the States involved has led opposition groups to avoid
identification and defeat by moving underground, intermingling with the civilian population and
engaging in various forms of guerrilla warfare. As a result, military confrontations often take place
in the midst of densely populated areas, which not only exposes the civilian population to increased
risks of incidental harm, but also facilitates the direct participation of civilians in hostilities.
Moreover, unable to prevail in direct confrontations with the enemy, armed groups are increasingly
tempted to resort to means and methods prohibited by IHL, such as misusing civilian clothing to
perfidiously kill, wound or capture an adversary, conducting indiscriminate attacks, or even
directly targeting civilians, humanitarian or medical personnel and their infrastructure (so-called
“soft targets”). State armed forces, in turn, are often unable to properly identify the adversary and
bear an increased risk of being attacked by persons they cannot distinguish from the civilian
population. Overall, this trend has put considerable strain on the concepts of non-reciprocity and
the equality of belligerents and, unfortunately, on the willingness of both State armed forces and
non-State armed groups to accept their obligations under IHL
Privatization and civilianization of military and security activities
The armed forces have always been supported by civilians, including contractors and employees
of civilian government services. Indeed, except in a few very specific cases,51 IHL does not
prohibit the outsourcing of military and security functions but even stipulates that civilians
formally authorized to accompany the armed forces in an international armed conflict be entitled
to prisoner-of-war status upon capture. The past decade, however, has seen an unprecedented trend
towards the outsourcing of functions traditionally assumed by State armed forces to private
military and security companies. In the recent wars in Iraq and Afghanistan, for example, tens of
thousands of private contractors were deployed, and there were even periods when they clearly
outnumbered the multinational forces on the ground. Depending on the context, such companies
may assume a wide variety of functions, ranging from reconstruction, logistics, training and
administrative services to the provision of security for civilian and military personnel and
infrastructure, and from the maintenance and operation of complex weapon systems to guarding
and interrogating detainees. Some of their activities are so closely related to combat operations
that their personnel risk being regarded as directly participating in the hostilities and, depending
on the circumstances, even as mercenaries. The privatization of military functions also raises a
number of serious humanitarian concerns. First, it must be emphasized that States cannot, through
the practice of out- sourcing, absolve themselves of their legal responsibilities under IHL. Thus,
they remain responsible for ensuring that the private military and security companies that are
contracted by them, or that operate or are incorporated in their territory, respect all applicable laws
and regulations, including IHL. Moreover, whatever their functions or activities may be, private
contractors never fall outside the protection of IHL. In short, contrary to popular perception,
private military and security contractors do not operate in a legal void.

International Legal framework applicable in armed conflicts:

Laws applicable in international armed conflict under IHL:
International armed conflicts (IACs) are governed by International Humanitarian Law (IHL),
also known as the law of war or the law of armed conflict. IHL is a set of rules that seek to limit
the effects of armed conflict and protect people who are not or are no longer taking part in
hostilities, including civilians, wounded or sick fighters, and prisoners of war. The law applies to
all parties to a conflict, regardless of whether they are states or non-state armed groups.
The main sources of IHL applicable in IACs are:
1. The Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005. These
treaties establish the rights and protections afforded to wounded and sick combatants,
shipwrecked persons, prisoners of war, and civilians in time of war.
2. Customary International Humanitarian Law. This includes practices that are widely
accepted by states as binding even though they are not explicitly stated in treaties.
3. Other international treaties and agreements, such as the Hague Conventions of 1899 and
1907, the Chemical Weapons Convention of 1993, and the Convention on Certain
Conventional Weapons of 1980.
The rules of IHL applicable in IACs include:
1. The principle of distinction, which requires parties to a conflict to distinguish between
military targets and civilians or civilian objects, and to direct their attacks only against
military objectives.
2. The principle of proportionality, which requires parties to a conflict to ensure that the
harm caused to civilians or civilian objects by their attacks is not excessive in relation to
the concrete and direct military advantage expected from the attack.
3. The prohibition of indiscriminate attacks, such as those that are not directed at a specific
military objective, or those that employ methods or means of warfare that cannot be
directed at a specific military objective or that are likely to cause incidental loss of
civilian life, injury to civilians, or damage to civilian objects.
4. The obligation to take precautions in attack, which requires parties to a conflict to take all
feasible precautions to minimize harm to civilians and civilian objects during attacks.
5. The obligation to respect and protect persons who are not or are no longer taking part in
hostilities, including civilians, wounded or sick combatants, and prisoners of war.
6. The prohibition of torture, cruel, inhuman, or degrading treatment or punishment, and the
prohibition of outrages upon personal dignity, including humiliating and degrading
treatment.
7. The prohibition of attacks against protected objects, such as buildings dedicated to
religion, art, science, or charitable purposes, historical monuments, hospitals, and places
where the sick and wounded are collected.
8. The obligation to provide adequate medical care to the wounded and sick, regardless of
which side they belong to.
These are just a few examples of the rules applicable in IACs. The full scope of IHL is much
broader and includes many other rules and principles that seek to protect those affected by armed
conflict
Laws applicable in non-international armed conflict under IHL:
Non-international armed conflicts (NIACs) are conflicts that take place within the boundaries of
a single state, involving the government and one or more non-state armed groups or between two
or more non-state armed groups. International humanitarian law (IHL) applies to such conflicts,
and there are several laws and treaties that are specifically relevant to NIACs, including:
1. Common Article 3 of the Geneva Conventions: Common Article 3 applies to all NIACs
and provides minimum protections for all individuals who are not taking part in the
hostilities, including civilians and enemy combatants who are hors de combat (out of
action). It prohibits violence to life and person, cruel treatment and torture, and outrages
upon personal dignity.
2. Additional Protocol II to the Geneva Conventions: Additional Protocol II provides
additional protections for non-state armed groups and civilians who are caught up in
NIACs. It requires parties to the conflict to ensure that civilians are treated humanely and
that they have access to medical care and other basic necessities.
3. Customary International Humanitarian Law: Customary IHL is a body of unwritten law
that has been developed over time through state practice and is applicable to all armed
conflicts, including NIACs. It includes rules governing the conduct of hostilities, the
treatment of civilians and other protected persons, and the use of weapons.
4. International Criminal Law: International criminal law applies to all individuals,
including those involved in NIACs. War crimes, such as intentionally directing attacks
against civilians, using child soldiers, and attacking protected objects, can be prosecuted
as crimes under international law.
Overall, the laws applicable in NIACs aim to protect civilians and other non-combatants from
the effects of armed conflict and to limit the methods and means used by parties to the conflict.

The scope of application of the legal regime pertaining to IAC & NIAC
respectively

The legal regime pertaining to International Armed Conflict (IAC) and Non-International Armed
Conflict (NIAC) governs the conduct of parties engaged in armed conflicts, including the
treatment of civilians, prisoners of war, and combatants.
The scope of application of IAC is broader than that of NIAC, as it applies to conflicts between
two or more states, while NIAC applies to armed conflicts that occur within the boundaries of a
single state between its armed forces and non-state actors.
Here are some broader scopes of application of these legal regimes under separate headings:

1. International Armed Conflict (IAC)

  The Geneva Conventions: The legal regime governing IAC is primarily established by
the Geneva Conventions, which apply to all armed conflicts between two or more states.
The Conventions set out rules for the protection of civilians, wounded and sick
combatants, and prisoners of war. They also establish standards for the treatment of
combatants and the use of certain weapons.
 International Criminal Court (ICC): The ICC has jurisdiction over war crimes
committed in the context of an IAC, including the targeting of civilians, torture, and other
grave breaches of the Geneva Conventions.
 United Nations Security Council (UNSC): The UNSC has the power to take measures
to maintain international peace and security in the context of an IAC, including imposing
economic sanctions or authorizing the use of force.

2. Non-International Armed Conflict (NIAC)

 Additional Protocol II to the Geneva Conventions: This protocol applies to NIACs and
sets out rules for the protection of civilians and combatants who are not taking part in
hostilities, as well as those who have been captured or detained. It also establishes
requirements for humane treatment, including medical care and access to judicial
proceedings.
 International Criminal Court (ICC): The ICC has jurisdiction over war crimes
committed in the context of a NIAC, including attacks against civilians, the use of child
soldiers, and the torture of prisoners.
 International Humanitarian Law (IHL): IHL applies to NIACs and sets out rules for
the conduct of hostilities, including the prohibition of attacks on civilians and civilian
objects. It also establishes standards for the treatment of combatants and prohibits certain
tactics, such as the use of weapons that cause unnecessary suffering.
In conclusion, the legal regimes pertaining to International Armed Conflict (IAC) and Non-
International Armed Conflict (NIAC) play a crucial role in ensuring the protection of civilians,
combatants, and prisoners of war during armed conflicts. These legal frameworks provide rules
and regulations for the conduct of hostilities, the treatment of detainees, and the use of certain
weapons. While the scope of application of IAC and NIAC may differ, both legal regimes aim to
promote humanitarian principles and minimize the impact of armed conflicts on civilians. It is
essential for parties involved in armed conflicts to adhere to these legal frameworks to prevent
further harm and facilitate a path to peaceful resolution.

Criticism of present classification of armed conflict regarding International

Humanitarian Law:
The present classification of armed conflict under International Humanitarian Law (IHL) has
been subject to criticism in several ways:

 In case of International Armed conflict :

Low sea: The present classification of international armed conflict does not adequately address
conflicts that occur in the low sea, which refers to areas beyond national jurisdiction but closer to
shore. Such conflicts may involve territorial disputes or resource extraction, but they often fall
outside the scope of existing classifications, creating ambiguity in determining the legal
framework and obligations of involved parties.

Single clash at high sea: The current classification fails to account for single clashes at high sea,
where isolated incidents of armed confrontation occur between naval vessels or aircraft without
escalating into a full-scale conflict. These incidents may have significant implications for
international relations and security, but they often do not fit neatly into existing categories,
highlighting the need for a more nuanced classification system.

Naval and coastal guard: The classification of international armed conflict does not adequately
differentiate between conflicts involving naval forces and those involving coastal guards. Coastal
guards often operate in a law enforcement capacity, protecting territorial waters and enforcing
regulations, while naval forces are primarily responsible for defense and military operations. The
lack of a clear distinction in the classification can lead to confusion regarding the applicable
legal frameworks and rules of engagement.

Border fight: The current classification of international armed conflict does not specifically
address border fights, which involve armed confrontations between military or paramilitary
forces along disputed or contested borders. These conflicts may have political or territorial
motivations and can escalate tensions between nations, but they are often overlooked within the
existing classification framework, potentially hindering effective conflict management and
resolution.

Declared war: While the present classification recognizes conflicts that are formally declared as
wars between sovereign states, it may not adequately address conflicts where one party
unilaterally declares war or where the status of war is disputed. In today's complex geopolitical
landscape, conflicts may arise without clear declarations, involving non-state actors or hybrid
warfare tactics. The classification should consider these nuances to provide a comprehensive
understanding of international armed conflicts.

 In case of non-international armed conflict:

War on terror: The current classification of non-international armed conflicts does not
adequately account for the unique nature of the "war on terror" or conflicts involving non-state
actors engaged in acts of terrorism. These conflicts often blur the lines between traditional armed
conflicts and law enforcement operations, making it challenging to categorize them accurately
and apply the appropriate legal frameworks.

State sovereignty: The classification of non-international armed conflicts may not adequately
address the complexities surrounding state sovereignty. In some cases, conflicts involve non-
state armed groups challenging the authority of a sovereign state or seeking self-determination.
The existing classification may struggle to capture the nuances of these conflicts, potentially
hindering effective responses and resolution efforts.

Organized crime: The current classification may not adequately capture armed conflicts that
involve organized crime groups. These conflicts often have a distinct nature, characterized by
illicit activities such as drug trafficking, human smuggling, or territorial control for criminal
purposes. The existing classification may not provide a comprehensive framework to address the
unique dynamics and challenges presented by conflicts involving organized crime.

Small-scale conflicts: The classification of non-international armed conflicts may not

sufficiently account for small-scale conflicts that occur within a limited geographic area or
involve a relatively small number of combatants. These conflicts may not meet the traditional
threshold of intensity and organization required for classification, yet they can still have
significant humanitarian consequences and destabilize local communities. The existing
framework should consider the impact and specific dynamics of these smaller conflicts to ensure
appropriate responses and protections are in place.

It is important to note that the classification of armed conflicts is a complex and evolving field,
and criticisms often arise from the need to adapt to new and emerging forms of conflict.

 In case of drone attack:

Ambiguity in defining "direct participation in hostilities": The existing classification may
struggle to provide clear criteria for determining when a drone attack constitutes direct
participation in hostilities. Drones can be operated remotely, blurring the lines between
combatants and civilians, and raising questions about the applicability of traditional definitions
of direct participation.

Lack of distinction between targeted killings and armed conflict: The classification may not
adequately differentiate between drone attacks conducted as targeted killings outside of armed
conflicts and those carried out within the context of an armed conflict. This distinction is crucial
for determining the legal framework applicable to such attacks, including the threshold for the
use of force and the protection of civilians.

Issues related to sovereignty and extraterritoriality: Drone attacks often involve the crossing
of international borders, raising concerns regarding state sovereignty and the legality of
extraterritorial use of force. The current classification may not adequately address these
complexities and may not provide clear guidelines for assessing the legitimacy and legality of
cross-border drone attacks.

Challenges in determining combatant status: Drones are often operated by both state and non-
state actors, making it difficult to determine the combatant status of individuals involved in
drone operations. This classification challenge has implications for issues such as the lawful
targeting of drone operators, the protection of civilians, and the application of international
humanitarian law.

Impact on civilian harm and proportionality: The present classification may face criticism for
not sufficiently addressing the specific risks and challenges posed by drone attacks to civilians.
The use of armed drones can raise concerns about the accuracy of targeting, the potential for
disproportionate harm, and the long-term psychological effects on affected populations.

Addressing these criticisms is crucial to ensure that the classification of armed conflict reflects
the evolving nature of warfare and provides clear guidelines for the legal, ethical, and
humanitarian aspects of drone attacks.

 In case of Cyber Operation:

The present classification of armed conflict may face criticism in cases where cyber operations
involve the indiscriminate destruction of data by non-state actors. This type of attack can have
significant consequences, causing disruption to essential services and infrastructure, affecting
civilians, and creating challenges for the traditional classification criteria. The existing
framework may not fully account for the unique nature of cyber operations and the challenges
they pose to the traditional understanding of armed conflict, such as the blurring of the lines
between civilian and military targets, and the lack of physical force or violence. As such, there is
a need for a more nuanced approach to the classification of cyber operations that considers the
specific dynamics and implications of this type of conflict.

 In case of occupied territories under NIAC:

Lack of clear distinction: The present classification of armed conflict may face criticism
regarding the classification of occupied territories within non-international armed conflicts
(NIAC). The classification may struggle to provide clear guidelines on how to differentiate
between situations where a territory is occupied during a NIAC and those where the occupation
is a separate conflict altogether.

Ambiguity in legal obligations: The existing classification may not adequately address the legal
obligations and responsibilities of the occupying power in non-international armed conflicts. The
lack of clarity regarding the applicability of international humanitarian law (IHL) and human
rights law in such situations can create confusion and lead to inconsistent implementation and
protection of human rights in occupied territories.

Complex dynamics and actors: Occupied territories within a non-international armed conflict
often involve multiple actors, including the occupying power, non-state armed groups, and the
local population. The present classification may struggle to capture the complex dynamics and
interactions among these actors, making it challenging to determine the appropriate legal
frameworks and responsibilities of each party involved.

Lack of comprehensive guidelines: The current classification may lack comprehensive

guidelines on the transitional period following the end of an occupation in a non-international
armed conflict. The classification system may not provide sufficient guidance on the restoration
of local governance, the protection of human rights, and the processes of reconciliation and
justice in the aftermath of an occupation.

Addressing these criticisms and developing a more robust classification framework for occupied
territories within non-international armed conflicts can contribute to better protection of human
rights, clearer legal obligations, and improved transitional processes in post-occupation settings.
  War on terror:

Ambiguity of non-state actors: The classification may struggle to effectively address armed
conflicts involving non-state actors engaged in acts of terrorism. The blurred lines between
traditional armed conflicts and counterterrorism operations can create challenges in categorizing
and applying appropriate legal frameworks, leading to ambiguity and potential gaps in protection
for affected populations.

Lack of clear thresholds: The current classification may lack clear thresholds for determining
the intensity and duration of armed conflicts in the context of the "war on terror." This ambiguity
can hinder the proper assessment of the applicability of international humanitarian law and may
result in inconsistent interpretations or selective application of legal standards.

Complexity of hybrid warfare: The classification may not adequately capture the complexities
of armed conflicts involving hybrid warfare tactics employed in the "war on terror." These
conflicts often involve a combination of conventional military operations, irregular warfare, and
information warfare, making it challenging to fit them within traditional categories and legal
frameworks.

Human rights considerations: The classification of armed conflicts in the "war on terror" may
face criticism for its limited focus on humanitarian law while potentially neglecting human rights
considerations. The emphasis on security concerns and counterterrorism measures may lead to an
imbalance in addressing the protection of civilian populations and safeguarding individual rights.

Long-term implications: The present classification may not fully address the long-term
implications and consequences of armed conflicts in the "war on terror." This includes the
challenges of post-conflict reconstruction, transitional justice, and addressing the underlying
causes of terrorism, which require comprehensive approaches beyond the immediate
classification of conflict.

It is important to recognize that the "war on terror" presents unique challenges that require
ongoing analysis and refinement of the classification of armed conflicts to ensure appropriate
legal frameworks and protections are in place.
Application or challenges facing in the classification of Armed Conflict:

Classification of armed conflicts under International Humanitarian Law (IHL) is essential to

determine the applicable rules and regulations. The classification is based on the intensity of the
conflict, the parties involved, and the level of organization of the armed forces. However, there
are several challenges and applications in the classification of armed conflict under IHL, which
are as follows:
Applications:
1. Legal Consequences: The classification of armed conflicts determines the legal
consequences applicable to the parties involved in the conflict. The rules of IHL differ in
non-international armed conflicts and international armed conflicts.
2. Protection of Civilians: The classification of armed conflicts determines the level of
protection accorded to civilians under IHL. The rules and principles of IHL applicable to
international armed conflicts provide greater protection to civilians than in non-
international armed conflicts.
3. Treatment of Prisoners of War: The classification of armed conflicts determines the
treatment of prisoners of war. The rules for prisoners of war in international armed
conflicts are more extensive and protective than those applicable in non-international
armed conflicts.
Challenges:
1. Lack of Clarity: It is often challenging to determine whether a particular situation
qualifies as an armed conflict or not. This lack of clarity can lead to inconsistent
application of IHL rules and regulations.
2. Blurring of the Lines: In modern conflicts, the lines between international and non-
international armed conflicts can become blurred. This can lead to confusion in the
application of IHL rules and regulations.
3. Recognition of Parties: The recognition of parties to an armed conflict can be
challenging, especially in non-international armed conflicts. The absence of a central
authority or recognized armed forces can make it difficult to determine who the parties to
the conflict are.
4. Changing Nature of Conflicts: The changing nature of conflicts, such as the use of non-
state actors, cyber warfare, and hybrid warfare, presents a challenge to the traditional
classification of armed conflicts under IHL.

In conclusion, the classification of armed conflicts under IHL is essential to determine the
applicable rules and regulations. However, several challenges exist in determining whether a
situation qualifies as an armed conflict, recognition of parties, and the changing nature of
conflicts. These challenges can lead to inconsistencies in the application of IHL rules and
regulations.

To overcome the challenges in the classification of armed conflicts under IHL, several measures
can be taken. Here are some ideas:

1. Clearer Definitions: One way to overcome the challenge of lack of clarity is to provide
clearer definitions of what constitutes an armed conflict under IHL. The International
Committee of the Red Cross (ICRC) and other stakeholders can work together to create
clearer definitions that can guide the application of IHL rules and regulations.
2. Improved Training and Capacity Building: Training and capacity building programs
can be developed to improve the understanding of IHL rules and regulations among legal
professionals, military personnel, and other stakeholders. This will ensure consistent
application of IHL rules and regulations in different situations.
3. Strengthening International Cooperation: International cooperation can be
strengthened to ensure a more coordinated approach to the classification of armed
conflicts under IHL. This will ensure that all parties involved in the conflict have a clear
understanding of the applicable rules and regulations.
4. Establishing a Clearer System of Recognition: To overcome the challenge of
recognition of parties, there should be a clearer system of recognition. The ICRC and
other stakeholders can develop a system to recognize parties involved in a non-
international armed conflict. This will ensure that all parties involved in the conflict are
recognized, and the applicable rules and regulations can be applied consistently.
5. Updating IHL Rules and Regulations: As conflicts evolve and new technologies are
used, IHL rules and regulations need to be updated to reflect these changes. Stakeholders
can work together to update the rules and regulations to ensure they remain relevant and
effective.
6. Promoting Dialogue and Negotiation: Dialogue and negotiation can be promoted
between parties involved in an armed conflict. This will help to de-escalate conflicts,
reduce the need for armed intervention, and ensure that IHL rules and regulations are
respected.
In conclusion, the challenges in the classification of armed conflicts under IHL can be overcome
through a combination of measures, including clearer definitions, improved training and capacity
building, strengthening international cooperation, establishing a clearer system of recognition,
updating IHL rules and regulations, and promoting dialogue and negotiation.
Submitted by
By
1.Nusrat Jerin Jeni
Roll: 1712016130

2.Muhammad Walid Husain

Roll: 1710516250
to
Professor Dr. Md Abdur Rahim Mia
Department of Law
Rajshahi University