War, Armed Conflicts and other

Hostilities
.
 Summary of the last week’s discussion
International Humanitarian Law (IHL) can be defined as the branch
of international law limiting the use of violence in armed conflicts
by:
a. sparing those who do not or no longer directly participate in
hostilities;
b. restricting it to the amount necessary to achieve the aim of the
conflict, which – independently of the causes fought for– can only
be to weaken the military potential of the enemy.

Basic principles of IHL drawn from this definition are:

• the distinction between civilians and combatants,
• the prohibition on inflicting unnecessary suffering,
• the principle of necessity, and
• the principle of proportionality.
 Parties to important treaties
• 1949 Geneva Conventions-196
• 1977 Additional Protocols AP I-174; AP II-168; AP III-75
Other relevant treaties
• 1954 Hague Convention and Protocols for the Protection of Cultural
Property in the Event of Armed conflict CPC-133; P I-110; P II-82
• 2000 Optional Protocol on the Involvement of Children in Armed
Conflict-168
Weapons related treaties
• GGP, 1925-140; ENMOD, 1976-78 ; BWC, 1972-182 ; CCW, 1980-125;
CWC, 1993-193; Ottawa, 1997-164; CCM, 2008-106; TPNW, 2017-20.
• 1998 Rome Statute of the ICC-123.
 Armed conflict

• The key instruments of IHL, i.e. the 1949

Geneva Conventions and the 1977 Additional
Protocols thereto, distinguish between
international and non-international armed
conflicts by specifically prescribing which rules
apply in which type of armed conflict.
 Types of armed conflict
International humanitarian law distinguishes two
types of armed conflicts, namely:

• International armed conflicts(IAC), opposing two

or more States, and

• Non-international armed conflicts(NIAC), between

governmental forces and nongovernmental armed
groups, or between such groups only.
 Types of armed conflict
• Legally speaking, no other type of armed
conflict exists.

• It is important to underline that a situation

can evolve from one type of armed conflict to
another, depending on the facts prevailing at a
certain moment.
 Classification of Armed Conflicts

Armed conflicts

Internationalized
armed conflict
International Non-international
armed conflicts armed conflicts

National liberation
Between two or movements
more states (Additional Protocol I)

Between State forces Between state forces

and armed groups or and armed groups
between armed groups (Additional Protocol
(Common Article 3) II)
 Applicable law
• -International Armed Conflict
Geneva Conventions, API (where ratified), customary IHL,

• Non-International Armed Conflict

Common article 3, APII (where ratified), customary IHL,

• Internal Disturbances & Tensions ("Other situations of violence")

(i.e. below the threshold of armed conflict)
Domestic law, human rights law
 Legal and Practical Consequences

• International Conflicts
600 Articles

• Non-international Conflicts
19 Articles
Factual situation of armed conflicts
• A study conducted by the Department of Peace and Conflict Research at
Uppsala University, in conjunction with the Conditions of War and Peace
Programme at the International Peace Research Institute in Oslo, categorized
and analysed all armed conflicts that had taken place following the Second
World War.

• The study found that of the 225 armed conflicts which had taken place
between 1946 and 2001, the majority – 163 – were internal armed conflicts.
Comparatively few – 42 – were qualified as inter-state or international armed
conflicts.

• The remaining 21 were categorized as ‘extra-state’ – which were determined as

being a conflict involving a state engaged against a non-state group, with the
non-state group acting from the territory of a third state.
 What is international armed conflict?
Common Article 2 to the Geneva Conventions of 1949 states that:

• "In addition to the provisions which shall be implemented in

peacetime, 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 recognized 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".
 
 Article 2 of the Geneva Conventions
• According to this provision, IACs are those which oppose "High
Contracting Parties", meaning States.
• An IAC occurs when one or more States have recourse to armed force
against another State, regardless of the reasons or the intensity of this
confrontation. Relevant rules of IHL may be applicable even in the
absence of open hostilities.  
• No formal declaration of war or recognition of the situation is required.
 
• The existence of an IAC, and as a consequence, the possibility to apply
International Humanitarian Law to this situation, depends on what
actually happens on the ground. It is based on factual conditions. For
example, there may be an IAC, even though one of the belligerents
does not recognize the government of the adverse party.
 Commentary to the Geneva Conventions

• The Commentary of the Geneva Conventions

of 1949 confirms that "any difference arising
between two States and leading to the
intervention of armed forces is an armed
conflict within the meaning of Article 2, even if
one of the Parties denies the existence of a
state of war. It makes no difference how long
the conflict lasts, or how much slaughter takes
place".
 Additional Protocol I expansion of the
definition of IAC
• Apart from regular, inter-state armed 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 liberation).
 AP I
• Article 1- General principles and scope of application

1. The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all
circumstances.

2. In cases not covered by this Protocol or by other international agreements, civilians and
combatants remain under the protection and authority of the principles of international law derived
from established custom, from the principles of humanity and from the dictates of public conscience.

3. This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of
war victims, shall apply in the situations referred to in Article 2 common to those Conventions.

4. The situations referred to in the preceding paragraph include armed conflicts in which peoples are
fighting against colonial domination and alien occupation and against racist régimes in the exercise of
their right of self-determination, as enshrined in the Charter of the United Nations and the
Declaration on Principles of International Law concerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United Nations.
•  
 Non-International Armed Conflict (NIAC)

1) IHL Treaties
• 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:
 Further division of NIAC
• IHL treaty law also establishes a distinction
between non-international armed conflicts in
the meaning of common Article 3 of the
Geneva Conventions of 1949 and non-
international armed conflicts falling within the
definition provided in Art. 1 of Additional
Protocol II.
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.
 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".
 AP II definition of NIAC…
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.
 AP II definition of NIAC
• In this context, it must be reminded that Additional
Protocol II "develops and supplements" common
Article 3 "without modifying its existing conditions of
application".

• Statute of the ICC, art. 8 para. 2 (f): "It applies to

armed conflicts that take place in the territory of a
State when there is protracted armed conflict between
governmental authorities and organized armed groups
or between such groups“.
NIAC and other forms of violence…
• 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.
 NIAC and other forms of violence
Two criteria are usually used in this regard:

• First, 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.

• Second, 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.
 Various stages of non-international armed conflicts prior to 1949

• Rebellion
• Insurgency
• Belligerency
 Rebellion

• In traditional international law, rebellion (or upheaval) was considered to

be a situation of domestic violence in which only a sporadic challenge to
the legitimate government was noticeable. The situation was only a short
lived insurrection against the authority of the state and within the ability of
its police force to ‘reduce the seditious party to respect the municipal legal
order’. If the government was rapidly able to suppress the rebel faction ‘by
normal procedures of internal security’, the situation did not fall within the
scope of international law.

• The rebels challenging the de jure government had no legal rights or

protection under traditional international law, and while foreign States
were entitled to assist the government in its efforts to suppress the rebels,
they were to refrain from giving support to the rebel party, for to do so
would constitute illegal intervention.
 Insurgency

• Insurgency and belligerency are intended to apply to situations of

sustained conflict. Consequently, when a rebellion is able to ‘survive’
suppression and cause longer-lasting and more substantial intrastate
violence, its status duly changes into that of an insurgency. The recognition
of insurgency can be seen as an indication that the government granting it
‘regards the insurgents as legal contestants, and not as mere lawbreakers’.

• In traditional international law, the recognition of insurgency did not

require the application of humanitarian norms unless these were expressly
conceded by the legitimate government. The state concerned was free to
determine the consequences of this acknowledgement. As such, it seems
that the recognition of insurgency was more relevant to states than to the
insurgents themselves.
 Belligerency

• When a non-international armed conflict reached such a sustained level that

both sides should be treated alike as belligerents, the parent government or a
third state could, by declaration, grant the insurgents recognition as a
belligerent party.

• Oppenheim notes that insurgents might not legally be able to wage a war, their
actual ability to do so explains why insurgents may become belligerents.

• He says that any state can recognize insurgents as a belligerent power as long
as the following three criteria are met: (1) the insurgents have taken
possession of part of the territory of the (legitimate) government; (2) they
have set up a government (system) of their own; (3) they fight in accordance
with the laws of war
 Consequences of recognition of belligerency

• International law treated an internal war with the status of belligerency in

essentially the same way as a war between sovereign states. When recognized as
a belligerent, the non-state party to a non-international conflict was consequently
under traditional international law, to be treated essentially like a state at war,
and had the same rights and duties.
• The obligation to ensure respect for the humanitarian norms was then equally
binding for the non-state party (i.e. the insurgents). The laws of war were
applicable both to the authorities of the de jure government and to the
insurgents.
• So the legitimate government’s recognition of belligerency brought the entire
body of the laws of war into effect between the government and the insurgents,
and not only the rules governing the conduct of hostilities but also those for all
other war related activities, such as care for the sick and wounded and respect for
prisoners of war.
 Military and Paramilitary Activities in and Against
Nicaragua (Nicaragua v. U.S.), ICJ,1986

• The International Court of Justice (ICJ) had to decide a case of

State responsibility.
• In 1984, the Republic of Nicaragua charged the United States
with violations of customary and treaty law by its involvement in
military and paramilitary activities against Nicaragua.
• Nicaragua accused the United States of attacks on oil pipelines,
storage and port facilities, as well as Nicaraguan naval patrol
boats. Further complaints pertained to the mining of Nicaraguan
ports, violations of Nicaraguan air space, and the training,
arming, equipping, financing and supplying of
counterrevolutionary forces (known as contras) seeking to
overthrow the government of Nicaragua.
 US state responsibility
• Nicaragua also claimed that the United States was
responsible for violations of international
humanitarian law committed by the contras.
• To decide whether the United States was
responsible, the ICJ had to decide whether the
acts of
• (1) individual mercenaries hired by the CIA and of
• (2) the contras
were attributable to the United States.
 Imputation of state responsibility
• The ICJ first established that acts were imputable to the United
States if the individuals concerned were officials of the United States
• Second, the ICJ discussed whether individuals, not having the status
of United States officials, but allegedly paid by and acting under the
instructions of United States organs, could legally involve the
responsibility of the United States. These individuals in the
Nicaragua case were nationals of unidentified Latin American
countries, referred to in the vocabulary of the CIA as UCLAs
(Unilaterally Controlled Latino Assets).
• The UCLAs carried out specific tasks such as the mining of
Nicaraguan ports or waters in early 1984, and attacks on Nicaraguan
port and oil installations in late 1983 and early 1984.
 Effective control test
• The ICJ developed, in the Nicaragua case, the
"effective control" test; holding that the acts of the
UCLAs are imputable to the United States in two
ways, either on account of the fact that, in addition to
being paid by United States agents or officials, they
had been given specific instructions by these agents
or officials and had acted under their supervision and
with their logistic support, or because "agents of the
United States had participated in the planning,
direction, support and execution of the operations.
 Effective control test and UCLAs
• The ICJ found that the "effective control" test
was met for the UCLAs, and that the attacks by
the UCLAs, if proven, were imputable to the
United States.
 Effective control test and the Contras

• The ICJ found that the "effective control" test

was not met as far as the contras were
concerned, because despite the heavy
subsidies and other support provided to them
by the United States, there was no clear
evidence of the United States having actually
exercised such a degree of control in all fields
as to justify treating the contras as acting on
its behalf.
 ICTY and its jurisdiction
• The ICTY was established in 1993 to prosecute persons responsible for serious
violations of international humanitarian law committed in the territory of the
Former Yugoslavia. The ICTY has jurisdiction under its Statute to prosecute persons
who committed or who ordered to be committed grave breaches of the 1949
Geneva Conventions, who violated the laws or customs of war, who committed
genocide or crimes against humanity.

• The ICTY held that the international or non-international character of the armed
conflict is not relevant for its jurisdiction over violations of the laws or customs of
war under Article 3 of the ICTY Statute. Neither is the character of the armed
conflict relevant for the prosecution of persons who committed genocide' or crimes
against humanity.'

• However, the ICTY held that the character of the armed conflict is relevant for the
jurisdiction of the ICTY over grave breaches of the 1949 Geneva Conventions.
 Difference between private individuals, and individuals making up an organized and hierarchically
structured group

• The Majority propounded a test of control, which differentiated

between private individuals, and individuals making up an organized
and hierarchically structured group such as a military unit. They
suggested that in respect of individuals, in order to attribute state
responsibility, it would be necessary to show that the state had 'issued
specific instructions concerning the commission of the breach' or that
the 'State has publicly given retroactive approval to the action of that
individual'. In contrast, an organized group differs from an individual
in that it usually has 'a structure, a chain of command and a set of
rules as well as the outward symbols of authority', with members of
the group normally conforming to the standards prevailing in the
group and subject to the authority of the head of the group
 It is sufficient to have overall control

• Therefore, in order to attribute state

responsibility in such cases, it is sufficient that
the group as a whole be under the 'overall
control' of the state.
 Foreign intervention and the pre-existing armed conflict

The different relationships between belligerents involving foreign intervention

are as follows:

• State party v. non-State party;

• State, coalition of States or international or regional organization intervening in
support of the State party v. non-State party;
• State party v. State, coalition of States or international or regional organization
intervening in support of the non-State party;
• State party v. State, coalition of States or international or regional organization
exercising overall control over the non-State party;
• State, coalition of States or international or regional organization intervening in
support of the State party v. State, coalition of States or international or
regional organization intervening in support of the non-State party or
exercising overall control over it.
 Law applicable in the case of foreign intervention in support of the
State party

The situation referred to here covers the

following two belligerent relationships:
• State party v. non-State party;
• State, coalition of States or international or
regional organization intervening in support of
the State party v. non-State party.
 Law applicable in the case of foreign intervention in support of the
State party

• When a foreign power intervenes in support

of the State party, the law of NIAC applies. The
belligerent relationship between the State
party and the non-State party is governed by
the law of NIAC, as is the belligerent
relationship between the intervening foreign
power and the non-State party.
Law applicable in the case of foreign intervention in support of the
State party
Law applicable in the case of foreign intervention in support of a
non-State party

• In this scenario, when a foreign power

intervenes in support of a non-State party, the
law of NIAC and the law of IAC apply in parallel.
The belligerent relationship between the State
party and the non-State party is governed by the
law of NIAC, while the belligerent relationship
between the State party and the intervening
foreign power is governed by the law of IAC
 
Law applicable in the case of foreign intervention in support of a
non-State party
Law applicable in the case of foreign intervention in support of
both the State party and the non-State party
Law applicable in the case of foreign intervention resulting in
control over the non-State party
Conclusion
IHL is a cornerstone of international law. It strives to preserve life and
order in times of utter chaos and anarchy. It is unrealistic to expect IHL
to eradicate all forms of armed conflict. As with other fields of law, IHL
has its own flaws most notably in terms of dealing with the modern
forms of warfare and dealing with such issues as distinction between
combatants and non-combatants, characterizing conflicts as
international or non international, and in ensuring compliance.
Nonetheless, IHL has managed to achieve remarkable feats. States
have continued to apply customary law and principles of IHL
throughout the ages, and continue to codify new laws and
restatements of many of the customs in the form of treaty obligations.
Despite the limited application of IHL to non international conflicts,
the sheer fact that there has been a convention that specifically
addresses such situations, which before were considered outside
international law’s scope, cannot be ignored.