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New Wars and the International/Non-international ArmedConflict Dichotomy
Jed Odermatt
I. The Changing Nature of Armed Conflict
II. New Wars and the International/Non-international Dichotomy
III. Re-thinking the International/Non-international Dichotomy
I. The Changing Nature of Armed Conflict
It is undeniable that the nature of warfare is changing. Wars that take place in the Third
World, in particular sub-Saharan Africa, are different from the wars that took place in the
twentieth century on the European continent. The methods and weapons employed by the
belligerents, the goals of the fighters and the nature of the parties involved in wars are
quite different to the classical warfare that took place in Europe and elsewhere.1 To some,
the difference between old and new wars is over-stated, arguing that the so-called new
conflicts simply represent a return to normal patterns of armed conflict after the end of the
Cold War.2
1 SeeKaldor, M.,New and Old Wars: Organised Violence in a Global Era, Stanford University Press, 1999.
However, one aspect of modern wars seems to distinguish them from conflicts
of earlier eras, that is, their complex combination of international and internal elements.
Modern wars are rarely categorsised as being purely international or purely in non-
international in character, but are rather a mixture of internal and international conflict,
taking place in a globalised context, involving both state and non-state actors. This pattern
of conflict is far more complicated than the Clausewitzian notion of warfare in which state-
controlled armies battle for control of territory. In some cases, the state is battling rebelswho wish to take control of the state or secede from it, in others there is a struggle over
control of natural resources or is fuelled by ethnic hatred. In reality, the modern war is
often a mixture of all of these: profit making, criminal activity, foreign intervention and
ethnic conflict. The one thing common to these conflicts, however, is that the civilian
population is often subject to gross human rights violations.
2 Kalyvas, S., New and Old Civil Wars: A Valid Distinction?, World Politics, vol.54, 2001, pp.99-118; Hermann
I., and Palmieri, D., Les nouveux conflits: une modernit archaque?,International Review of the Red Cross, vol.
85, no. 849, March 2003.
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Reydams summarises that modern warfare is characterised
by a constant switching of friends and foes and by a breakdown of the institutionalauthorities (such as the military and the police) responsible for ordering and having recourseto the use of force. In this context, acts of war and criminality become indistinguishable andthe war drags on with no prospect of a peace accord to end it. Such wars, which had alreadymultiplied in the 1980s and 1990s, look set along with guerrilla-terrorist wars todetermine the course of violence in the twenty-first century in many parts of the world.
3
It is precisely these circumstances that create a problem for international humanitarian law
(IHL). IHL continues to apply in these complex situations. Yet one aspect of these wars
which is of particular significance to IHL is the legal significance of a conflict being
categorised as either international or non-international in character. In modern warfare, the
distinction between internal and international armed conflict, or between state and non-
state actors, distinctions upon which much of the law of war is premised, are breaking
down. How, then, do the laws of war apply and remain relevant to situations of mixed
conflicts which do not fit into any neat legal category?
Mixed conflicts
A closer examination of the types of conflicts taking place demonstrate that, in fact, even
purely internal conflicts take place in a globalised setting in which belligerents battle not
only for political power but recognition from the international community, access to
international markets and trade in natural resources. Some conflicts that would be deemed
as purely internal include large groups of fighters from abroad, financial and military
backing from foreign governments, or incursions into and even occupation of foreign
territory. Internal armed conflicts are in reality often mixed conflicts, that is, they take
place largely within the territory of one state, but take place in an internationalised setting
with a high level of foreign intervention. These conflicts both affect and are affected by the
actions of neighbouring states and the international community at large. It is becoming
increasingly difficult to categorise these conflicts as either international or non-
international in character.
3 Reydams, L., A la guerre comme a la guerre: Patterns of armed conflict, humanitarian law responses and new
challenges,International Review of the Red Cross, vol. 88, no. 864, December 2006.
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For instance, the conflicts in the Great Lakes region of Africa have been deemed to be an
internal conflict by some commentators. Bassiouni states that [t]he conflicts in Rwanda
and in the Great Lakes area of Africa, including the Congo and Uganda, are characterized
as internal ethnic and tribal warfare, notwithstanding the involvement of combatants from
several states.4 However, these conflicts have elements of international armed conflict.
The International Criminal Court has examined this specific issue in the pre-trial stages of
the cases Prosecutor v. Thomas Lubanga Dyilo 5and Prosecutor v. Germain Katanga and Mathieu
Ngudjolo Chui6,both relating to the situation in Democratic Republic of Congo (DRC). In
these cases, the Pre-Trial Chamber held that there were substantial grounds to believe that
the Ituri conflict in north eastern DRC was of international character. This was because the
of the direct intervention of the Ugandan Peoples Armed Forces as well as Uganda's
substantial contribution of weapons and ammunition to armed groups in DRC. 7 The
Chamber relied on the determination upheld in the Lubangacase, that an internal armed
conflict can exist alongside an international armed conflict when (i) another State
intervenes in that conflict through its troops (direct intervention), or if (ii) some of the
participants in the internal armed conflict act on behalf of that other State (indirect
intervention).8 This was also a view supported by the ICJ in Case Concerning Armed
Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda).9
If one examines the conflicts in which international criminal prosecution is taking place, it
becomes quite evident that these conflicts have both internal and international elements.
Jean-Pierre Bemba Gombo, President and Commander in Chief of the Mouvement de
libration du Congo (MLC) is accused by the ICC of committing crimes against humanity
4 Bassiouni, C., The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors,
The Journal of Criminal Law and Criminology, vol. 98, no. 3, 2008, p. 748.5 International Criminal Court, Prosecutor v. Thomas Lubanga Dyilo, Decision on the confirmation of charges, 29
January 2007, No. ICC-01/04-01/06, at 72. The Pre-Trial Chamber held that Ugandas presence as an occupying
power from July 2002 until June 2003 made the conflict of an international character, however, there was
insufficient evidence to establish reasonable grounds to believe that Rwanda had a direct intervention in the Ituriconflict.
6 International Criminal Court, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the
Confirmation of Charges, 26 September 2008, No. ICC-01/04-01/07, at 71.7 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Confirmation of Charges, paras. 239-
240.8 Prosecutor v. Thomas Lubanga Dyilo, Decision on the confirmation of charges, para. 209.9 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda).
Judgment of 19 December 2005, [2005] ICJ Rep. , para. 345.
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and war crimes, not in DRC, but in the neighbouring Central African Republic. 10 The
operation against the LRA, a rebel group in Uganda whose leaders are wanted by the ICC,
includes forces from neighbouring DRC and Sudan. 11Current operations taking place in
eastern Congo involve troops from neighbouring Rwanda, Uganda and South Sudan. 12
With regard to the situation in Darfur, Sudan, the OTP has presented evidence of attacks
by rebels upon African Union peacekeepers. 13Both Chad and Sudan have accused each
other of actively supporting rebels in each others internal conflicts, and it is believed that
much of the Janjaweed is made up of fighters from Libya and Chad. 14Charles Taylor, the
former President of Liberia, is on trial at the Special Court for Sierra Leone in relation to
crimes committed on the territory of neighbouring Sierra Leone. 15
Although these conflicts
may be categorised as being internal armed conflicts under international law, there is no
doubt that they have considerable international elements.
These conflicts all have an international dimension they include foreign fighters who
have intervened and occupied territory in a neighbouring state or political and economic
support of rebel groups by foreign states. Moreover, the conflicts themselves are often
more about access to resources and international markets than internal grievances. How,
then, can these conflicts be deemed to be merely internal tribal conflicts? They are perhaps
best seen as mixed conflicts. They are not international conflicts in the traditional sense,
involving large standing armies and declarations of war. Nor do they meet the strict legal
criteria of being considered an international armed conflict. Yet the level of direct foreign
intervention in these wars makes them something more than merely tribal conflicts.
10 International Criminal Court, Warrant of Arrest for Jean-Pierre Bemba Gombo, 10 June 2008 No. ICC-01-/05-
01/08. The Prosecution in that case has argued that the conflict in Central African Republic from October 2002 toMarch 2003 was an armed conflict of a non-internationalcharacter. Prosecutor v. Jean-Pierre Bemba Gombo,
Transcript of confirmation of charges hearing, 13 January 2009, T. 120-1.Under international law, a conflict is not
necessarily international in character if a third state intervenes on behalf of a state. See Fleck, The Law of Non-
International Armed Conflict,p. 605.11 Uganda to Continue LRA hunt, BBC News, 5 March 2009. .12 Michael Kavanagh, 'Letter From Goma, Is Rwanda the Only Chance For Peace in Eastern Congo?' Foreign Affairs,
April 29 2009 ; 'DRC Outsources its
Military', BBC News, 27 February 2009,.13 Press Release, Attacks on peacekeepers will not be tolerated. ICC Prosecutor presents evidence in third case in
Darfur 20-11-2008 ICC-OTP-20081120-PR374.14 The International Commission of Inquiry on Darfur has stated there was credible evidence that members of the
Janjaweed included fighters from neighbouring Libya and Chad. See Report of the International Commission of
Inquiry on Darfur to the United Nations Secretary-General, Geneva, 25 January 2005, p. 32.15 Taylor is charged with, inter alia, war crimes as violations of Common Article 3 and Additional Protocol II to the
Geneva Conventions, see Special Court for Sierra Leone, Prosecutor v. Charles Taylor, Prosecutions Second
Amended Indictment, 29 May 2007, SCSL-03-01-PT.
http://news.bbc.co.uk/2/hi/africa/7926173.stmhttp://news.bbc.co.uk/2/hi/africa/7926173.stmhttp://www.foreignaffairs.com/features/letters-from/letter-from-gomahttp://www.foreignaffairs.com/features/letters-from/letter-from-gomahttp://www.foreignaffairs.com/features/letters-from/letter-from-gomahttp://news.bbc.co.uk/2/hi/africa/7910081.stmhttp://news.bbc.co.uk/2/hi/africa/7910081.stmhttp://news.bbc.co.uk/2/hi/africa/7910081.stmhttp://www.foreignaffairs.com/features/letters-from/letter-from-gomahttp://news.bbc.co.uk/2/hi/africa/7926173.stm8/21/2019 Paper Odermatt
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II. New Wars and the International/Non-international Dichotomy
The dichotomy between international and non-international armed conflicts in
international humanitarian law has been widely criticised. 16
Despite this criticism, the
distinction is still firmly placed in the law of armed conflict and it is unlikely that a single
body of law applicable to all armed conflicts will develop in the foreseeable future, despite
the fact that customary international law is indeed developing in that direction.
Although there are significant problems with the dichotomous nature of the law of war
crimes, states have continued to cling to such a distinction. Writers have often dismissed
this as simply based on political reasons, arguing that states are unwilling to apply the
laws of war to internal armed conflicts as this may have the effect of legitimising rebels,
terrorists and other armed groups. However, these concerns are not entirely unjustified,
since the relationship between the states and non-state actors is markedly different from
inter-state relationships, and that states are unlikely to accept a single body of IHL to
apply to their internal situations.
The law of war historically only applied to sovereign states that fought against each
other. 17
16 SeeStewart. J., Towards a single definition of armed conflict in international humanitarian law : a critique of
internationalized armed conflict,International Review of the Red Cross, 85 (2003), no. 850, 313; Bassiouni, C.,The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors, The Journal of
Criminal Law and Criminology, vol. 98, no. 3, 2008, p. 748.
Although internal conflicts certainly took place, they remained an internal matter
for that state, and were covered by the domestic law of the state involved. However, over
time it became clear that there needed to be a level of regulation that applied to internal
wars. Events such as the Spanish Civil War demonstrated a need for rules of warfare that
could exist when a conflict did not fit the classical model of inter-state warfare. The
International Committee of the Red Cross presented a report in 1948 which recommended
that the Geneva Conventions apply international humanitarian law [i]n all cases of armed
conflict which are not of an international character, especially cases of civil war, colonial
17 In Western thought, there was a long tradition of regarding civil conflict as fundamentally different from true war...
this meant that none of the rituals associated with war-making and war-waging was applicable to struggles againstmere law breakers. Nor did the rules on the conduct of war apply... The result was a clear dichotomy between
domestic enforcement and true war. Neff, S., War and the Law of Nations, A General History, Cambridge, 2005,
p.250-1.
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conflicts, or wars of religion, which may occur in the territory of one or more of the High
Contracting Parties. 18 This proposal was rejected in favour of Common Article 3 to the
Geneva Conventions which clearly establishes that the application of rules of humanitarian
law will depend on the nature of the conflict taking place on the territory of the Party.
Common Article 3 was primarily developed in order to regulate non-international
conflicts. In comparison with the rest of the Geneva Conventions, which contain a high
degree of regulation of armed conflict, Common Article 3 contains a relatively modest
degree of regulation. It contains only what are seen to be the core elements of the Geneva
Conventions, such as the humane treatment of those who are not taking part in combat
and the care for the sick and the wounded. 19It is beyond doubt that these rules contained
in Common Article 3 represent customary international law and will apply in an armed
conflict irrespective of whether it is international or non-international in character.
20
The modest regulation contained in Article 3 is certainly a weakness. A further weakness is
the difficulty in its application. It contains no definition of conflict not of an international
character. Some have argued that the lack of a definition is a positive development, as it
allows the law to change as circumstances themselves change, and therefore does not
overly limit the application of Common Article 3. 21
The lack of definition, however, has
allowed many states to simply deny that the Article applies to their conflict. They may
argue that Article 3 does not apply because the conflict has not reached the level of being
considered an armed conflict. Furthermore, it is difficult to ascertain, especially in the
light of modern conflict, what not of an international character in fact means. When does
a riot or civil disturbance within a state become a non-international armed conflict? At
what point will a states support for separatists in a neighbouring state turn a conflict into
an international conflict?
Interestingly, whether or not a situation is an armed conflict will depend largely on
18 J. Pictet (ed.), Commentaries on the Geneva Conventions of 12 August 1949, Vol. III: Geneva Convention relative to
the Treatment of Prisoners of War, ICRC, Geneva, 1960, p. 31, quoted in Stewart. J., Towards a single definition of
armed conflict in international humanitarian law: a critique of internationalized armed conflict,International
Review of the Red Cross, 85 (2003), no. 850, p. 313.19 For detail on the substantive legal differences between international and non-international armed conflict, see
Stewart, Towards a single definition of armed conflict in international humanitarian law, pp. 319-323.20 Moir, L., The Law of Internal Armed Conflict, Cambridge University Press, Cambridge, 2002, p. 273.21 See Moir, p. 32; Cullen, A., Key Developments Affecting the Scope of Internal Armed Conflict in International
Humanitarian LawMilitary Law Review, vol. 183, no. 66, 2005.
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whether it is considered international or non-international. For instance, even a minor use
of force between sovereign states may be considered an armed conflict: The magnitude of
the use of force is irrelevant; international humanitarian law, and thus the law of war
crimes, is applicable even to minor skirmishes (first shot). 22
However, in the case of
internal conflict there is a higher threshold, whereby a situation must reach a certain level
of intensity before it becomes an armed conflict. The Rome Statute, for instance, sets out
that the law applying to non-international armed conflict:
does not apply to situations of internal disturbances and tensions, such as riots, isolated andsporadic acts of violence or other acts of a similar nature. It applies to armed conflicts thattake place in the territory of a state when there is protracted armed conflict betweengovernmental authorities and organized armed groups or between such groups.
23
This definition stems from the explanation of armed conflict used in the ICTYs Tadi
decision:
[A]n armed conflict exists whenever there is a resort to armed conflict between states orprotracted armed violence between governmental authorities and organised armed groups orbetween such groups within a State.
24
Thus, for the law to apply to an internal armed conflict the situation must meet some basicrequirements; the situation must be protracted and must take place between organised
armed groups. The conflict must also have reached a certain level of intensity. The Rome
Statute explicitly excludes application to riots and sporadic acts of violence of a similar
situation. Werle argues that the law of war crimes can only come into play if an intra-
state conflict is comparable to an inter-state conflict,due to the organisation of the parties and
the increased power and amenability to control of belligerents connected with it. 25
22 Werle, G., Principles of International Criminal Law, TMC Asser Press, The Hague, 2005, p. 287.
However, this raises the question of what comparable to an inter-state conflict in fact
means. There is no longer any typical form of interstate conflict, as there is no typical
internal conflict. Werle explains that the distinction is necessary because in an inter-state
conflict two armies face each other, the danger of escalation with incalculable
consequences begins with the first shot, whereas scattered outbreaks of violence in
23 Rome Statute of the International Criminal Court(U.N. Doc. A/CONF.183/9) (Rome Statute), Art 8 (f).24 ICTY, The Prosecutor v. Dusko Tadi, Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, IT-94-1-A, 2 October 1995, para.70.25 Werle,Principles of International Criminal Law,p. 290.
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intra-state conflicts do not endanger world peace. 26This reasoning seems to be based on a
mis-characterisation of modern internal conflicts. It is entirely possible that an isolated or
sporadic act of violence may also threaten world peace. Indeed, major international armed
conflicts can stem from events that escalated from mere internal disturbances. The
question then becomes: at what point does a sporadic act of violence become an armed
conflict? This becomes increasingly difficult to answer due to the nature of modern
warfare, where guerrilla tactics and terrorism are employed by belligerents who rely on
sporadic acts of violence as part of their military strategy. As the nature of armed conflict
changes, the meaning given to armed conflict will necessarily have to be adapted. In
Prosecutor v. Rutaganda, it was stated that the definition of armed conflict established by
the ICTY is still termed in the abstract, and whether or not a situation can be described as
an armed conflict, meeting the criteria of Article 3, is to be decided upon a case-by-case
basis.
27
In many cases the question of whether an armed conflict exists will be straightforward.
The more problematic legal question arises in determining whether the conflict is
international or non-international in nature. This question is made more difficult to
answer given the nature of modern conflict and the internationalisation of modern wars.
The very question of whether a conflict is international in character was discussed in Tadi.
The conflict in Yugoslavia was a very complicated one and can also be categorised as a
mixed conflict, with both international and internal elements. For instance, the support
that Federal Republic of Yugoslavia (FRY) gave to the Bosnian Serbs in Bosnia
Herzegovina changed over the course of the conflict. This form of international armed
conflict does not meet the typical pattern of inter-state war. The ICTY held that a conflict
may become international if the rebel group is acting as the agents of another state. The
Chamber looked at whether the Bosnian Serb forces could be regarded as being agents of
Yugoslaviait asked whether Yugoslavia had sufficiently distanced itself from the VRS
[Bosnian Serb Army] so that those forces could not be regarded as de facto organs or agents
of the VJ [Federal Yugoslav Army] and hence the Federal Republic of Yugoslavia. 28
26 Ibid.
The
27 ICTR, Prosecutor v Rutaganda, ICTR-96-3, Judgment of 6 December 1999,para 91.28 ICTY, Prosecutor v Dusko Tadi(a/k/a Dule) No IT-94-1-T, Judgement, 7 May, 1997, para 587.
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Appeals Chamber summarised its position that
in case of an internal armed conflict breaking out on the territory of a State, it may be becomeinternational (or, depending on the circumstances, be international in character alongside aninternal armed conflict) if (i) another State intervenes in that conflict through its troops, or
alternatively if (ii) some of the participants in the internal armed conflict act on behalf of thatother state
29
The precise question arose from the issue of whether the Grave Breaches regime would
apply. The Chamber accepted that Grave Breaches applied only to international conflicts
it was therefore important to determine whether or not the conflict could be regarded as
international in character. 30The Appeals Chamber decided that the conflict remained an
international in nature throughout the conflict due to the continued support of the
Republic of Yugoslavia. However, a subsequent decision by the International Court of
Justice seems to have diminished the direct role of the FRY in supporting the Republika
Srpska and the VRS, saying that the latter were not organs of the FRY 31, nor did it exercise
effective control over operations in which certain crimes were committed. 32In reality, the
war in the former Yugoslavia was a mixed conflict; at times irregular forces operated with
considerable financial and logistical backing from foreign armies, yet this support changed
and dissipated over time. The ICTY has been asked to consider in numerous trials whetherthe conflict was international in character. However, the set of criteria established in Tadi
has been notoriously difficult to apply, as it gives little guidance as to the requisite level
and type of intervention required by a state to categorise a conflict as international.
33
Additional Protocol II
The problems with Article 3 discussed above were to be addressed by further protocols
that would apply to non-international conflict, thereby strengthening the regulation of
internal conflicts. Addition Protocol II 1977 (APII) was developed for this purpose. APII
29 ICTY, Prosecutor v. Dusko Tadi, No IT-94-1-A, Appeals Judgement,15 July, 1999, para. 84.30 ICTY, Prosecutor v. Dusko Tadi, No IT-94-1-A, Appeals Judgement,15 July, 1999, para 80.31 ICJ, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),I.C.J. Reports 2007 para 388.32 BiH v. Serbia, para. 413.33 Regrettably, the possibility of direct military intervention that only indirectly involves an internal armed conflict as
in theBlaskic and Kordic & Cerkez Judgements, and the absence of any meaningful threshold test for what extent of
direct military intervention will internationalize a conflict, suggests the absence of a principled basis fordistinguishing internationalized armed conflicts from those international in character alongside an internal armed
conflict. Stewart, Towards a single definition of armed conflict in international humanitarian law, p. 330.
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extends the regulation of armed conflict in internal wars considerably. However, not only
has APII been ratified by a relatively small number of states, it only applies in very limited
circumstances. Its application is restricted to only the most intense internal armed conflicts.
The Protocol applies to
all armed conflicts which are not covered by Article 1 of the Protocol Additional to theGeneva Conventions of 12 August 1949 () (Protocol I) and which take place in the territoryof a High Contracting Party between its armed forces and dissident armed forces or otherorganized armed groups which, under responsible command, exercise such control over apart of its territory as to enable them to carry out sustained and concerted military operationsand to implement this Protocol.
It is clear from that provision that APII would only apply in very limited circumstances.
The belligerents must have a high degree of organisation and must also control territory.
The Protocol, although it adds to substantive legal rules covering internal conflict, is even
more restrictive in its application that Common Article 3. Like Common Article 3 it is only
to apply in circumstances where rebels have reached a stage where they look and act like a
state. In modern warfare, where control of territory is now far less important that in
previous eras and belligerents are less likely to have an organised command structure, the
Additional Protocol is unlikely to apply.
Customary International Law
There is therefore a significant legal difference between international and non-international
armed conflicts within conventional law. However, it is possible that the distinction is
being blurred by the development of customary international law. The rules pertaining to
international armed conflict are beginning to reach a level by which they were regarded as
applicable in all armed conflict.
The notion that customary international law has developed to cover non-international
armed conflict was discussed in Tadi. The Appeals Chamber stated that some rules
applied to both international as well as not international armed conflicts, including:
[the] protection of civilians from hostilities, in particular from indiscriminate attacks,protection of civilian objects, in particular cultural property, protection of all those who do not
(or no longer) take active part in hostilities, as well as prohibition of means of warfareproscribed in international armed conflicts and ban of certain methods of conducting
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hostilities34
According to the Appeals Chamber, however, not all rules have reached customary status.
Furthermore, the Appeals Chamber pointed out that it is not the rules themselves, but the
essence of the rules that have been transposed into customary law. It stated that only anumber of rules and principles governing international armed conflicts have gradually
been extended to apply to internal conflicts, and that this extension has not taken place in
the form of a full and mechanical transplant of those rules to internal conflicts; rather, the
general essence of those rules, and not the detailed regulation they may contain, has
become applicable to internal conflicts. 35
The codification of war crimes that took place in the drafting of the Rome statute has gone
a long way in identifying the categories of war crimes that are applicable in non-
international armed conflicts and was one of the main developments in the blurring of the
international /non-international distinction. The Statute codifies many of the laws of war,
and by doing so has transposed many of the crimes once applying only to international
conflict to the realm of non-international conflict. 36
This is a strong indication that these
crimes have reached the status of customary law and apply to all situations of armed
conflict. However, the Rome Statue still retains a distinction between international and
non-international armed conflict. Article 8 sets out the crimes applicable in international
armed conflicts (Art. 8 (2)(a)&(b)) and those that apply in a non-international conflict (Art.
8 (2) (c) & (e)). The decision to retain the distinction in the statute demonstrates that there is
still a view that there are different bodies of law which apply to international and non-
international conflict. Although the development of customary law is blurring the
distinction between these types of conflicts, the Rome statute shows that such a distinction
still exists.
Despite the convergence between the two bodies of law, some argue that the current state
of the law represents a significant lacuna. Willmott gives examples of certain types of
conduct that are not covered by Article 3 or customary international law. He argues that
34
Tadi(Jurisdiction)para 127.35 Tadi(Jurisdiction) para 126.36 Some examples of crimes that are now included to apply to all armed conflict include: Rape and Sexual Violence
8(2)(d)(vi); Pillaging a town or place 8(2)(d)(v); and Declaring that no quarter will be given 8(2)(d)(x).
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atrocities such as the use of certain types of weapons, widespread damage to the
environment, use of human shields, improper use of flags and use of starvation as a
method of warfare cannot be prosecuted at the ICC for internal conflicts. 37Werle, on the
other hand, argues that since the creation of the ICC statute, there is no longer a relevant
difference between international and non-international conflict: under the ICC statute and
in accordance with customary international law, protection of persons in non-international
armed conflict is largely comparable to their protection in international armed conflict. 38
Others have argued that the distinction is no longer of any practical difference. Cassese
rightly points out that there has been a convergence of the two bodies on international law
with the result that internal strife is now governed to a large extent by the rules and
principles which had traditionally only applied to international conflicts. 39
There is still no single body of law that applies to all armed conflict, despite the
development of customary law is moving in that direction. 40
States have been reluctant to
apply laws of international armed conflict to their internal situations. Moreover, the
drafters of the Statute establishing the International Criminal Court chose to retain the
clear distinction between international and non-international conflicts in the text of the
statute. Why is it then, that states feel a need to retain the distinction? Are there real andvalid reasons for states to seek to retain the dichotomy, or is it simply away of avoiding
responsibilities with respect to internal armed conflict? Are laws applying to international
armed conflict appropriate to internal wars?
III. Re-thinking the International/Non-international dichotomy
Although experts disagree on the legal or practical significance of the legal dichotomy
described above, the distinction has been widely criticised. From a moral point of view,
37 Willmott D., Removing the Distinction between International and Non-International Armed Conflict in the Rome
Statute of the International Criminal Court,Melbourne International Law Review, vol. 8 , 2004.38 Werle Principles of International Criminal Law, p. 284.39
Memorandum of 22 March 1996 to the Preparatory Committee for the Establishment of theInternational Criminal Court, quoted in Stewart. J., Towards a single definition of armed conflict in international
humanitarian : a critique of internationalized armed conflict,International Review of the Red Cross, 85 (2003), no.
850, pp. 322.
40 Willmott D., Removing the Distinction between International and Non-International Armed Conflict in the RomeStatute of the International Criminal Court,Melbourne International Law Review, vol. 8 , 2004; Chandrahasan, N.,
Internal Armed Conflicts and the Expanding Jurisdiction of International Humanitarian Law, Sri Lanka Journal of
International Law, 12 (2000), pp. 129-137.
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there seems to be no reason for distinguishing between acts that have taken place in an
international or non-international armed conflict. The ICTY has pointed out that the
dichotomy makes little sense when it comes to the goal of protecting human beings:
Why protect civilians from belligerent violence, or ban rape, torture or the wanton destructionhospitals, churches, museums or private property, as well as proscribe weapons causingunnecessary suffering when two sovereign states are engaged in war, and yet refrain fromenacting the same bans or providing the same protection when armed violence has eruptedonly within the territory of a single state? If international law, while of course dulysafeguarding the legitimate interests of states, must gradually turn to the protection of humanbeings, it is only natural that the aforementioned dichotomy should gradually lose its
weight.
41
Legal commentators have also widely criticised the legal dichotomy. Some argue that
there should be a single body of international law that applies to armed conflict,
irrespective of the categorisation of the conflict. Bassiouni argues that
It is anachronistic that these different legal regimes and sub-regimes apply to the same
socially protected interests and reflect the same human and social values, but differ in their
applications depending on the legal characterization of the type of conflict. Governmentsmaintain these distinctions for purely political reasons, namely, to avoid giving insurgents
any claim or appearance of legal legitimacy.
42
Lawyers Committee for Human Rights argued that [i]t is untenable to argue that theperpetrators of atrocities committed in non-international armed conflict should be shielded
from international justice just because their victims were of the same nationality. 43
Reisman and Silk go further, arguing that:
The distinction between international wars and internal conflicts is no longer factuallytenable or compatible with the thrust of humanitarian law, as the contemporary law of armedconflict has come to be known. One of the consequences of the nuclear stalemate is that mostinternational conflict now takes the guise of internal conflict, much of it conducted covertly orat a level of low intensity. Paying lip service to the alleged distinction simply frustrates thehumanitarian purpose of the law of war in most of the instances in which war now occurs.
44
These comments represent a broad view among international legal scholars that the
41 Tadi(Jurisdiction), para 97.
42 Bassiouni, New Wars and the Crisis of Compliance, p. 731. Bassiouni recommends that there be a new Protocol
drafted to the Geneva Conventions that would eliminate the disparities in protections between all forms of
conflicts, and to give combatants willing to abide by IHL the status of lawful combatant and that of POW.
43 Lawyers Committee for Human Rights, Establishing an International Criminal Court: Major Unresolved Issues inthe Draft Statute (New York, 1998) section IV.
44 Reisman, W. and Silk,J., Which law applies to the Afghan conflict?,American Journal of International Law, Vol.
82, 1988 p. 465.
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category of conflict should no longer make a difference to the criminalisation of atrocities
in armed conflict.
Despite the abovementioned criticisms, states continue to view the dichotomy as a relevant
part of IHL. The Statute of the International Criminal Court, for instance, retains the
dichotomy. This could have been a chance for states to largely do away with the distinction
between international and non-international conflict. For instance, Cryer et al argue that
there should have been a list of war crimes that apply to all armed conflicts, supplemented
by a list of crimes that apply only to international conflicts. 45
However, at some level,
states continue to view the legal dichotomy as having legal significance.
In criticising the dichotomy, legal commentators have largely overlooked the reasons
behind its creation and its continued application. Why is it that states continue to cling to
the international/non-international distinction? The reason is that international conflicts
and non-international conflicts are considered as being different in nature, since the status
of the belligerents in the two types of conflict are different. Moir argues that the two
streams of law developed separately because the relationship between the belligerents is
fundamentally different in internal wars.
The situation is markedly different in that the position within a State is not analogous to itsinternational relations. It is clearly unusual for a state to employ force in its relations withother states. In contrast, force is frequently used within the States own territory and againstits own citizens, ranging from everyday enforcement action against common criminals tolarge-scale operations aimed at quelling riots or other civil disturbances 46
The nature of the parties to the conflict is different in the two categories of conflict. The
Geneva Conventions were originally developed with the view that they would apply only
to states parties. 47
45 Cryer, R., Friman, H, et al,An Introduction to International Criminal Law and Procedure, Cambridge University
Press, Cambridge, 2007, p. 232: Such a list would not entail any change in customary law, but simply a clearer
presentation of the existing legal situation.
States are assumed as being fully capable of fulfilling their obligations
under international law and have international legal personality. In contrast, rebel groups,
secessionists or armed militias have limited international legal personality and are less
46 Moir,Internal Armed Conflict, p. 34.47 Meron, T. ,'International Criminalisation of Internal Atrocities,American Journal of International Law, 89 (1995),
no. 3, pp. 554-577.
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likely to be capable of implementing these obligations. This is because states are more
likely to have a developed military command structure, to have military manuals that set
out legal obligations of their fighters, and to have courts or military tribunals that can
prosecute those who breach these rules. The approach that has been taken with regards to
rebel groups is that legal obligations begin to apply only when they have reached a level of
organisation and control that is comparable to that of a state and apply to groups that
take part in the fighting. The laws of war may be inapplicable or inappropriate to
circumstances in which the belligerents are not comparable to a state since they are
relatively unorganised or irregular.
Not only are the groups taking part in the conflict different in internal conflict, but also
their relationship with each other is fundamentally different. At the international level,
states are regarded as legally equal entities. When one state goes to war against another,
the conflict is between two sovereign entities. In an internal war the relationship is
markedly different. Rather than being between legal equals, the conflict takes place
between legal unequals. According to the Weberian definition of statehood, the State is set
of institutions that maintain a monopoly over the legitimate use of coercive force within a
territory. In an internal war, the use of force by insurgents is seen as illegitimate as only
the State has the right to use coercive force within its territory. The State will maintain that
it has the prerogative to treat fighters as criminals and to prosecute them under the states
criminal law. However, under IHL, the fighters are given at least some level of legal status,
and acquire rights and duties as belligerents. A state that wishes to put down a rebellion or
prevent civil war will not tolerate treating those who threaten state authority as legal
equals, and will not bestow upon the other party any status other than criminal.
One could argue that these distinctions should have no relevance when it comes to
international humanitarian law, since it makes no difference to the victim of a war crime
whether the conflict is an international or non-international conflict. This is certainly true,
and from a moral point of view, there is absolutely no difference between attacking
civilians of another state and attacking civilians within the borders of the state. However,
from a practical viewpoint, states and insurgents alike have routinely dismissed the
application of IHL to their conflicts. For IHL to be effective, the belligerents must feel that
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they are legally bound by a set of rules. It is evident from the atrocities that have taken
place in internal conflicts that this is not the case.
Indeed, many states are unwilling to categorise their internal disturbances as armed
conflicts attracting the application of IHL. For example the Russian Federation and Turkey
do not consider their internal conflicts with separatists as armed conflicts. In dealing with
the Chechen or Kurdish separatists, these states see themselves as conducting internal
operations against terrorists rather than anything comparable to an armed conflict and
therefore denied the application of international humanitarian law to their situations.
Abresch points out that this decision is due to political rather than legal considerations:
The problem is that to apply humanitarian law is to tacitly concede that there is another
party wielding power in the putatively sovereign state.
48
Solomon argues that the main reason for the distinction is the concern of states that their
ability to deal with internal unrest will be weakened if they apply rules of armed conflict to
internal situations: the distinction was also deeply rooted in the view that the rules of
international armed conflict would, if applied to civil wars, affect the status of insurgents
and the territory they hold. 49
The fear is that by applying the rules of armed conflict, and
not only the domestic laws of the state, the insurgents would gain an invaluable
commodity in internal conflicts: status. By treating a situation as an armed conflict the
State is not only conceding that the situation has become out of control, but it also implies
that the armed group has obtained a status other than a mere rebel, insurgent or terrorist.
Although the Conventions state that the application of IHL does not affect the status of the
parties, states continue to feel that it does. This concern about status should not be
underestimated, particularly in weak and failing states that find it increasingly difficult to
assert their sovereignty.
The concern, then, is not so much restriction on the States use of force, but the message
that the application of international humanitarian law sends about the nature of the parties
48 Abresch, W., A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in
Chechnya, Center for Human Rights and Global Justice Working Paper, Extrajudicial Executions Series, No. 4,2005, p. 17.
49 Solomon, S., Internal Conflicts : Dilemmas and Developments, The George Washington International Law
Review, 38 (2006), no. 3, p. 582.
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to the conflict. As Fleck points out,
Importantly, the concern that the application of the laws of war in internal situations wouldor could obstruct the governments ability to prosecute the conflict was not fundamentallybased on anxiety about restrictions related to methods and means of conflict. The concern
was based, instead, on uneasiness about the laws implications for the status of parties to theconflict, and, in particular, on states concerns about restrictions on their ability to sanctionindividuals under domestic law for their belligerent acts.
50
For instance, although Article 3 contains legal provisions to apply the basic elements of
IHL to internal conflicts, the Article has rarely been applied by states. Moir points out that
states have been unwilling to admit that these basic legal provisions apply to their
conflicts:
When faced with internal difficulties, States tend to disregard the provisions of commonArticle 3, often denying that the situation is an armed conflict at all. Article 3 may assert thatits application has no effect on the legal status of the parties to the conflict, but States fear theopposite, and to an extent they are right to do sothe insurgents must receive some measureof legal personality to the extent they gain rights and obligations under the article.
51
In some cases, international humanitarian law is simply unsuited to internal armed
conflict, since the application of rules developed for international conflicts may not be so
easily applied to an internal war. 52 As Stewart points out, much of the Geneva
Conventions simply cannot be applied in civil conflicts because their operation turns on
notions of belligerent occupation of territory and enemy nationality, concepts that are alien
to civil conflicts. 53The methods used may also differ. In an internal conflict, the methods
employed may be closer to counter-terrorism, riot control or general law enforcement than
what is considered the means and methods envisaged by IHL. 54
50 Fleck, The Law of Non-International Armed Conflict,p. 612.
Simply applying the law
of international armed conflict to all armed conflicts, regardless of their status, is unlikely
to occur in the near future. States will continue to view the two types of conflicts as
fundamentally different, both in the legal status of the parties to the conflict, and the
51 Moir,Internal Armed Conflictp. 274.52 Law enforcement operations in internal disturbances will generally follow specific rules which are not fully
comparable to military operations in an armed conflict. Fleck, The Law of Non-International Armed Conflict,p.
618.53 Stewart. J., Towards a single definition of armed conflict in international humanitarian : a critique of
internationalized armed conflict,International Review of the Red Cross, 85 (2003), no. 850, p. 345.54 Law enforcement operations in internal disturbances will generally follow specific rules which are not fully
comparable to military operations in an armed conflict. Fleck, The Law of Non-International Armed Conflict, p.
618.
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methods and means used to execute the two types of conflicts.
A Human Rights Approach?
Rather than seeking to simply apply IHL to all armed conflicts, it has been argued that the
application of international human rights law (IHRL) would be more appropriate in some
circumstances. 55
In contrast to IHL which generally regulates conduct between states,
IHRL law is a system that regulates the relationship between the State and its citizens. It is
therefore arguably more appropriate in regulating internal wars. In this case, the State
maintains its prerogative to fight those who challenge state authority, but the way in which
it does so is regulated by international IHRL. Furthermore, by applying IHRL, there is less
of a concern that it will bestow status upon internal rivals, as there is with IHL. Abresch
makes the convincing argument that in certain situations, IHRL may be more capable of
applying to an internal conflict than IHL, giving the example of the ECtHRs use of the
right to life article in cases of armed conflict within the Council of Europe:
The ECtHRs approach has the potential to induce greater compliance, because it applies thesame rules to fights with common criminals, bandits, and terrorists as to fights with rebels,insurgents, and liberation movements. To apply human rights law does not entail admittingthat the situation is out of control or even out of the ordinary.
56
Although there is a good argument to apply IHRL to some internal conflicts, there are
some apparent problems with applying it to internal armed conflict. Firstly, the law
generally binds states who are a party to the Conventions, but does not establish corollary
duties on its citizens. Although it has been argued that IHRL equally applies to non-state
actors such as rebel groups as it does to states 57
55 Abresch, A Human Rights Law of Internal Armed Conflict, p. 28.
, it has proved difficult to apply the IHRL
to non-state groups. This is in contrast to IHL, which establishes rights and duties upon
both sides. Secondly, IHRL is capable of derogation in times up public emergency and war,
whereas IHL only applies in times of war, and can therefore be seen as a specialised form
of IHRL that applies during armed conflict as lex specialis. This may become less of a
56 Abresch, A Human Rights Law of Internal Armed Conflict, p. 18.57 See Tomuschat, The Applicability of Human Rights Law to Insurgent Movements, in Crisis Management and
Humanitarian Protection, Berliner Wissenschafts-Verlag, (2004), pp.588-581. Fleck, The Law of Non-International
Armed Conflict,p. 621: Whereas the binding effect of international humanitarian law on non-state actors was never
seriously disputed, the extent to which this would also apply to underlying human rights norms was shadowed by awidely believed myth according to which human rights could be claimed against the state, but not against
individuals. That myth may have been supported by a limited textual understanding of human rights conventions,
but it was never keeping with custom, neither with practice, and cannot be upheld.
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concern since there is a growing view among experts that IHL and IHRL are able to co-
exist are not mutually exclusive areas of law. Despite these criticisms, IHRL is appropriate
in regulating many of these conflicts simply because states routinely dismiss the
application of IHL to their internal conflicts. In the conflicts referred to aboveUnited
Kingdom, Turkey and Russiathese states denied application of IHL, but IHRL was still
able to regulate the conflict through applications to the European Court of Human
Rights. 58Applying IHRL may be the best way to promote compliance with a set of legal
norms during armed conflict where states and rebels alike have determined that they are
not bound by IHL.
59
The end of the distinction?
Moir argues that the distinction between international and non-international conflicts is
becoming less relevant:
we would appear to be moving tentatively towards the position whereby the legal distinction between
international and non-international armed conflict is becoming outmoded. What will matter as regards
legal regulation will not be whether an armed conflict is international or internal, but simply whether an
armed conflict existsper se.60
Indeed, many writers advocate the view that one body of IHL should apply to all armed
conflicts, no matter how they are categorised. 61
58 Isayeva, Yusupova and Bazayeva v. Russia, ECtHR, App. Nos. 5794749/00 (Feb. 24, 2005); Gle v. Turkey,
ECtHR, App. No. 21593/93 (July 27, 1998);McCann and Others v. United Kingdom, ECtHR, App. No. 18984/91
(Sept. 27, 1995).
However, despite there being a move
towards a single body of law, the legal distinction remains. More importantly, states
continue to see a need to distinguish between internal conflicts and international conflicts,
and the distinction will likely exist in some form in the near future. This primarily stems
from the nature of the relationship between the parties in the conflictStates are reluctant
to recognise rights and establish obligations with regards to their internal situations.
Boelaert-Suominen, summarises the current situation:
59 Even in internal armed conflict, where the taking of human life becomes a daily reality, a minimum of legal
protection shall be maintained. However, although IHL is the primary legal instrument designed to provide
protection during armed conflict, human rights are not replaced altogether. IHL takes precedence whenever there is aconflict between the two sets of norms. But there are many blank spaces where IHL has not established any specific
rules. In such instances, general human rights obligations can be invoked. Tomuschat, The Applicability of Human
Rights Law to Insurgent Movements, p. 575.
60 Moir,Internal Armed Conflict, p. 51.61 Bassiouni recconmends that A Protocol to the Geneva Conventions should be added to eliminate the disparities in
protections between all forms of conflicts, and to give combatants willing to abide by IHL the status of lawful
combatant and that of POW. New Wars and the Crisis of Compliance, p. 808.
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the recent Diplomatic conferences do not indicate that the distinction between internationaland internal armed conflict has been eliminated, nor that it will be eliminated soon. Theobligation of states to apply a uniform set of rules (substantive or procedural) in relation to allarmed conflicts, regardless of their characterisation, is still a distant prospect. 62
Although international legal scholars may think of the distinction between internal and
non-international conflicts as largely immaterial, this is not a view held by states
themselves, who see the two types of conflicts as fundamentally different. However, the
distinction that exists in IHL does not match the messy situation of modern armed conflict,
which sits somewhere in between the two categories of classical inter-state conflict and
internal armed conflict. Any changes to the laws of war must take into account the
important concerns states have about their ability to put down internal challenges, yet theymust not be able to simply ignore the application of IHL to their conflicts. New wars and
the mixed conflicts of the post-Cold War era have seen some of the greatest violations of
fundamental human rights. Applying IHL in a way that the belligerents, both state and
non-state actors, actually feel bound by its rules remains a significant challenge.
62 Boelaert-Suominen, S., Grave breaches, universal jurisdiction and internal armed conflict: Is customary lawmoving towards a uniform enforcement mechanism for all armed conflicts?Journal of Conflict and Security Law,
Vol. 5, No. 63, 2000, p. 88-89.