The dynamics of war and law

The phrase “human rights in armed conflict” is somewhat misleading for the way it glosses over the categorization of armed conflicts under humanitarian law as either international or non-international, with additional special norms for situations of occupation. The exceptional rules for wars of national liberation “in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination,” which are assimilated to international conflicts solely for the purpose of extending the protective regime of the Geneva Conventions and the division between non-international armed conflicts under either Common Article 3, on the one hand, or Additional Protocol II, on the other hand (which requires higher thresholds to be reached by non-state armed groups, particularly with regard to exercising control over territory) complicates matters. The debate on human rights in armed conflicts needs to be matched with this typology.

At the same time, this established dichotomy of international and non-international armed conflicts is today being challenged as increasingly irrelevant in light of the multitude of situations which fall in between or outside this classic scheme. Among them are “internationalized” conflicts (i.e., internal conflicts with various forms of third-party intervention), conflicts which spill over into the territory of other states and “extra-state” or “transnational” armed conflicts, fought between nation states and non-state armed groups with no clear delineation within national borders, including the so-called “War on Terror.” To this one may add the use of armed force in UN mandated peace support operations situations.