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Published online by Cambridge University Press: 09 March 2016
This article argues that since the Tadić case before the International Criminal Tribunal for the Former Yugoslavia, a new category of armed conflict has migrated from international criminal law to international humanitarian law: that of armed groups fighting each other within the borders of a state without the intervention of the armed forces of the latter. However, the extent to which the rules of this category of conflict cover issues that may arise in such a conflict has not been comprehensively examined. One may infer, from the war crimes that the Rome Statute of the International Criminal Court criminalizes in this type of conflict, a dozen rules of international humanitarian law. After giving an historical account of the codification of this category of armed conflict, the author argues that there is a need to further develop these rules in order to provide a more comprehensive humanitarian law regime applicable to conflict exclusively between non-state armed groups. The absence of such a comprehensive regime should not, however, be taken as evidence of a legal vacuum. The author suggests that a law enforcement regime resting on international human rights law should be applied to relations between the armed groups and the territorial state, while the warring relationship between the armed groups should fall under the law of armed conflict, including those core customary rules that are now recognized as being equally applicable to international and non-international armed conflict.
2 Vité, Sylvain, “Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations” (2009) 91:873 Int’l Rev Red Cross 69 at 70 CrossRefGoogle Scholar (arguing that, “depending on how the situations are legally defined, the rules that apply vary from one case to the next”).
3 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 UNTS 31 (12 August 1949); Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 85 (12 August 1949); Geneva Convention (III) Relative to the Treatment of Prisoners of War, 75 UNTS 135 (12 August 1949); Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287 (12 August 1949) [Geneva Conventions].
4 According to the concept of “armed conflict,” IHL may apply once some “specific factual conditions are met.” See Vité, supra note 2 at 72, referring to Pictet, Jean et al, eds, Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field: Commentary (Geneva: International Committee of the Red Cross, 1952) at 32;Google Scholar Kolb, Robert, Jus in bello: Le droit international des conflits armés (Basel and Brussels: Helbing and Lichtenhahn/Bruylant, 2003) at 72.Google Scholar
5 Unlike international armed conflict, which exists even with a low level of violence, the existence of internal armed conflict is appraised through the lens of “protracted violence,” meaning in essence that the conflict must reach a certain degree of intensity and that the parties must be organized. See Prosecutor v Tadic, International Criminal Tribunal for the Former Yugoslavia (ICTY) Case no IT—94-1-AR72, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction (2 October 2005) at para 70 (Appeals Chamber) [Tadic]; Prosecutor v Boskoski, ICTY Case no IT-04-82, Judgment (10 July 2008) at para 175 (Trial Chamber); Prosecutor v Rutaganda, International Criminal Tribunal for Rwanda (ICTR) Case no ICTR-96-3, Judgment (6 December 1999) at para 93 (Trial Chamber I).
6 Security Council Resolution 808 (1993), UNSCOR, 3175th Mtg, UN Doc S/RES/808 (1993) at para 1, establishing an international tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991; Security Council Resolution 955 (1994), UNSCOR, 3453rd Mtg, UN Doc S/RES/955 (1994) at para 1, establishing “an international tribunal for the sole purpose of prosecuting persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994.”
7 Tadic, supra note 5.
8 Rome Statute of the International Criminal Court, 2187 UNTS 3, arts 8(2)(e)-(f) (entered into force 1 July 2002) [Rome Statute].
9 ICRC, How Is the Term “Armed Conflict” Defined in International Humanitarian Law? Opinion Paper (March 2008) at 4, online: ICRC <http://www.icrc.org/web/eng/siteeng0.nsf/html/armed-conflict-article-170308>.
10 Geneva Conventions, supra note 3, art 3.
11 Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, art 1(1) (entered into force 7 December 1978) [Additional Protocol II].
12 In the commentary by the International Committee of the Red Cross (ICRC) on the third Geneva Convention, Pictet attempts a definition of “armed conflict”: “[A]ny difference arising between States and leading to the intervention of members of armed forces is an armed conflict.” Pictet, Jean, Commentary on the Geneva Convention of 12 August 1949 Relative to the Treatment of Prisoners of War (Geneva: ICRC, 1958) at 23 Google Scholar. It therefore seems that resort to armed forces in the context of a dispute between states may suffice for an international armed conflict to exist, while for a NIAC, “protracted armed violence” between the parties must be shown. Tadic, supra note 5; Bartels, Rogier, “Timelines, Borderlines and Conflicts: The Historical Evolution of the Legal Divide between International and Non-International Armed Conflicts” (2009) 91:893 Int’l Rev Red Cross 35 at 38.CrossRefGoogle Scholar
13 Carswell, Andrew J, “Classifying the Conflict: A Soldier’s Dilemma” (2009) 91:893 Int’l Rev Red Cross 143 at 150.Google Scholar
14 Tadié was charged with wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health, as war crimes and crimes against humanity. Prosecutor v Tadic, ICTY Case no IT-94-1-T, Opinion and Judgement (7 May 1997) at para 9 (Trial Chamber).
15 Article 2 of the ICTY Statute provides for the prosecution of grave breaches of the Geneva Conventions of 1949, Article 3 for violations of the law or customs of war, and Article 5 for crimes against humanity. see Statute of the International Criminal Tribunal for the Former Yugoslavia, approved by (and annexed to) Security Council Resolution 827 (1993), UN Doc S/RES/827 (1993) at para 2 [ICTY Statute].
16 Tadic, supra note 5 at para 65.
17 Ibid at para 70.
18 Ibid at para 67.
19 The answer addressing the defence’s concern was as follows: “International humanitarian law applies from the initiation of ... armed conflict and extends beyond the cessation of hostilities until a general conclusion of the peace is reached, yet, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring states or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.” Tadic, supra note 5 at para 70.
20 Geiß, Robin, “Armed Violence in Fragile States: Low-Intensity Conflicts, Spillover Conflicts, and Sporadic Law Enforcement Operations by Third Parties” (2009) 91:873 Int’l Rev Red Cross 127 at 133.Google Scholar
21 Geneva Conventions, supra note 3, art 3.
22 Weston Ash, Robert, “Square Pegs and Round Holes: Al-Qaeda Detainees and Common Article 3” (2007) 17:2 Ind Int’l & Comp L Rev 269 at 290.Google Scholar
23 Switzerland Federal Political Department, Final Record of the Diplomatic Conference of Geneva of 1949, volume 2(B) (Buffalo, NY: William S Hein and Company, 2004)
24 Indeed, the United Kingdom understood the notion of “conflict not of an international character” as meaning “situations in which one of the combatants was the lawful government (e.g. in the case of civil war).” For Norway, “[i]t was not a conflict between ... individuals.” For Spain, “[t]he conventions should only be applied in cases where the legal government was obliged to have recourse to the regular military forces against insurgents militarily organised and in possession of a part of the national territory.” For Mexico, non-international armed conflict referred to “civil wars, wars of resistance or wars of liberation.” See ibid at 10 (UK), 11 (Norway and Spain), 333 (Mexico).
25 Elder, David A, “The Historical Background of Common Article 3 of the Geneva Convention of 1949” (1979) 11:1 Case W Res J Int’l L 37 at 46.Google Scholar
26 Blacks Law Dictionary, 10th edition (St Paul, MN: Thomson Reuters, 2014), sub verbo “civil war.”
27 New Lexicon Webster’s Encyclopedic Dictionary of the English Language, deluxe edition (New York: Lexicon Publications, 1989) sub verbo “civil war.”
29 Ash, supra note 22 at 279.
30 Pilloud, Claude et al, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 1949 (Dordrecht: ICRC/Martinus Nijhoff, 1987) at 1351.Google Scholar However, the Institute of International Law, at its Wiesbaden session on 14 August 1975, defined the concept of civil war as clashes between “two or more groups which in the absence of any established government contend with one another for the control of the State.” Institute of International Law, The Principle of Non-Intervention in Civil Wars, Wiesbaden Session, 8th Commission (Institute of International Law, 14 August 1975), art 1(1)(b).
31 Pilloud et al, supra note 30 at 1351.
34 Additional Protocol II, supra note 11, art 1(1).
35 Ibid, art 1(2).
36 Zahar, Alexander and Sluiter, Göran, International Criminal Law (Oxford: Oxford University Press, 2008) at 118.Google Scholar
37 Lysaght, Charles, “The Scope of Protocol II and Its Relation to Common Article 3 of the Geneva Conventions of 1949 and Other Human Rights Instruments” (1983) 33 Am UL Rev 9 at 14.Google Scholar
38 Stewart, James G, “Towards a Single Definition of Armed Conflict in International Humanitarian Law: A Critique of Internationalized Armed Conflict” (2003) 85:850 Int’l Rev Red Cross 313 at 319;Google Scholar Fleck, Dieter, The Handbook of International Humanitarian Law, 2nd edition (Oxford: Oxford University Press, 2008) at 609;Google Scholar Geiß, supra note 20 at 133. For the modern approach to the notion of noninternational armed conflict, see International Law Association (Committee on the Use of Force), “Initial Report on the Meaning of Armed Conflict in International Law” (paper prepared for the Rio De Janeiro Conference, 2008) at 6, online: <http://www.ila-hq.org/en/committees/index.cfm/cid/1022>. See also O’Connell, Mary Ellen, “Defining Armed Conflict” (2009) 13:2 J Confl & Sec L 393 at 393–400.Google Scholar
39 Greenwood, Christopher, “Scope of Application of Humanitarian Law” in Fleck, , supra note 38, 54.Google Scholar
40 See also International Institute of Humanitarian Law, The Manual on the Law of Non-International Armed Conflict (San Remo, Italy: International Institute of Humanitarian Law, 2006) at 2, online: <http://www.dur.ac.uk/resources/law/NIACManualIYBHR15th.pdf>: “Non-international armed conflicts are armed confrontations occurring within the territory of a single State and in which the armed forces of no other State are engaged against the central government.”
41 Prosecutor v Kayishema & Ruzindana, ICTR Case no ICTR-95-1-T, Judgment and Sentence (21 May 1999) at para 170 [emphasis added]. It is noteworthy that one year before, in Prosecutor v Jean-Paul Akayesu, ICTR Case no ICTR-96-4-T, Judgment (2 September 1998) at paras 619-21 [Akayesu], the Trial Chamber, in ruling on the applicability of common Article 3, referred to the 1995 Tadic decision.
42 Prosecutor v Musema, ICTR Case no ICTR-96-13-T, Judgment and Sentence (27 January 2000) at para 247 [emphasis added]. See also Zegveld, L, Accountability of Armed Opposition Groups in International Law (Cambridge: Cambridge University Press, 2002) at 136:CrossRefGoogle Scholar “[I]nternal conflicts are distinguished from international armed conflicts by the parties involved rather than by the territorial scope of the conflict.”
43 Ash warns about overlooking state intent in interpreting international treaties, questioning “why States would desire to enter into future agreements if the terms they have agreed to in past treaties are to be stretched beyond recognition and applied in a manner inconsistent with what was agreed.” See Ash, supra note 22 at 274, n 15.
45 See Proposal of the Bureau, UN Doc A/CONF.183/C.1/L.5 (10 July 1998) at 9, in UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Official Records of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Reports and Other Documents), volume 3 (New York: United Nations, 2002) at 212.
46 See Cullen, supra note 44 at 429.
47 Rome Statute, supra note 8, art 8(2)(c), (d).
48 Ibid, art 8(2)(e).
49 Ibid, art 8(2)(f).
50 See Thirty-fifth Meeting of the Committee of the Whole, UN Doc A/CONF.183/C.1/SR.35 (13 July 1998) at para 8, in UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 35th Meeting of the Committee of the Whole, Official Records of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Summary records of the plenary meetings and of the meetings of the Committee of the Whole) volume 2 (New York: United Nations, 2002) at 334.
51 Meron, Theodor, “Crimes under the Jurisdiction of the International Criminal Court” in Hebel, Ham von et al, eds, Reflections on the ICC (The Hague: TMC Asser Press, 1994) at 54.Google Scholar
52 Tadic, supra note 5 at para 97.
53 Ibid at para 98.
54 Sassoli, Marco and Bouvier, Antoine, eds, How Does Law Protect in War, 2nd edition, volume 1 (Geneva: ICRC, 2006) at 110;Google Scholar Provost, René, International Human Rights and International Humanitarian Law (Cambridge: Cambridge University Press, 2002) at 268–69;CrossRefGoogle Scholar Schabas, William A, An Introduction to the International Criminal Court, 3rd edition (Cambridge: Cambridge University Press, 2007) at 116.CrossRefGoogle Scholar
55 Prosecutor v Thomas Lubanga Dyilo, International Criminal Court Case (ICC) no ICC-01/04-01/06-2842, Public Judgment pursuant to Article 74 of the Statute (14 March 2012) (Trial Chamber I) [Lubanga].
56 Prosecutor v Thomas Lubanga Dyilo, ICC Case no ICC-01/04-01/06-803-tEN, Public Redacted Version with Annex I of the Decision on the Confirmation of Charges (29 January 2007) at paras 220, 236 (Pre-Trial Chamber I).
57 Lubanga, supra note 55 at para 565.
58 Ibid at para 567. It is to be noted that in the subsequent case of Mathieu Ngudjolo, acquitted on charges of conscripting, enlisting, and utilizing children in hostilities, although the Trial Chamber did not precisely touch upon the nature of the conflict, it nevertheless concluded that there had been an attack by Ngiti and Lendu militias on the Bogoro village in eastern DRC, which was under the control of the UPC (a Hema militia). See Prosecutor v Mathieu Ngudjolo, ICC Case no ICC-01/04-02/12-3-tENG, Public Judgment pursuant to Article 74 of the Statute (18 December 2012) (Trial Chamber II) at 120-25. However, in the case of Germain Katanga, after an extensive analysis of the nature of the conflict prevailing at the time of the attack on the Bogoro village, the same Chamber recharacterized the conflict, which pitted APC, Ngiti, and Lendu combatants (to whom the Ugandan army lent its support) against the UPC, as an NIAC and not an exclusively NSAC. See Prosecutor v Germain Katanga, ICC Case no ICC-01/04-01/07-3436, Public Judgment pursuant to Article 74 of the Statute (7 March 2012) (Trial Chamber II) at paras 1229-30.
62 Zahar and Sluiter, supra note 36 at 113-17.
63 Ibid at 117.
64 Prosecutor v Delalic et al, ICTY Case no IT-96-21-A, Appeal Judgment (20 February 2001) at para 162 (Appeals Chamber).
65 Geneva Conventions, supra note 3; Hague Convention IV Respecting the Laws and Customs of War on Land, BTS 1910 No 9, 1 Bevans 631 (in force 16 January 1910).
66 Balendra, Natasha T “Defining Armed Conflict” (2008) 26:6 Cardozo L Rev 2461 at 2486.Google Scholar
68 Rome Statute, supra note 8, arts 1, 17.
69 Ibid, art 17.
70 Boed, Roman, “Individual Criminal Responsibility for Violations of Article 3 Common to the Geneva Conventions of 1949 and of Additional Protocol II Thereto in the Case Law of the International Criminal Tribunal for Rwanda” (2002) 13 Crim LF 293 at 298.Google Scholar ICTR and ICTYjurisprudence has settled the issue. See Tadic, supra note 5 at para 128; Akayesu, supra note 41 at para 617.
71 Fleck, supra note 38 at 610-11.
72 Rome Statute, supra note 8, art 8(2)(e).
73 Schmitt, Michael N, “The Principle of Discrimination in Twenty-First Century Warfare” (1999) 2 Yale Human Rts & Dev LJ 143 at 144.Google Scholar
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75 Schmitt, supra note 73 at 147.
76 Ibid at 148.
77 Melzer, Nils, Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Geneva: ICRC, 2009) at 5.Google Scholar
78 Ibid at 16.
80 Ibid at 34.
81 “[T]he determination of the existence of an armed conflict is based solely on two criteria: the intensity of the conflict and the organization of the parties.” Prosecutor v Limaj, ICTY Case no IT-03-66-T, Judgment (30 November 2005) at para 170 (Trial Chamber); Prosecutor v Haradinaj, ICTY Case no IT-04-84-T, Judgment (3 April 2008) at paras 49, 60 (Trial Chamber).
82 However, the Inter-American Commission on Human Rights has considered that “a mere thirty hours of intense and organized hostilities can be sufficient to justify invoking IHL.” Juan Carlos Abella v Argentina, Inter-Am Comm HR, No 55/97, Doc OEA/Ser/L/V/II.98 (1997) at 38, cited by Carswell, supra note 13 at 151.
84 Additional Protocol II, supra note 11, art 18; Henckaerts and Doswald-Beck, supra note 83, Rules 55-56 at 193-202.
85 Ibid, Rule 56 at 200.
86 Pilloud et al, supra note 30 at 1351.
87 “Failed states” are often considered to be at the root of the phenomenon of human rights abuses. Yoo, John, “Fixing Failed States” (2010) UC Berkeley Public Law Research Paper no 1552395 at 2–3, online: SSRN <http://ssrn.com/abstract=1552395>;Google Scholar Geiß, supra note 20 at 131. The absence of “effective fulfilment of state functions” is the benchmark of state failure. Kirsten Schmalenbach, “Preventing and Rebuilding Failed States” in Giegerich, Thomas, ed, A Wiser Century? Judicial Dispute Settlement, Disarmament and the Laws of War 100 Years after the Second Hague Peace Conference (Berlin: Duncker and Humblot, 2009) 231 at 233.CrossRefGoogle Scholar
88 Geiß, supra note 20 at 129.
89 As Geiß recognizes, state failure “is a gradual process.” Ibid. Therefore, total loss of control over the entire territory is exceptional. What is important in this analysis is the loss of the monopoly on the legitimate use of force, which may open the door to protracted violence and, hence, armed conflict.
90 Cullen, supra note 1 at 56.
91 Montealegre, Hernan, “The Compatibility of a State Party’s Derogation under Human Rights Conventions with Its Obligations under Protocol II and Common Article 3” (1983) 42 Am UL Rev 41 at 43.Google Scholar
92 American Convention on Human Rights, 1144 UNTS 123, 9 ILM 673 (1970) (in force 18 July 1978). See Lysaght, supra note 37 at 20.
93 Lysaght, supra note 37 at 26; Paulus and Vashakmadze, supra note 61 at 103.
94 Civil Liberties Organisation v Chad, African Commission on Human and Peoples’ Rights, Communication no 74/92 (1995), 18th Ordinary Session, 9th Annual Activity Report at paras 21-22. Civilian victims may launch tort suits, but cannot complain against armed opposition groups under an international human rights regime because human rights law only binds governments. See Henckaerts and Doswald-Beck, supra note 83 at 299.
95 Cullen, supra note 1 at 55, citing a survey conducted by Moir, supra note 67 at 67-68.
96 Carswell, supra note 13 at 147.
97 Henckaerts and Doswald-Beck, supra note 83 at 299. On the legal basis for imposing legal obligations on persons and entities other than the state under IHL, one commentator says, “when a government ratifies a convention, it does so on behalf of all its nationals, including those who may revolt against it.” see Lysaght, supra note 37 at 12. See also Elder, supra note 25 at 55.
98 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion  ICJ Rep 226 at para 25; UN Human Rights Committee, “General Comment No. 29: States of Emergency (Article 4 of the International Covenant on Civil and Political Rights),” UN Doc CCPR/C/21/Rev.1/Add.11 (2001) at para 3.
99 Unless the view of Tomuschat, Christian, “The Applicability of Human Rights Law to Insurgent Movements” in Fischer, Horst et al, eds, Crisis Management and Humanitarian Protection (Berlin: Berliner Wissenschefts-Verlag, 2004) 573,Google Scholar that human rights law applies also to armed opposition groups in time of war, is extended to the situation of failed states.
100 For instance, according to Article 27 of Geneva Convention (I), the state should be encouraged to give authorization to humanitarian societies of its nationality to assist wounded persons who are members of non-state armed groups. See Geneva Convention (I), supra note 3, art 27.
101 Ibid, arts 8, 10, 11.
102 Ibid, art 4.
103 Ibid, art 12.
104 Ibid, art 18(3).
105 Ibid, ch III, IV.
106 Schabas, William A, “Crimes against Humanity: The State Plan or Policy Element” in Sadat, Leila Nadya and Scharf, Michael P, eds, The Theory and Practice of International Criminal Law (Leiden: Martinus Nijhoff, 2008) 347;CrossRefGoogle Scholar Bassiouni, Cherif, The Legislative History of the International Criminal Court: Introduction, Analysis and Integrated Text (Leiden: Martinus Nijhoff, 2005) at 151–52Google Scholar. But see, in contrast, de Than, Claire and Shorts, Edwin, International Criminal Law and Human Rights (London: Sweet and Maxwell, 2003) at 95;Google Scholar Institute of International Law, The Application of International Humanitarian Law and Fundamental Human Rights in Armed Conflicts in Which Non-State Entities Are Parties (1999) (resolution adopted 25 August 1999 at the Institute’s Berlin session), online: <http://www.idi-iil.org/idiE/resolutionsE/1999_ber_03_en.PDF>: “Under Article 7 of the Rome Statute of the International Criminal Court, crimes against humanity can be committed by persons acting for States or non-state entities.”
107 According to Geiß, “there seems to be widespread agreement that the only ‘failed state’ ... is Somalia.” Geiß, supra note 20 at 130. Despite this, the UN Security Council has constantly reaffirmed “respect for the sovereignty, territorial integrity, political independence and unity of Somalia.” See, for example, Security Council Resolution 1816 (2008), UNSCOR, UN Doc S/RES/1816 (2008); Security Council Resolution 1838 (2008), UNSCOR, UN Doc S/RES/1838 (2008); Security Council Resolution 1846 (2008), UNSCOR, UN Doc S/RES/1846 (2008); Security Council Resolution 1851 (2008), UNSCOR, UN Doc S/RES/1851 (2008).
109 Loizidou v Turkey, European Court of Human Rights (ECHR) Case no 15318/89, Preliminary Objections, Judgment (23 March 1995) at para 62; Alejandre and Others v Cuba (1999), Inter-Am Comm HR, No 86/99 at paras 24-25.
110 Bankovic v Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom (Dec), No 52207/99,  XII ECHR 333 at para 71.
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