The 1949 Geneva Conventions as well as the Additional Protocols of 1977 do not offer any definition of the term „armed conflicts‟. This is not an oversight because parties to the treaties deliberately avoided the technicalities that may arise from any definition. In the previous Conventions121 before the Geneva Law, states parties could argue that they were not at war and so the laws of war did not apply to them. It was because of this problem that a definition of armed conflict or war was avoided. However, the states parties to the 1949 Geneva Conventions have entrusted the International Committee of the Red Cross, through the Statutes122 of the International Red Cross and Red Crescent Movement, to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof. It is on this basis that the
121 Referring to the Hague Law or Hague Laws of War
122 Article 5(2) of the Statute provides that the role of the International Committee, in accordance with its Statutes, is in particular:
a) to maintain and disseminate the Fundamental Principles of the Movement, namely humanity, impartiality, neutrality, independence, voluntary service, unity and universality;
b) to recognize any newly established or reconstituted National Society, which fulfils the conditions for recognition set out in Article 4, and to notify other National Societies of such recognition;
c) to undertake the tasks incumbent upon it under the Geneva Conventions, to work for the faithful application of international humanitarian law applicable in armed conflicts and to take cognizance of any complaints based on alleged breaches of that law;
d) to endeavour at all times – as a neutral institution whose humanitarian work is carried out particularly in time of international and other armed conflicts or internal strife – to ensure the protection of and assistance to military and civilian victims of such events and of their direct results;
e) to ensure the operation of the Central Tracing Agency as provided in the Geneva Conventions;
f) to contribute, in anticipation of armed conflicts, to the training of medical personnel and the preparation of medical equipment, in cooperation with the National Societies, the military and civilian medical services and other competent authorities;
g) to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof;
h) to carry out mandates entrusted to it by the International Conference.
145 International Committee of the Red Cross takes this opportunity to present the prevailing legal opinion on the definition of „international armed conflict‟ and „non-international armed conflict‟ under International Humanitarian Law.123
International humanitarian law distinguishes two types of armed conflicts, namely international armed conflicts, opposing two or more States, and non-international armed conflicts, between governmental forces and non-governmental armed groups, or between such groups only.124 International humanitarian law also established 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 Article 1 of Additional Protocol II. They are subject to a wide range of rules, including those set out in the four Geneva Conventions and Additional Protocol I. Non-international armed conflicts are those restricted to the territory of a single State, involving either regular armed forces fighting groups of armed dissidents, or armed groups fighting against each other. A more limited range of rules apply to internal armed conflicts and are laid down in Article 3 common to the four Geneva Conventions as well as in Additional Protocol II. International humanitarian law applies only to armed conflict; it does not cover internal tensions or disturbances such as isolated acts of violence. The law applies only once a conflict has begun, and then equally to all sides regardless of who started the fighting.
As earlier noted, it is important to differentiate between international humanitarian law and human rights law. While some of their rules are similar, these two bodies of law have developed separately and are contained in different treaties. In particular, human rights law unlike international humanitarian law applies in peacetime, and many of its provisions may be suspended during an armed conflict.
123 Armed Conflict-International Committee of the Red Cross legal position on the notion of armed conflict.
Available on https://www.icrc.org>irc_97_900-13. Accessed on 3 June 2019.
124 Opinion of the ICRC. Available on https://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf. Accessed on 8 October 2018.
146 (i) 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.125
According to this provision, International Armed Conflicts are those which oppose „High Contracting Parties‟ meaning States.126 An International Armed Conflicts 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 International Humanitarian Law may be applicable even in the absence of open hostilities. Moreover, no formal declaration of war or recognition of the situation is required. The existence of an International Armed Conflicts, and as a consequence the possibility to apply to this situation, depends on what actually happens on the ground. It is based on factual conditions. For example, there may be an International Armed Conflicts, even though one of the belligerents does not recognize the government of the adverse party. The Commentary of the Geneva Convention confirms that
Any difference arising between two States and leading to the intervention of armed forces is an armed conflict within the
125 Common Article 2 to the Geneva Convention
126 It is irrelevant to the validity of international humanitarian law whether the States and Governments involved in the conflict recognize each other as States.
147 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.127
Apart from regular inter-state armed conflicts, Additional Protocol I128 extends the definition of International Armed Conflicts 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 like wars of national liberation. The International Criminal Tribunal for the former Yugoslavia proposed a general definition of international armed conflict. In the Tadic129 case, the Tribunal stated that „an armed conflict exists whenever there is a resort to armed force between States‟. This definition has been adopted by other international bodies since then.
(ii) Non International Armed Conflict
Two main legal sources must be examined in order to determine what a Non International Armed Conflict under international humanitarian law is. To that extent it is pertinent to recall the provisions of the Common Article 3 to the Geneva Conventions of 1949 as well as Article 1 of Additional Protocol II. Accordingly the Common Article 3 provides that non-International Armed Conflicts 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
127 J. Pictet, „Commentary on the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field‟, (1952) ICRC Commentary, Geneva, p. 32 available on https://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf accessed on 22 September, 2018
128 Article 1(4) of Additional Protocol 1 1977.
129 ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2 October 1995, para. 70
148 governmental armed groups or between such groups only. As the four Geneva Conventions have universally been ratified now, the requirement that the armed conflict must occur „in the territory of one of the High Contracting Parties‟ has lost its importance in practice. Indeed, any armed conflict between governmental armed forces and armed groups or between such groups cannot but take place on the territory of one of the Parties to the Convention.
In order to distinguish an armed conflict, in the meaning of common Article 3 from less serious forms of violence, such as internal disturbances and tensions, riots or acts of banditry, the situation must reach a certain threshold of confrontation. It has been generally accepted that the lower threshold found in Article 1(2) of Additional Protocol II which excludes internal disturbances and tensions from the definition of Non International Armed Conflict also applies to common Article 3. Two criteria are usually used in this regard as summarized by Schindler to the effect that:
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.130 2.4.6 State Responsibility
130D. Schindler, „The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols‟, (1979) RCADI, Vol. 163, -II, p. 147. Available on https://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf. Accessed on 22 September, 2018. For a detailed analysis of this criteria, see ICTY, The Prosecutor V Fatmir Limaj, Judgment, IT-03-66-T, 30 November 2005,para. 94-134
149 In any legal system, there must be liability for failure to observe obligation imposed by its rule. Such liability is known in international law as responsibility131. The rights accorded to states under international law imply responsibilities. States are liable for breaches of their obligations, provided that the breach is attributable to the state itself. A state is responsible for direct violations of international law, for instance, the breach of a treaty or the violation of another state‟s territory. A state also is liable for breaches committed by its internal institutions, however they are defined by its domestic law; by entities and persons exercising governmental authority; and by persons acting under the direction or control of the state.
These responsibilities exist even if the organ or entity exceeded its authority. Further, the state is internationally responsible for the private activities of persons to the extent that they are subsequently adopted by the state. In 1979, for example, the Iranian government officially supported the seizure of the U.S. embassy by militants and the subsequent holding of diplomats and other embassy staff as hostages.132 A state is not internationally responsible if its conduct was required by a peremptory norm of general international law, if it was taken in conformity with the right to self-defense under the UN Charter, if it constituted a legitimate measure to pressure another state to comply with its international obligations, if it was taken as a result of a force majeure (French: “greater force”) beyond the state‟s control, if it could not reasonably be avoided in order to save a life or lives, or if it constituted the only means of safeguarding an essential interest of the state against a grave and imminent peril, where no essential interest of the states toward which the obligation exists (or of the international community) was impaired.133 The position of state responsibility in international law has now been steeled with the adoption by the International Law Commission in 2001, of the draft Articles on Responsibility of States for Internationally Wrongful Acts.134 The final text of the Article omits a controversial text (art. 19) in an earlier draft providing for the criminal responsibility of states, taking the view instead that international law knows no such concept.135A state must make full reparation for any injury caused by an illegal act for which it is internationally responsible. Reparation consists of restitution of the original situation if possible, compensation where this is not possible, or satisfaction.
131 . David Harris, Casa and Materials on International Law, (2010), Sweet & Maxwell, Thompson Reuters (Legal) Ltd, 7th Edn, South East Asian , p.421
132 The Responsibility of State, available on https://www.britannica.com/topic/international-law/The-responsibility-of-states. Accessed 29 September, 2019.
133 .Ibid.,
134 .See David Harris, Ibid., p.421
135 . Ibid
150 One controversial aspect of international law has been the suggestion, made by the International Law Commission in its 1996 draft on State Responsibility, that states can be held responsible for “international crimes” (comprising internationally wrongful acts resulting from the breach by a state of an international obligation so essential for the protection of the international community‟s fundamental interests that its breach is recognized as a crime by that community). Examples given included aggression, colonial domination, and genocide. In addition to the argument that states (as distinct from individuals) could not be guilty of crimes as such, serious definitional problems arose, and there was concern over the consequences of such crimes for states. Accordingly, in its draft articles finally adopted in 2001, the International Law Commission dispensed with this politically divisive approach but retained the idea of a more serious form of international wrong. The commission emphasized the concept of serious breaches of obligations arising under a peremptory norm of international law (i.e., the rules of jus cogens, or those deemed essential for the protection of fundamental international interests). In such circumstances, all states are under an obligation not to recognize such a situation and to cooperate in ending it.