Armed Conflicts under the scope of application of International Humanitarian Law

International Humanitarian Law (IHL) limits the behavior of parties to armed conflicts. It recognizes two types: The International Armed Conflicts or IACs and the Non-International Armed Conflicts or NIACs. IHL is specifically designed to govern armed conflicts as the Treaty Law provides no comprehensive and precise definition of what constitutes an armed conflict. When does an IAC or a NIAC is established? What are the legal sources and the differences between them? When does a conflict end? Thanks to IHL, all these questions have a legitimate answer.

International Humanitarian Law only applies to situations that have reached a special threshold of armed violence and it does not apply to internal tensions falling below that threshold- Human Rights Law and Domestic Law would apply in those cases.

INTERNATIONAL ARMED CONFLICTS (IACs)
International Armed Conflicts exist as soon as a State uses armed force against another State. This means IACs occur between States. The rules of IACs have been codified primarily in the 1907 Hague Regulations, the four Geneva Conventions of 1949, and the 1997 Additional Protocol I supplemented by Customary International Law. There are two legal sources that are crucial to know when defining an International Armed Conflict:

Common Article 2 of the Geneva Convention states that
"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".

On the other hand, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in its 1995 "Tadic Decision" specifies that an armed conflict exists whenever there is a resort to armed force between States.

When an IAC is established by the Laws of War, it applies to those areas where the actual combat takes place. Or in areas where there is a nexus to the actual combat. The conflict ends when military operations cease, also the United Nations Peacekeepers can proclaim the end of a conflict. It's important to highlight that the prisoners of war should remain protected by IHL until they are repatriated.

LEGAL STATUS AND NATURE OF CONFRONTATION 

The existence of an International Armed Conflict essentially depends on two elements, namely the legal status of the belligerent parties and the nature of the confrontation between them.

1. The legal status of the belligerent parties: armed conflicts derive their international character from the fact that they occur between High Contracting Parties to the 1949 Geneva Conventions. State parties to Additional Protocol I have further agreed to recognize certain types of national liberation movements as “parties” to IACs.
2. Nature of the confrontation: “war,” “armed conflict” and “occupation”: International armed conflicts are belligerent confrontations between two or more States. Over the course of the twentieth century, formal declarations of war became increasingly uncommon, and the political concept of “war” was largely replaced by the factual concept of “armed conflict". As stated before, an IAC is presumed to exist as soon as a State uses armed force against another State. 

NON-INTERNATIONAL ARMED CONFLICTS (NIACs)
Since World War II most of the wars are non-international. This means, within the territory of the state: civil wars. It occurs between government forces of a State, and organized armed groups. Or, in certain cases, a NIAC can exist between two or more organized armed groups within the territory of the state.

The distinction between IACs and NIACs is important because the laws applicable to NIACs are much more limited than those applicable to IACs. The behavior of the NIACs is limited mainly by the rules in Common Article 3 of the 1949 Geneva Convention and the 1977 Additional Protocol II- which are rudimentary. But these limited rules are supplemented by rules of Customary International Law.

LEGAL SOURCES
Common Article 3 of the Geneva Conventions provides a minimum level of protection to civilians, certain prohibitions related to murder, and degradation treatments. Supported by the International Court of Justice.
It applies to any armed conflict, not of an international character, occurring on the territory of one of the High Contracting Parties including non-state actors. It does not apply short-lived rebellions nor riots, or internal disturbances. This is because there are two criteria for the existence of CA3:

• A minimum level of organization of non-state actors.
• A minimum level of intensity of violence of non-state actors. 

Another important legal source is the material field of application provided by the Additional Protocol II 1997 which develops and supplements Common Article 3 and guarantees fundamental protection for everyone. It has a more limited scope of application than CA3 as it requires government forces or states to be involved in the conflict, that the organized armed group must have control over territory, and does not apply to all civil wars- only to those with a higher threshold.

The International Criminal Tribunal for the former Yugoslavia (ICTY) in its 1995 "Tadic Decision" stated that CA3 is only applicable to NIACs whenever there is protracted armed violence between governmental authorities and organized armed groups, or between such groups (within a State). Also, The ICTY and it’s "Haradinaj Decision" of 2008 identified a number of indicative factors to asses whether an armed group satisfies the organization’s criteria of CA3. Factors:

• The existence of a command structure of disciplinary rules
• Headquartes for the group
• Territorial control
• Accessibility to weapons
• Recruit new members
• Provide training 

In regard to the intensity of violence of CA3, the decision stated the following factors:

• Number, duration, and intensity of individual confrontations
• Type of weapons
• Number of persons fighting
• Number of deaths
• The extent of material destruction

IHL applies in a NIAC until the internal armed conflict comes to an end through a peaceful settlement.

DISTINCTION BETWEEN INTERNATIONAL AND NON-INTERNATIONAL ARMED CONFLICTS
While International Armed Conflicts occur between two or more States, Non-International Armed Conflicts take place between States and non-governmental armed groups, or between such groups only.

The most important difference concerns the threshold of violence required for a situation to be deemed as an armed conflict. In IACs it is imposed a general prohibition on the use of force between States, any such use can be legitimately presumed to express belligerent intent and to create a situation of international armed conflict, which must be governed by IHL. By contrast, within their own territory, States must be able to use force against groups or individuals for the purpose of law enforcement; and the use of force by such groups or individuals against each other or against governmental authorities generally remains a matter of National Criminal Law.

As a consequence, the threshold of violence required to trigger a NIAC and, thereby, the applicability of IHL, is significantly higher than for IAC.

Another reason for maintaining the distinction is the position taken by many States, that could be perceived as providing armed opposition groups with international status and might, therefore, undermine State sovereignty and encourage rebellion.

It is important to note that, in terms of a legal concept, the categories of International and Non-International Armed Conflict are absolutely complimentary. The characteristics of the armed conflicts can of course change over time, and it's extremely important to understand the scope of application of International Humanitarian Law to establish if a country is committing war crimes during the belligerent conflict. Establishing and identifying the wrongful acts are the main objective so that later the necessary recommendations are made to those states or organizations that should compensate the victims for the consequences of the actions taken.

By Micaela Seidman

Micaela Seidman is a 21-year-old-student from Buenos Aires, Argentina who is currently studying a Law Degree at the University of San Isidro. She is working at the Buenos Aires City Government. She is the CEO and Founder of Consilium Worldwide.