Katholieke Universiteit Leuven Faculty of Law

Institute for International Law Working Paper No 107 – March 2007

International and Non-international Armed Conflicts Sten Verhoeven

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The Institute for International Law of the K.U.Leuven groups the teaching and research in public international law and the law of international organizations at the Faculty of Law of the University of Leuven. The Institute also organizes colloquia, seminars, workshops and lectures which bring current issues of international law to the fore. Since the spring of 2007, the Institute participates in the Leuven Centre for Global Governance Studies. This interdisciplinary research centre of the Humanities and Social Sciences carries out and supports interdisciplinary research on topics related to globalization, governance processes and multilateralism, with a particular focus on the following areas, taking the many cross-cutting issues into account: (i) trade and sustainable development, (ii) peace and security, (iii) human rights, democracy and rule of law, and (iv) the European Union and global multilateral governance. The working paper series, started in 2001, aims at a broader dissemination of the results of the research of the Institute and of other researchers in the academic community and in society. It contains contributions in Dutch, in English and in French. Reference may be made to these working papers with proper citation of source. For more information and a complete list of available working papers, please visit the website of the Institute for International Law on www.internationallaw.eu and the website of the Leuven Centre for Global Governance Studies on www.globalgovernancestudies.eu © Instituut voor Internationaal Recht, K.U. Leuven, 2001-2008

Institute for International Law K.U.Leuven Tiensestraat 41, B-3000 Leuven Tel. +32 16 32 51 22 Fax +32 16 32 54 64 Prof. Dr. Jan Wouters, Professor of International Law and International Organizations; Director, Leuven Centre for Global Governance Studies and Institute for International Law, K.U.Leuven

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INTERNATIONAL AND NON-INTERNATIONAL ARMED CONFLICTS (Forthcoming in J. Wouters and S. Verhoeven (eds.), Armed Conflicts and the Law, 2007) Sten Verhoeven ∗ Introduction International humanitarian law tries to alleviate the suffering caused by war and to protect the weak during conflict. Hence, the four Geneva Conventions of 1949 and their two additional protocols of 1977 lay down rules aiming to safeguard the wounded, sick, shipwrecked, prisoners of war and civilians as much as possible from the scourges of war. Consequently, at first instance, it does not seem to matter if the conflict is waged by various States or between various armed groups within a State. However and unfortunately it does. The protection offered by international humanitarian law in an international, or inter-State, armed conflict is much wider, than the one offered in a non-international armed conflict, or an armed conflict within a State, although the suffering remains the same or is even more severe in an internal armed conflict. As a result, the nature of the conflict does make a difference and a correct delimitation can be of the utmost importance for the people’s protection against the barbarism which is still frequently present in armed conflicts. Of course, one could ask and should ask how this differentiation between conflicts has emerged, certainly in the light of contemporary situation in which the majority of armed conflicts are fought out in a single State. A first partial explanation lies in the horrors of the Second World War, an international armed conflict, in which civilians and prisoners of war were frequently mistreated beyond reason. This led the International Committee of the Red Cross (hereinafter ICRC) and the States participating at the conference to seek a general framework which would provide adequate protection for the wounded, sick, shipwrecked, prisoners of war and civilians in an inter-State armed conflict. On the other hand, conflicts of a noninternational nature were not completely forgotten and were dealt with in one famous provision, Common Article 3 of the Geneva Conventions, stipulating minimum standards to be respected. A second reason lies in the reluctance of States to adopt a comprehensive framework for non-international armed conflicts since they regarded (and often still do regard) these conflicts as falling within their domestic jurisdiction and considered rebel factions as mere criminals not deserving the protection of international humanitarian law. This attitude manifestly came to the forefront during the debates on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (hereinafter AP I) and relating to the Protection of Victims of Non-International Armed Conflicts (hereinafter AP II). The ICRC sought indeed a more complete legal regime to bring international humanitarian law up to date with the new developments in warfare, anticolonial wars and non-international armed conflicts. While the first two topics were

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Assistant Institute for International Law, KULeuven

4 relatively successfully solved in AP I, States severely substantively limited AP II and introduced a high threshold for its application. 1 Until today the difference between an international and a non-international armed conflict remains relevant, although international law has strived to mitigate the divergence, notably by the adoption of human rights law and the recent developments in the international prosecution by the International Criminal Tribunal for the Former Yugoslavia (hereinafter ICTY) and Rwanda (hereinafter ICTR) and the adoption and the entry into force of the Rome Statute of the International Criminal Court. 2 In this chapter, the focus will first lay on the concept of “armed conflict” and will then shift to the classical examples of international and non-international armed conflicts. This will be followed by an analysis of special types of armed conflicts of which the nature is not always directly clear: armed conflicts between armed groups and colonial or racist regimes, internationalized internal armed conflicts and armed conflicts in which the United Nations is involved. 3 II. The Concept of Armed Conflict The Geneva Conventions and their Additional Protocols use the terminology of armed conflict instead of war 4 . In this section we will address the reasons for the use and the preference of the concept of “armed conflict”. Basically, there exist two main reasons to introduce the concept of “armed conflict” and to prefer it above the notion of “war”. First the concept of “armed conflict” more aptly captures the spectrum of violent clashes between organised groups. Indeed, “war” frequently has the connotation of violence between States or between armed groups within a State of a very intensive form of hostilities in a collective way on a 1

Especially the attitude of the developing States had a negative impact on the negotiations on AP II. While these States favoured a special treatment for armed groups fighting against colonial and racist regimes, they tried to do everything to secure their often fragile existence by scaling down the regulations in non-international armed conflicts which might appear within their territory. Consequently, when the status of armed groups combating colonial and racist regimes was established, they had no interest in adopting a comprehensive framework in AP II. See: M. BOTHE, “Les conflits armés internes et droit international humanitaire”, RGDIP 1978, 86-87; D. MONTAZ, “Le droit international humanitaire applicable aux conflits armés non internationaux”, RdC 2002, Vol. 292, 3132. 2 The Statutes of these tribunals contain provisions criminalizing violations of humanitarian law in a non-international armed conflict, whereas the Geneva Conventions and the Additional Protocols do not contain provisions obliging States to penalize certain behaviour in non-international armed conflicts. See art. 8 (2) ICC Statute; art 4 ICTR Statute; art. 3 ICTY Statute, which criminalizes violations of the laws and customs of war, includes violations of international humanitarian law in non-international armed conflicts: see Prosecutor v. Dusco Tadic, Decision on the Defence Motion on Jurisdiction, Trial Chamber II, 10 August 1995, §§ 58-60 at: http://www.un.org/icty/tadic/trialc2/decision-e/100895.htm. 3 The situation of a non-international armed conflict, in which the State concerned or a third State recognizes the state of belligerency will not be considered due to its purely theoretical character and due to the fact that it has fallen into desuetude since the beginning of the 20th century. In any event, if a recognition of belligerency occurs by the government of a State, it transmogrifies the internal conflict into an international armed conflict and the governmental forces as rebel groups have to abide by the rules of humanitarian law applicable in an international armed conflict; for further information see: E. DAVID, Principes de droit des conflits armés, Brussels, Bruylant, 2002, 137-139 and L. MOIR, “The Historical Developments of the Application of Humanitarian Law in Non-International Armed Conflicts to 1949”, I.C.L.Q. 1998, 337-350. 4 See Common Article 2 and 3 Geneva Conventions 1949; article 1 AP I; article 1 AP II.

5 wide scale; or in other words, as defined by a learned scholar, “a sustainable struggle by armed force of a certain intensity between groups of a certain size consisting of individuals who are armed, who wear distinctive insignia and who are subjected to military discipline under responsible command” 5 . This definition of war, which has been used by national tribunals 6 , is very restrictive and hence excludes other types of less intensive hostilities, like border incidents and armed raids. Hence, in order to provide protection to victims of armed violence the restrictive notion of war should be abandoned and replaced by a new concept, namely armed conflict, which also includes low-intensity hostilities. A second reason for the introduction of the notion of armed conflict is a more legal one. In the past war had to be declared in order to bring into action all the relevant humanitarian rules. Of course, this requirement was grossly abused by States which started full scale hostilities without however declaring that there existed a state of war between them, leaving the victims of the hostilities without proper protection.7 For this reason, Common article 2 of the Geneva Conventions 1949 provides for the application of the rules of the conventions in case of declared war or 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. Consequently, the concept of “armed conflict” allows for a better protection of victims regardless of formalism. After the notion of armed conflict was introduced, it was quickly adopted in other international humanitarian law documents and in resolutions of the United Nations General Assembly. 8 However, curiously it is nowhere defined, not even in the Geneva Conventions of 1949, although such a definition is essential since the application of international humanitarian law depends on it. A good description was offered by the ICTY, which held that: “On the basis of the foregoing, we find that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, 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.” 9

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I. DETTER, The law of war, Cambridge, Cambridge University Press, 2000, 26. Spanish Civil War Pension Entitlement case, Federal Republic Germany, Federal Social Court, 14 December 1978, 80 ILR 1989, 668-669; End Conscription Campaign, South Africa, Supreme Court, Cape Prov. Div., 14 October 1988, 87 ILR 1992, 279-281. 7 J.S. PICTET, La Convention de Genève relative au traitement de prisonniers de guerre: commentaire, Geneva, International Committee of the Red Cross, 1958, 26. 8 Already in United Nations General Assembly Resolution 378 (V) (duties of States in the event of the outbreak of hostilities); more recently, for example; United Nations General Assembly Resolution 59/261 (children in armed conflict); Resolution 59/178 (mercenaries); Resolution 59/171 (new humanitarian order). 9 Prosecutor v. Dusco Tadic, Decision of the Defence Motion on Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, § 70, at http://www.un.org/icty/tadic/appeal/decision-e/51002.htm. 6

6 This description neatly covers the wide range of hostilities contained in the notion of “armed conflicts”. Furthermore, it indicates the multi-dimensional aspect of the concept. Indeed, the ruling of the ICTY makes a sharp distinction between armed conflicts between States and armed conflicts in the ambit of a single State, whether between governmental forces and armed groups or between such groups, as long as the hostilities are characterised by protracted armed violence. Hence, in order to better describe the concept of armed conflict, it has to be embedded in the two types of armed conflict existing. This will be done by firstly discussing the classical types of international and non-international armed conflicts, and subsequently addressing the more special cases. III. The Classical type of International and Non-international Armed Conflict III.1. International Armed Conflict The classical type of an international armed conflict is the waging of hostilities between two or more States, or as Common Article 2 of the Geneva Conventions of 1949 states: “all cases of declared war or any other armed conflict which may arise between two or more High Contracting Parties…”. Hence, whenever the armed forces of two States parties to the Geneva Conventions of 1949 are entangled in hostilities the provision of the Conventions and those of AP I (if the concerned States are party to it, or certain rules have become customary international law) will apply. 10 Although in modern times non-international armed conflicts are preponderant, international armed conflicts have not disappeared from the globe, as was witnessed very recently by the conflict between Iraq and the United States and its allies. A first problem might arise if a State or its regime is not recognised by all or a majority of States. Does this have an impact on the applicability of the Geneva Conventions and AP I? For example, the United States has argued that the captured Taliban forces were not entitled to prisoner of war status because the Taliban regime was not recognised as the legitimate regime of Afghanistan absolving the United States from its obligations under the Third Geneva Convention relating to the protection of prisoners of war. 11 However this assertion was later revoked. Indeed, the application of the Geneva Convention and AP I is independent of the recognition of a certain regime or even of a State. 12 A State entity which has acceded to the Geneva Conventions or AP I and is involved in an international armed conflict, should be considered as a party to the conflict in the sense of the Geneva Conventions and AP I, if at least it has exited de facto for a certain time as a separate independent entity, even if not recognised by all or the majority of States. 13 This is in line with the

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E. DAVID, o.c., 109; D. SCHINDLER, “Different Types of Armed Conflicts according to the Geneva Conventions and Protocols”, RdC 1979-II, 128. 11 Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel of the Department of Defence, 22 January 2002, 20-21; in fact the Taliban regime was recognised by only three States, Pakistan, Saudi Arabia and Untied Arab Emirates, recognition which was redrawn because of the involvement of the Taliban in the 11 September attacks. 12 D. SCHINDLER, l.c., 129. 13 A fine example is the Israeli-Arab War, in which many Arab States did not recognise the State of Israel, but which had no effect on the application of the Geneva Conventions: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion of 9 July 2004, §§ 90-92, at http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm: in which the Court

7 practice of the depository of the Geneva Conventions and its Additional Protocols, the Swiss Federal Council. In the past it has accepted the accessions of the divided nations of Vietnam, Korea and Germany which did not recognise each other. Only in limited cases the Swiss Federal Council would refuse to notify other State parties of the accession, namely when a State entity has not been recognised by any other State 14 and when the entity cannot be held to have a sufficient sovereignty, as was the situation in the accession of the PLO as legitimate representative of Palestine to the Geneva Conventions and the Additional Protocols. A second problem relates to the intensity of the international armed conflict. In contrast with the situation of non-international armed conflicts, the severity and the duration of the international armed conflict is not relevant. In theory a single border incident, the shooting down of a military airplane or a small naval battle is sufficient to bring into action the Geneva Conventions and AP I. Consequently, every use of arms between two or more States brings the Geneva Conventions and AP I into effect. 15 Moreover, in the case of an international armed conflict it is not even necessary that the conflict be armed, for example the military occupation of a territory by another State without resistance by the other State or when States declare war on each other without any armed combat or action. 16 III.2. Non-international Armed Conflicts The classical types of non-international armed conflicts are fought out between governmental armed forces and rebel faction(s) or between various armed groups in one State, without any international intervention by another State or the United Nations. Non-international armed conflicts are the most common armed conflicts today and are often characterized by a high mortality among the civilian population and cruel behaviour by the warring factions. Moreover, these conflicts are not adequately dealt with in international humanitarian law. The Geneva Conventions of 1949 only devote one article, Common Article 3, to non-international armed conflicts and AP II, which should elaborate the regime laid down in Common Article 3, suffers from limitation, a high threshold and the absence of ratification by all States. 17 Hence, Common Article 3 remains the basis of all non-international armed conflicts and is sometimes considered as a mini-convention within the Geneva Conventions of 1949. In this section we will first address this article, followed by a discussion of the thresholds of AP II. III.2.1. Common Article 3

discusses the application of the Fourth Geneva Convention without taking into account the condition of recognition of Israel by Jordan. 14 D. SCHINDLER, l.c., 130; J.A. FROWEIN, “Some Considerations regarding the Function of the Depositary”, ZaöRV 1967, 537. 15 J.S. PICTET, o.c., 29; E. DAVID, o.c., 109; D. SCHINDLER, l.c., 131. 16 J.S. PICTET, La Convention de Genève relative à la protection des personnes civiles en temps de guerre, Geneva, International Committee of the Red Cross, 1956, 26; E. DAVID, o.c., 109; C. GREENWOOD, “The Concept of War in Modern International Law”, I.C.L.Q. 1987, 295; an example of the first situation is the occupation by Germany of Czechoslovakia and Denmark, of the second the declaration of war by some Latin American States on Germany. 17 Today AP II is ratified by 163 States.

8 Common Article 3 is marvellously vague since it offers no definition at all of a noninternational armed conflict, it only applies to it. Hence, it will not always be an easy task to distinguish a non-international armed conflict from an internal disturbances or an organised form of violent banditry. During the Conference of 1949 several criteria were proposed to sharply delimitate the concept, however none of them were retained. 18 Moreover, States do often refuse acknowledging that an armed conflict is waged in their territory, since this position is often politically very problematic. Consequently, States have refused considering the ongoing conflict in their boundaries a non-international armed conflict and instead described the violence as mere internal disturbances, upheavals, riots and the like. Nevertheless, Common Article 3 was a revolution at its inception since for the first time international humanitarian law was automatically applicable in a non-international armed conflict, regardless of the recognition of belligerency by States, thereby lowering the conditions of severity and intensity which were previously required in case of civil war by international humanitarian law. 19 Furthermore, Common Article 3 has evolved as one of the key provisions of the Geneva Conventions of 1949 and of international humanitarian law in general. The International Court of Justice held that this provision is a minimum yardstick, which also applies in international armed conflicts besides the more elaborate rules governing these conflicts, and is to be considered as part of the elemental considerations of mankind. 20 Some authors even conclude that Common Article 3 is part of jus cogens. 21 Despite its undisputed importance, it only plays a role when an armed conflict is present and because of lack of definition and the lowering of the exigencies previously required, it remains unclear if and when violence in a State can be regarded as a non-international armed conflict. Practice has developed criteria in order to delimitate the scope of Common Article 3, not in the field of actors, occupied territory or ability to conduct sustained military operations, but criteria to differentiate between a non-international armed conflict and internal disturbances and riots. Indeed, as is evidenced by the exclusion of riots and similar violence in other humanitarian law documents 22 , Common Article 3 is not applicable in very low armed hostilities; the violence has to pass a certain threshold. In the first place the intensity of the hostilities has to lead to the deployment of military forces instead of police forces. Furthermore, the hostilities should have a collective character, putting different armed groups with a minimum of organization, discipline and responsible command in order to be capable of meeting some minimum humanitarian requirements, against each other. 23 However, if this is not the case, would this absolutely bar the application of Common Article 3? We are of the opinion that it is not. The scope of application of Common Article 3 should be as wide as 18

J.S. PICTET, o.c., 40 ; E. DAVID, o.c., 123; D. MOMTAZ, l.c., 47-48. D. SCHINDLER, l.c., 146. 20 Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, 27 June 1986, I.C.J. Rep. 1986, § 218. 21 D. SCHINDLER, l.c., 151; C. ZORGBIBE, “Pour une affirmation du droit humanitaire dans les conflits armés internes”, JDI 1970, 676 . 22 Art. 8 § 2 (d), (f) ICC Statute, art. 1 (2) AP II; art. I (2) Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 art. 22 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict. 23 E. DAVID, o.c. 124-125; D. SCHINDLER, l.c., 147; R.J. WILHELM, “Problèmes relatifs à la protection de la personne humaine par le droit international dans les conflits armés ne présentant pas un charactère international”, RdC 1972-III, 347-348. 19

9 possible, without however being applicable at de minimis situations. 24 Common Article 3 lays down very basic requirements, in particular the prescription of humane treatment without discrimination, the protection against torture and other cruel treatment, the prohibition of the taking of hostages and the right to a fair trial. These obligations can also be found in human rights treaties which do apply in peacetime and continue to apply during armed conflicts, although some human rights obligations can be suspended. 25 On the other hand, a criterion to conclude for the application of Common article 3 can exactly be found in the suspension of certain human rights: if an internal violent situation has so deteriorated as to suspend human rights obligations, one could argue that Common Article 3 should come operative since it at least safeguards some basic humane treatment. 26 Another criterion was offered by the ICTY: in the above quoted holding, it stated that a non-international armed conflict is witnessed by protracted armed violence between different armed forces, a condition which was repeated in the Rome Statute. 27 On the one hand, the introduction of this criterion cannot be justified because of its consequences: why would Common Article 3 not apply in short but very intense armed clashed between the government and organized armed groups or between such groups? Would than the minimum standards contained in Common Article 3 not apply? Of course such a finding would go directly against the purposes of the Geneva Conventions of 1949 and the object of Common Article 3 to protect individuals by ensuring a minimum humanitarian law regime in non-international armed conflicts. However, the introduction of the criterion of time was discussed in the Conferences of Government Experts in 1971 and 1972 organised by the ICRC in the framework of AP II, which supplements and develops the regime of Common Article 3. 28 In the end it was not retained because of the lack of objectivity and instead the Government Experts opted for the criterion of intensity of the non-international armed conflict, which was concretised in the exigencies of territorial occupation and the capacity of respecting international humanitarian law by the insurgents. 29 Furthermore, the InterAmerican Commission on Human Rights held Common Article 3 applicable in a case of armed violence and resistance which only lasted 30 hours. 30 On the other hand, the criterion of time is frequently invoked to circumvent the restrictive criteria of article 1 AP II, which demands that the insurgents exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations 24

However, the rules regarding non-international armed conflicts were held applicable by the InterAmerican Commission of Human Rights in case of the occupation of barracks of the Argentine army in La Tablada which lasted 30 hours: see Abdella case, Inter-American Commission of Human Rights, Case No. 11.137, 18 November 1997, §§ 155-156, available at: http://www.oas.org/main/main.asp?sLang=E&sLink=../../documents/eng/structure.asp. 25 Rights contained in human rights treaties can be suspended in case of necessity, in particular in the situation of an non-international armed conflict: see art. 4 ICCPR, art. 15 ECHR, art. 27 ACHR. 26 Of course not all human rights can be suspended during the state of necessity, like for example the right to life and the prohibition of torture (Art. 4 ICCPR). Others however can, for example the right to a fair trial. If this right would be suspended because of the violent situation in a State, one could indeed argue that the threshold of Common Article 3 has been overstepped, in order to safeguard individuals against abuse by the parties in the conflict. 27 See note 9 and art. 8 § 2 (f) ICC Statute; E. DAVID, o.c., 118; D. MOMTAZ, “War Crimes in NonInternational Armed Conflicts under the Statute of the International Criminal Court”, YIHL 1999, 191192. 28 R.J. WILHELM, l.c., 349; D. MONTAZ, “Le droit international humanitaire applicable aux conflits armés non internationaux”, RdC 2002, 52. 29 D. MONTAZ, l.c., 52. 30 See note 26.

10 and to implement AP II. 31 One author even holds that the criterion of time as enunciated by the ICTY and included in the Rome Statute, has supplanted article 1 AP II. 32 This cannot be upheld. Firstly, a judgement by an international tribunal cannot change the clear wording and exigencies of a treaty text. Secondly, it is doubtful that the inclusion of the criterion of protracted armed violence in the Rome Statute has changed the existing law of AP II. Not all States party to AP II are party to the Rome Statute. But even if this were so, the criterion of protracted armed violence is only introduced to exactly determine the invocation of certain crimes and hence of criminal responsibility. This is however totally different from the argument that protracted armed violence is the new criterion to determine the existence of a noninternational armed conflict in the framework of AP II. Concluding, the element of time is certainly not an adequate criterion to determine if a non-international armed conflict exists nor in the framework of Common Article 3, nor in the framework of AP II. III.2. Additional Protocol II New developments in warfare and the opaqueness of Common Article 3 led to the conclusion that the Geneva Conventions had to be updated and supplemented. Consequently, two Conferences of Government Experts were organized in 1971 and 1972 by the ICRC, which resulted in two additional protocols, one applicable in international armed conflict, the other in non-international armed conflicts. Initially it was the purpose of the latter additional protocol to define and supplement Common Article 3. However, the Conferences miserably failed in this regard due to stiff resistance of the developing countries. 33 Hence, instead of defining all noninternational armed conflicts, only the most intense were defined and additionally regulated. As a result, Common Article 3 is applicable in all cases of noninternational armed conflicts, including one which is regulated by AP II. First, AP II is only activated in case of a non-international armed conflict waged between the governmental armed forces and an insurgent group or groups. It does not involve the conflicts between insurgent groups or various armed groups within a territory of a single State. The reason for this omission is quite awkward: according to the Conference of Government Experts this situation was too theoretical to occur, while at the same time such a conflict was waged in Lebanon. In any event “armed forces” of the government is to be broadly understood: it does not only cover military forces, but also paramilitary groups, which under national legislation do not fall under armed forces. 34 Secondly, the insurgents have to be under a responsible command, which implies some degree of organization of the insurgent armed group or dissident armed forces. However, this does not necessarily entail that a hierarchical system of military organization similar to that of regular armed forces should be present. It merely means an organization capable, on the one hand, of planning and carrying out sustained and concerted military operations, and on the other, of imposing discipline in the name of a de facto authority. 35 Third, the insurgents should exercise control 31

D. MONTAZ, l.c., 53. E. DAVID, o.c., 119. 33 See note 1. 34 S.-S. JUNOD, Commentaire des Protocoles additionels du 8 juin 1977 aux Conventions de Genève du 12 août 1949, Geneva, International Committee of the Red Cross, 1986, 1376. 35 S.-S. JUNOD, o.c., 1376; D. MOMTAZ, l.c., 51. 32

11 over a certain amount of territory of the State as to enable them to carry out sustained and concerted military operations and to implement this Protocol. Needless to say these conditions are closely interrelated. If an insurgent group controls a part of the territory of a State it is very likely to be well organized and capable of mounting military operations against the governmental armed forces, which in most cases are superior and better equipped. The amount of territory which should be occupied is not given and in fact is not relevant: the occupation of the territory only has to be such as to allow sustained and concerted military operations and to apply the protocol (for example, the setting up of hospitals and prisoner camps). In any event a minimum amount of stable occupation of a part of the territory is required. Hence, noninternational armed conflicts consisting of guerrilla operations which result only in a temporary occupation of a small village or town without absolute control over another part of the territory do not fall under AP II. 36 Since the requirement of occupation is interpreted through the conditions of sustainable and concerted military operations, a description of the latter elements is required. With “sustained" it is meant that the operations are kept going or kept up continuously. The emphasis is therefore on continuity and persistence. “Concerted” refers to agreed, planned and contrived operations, executed according to a plan. Thus AP II requires military operations conceived and planned by organized armed groups. 37 Lastly, the insurgents should be able to implement AP II. This is conceived as the fundamental criterion which justifies the other elements of the definition, namely being under responsible command and in control of a part of the territory concerned. The insurgents must be in a position to implement AP II. The threshold for application therefore seems quite high. However, this threshold does have a degree of realism since the conditions laid down in this article correspond with actual circumstances in which the parties may reasonably be expected to apply the rules developed in AP II, when they have the minimum infrastructure required therefore. 38 The second paragraph of article 1 AP II pointlessly provides for the exclusion of situations of internal disturbances and tensions from the scope of AP II: first, the hostilities regulated by AP II are so intense and severe that they never can be regarded as disturbances or tensions; 39 second, internal disturbances and tensions are not considered as armed conflicts at all, even in the framework of Common Article 3. 40 From this it becomes clear that AP II will not necessarily be applicable from the outbreaks of hostilities due to the restrictive requirements. As a result, Common Article 3 will regulate the initial stages of the non-international armed conflict. Conversely, the application of AP II can cease when towards the end of the conflict if one of the requirements (for example the loss of territory or the inability to launch organized military operations) cannot be fulfilled anymore. In that case, the final stages of the non-international armed conflict will fall under the scope of Common Article 3. 41 36

S.-S. JUNOD, o.c., 1376-1377. Ibid., 1377. 38 Ibid., 1377-1378. 39 Ibid., 1378. 40 Ibid., 1380. 41 Art. 1 § 1 AP II declares that it supplements and develops Common Article 3 without however modifying its existing conditions of application. Consequently, Common Article 3 remains applicable during the whole non-international armed conflict and continues to regulate the conflict if one of the requirements of art 1 § 1 AP II ceases to be fulfilled. 37

12 IV. Special Types of Armed Conflicts IV.1. Wars of National Liberation Wars of national liberation are armed conflicts in which peoples struggle to exercise their right to self-determination. The classic example is an armed conflict in which a people fight a colonial power in order to obtain its independence. As such, these armed conflicts were already present in the nineteenth and the beginning of the twentieth century when Latin American peoples fought against Spain and Portugal for their independence. However what distinguishes modern wars of liberation is the application of the rules regulating an international armed conflict, whereas in the past these rules were only applicable in case of recognition of belligerency. In all other situations only the rules of non-international armed conflicts applied. Consequently, the early wars of national liberation in the twentieth century were only regulated by Common article 3 of the Geneva Conventions. This situation changed considerably due to the actions of the United Nations and in particular of the General Assembly in this regard. Although the right to selfdetermination is mentioned in the Charter, Western States merely considered it a common goal of achievement in the initial stages of the United Nations. Due to the increase of newly independent States from Africa and Asia and the concerted actions of the Eastern European States the right to self-determination gradually evolved in a legal duty. On 20 December 1965, the General Assembly adopted resolution 2105 (XX) which introduced the concept of wars of national liberation and declared the battle of peoples against colonial powers to exercise their right of self-determination and to obtain independence legitimate. This was the starting point of a number of resolutions requesting the application of the laws of international armed conflict to situations of wars of national liberation of which the most important was resolution 3103 (XXVIII), in which it was generally stated that wars of national liberation are armed conflicts in the sense of the Geneva Conventions and that the provisions of the Geneva Conventions and other relevant rules are applicable to such armed conflicts. 42 In 1974, one year after the adoption of resolution 3103 (XXVIII), the first session of the Diplomatic Conference on Humanitarian Law in Geneva voted in favour of art. 1 § 4 of Protocol I, declaring that wars of national liberation are on equal footing with international armed conflicts. 43 Art. 1 § 4 indicates three groups of people whose struggle can be considered as a war of national liberation: peoples fighting against a colonial power, alien occupation and racist regimes. To determine these three categories, one has to look at the practice of the United Nations since art. 1 § 4 explicitly refers to it. 44 The first group, peoples fighting colonial domination, were comprised of peoples inhabiting non-autonomous territories and territories under mandate. The latter is no longer relevant since all 42

General Assembly resolution 2383 (XXIII) (Southern Rhodesia), 2395 (XXIII) (territories administered by Portugal), 2678 (XXV) (Namibia); the reason behind the application of the laws and rules of international armed conflicts lies in the assumption that the dominated territory was not an integral part of the dominating State. Consequently, if an armed conflict arose, it could not be considered as merely an internal conflict: see the Declaration of Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 43 For an overview of the controversy at the Diplomatic Conference, see: G. ABI-SAAB, “Wars of National Liberation in the Geneva Conventions and Protocols”, RdC 1979-IV, 374-392. 44 E. DAVID, o.c., 162.

13 mandated territories have gained independence. The former is clarified by resolution 1541 (XV), laying down the geographic separation between the territory and the administrating State, the ethnical and cultural distinction of the people inhabiting the administered territory and the arbitrary subordination of the territory as criteria. More concretely, these territories were listed by the Secretary-General of the United Nations from 1946 on. In 1992 amongst the territories enumerated on the list East-Timor and Western Sahara could be found. In the meantime, East-Timor has gained independence and the case of Western Sahara is not clear-cut since it is not a colony of Spain, but occupied by Morocco and Mauritania which can not be regarded as classical colonial States. Hence, Western Sahara arguably falls under the second category of peoples under alien domination. The category of peoples fighting against alien occupation do not appear in the resolutions of the General Assembly, which always spoke of colonial and alien domination. Its adoption in art. 1 § 4 is a result of an amendment of Latin-American States, which was subsequently modified by a sub-amendment of India. Its exact scope is however not clear: it can not refer to territories of a State which are under occupation by another State pursuant to an international armed conflict since this situation was already envisaged by the Hague Convention and the Fourth Geneva Convention. As a result, the concept of alien occupation covers the situation of a territory which was not yet fully developed into a State before it came occupied by another State. Examples are Western Sahara and, more disputed, the territories of Palestine which are not under belligerent occupation of Israel, but are part of it. 45 The last type of wars of national liberation concerns the armed struggle against racist regimes. Until now only two regimes have ever been qualified as such, namely the apartheid regime in South Africa and the regime in Southern Rhodesia. The former has gradually abolished apartheid from the 1990s leading to democratic elections in 1994. The latter was put to an end by the United Kingdom in 1979 which took over the administration of Southern Rhodesia bringing it to independence in 1980. Lastly, in a disputed resolution 46 , the General Assembly has declared that Zionism is a form of racism, which could lead to the conclusion that the armed conflict between Israel and the Palestinians could be viewed as a war of national liberation against a racist regime. However, the language of resolution 3379 (XXX) was not repeated and subsequently this resolution was nullified by General Assembly resolution 46/86. Apart from the requirement of a struggle against a colonial regime, an alien occupation or a racist regime, art. 1 § 4 entails that the struggle has to have an armed character. 47 In this regard, some States have declared that the armed conflict should be of a high intensity comparable with the requirements of AP II. 48 This is very problematic since wars of national liberation are characterized by asymmetry and hostilities by national liberation movement are frequently conducted in a guerrilla fashion. In this regard, nothing in art. 1 § 4 requires that the armed conflict should reach a certain threshold of violence in order to apply the rules governing international armed conflicts. This approach is also consistent with Common Article 2 45

D. SCHINDLER, l.c., 138. General Assembly resolution 3379 (XXX). 47 Commentary AP I; D. SCHINDLER, l.c., 139; G. ABI-SAAB, l.c., 413. 48 For example, Australia and the United Kingdom argued during the debates that a high level of intensity is required in case of wars of national liberation. The United Kingdom subsequently attached a declaration upon signing AP I stating that art. 1 AP I requires the same level of intensity as is laid down in AP II. 46

14 which does not contain any requirement of intensity in order to apply the Geneva Conventions to an international armed conflict, on the contrary, the Geneva Conventions are even coming into play when there are no hostilities at all if a State occupies a part of the territory of another State without encountering any opposition. Hence, it is on the one hand not necessary that the armed conflict has certain intensity. On the other hand the application of the Four Geneva Conventions and AP I requires a certain organisation of the national liberation movement which has the authority to enforce the provisions of the Geneva Conventions and AP I on its members. 49 As a result, art. 1 § 4 AP I will become applicable if a territory is under occupation by a colonial, alien or racist government and if on the territory an organised and structured national liberation movement with authority is active. Furthermore, the national liberation movement has to represent the people of the dominated territory. This is often difficult to prove, but indices can be: effective operations by the national liberation movement, based in the dominated territory, territorial control. 50 Furthermore, since a people is not necessarily homogenously comprised (for example different political factions), the possibility exists that various national liberation movements are active in the same territory falling under the scope of art. 1 § 4 AP I. Another condition advanced was the recognition of the national liberation movement by the relevant regional or international organisations. While indeed the express recognition of the national liberation movement and the legitimacy of its struggle are certainly helpful to determine the application of art. 1 § 4 AP I, it imposes nevertheless an unnecessary burden since recognition is often the result of a very political process within the regional and international organisation. 51 Furthermore, the aim of international humanitarian law is to be applicable in as many situations of armed conflict as possible regardless of the reciprocal recognition of the belligerent parties. Consequently, mutatis mutandis it can be argued that the explicit recognition of a national liberation movement and its struggle is not a necessary requirement and is in any event not expressly required by art. 1 § 4 AP I. Lastly, the mere existence of a national liberation movement waging a war of national liberation is not sufficient to entail the applicability of the Geneva Conventions and AP I to the conflict. First, the State against the war of national liberation is waged has to ratify the AP I. Second, if this is the case, the national liberation movement has to make a unilateral declaration that it will apply the Geneva Conventions and AP I and deposit it, 52 although it is accepted that a declaration without deposition suffices. Consequently, if a State against which the war of national liberation is waged is not a party to AP I it is not obliged to respect the provisions of the Geneva Conventions and AP I towards the national liberation movement despite the latter’s declaration which will only bind the national liberation movement. Since States to which art. 1 § 4 AP I is applicable have frequently declined to ratify AP I, this situation will arise in most cases. The question arises if there exist other ways to apply the Geneva Conventions or AP I to wars of national liberation. A first option is to argue that the internationalisation of wars of national liberation has become part of customary international law. This would entail that States which have not ratified AP I still will be bound by to apply the Geneva Conventions and the rules of AP I which have 49

Commentary AP I; E. DAVID, o.c., 169; D. SCHINDLER, l.c., 140; G. ABI-SAAB, l.c., 414. E. DAVID, o.c., 173. 51 D. SCHINDLER, l.c., 142-143; G. ABI-SAAB, l.c., 408-409. 52 Art. 96 (3) AP I. 50

15 become customary international law if for example they have voted in favour of General Assembly resolution 3103 (XXVIII). However the proof of customary international law is not easily to be made and in any event States to which art. 1 § 4 applies, will probably have a consistent practice of voting against General Assembly and other resolutions providing for the internationalisation of wars of national liberation and hence can be considered persistent objectors. A second option is the adherence by a movement of national liberation to the Geneva Convention as a Power which accepts and applies the provisions of the Geneva Conventions. Although “Power” initially referred to States, it can be argued that the term has to be interpreted in its contemporary ordinary meaning and in this respect “Power” can also contain national liberation movements. 53 Furthermore, non-State entities have frequently deposited declarations of acceptance of the Geneva Conventions, without many objections of the States parties to the Geneva Conventions. Concluding, wars of international liberation have only in limited cases been considered as international armed conflicts and even then the rules of international armed conflicts did rarely apply since most State concerned had not ratified AP I. Furthermore, at the time of its adoption, the era of colonization, alien occupation and racist regimes was almost over. However this does not mean that art. 1 § 4 AP I has no relevance for the future. Especially the category of alien occupation is open to changes in interpretation and can evolve to include other situations which are not covered at this time. IV.2. Internationalized Internal Armed Conflicts Internationalized internal armed conflicts are armed conflicts waged in a State between government forces and rebel factions or between armed groups with the intervention of one or more third States supporting the government, the rebel factions or armed groups. This situation clearly shows the problematic nature of the dichotomy between non-international and international armed conflicts. Neither the Geneva Conventions nor the Additional Protocols suggest a solution for the conundrum which part of international humanitarian law is applicable to the various situations. Hence, one can not but make logical assumptions and extrapolations of the existing rules of humanitarian law, practice and doctrine. In examining internationalized internal armed conflicts two main issues come on the foreground. First, which degree of third State involvement is needed? Indeed, not all interventions of third States into an internal conflict will transform the noninternational armed conflict in an international one. Second, to what extend are the rules governing international armed conflicts applicable to all the parties to the conflict? IV.2.1. The Level of Involvement Not every level of third State involvement in a non-international armed conflict internationalizes it. Indeed, while generally intervention by a State in another State 53

G. ABI-SAAB, l.c., 400-401; since the application of the Geneva Conventions is also possible in case of a civil war if there has been a recognition of belligerency, it can be held a fortiori that the same should apply in wars of national liberation which are widely viewed as international armed conflicts.

16 without the latter’s consent is not allowed under international this does only concern the jus ad bellum but not the jus in bello. Furthermore, there are various means of intervention – illegal or not – which do not necessarily transform the internal armed conflict in an international one. First, a third State can send troops to assist one of the parties in the non-international armed conflict. This type of intervention certainly reaches the threshold of involvement and internationalises the armed conflict between the intervening State and the party to the conflict it combats, whether this is the government or the rebel faction. The Geneva Conventions are applicable if the armed forces of two States conduct hostilities against each other 54 , regardless if the armed forces belong to a recognised government or a rebel faction. 55 In a non-international armed conflict of a large scale it is sometimes not clear which group is recognised as the legitimate government and the possibility can even exist that different States recognise different groups as the legitimate government of one State. Consequently, if the application of the Geneva Conventions and AP I would be determined by the recognition of a government as the legitimate government, this would lead to insurmountable problems and a stalemate if various intervening States would recognise different groups as the legitimate government. Consequently, the intervention of a third State in favour of one of the parties in the non-international armed conflict internationalises the armed conflict between the intervening State and the opposing forces. 56 Second, a State can limit itself to sending military experts and advisers to one of the parties in the non-international armed conflict. This generally is not sufficient to make the non-international armed conflict an international one. Mostly the military experts and advisors do not act in the capacity of government officials of the intervening State, but are frequently detached to the State in which the conflict is waged. Since in the case of detachment the military experts and officials are acting as private individuals or as organs of the State to which they were sent, their conduct is not attributable to the sending State. 57 Only if the foreign military experts and advisors are under the exclusive authority of the sending State, the conflict becomes internationalised between the foreign State and the group they are fighting against. Third, a State can allow the departure of volunteers or mercenaries to a State in which the non-international armed conflict takes place. In general this will not result in the internationalization of the conflict. States are normally not responsible for the conduct of individuals which are not its State organs. However, if a State is substantially involved in the armed actions of the volunteers or the mercenaries the picture changes since this conduct can be labelled as acts of aggression against another State. 58 While the acts of the volunteers or mercenaries as such may not be attributable to the State, it does not mean that due to its substantial involvement it is not a party to an armed conflict against another State. Hence, in this case the non-international armed conflict becomes internationalized between the intervening State and the party to the conflict against which the volunteers and mercenaries are operating. 54

Common Article 2 Geneva Conventions of 1949. E. DAVID, o.c., 140. 56 However, this does not mean that the provisions of the Geneva Conventions and AP I become automatically applicable to all the parties in the conflict. 57 Art. 6 International Law Commission’s Draft Articles on State Responsibility for Internationally Wrongful Acts 2001 (hereinafter ILC DASR 2001). 58 Art. 3 (g) Definition of Aggression, annex to General Assembly resolution 3314 (XXIX). 55

17

Lastly, a State can intervene by merely sending financial and material aid to the government or one of the rebel factions. This will never internationalise the armed conflict even if the aid is substantial and has a huge impact on the waging of the internal armed conflict. Of course, this does not remove the illegality of the intervention and in particular aid to a rebel movement against the government can be considered as a breach of the non-intervention in the internal matters of a State. 59 However, what if a third State does not only send material and financial aid, but combines it with military and strategic support of the operations of the armed group to the extend that it in general controls the armed group. This issue seems to have led to a divergence in the case-law of the International Court of Justice and the ICTY. The International Court of Justice held in the Nicaragua case that the conduct of a rebel group is not attributable to the State intervening in the conflict unless it can be demonstrated that this State has effective control over the rebel group. 60 Conversely, the ICTY has decided that overall control over the armed group is sufficient to attribute the conduct to the intervening State in case of a well organized paramilitary or military group, but retains the standard of the International Court of Justice in the Nicaragua case for individuals and unorganised groups. 61 The International Law Commission on the other hand opted for the standard laid down in the Nicaragua case in its codification effort on the law on State responsibility for internationally wrongful acts. 62 First, it has to be mentioned that the Nicaragua case merely handles the issue of State responsibility for violations of international humanitarian law committed by an armed group, and hence does not address the issue of the nature of the armed conflict. Second, the ICTY used the detour of State responsibility to come to the conclusion that the laws and customs regulating an international armed conflict were applicable to sentence the accused and not those dealing with non-international armed conflicts. However, it could have held that the substantial military, material and financial support was sufficient to internationalize the armed conflict, without addressing the issue of State responsibility, which in any event is outside the scope of its mandate. 63 In any event, the International Court of Justice has reaffirmed the effective control test laid down in its Nicaragua case in the context of the armed conflict in Bosnia and Herzegovina. In the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, it stated that under customary international law, effective control is needed to attribute conduct of non-State organs

59

Art I (9) and III (2) Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations , Annex to General Assembly resolution 2625 (XXV), confirmed in art. II (f) Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, Annex to General Assembly resolution 36/103; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, 27 June 1986, I.C.J. Rep. 1986, § 242. 60 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, 27 June 1986, I.C.J. Rep. 1986, § 109 and § 115. 61 Prosecutor v. Dusco Tadic, Case No. IT-94-1-A, Judgement, Appeals Chamber, 15 July 1999, § 124, at: http://www.un.org/icty/tadic/appeal/judgement/tad-aj990715e.pdf 62 Commentary to art. 8 ILC DASR 2001, §§ 4-5 at: http://www.un.org/law/ilc/State_responsibility/responsibility_commentaries(e).pdf#pagemode=bookma rks 63 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia), Judgment, §§ 403-404, at http://www.icjcij.org/icjwww/idocket/ibhy/ibhyframe.htm.

18 to a State and that the overall control test risks of unjustly broadening the responsibility of a State. 64 The standard of the Tadic case may however better serve to determine in general if the intervention of a third State is sufficient to internationalize the non-international armed conflict. 65 When a third State has overall control over an armed group, be it through the sending of volunteers, military experts, advisors and other help, it can be argued that the third State is in fact conducting the hostilities. In any event, the mere financial and material aid or the sending of military experts is probably not sufficient, but a combination can lead to an overall control over the armed group. This does not mean that the third State becomes responsible for the whole conduct of the armed group over which it exercises overall control. In this regard, the standard of the Nicaragua case comes into play. Since overall control does not entail that the third State and the armed groups merge, it can be held that only if the third State has effective control over the conduct of members of the armed group, that conduct is attributable to it. In all other cases the conduct will remain that of the armed group. Concluding, some types of intervention of a third State into the non-international armed conflict in another State internationalizes the armed conflict between the forces of the intervening State and the opposing forces in the State where the conflict takes place. However, the question remains to which extent the whole conflict becomes regulated by the rules applicable to international armed conflicts. IV.2.2. The Extent of Internationalization of Non-international Armed Conflicts International law does not provide a coherent answer to which extent the intervention by a third State internationalizes the non-international armed conflicts. One current decomposes this sort of armed conflicts in an international armed conflict between the intervening State and the group it opposes and in a non-international armed conflict between the other armed groups or the State on whose territory the conflict is waged and insurgent groups. This approach, which seems logical, is supported by the International Court of Justice. In its Nicaragua case it has indeed held that the conflict between the United States and Nicaragua was governed by the rules applicable to international armed conflicts while the conflict between the contras and Nicaragua was considered to be a non-international armed conflict. 66 Moreover, the ICTY has stated that the conflict in Yugoslavia could be regarded, depending from the time and place, as a non-international and an international armed conflict.67 However, the deconstruction of the internationalized non-international armed conflicts in its composing armed conflicts risks entailing inconsistent consequences. For example, when a member of an insurgent group fighting against the government assisted by a third State is captured, the third State has to apply the Third Geneva Convention and AP I, while when he would be captured by the governmental forces, he only enjoys the protection of Common art. 3 of the Geneva Conventions of 1949 or AP II. The same problem arises for civilians: when they are living in an area occupied by 64

Ibid., §§ 398-399 and § 406. Ibid, §§ 404-405 66 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), ICJ Rep. 1986, § 219. 67 Prosecutor v. Dusco Tadic, Decision of the Defence Motion on Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, § 72, at http://www.un.org/icty/tadic/appeal/decision-e/51002.htm. 65

19 insurgents aided by armed forces of an intervening State, the latter have to apply the rules regulating international armed conflicts, the former rules regulating noninternational armed conflicts. Furthermore, if the occupiers of the territory change, the whole regime would change. As a result, it has been stated that it would probably be better to argue that the complete conflict becomes internationalized and that the rules covering international armed conflicts apply to all the parties to the conflict, certainly when the intervening State provides for massive support. 68 IV.2.3. Conclusion Internationalized internal armed conflicts are best regulated by the rules applicable to international armed conflicts. This is the only way to avoid absurd inconsistencies and provides for the necessary humanitarian protection for all combatants regardless to which party they belong, and subjects every party to the same obligations. Of course, not all acts of intervention would internationalize the internal armed conflict. For example, the mere sending of material and financial aid would not be sufficient as is the detachment of military advisors to one of the parties in the non-international armed conflict. In general, the internal armed conflict would become international if, (i) the third State military intervenes by the sending of armed forces or volunteers, mercenaries or is substantial involved therein, which independently fight alongside the government or an armed group, or (ii) the intervening State has overall control over an armed group or over the government of the State in which the conflict takes place. The first situation deals with an armed conflict where the intervening State’s forces assist an independent armed group or a government. The scale of the intervention by the third State is not relevant, but it is required that they take part in the actual hostilities. Furthermore, it is not relevant if they fight alongside the government or the insurgent groups or any armed group. As stated above, in a civil war, it might be impossible to identify the real government. For example, in Afghanistan the Taliban formed the de facto government of Afghanistan, although the Northern Alliance was widely recognized as the legal government. The intervention of the Coalition forces, fighting alongside the Northern Alliance transformed the noninternational armed conflict into an international one between all the parties to the conflict. The second situation deals with an armed conflict in which one of the parties is under overall control of the intervening State without the presence of separate armed foreign forces. It covers not only the overall control over an armed group, but also over a government, which is a mere puppet of the intervening State. 69 The overall control test entails that the intervening State exercises military, strategic and operational control over the actions of the group or government and sends material, military and financial aid. This approach more aptly describes the reality in the field and does not resort to the cumbersome test of effective control in order to internationalize the armed conflict, which is best used to determine the responsibility for the intervening State over the acts of the armed groups.

68

E. DAVID, o.c., 151. In this regard, it broadens the test of the Tadic case, where it was only applied to military or paramilitary groups. However, if a puppet government is installed whose armed forces actions are determined by the military, strategic, operational choices of the intervening State, there is nothing which hinders the application of the test of overall control to these situations. However, this test only serves to determine the international character of the armed conflict and not the State responsibility of organs of the puppet government. 69

20 IV.3. Armed Conflicts with Involvement of the United Nations The United Nations has become increasingly active in the involvement of armed conflicts since the end of the cold war. Two situations have to be distinguished: the United Nations authorizes the use of force against by its member States against another (member) State and the United Nations has send peacekeepers which guard the peace in a State with an internal armed conflict or between two States. The first situation is the least problematic: in this case the United Nations itself is not acting, but merely authorizes under Chapter VII of the Charter the use of force by its member States to compel the other (member) State to comply with resolutions of the United Nations. These armed conflicts are conducted between States and hence are classical inter-State conflicts to which the rules and laws of international armed conflicts apply. 70 An example is the First Gulf War where Coalition forces liberated Kuwait from Iraqi occupation after authorization by the United Nations Security Council. When Iraq showed pictures and footage of captured Coalition members, this was widely condemned as an infringement of the Third Geneva Convention. The rules concerning international armed conflicts are equally applicable in cases of authorization of the use of force to intervene in an internal armed conflict. If such an intervention would lead to an armed conflict, this conflict will be waged between two or more parties to the Geneva Conventions, namely the State in which the internal conflict is waged and the States intervening in the conflict under the authorization of the United Nations. In this respect, intervention in an internal armed conflict under the authorization of the United Nations resembles the category of internationalized internal armed conflicts, but removes the illegality of the intervention. The second situation really involves the United Nations as international organization. However, in most cases international humanitarian law will not become applicable between the United Nations peacekeepers and the parties to the armed conflict, since the mandate of the former generally does not provide for coercive action against one of the parties in the conflict unless in cases of self-defence. According to the International Court of Justice, peacekeeping missions indeed are not created under Chapter VII of the Charter, but are subsidiary organs of the General Assembly or the Security Council and their deployment depends on the agreement of the State(s) in or between which they are placed. 71 Although the mandate of peacekeeping forces are very different depending on the situation, one common characteristic is that they are not placed in the field to conduct hostilities against one of the parties to the armed conflict. However, the course of events has sometimes led to the blurring of this central aspect of peacekeeping forces by the United Nations Security Council allowing peacekeeping forces to use force against one of the parties to the conflict. 72 Hence, due to the authorization of the Security Council, the United Nations itself becomes suddenly embroiled in an armed conflict between its peacekeepers and one of the parties to the conflict, although it has been argued that the conflict only becomes international if the United Nations peacekeeping forces conduct hostilities against the government of a State. 73 However, this approach equals a State with its 70

In such a situation, it is in fact not the United Nations which is operating against a State, but States against each other. Consequently, Common Article 2 of the Geneva Conventions is applicable. 71 Certain Expenses of the United Nations, Advisory Opinion, ICJ Rep. 1962, 166. 72 E. DAVID, o.c., 155-156. 73 C. GREENWOOD, “International Humanitarian Law and U.N. Military Operations”, IHLY 1998, 2526.

21 established government, which will not always be present in a civil war, while in a civil war the State continues to exist. Consequently, the United Nations is waging hostilities against a party to the Geneva Conventions resulting in the rules and laws of international armed conflicts becoming relevant, although State practice is not consistent in this regard. 74 This does not however mean that the whole conflict becomes internationalized, certainly if the attacks against United Nations peacekeepers are scarce. Only when attacks are recurrent and of certain gravity the whole internal conflict in total can become internationalized, although as is the case with internationalized armed conflicts the matter is not without controversy. Conclusion The distinction between international and non-international armed conflicts is a cardinal principle in international humanitarian law since the classification of an armed conflict decides the rules applicable to it. International armed conflicts are better regulated than non-international ones, mainly due to the fear of States that a more extensive regulation on non-international armed conflicts could lead to the recognition of insurgents and their cause, while the State in whose territory the conflict is waged labels the insurgents as terrorist or criminals who do not deserve the protection of international humanitarian law. However, non-international armed conflicts have become the most widespread armed conflicts in the contemporary world. Furthermore, they are sometimes characterised by the total collapse of State authority and hostilities between armed undisciplined bands. Hence most atrocities and barbarities are committed during non-international armed conflicts, mostly against civilians. Consequently, the summary regulation of non-international armed conflicts is no longer tenable. First, the rise of international human rights instruments which remain applicable in times of armed conflict has removed much of the reasoning that insurgents or armed bands fighting the government should not receive protection of international humanitarian law: if members of such groups enjoy protection by human rights conventions, why not by international humanitarian law? Second, most victims in non-international armed conflicts are civilians which do not take part to the hostilities. Since international humanitarian law is mainly aimed at the protection of persons who do not take part in the hostilities, it can not be justified that civilians in non-international armed conflicts are protected less than those in international armed conflicts, certainly when the atrocities suffered are often harsher in the former. Third, the distinction between international and non-international conflicts have been blurred by the recognition of wars of national liberation as international armed conflicts, the rising of internationalised internal armed conflicts during the Cold War and after, and the involvement of the United Nations in non-international armed conflicts. Concluding, the distinction between the two categories has become untenable, if it ever was. The solution to this problem is however not for granted. Not all non-international armed conflicts share the same features: some are characterised by guerrilla type operations, while others feature full scale fighting between armed groups who all occupy a part of the territory of a State. Fully applying the rules of the Geneva Conventions and other rules of international humanitarian law regulating armed conflicts will not be possible in every internal armed conflict. For example the organisation of prisoner of war camps in guerrilla warfare is very hard, if not 74

See: E. DAVID, o.c., 156-158.

22 impossible. Subsequently, differences will remain between international armed conflicts and non-international ones, but should be bridged as much as possible. One way to achieve this is the adoption of a new treaty or the amendment of the existing treaties. But as the adoption of the Additional Protocols have shown, it is very difficult to convince all States and States which are mostly affected by noninternational armed conflicts can not be forced to accept the new treaty or the amendments to the existing treaties. Another option is the maturing of customary international law regarding non-international armed conflicts. While this solution is more flexible than the treaty road, it is subject to indeterminacy of the rules and vagueness. Since it is often problematic to make forces in the field aware of their obligations laid down in relatively clear treaty provisions, how difficult would it be to convince members of armed bands of their duties pursuant to vague rules of customary international law? In the end, international humanitarian law will have to abandon as much as possible the distinction between international and noninternational armed conflicts and lay down generally applicable rules regardless of the nature of the conflict preferably in a treaty. In the meantime, customary international law can help to partially bridge the existing gaps in protection, as well as a strong encouragement of parties in non-international armed conflicts to apply the rules regulating international armed conflicts to their conflict.