Hostname: page-component-848d4c4894-nr4z6 Total loading time: 0 Render date: 2024-05-19T11:41:31.099Z Has data issue: false hasContentIssue false
  • English
  • Français

How is the term “armed conflict” defined in international humanitarian law?

ICRC opinion paper

Published online by Cambridge University Press:  17 April 2024

Get access Rights & Permissions [Opens in a new window]

Extract

International humanitarian law (IHL) applies to situations of armed conflict, a de facto state of hostilities dependent on neither a declaration nor recognition of the existence of “war” by its parties. In terms of its material scope, whether an armed conflict is an international armed conflict (IAC) or non-international armed conflict (NIAC) will largely determine which rules of IHL apply. Articles 2 and 3 common to the Geneva Conventions differentiate between the rules applicable to IACs and NIACs. However, the term “armed conflict” is defined in neither article. Far from being an oversight, the omission plays an important role in depoliticizing the application of the Conventions to the situations of violence for which they were conceived. Having learned from earlier reliance on notions such as “declarations of war”, the drafters’ choice of the notion of “armed conflict” ensured that the Conventions’ catalyst would never become a vestige of its time, but rather a concept meant to endure and, indeed, adapt in response to the changing environments for which the Conventions are needed. The application of IHL has since been predicated on a fact-based analysis rather than only the formal recognition by a belligerent that a state of war exists.

Type
Reports and Documents
Information
International Review of the Red Cross , First View , pp. 1 - 26
Copyright
Copyright © The Author(s), 2024. Published by Cambridge University Press on behalf of ICRC

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

The advice, opinions and statements contained in this article are those of the author/s and do not necessarily reflect the views of the ICRC. The ICRC does not necessarily represent or endorse the accuracy or reliability of any advice, opinion, statement or other information provided in this article.

References

1 See e.g. Jean Pictet (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 1: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952 (1952 Commentary on GC I), available at: https://ihl-databases.icrc.org/en/ihl-treaties/gci-1949/article-2/commentary/1952?activeTab=1949GCs-APs-and-commentaries (all internet references were accessed in March 2024): “The substitution of this much more general expression for the word ‘war’ was deliberate. … One may argue almost endlessly about the legal definition of ‘war’. A State can always pretend, when it commits a hostile act against another State, that it is not making war, but merely engaging in a police action, or acting in legitimate self-defence. The expression ‘armed conflict’ makes such arguments less easy” (emphasis added).

2 As the ICRC noted in its 2016 Commentary on Geneva Convention I (GC I), “Article 2(1) encompasses the concepts of ‘declared war’ and ‘armed conflict’. Both trigger the application of the Geneva Conventions but cover different legal realities, the latter being more flexible and objective than the former”, and it would be “premature to conclude the demise of the concept of declared war, even if its progressive decline cannot be ignored”. See ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd ed., Geneva, 2016Google Scholar (2016 Commentary on GC I), paras 201–209 (Art. 2), available at: https://ihl-databases.icrc.org/ihl/full/GCI-commentary.

3 Statutes and Rules of Procedure of the International Red Cross and Red Crescent Movement, adopted by the 25th International Conference of the Red Cross and Red Crescent, Geneva, October 1986 (amended 1995 and 2006), Art. 5(2)(g), available at: https://shop.icrc.org/statutes-and-rules-of-procedure-of-the-international-red-cross-and-red-crescent-movement-pdf-en.html.

4 A model rappel du droit, a document used as part of the ICRC's bilateral dialogue with parties to conflict, can be consulted in the annex to this paper.

5 ICRC, How is the Term “Armed Conflict” Defined in International Humanitarian Law?, opinion paper, Geneva, March 2008, available at: www.icrc.org/en/doc/assets/files/other/opinion-paper-armed-conflict.pdf.

6 2016 Commentary on GC I, above note 2; ICRC, Commentary on the Second Geneva Convention: Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 2nd ed., Geneva, 2017 (2017 Commentary on GC II), available at: https://ihl-databases.icrc.org/ihl/full/GCII-commentary; ICRC, Commentary on the Third Geneva Convention: Convention (III) relative to the Treatment of Prisoners of War, 2nd ed., Geneva, 2020Google Scholar (2020 Commentary on GC III), available at: https://ihl-databases.icrc.org/ihl/full/GCIII-commentary.

7 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Geneva, 2003, 2007, 2011, 2015 and 2019Google Scholar, available at: www.icrc.org/en/document/icrc-report-ihl-and-challenges-contemporary-armed-conflicts.

8 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (GC I), Art. 1 (cited here in GC I, but common to the four Geneva Conventions).

9 2016 Commentary on GC I, above note 2, paras 501–502 (Art. 3). See also Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II), Art. 2(2).

10 All persons who have been deprived of their liberty or whose liberty has been restricted for reasons related to the conflict, as well as those deprived of their liberty or whose liberty is restricted after the conflict for the same reasons, enjoy the protection of Articles 5 and 6 of AP II until the end of such deprivation or restriction of liberty. See AP II, Art. 2(2).

11 Charter of the United Nations, 26 June 1945 (entered into force 24 October 1945) (UN Charter), Arts 2(4), 51. The legality of intra-State use of force is based on national law.

12 In explicitly supporting the ICRC's position, the International Criminal Tribunal for the former Yugoslavia (ICTY) has also adopted this view. See e.g. ICTY, The Prosecutor v. Limaj et al., Case No. IT-03-66-T, Judgment (Trial Chamber II), 30 November 2005, para. 89.

13 For a detailed discussion on the inapplicability of motivation in the classification of a NIAC, see e.g. Vité, Sylvain, “Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations”, International Review of the Red Cross, Vol. 91, No. 876, 2009, pp. 69, 78CrossRefGoogle Scholar.

14 GC I, Art. 3 (cited here in GC I, but common to the four Geneva Conventions). See also AP II, Art. 4.

15 See section 2.2 below.

16 For simplicity, this opinion paper will continue to use only the term “State”, though the entities mentioned in this sentence may also be party to an IAC.

17 GC I, Art. 2 (cited here in GC I, but common to the four Geneva Conventions).

18 ICTY, The Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2 October 1995, para. 70.

19 1952 Commentary on GC I, above note 1, Art. 2.

20 The question of whether acts by de facto organs trigger an IAC is discussed in section 2.5.2 below.

21 This view has been endorsed by international tribunals. See e.g. ICTY, The Prosecutor v. Delalić et al., Case No. IT-96-21-T, 16 November 1998, para. 184 (see also para. 208); ICTY, Tadić, above note 18, para. 70; International Criminal Court, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Confirmation of Charges, 29 January 2007, para. 207; Special Court for Sierra Leone, The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-1-T, Judgment (Trial Chamber), 26 April 2012, paras 563–566.

22 As discussed in greater detail in the 2017 Commentary on Geneva Convention II (GC II), not every use of force between States at sea will qualify as an IAC – for example, when coastguards, suspecting a violation of their State's fisheries legislation, attempt to board a vessel owned or operated by another State but are met with resistance. See 2017 Commentary on GC II, above note 6, para. 249 (Art. 2).

23 Caution should be taken, however, before dispensing with the notion of a threshold altogether. For example, it is generally accepted among experts that cyber operations having similar physical effects to classic kinetic operations would trigger an IAC. However, cyber operations do not always have such effects. The law is not yet settled on whether cyber operations only disrupting or disabling the functionality of digital infrastructure trigger an IAC. A thorough discussion on this question can be found in the 2020 Commentary on GC III, above note 6, paras 286–289 (Art. 2).

24 The legal rationale for a “low intensity” threshold is further developed in the 2016 Commentary on GC I, above note 2, paras 243–244.

25 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I).

26 2020 Commentary on GC III, above note 6, para. 310 (Art. 3). See also ICTY, The Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-T, Judgment (Trial Chamber), 15 April 2011, para. 1697.

27 2020 Commentary on GC III, above note 6, para. 311 (Art. 3).

28 Hague Convention (IV) with Respect to the Laws and Customs of War on Land and Its Annex, 18 October 1907 (entered into force 26 January 1910) (Hague Convention IV), Art. 42.

29 2016 Commentary on GC I, above note 2, paras 296–299 (Art. 2).

30 Hague Convention IV, Art. 42.

31 However, in certain specific and exceptional cases when foreign forces withdraw from occupied territory (or parts thereof) while retaining key elements of authority or other important governmental functions that are typical of those usually taken on by an Occupying Power and that amount to effective control for the purposes of the law of occupation, this body of law might continue to apply within the territorial and functional limits of those competences. See 2016 Commentary on GC I, above note 2, paras 341–347 (Art. 2).

32 For an elaboration on the parameters of consent in this context, as well as an examination of diverging legal opinions on this issue, see ibid., paras 262–263 (Art. 2).

33 This position is widely supported; the International Court of Justice (ICJ), which held that the overall control test was not dispositive for State responsibility, found the test dispositive for conflict-classification purposes – that is, the classification of IACs by proxy. See ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, Merits, ICJ GL No. 91, ICGJ 70 (ICJ 2007), 26 February 2007, paras 404–406. For the ICRC's detailed position on IACs by proxy, see 2016 Commentary on GC I, above note 2, paras 271–273 (Art. 2).

34 ICTY, The Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgment (Appeals Chamber), 15 July 1999, para. 131.

35 The adapted effective control test would thereby have the following formulation:

  • •

    • the armed forces of a State or agents controlled by the State are physically present in a foreign territory without the consent of the local government effectively in place at the time of the invasion;

  • •

    • the local government effectively in place at the time of the invasion has been or can be rendered substantially or completely incapable of exerting its powers by virtue of the foreign forces’ unconsented-to presence or by virtue of agents controlled by them;

  • •

    • the foreign forces or agents acting on their behalf are in a position to exercise authority over the territory concerned (or parts thereof) in lieu of the local government.

36 See, generally, 2020 Commentary on GC III, above note 6, paras 391–426.

37 Ibid., para. 390.

38 See e.g. Diplomatic Conference for the Establishment of International Conventions for the Protection of War Victims, Official Records of the Diplomatic Conference of 1949, Vol. 2(B), Federal Political Department, Bern, 1949, pp. 336–343.

39 See e.g. ibid., pp. 126, 330, 336.

40 ICTY, Tadić, above note 18.

41 See e.g. ICTY, Limaj, above note 12, para. 84; ICTY, The Prosecutor v. Boškoski and Tarčulovski, Case No. IT-04-82-T, Judgment (Trial Chamber), 10 July 2008, para. 175. See also International Criminal Tribunal for Rwanda (ICTR), The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment (Trial Chamber), 2 September 1998, paras 619–620; ICTR, The Prosecutor v. Georges Anderson Nderumbumwe Rutaganda, Case No. ICTR-96-3-T, Judgment (Trial Chamber), 6 December 1999, paras 91–92.

42 ICRC, above note 5.

43 ICTY, Tadić, above note 18.

44 ICTY, The Prosecutor v. Haradinaj et al., Case No. IT-04-84-T, Judgment (Trial Chamber), 3 April 2008, para. 38; see also ICTR, The Prosecutor v. Musema, Case No. ICTR-96-13-T, Judgment (Trial Chamber), 27 January 2000, paras 248–251; ICTY, Boškoski, above note 41, paras 196–197.

45 ICTY, Haradinaj, above note 44, para. 49; see also ICTY, Boškoski, above note 41, para. 177.

46 2016 Commentary on GC I, above note 2, para. 440 (Art. 3).

47 AP II, Art. 1.

48 Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987, para. 4470Google Scholar, available at: https://ihl-databases.icrc.org/en/ihl-treaties/apii-1977.

49 See section 2.5.3 above.

50 See, generally, Ferraro, Tristan, “The ICRC's Legal Position on the Notion of Armed Conflict Involving Foreign Intervention and on Determining the IHL Applicable to this Type of Conflict”, International Review of the Red Cross, Vol. 97, No. 900, 2016, p. 1227Google Scholar (expanding further on the ICRC's legal position on the support-based approach; note, however, that while this article explains the ICRC's legal position within the parameters of foreign intervention, the application of the support-based approach is not limited only to these situations, as clarified in this opinion paper).

51 With regard to international organizations or multinational forces (such as coalitions of States), an additional criterion requires that the action in question be undertaken pursuant to an official decision by the entity to support a party involved in that pre-existing conflict. The support-based approach would thereby not apply to cases in which some elements of multinational forces acted ultra vires with regard to the scope of the entity's mandate.

52 See also ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Geneva, 2019, p. 5Google Scholar1, available at: www.icrc.org/en/document/icrc-report-ihl-and-challenges-contemporary-armed-conflicts.

53 A coalition's coordination structure will necessarily fall short of creating a relationship of subordination between discrete entities within the coalition; subordination is considered in section 3.2.2 above.

54 In NIACs, IHL normally applies in the whole territory of the parties, whether or not actual combat takes place there.

55 An elaboration of these arguments may be found in ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Geneva, 2015, p. 13Google Scholar, available at: www.icrc.org/en/document/icrc-report-ihl-and-challenges-contemporary-armed-conflicts.

56 Ibid., pp. 16–21.

57 ICTY, Tadić, above note 18, para. 70.

58 2017 Commentary on GC II, above note 6, para. 526.