Defining Armed Conflict in International Humanitarian Law

By Gertrude C. Chelimo
2011, Vol. 3 No. 04 | pg. 2/3 |

The concept of insurgency according to traditional is ambiguous and vague in defining what exactly an insurgency is. One of the main reasons as to why international law and even international humanitarian law is ambiguous in its definition is due to the fact that to recognize an insurgency would be construed as ‘an indication that the recognizing state regards the insurgents as legal contestants, and not as mere lawbreakers (Cullen, p 11).’ Therefore insurgents and rebel groups would be recognized as lawful combatants.

The recognition of an insurgency in international law may also bring about the internationalization of an event; this is because third party states can recognize the situation as an insurgency according to their own interests without owing allegiance. Cullen explains further by stating “The indeterminate scope of insurgency allows for the concept’s manipulation by states wishing to define their relationship with insurgents. Third states may recognize the existence of insurgency without explicitly declaring an allegiance or adopting a position of neutrality towards the ... the recognition of insurgency serves as a partial internationalization of the conflict, without bringing the state of belligerency into being. This permits third states to participate in an internal war without finding themselves ‘at war’, which would be the consequence of intervention on either side once the internal war” (Cullen, p 11-12).

Changing Dynamics of Conflict

Modern conflicts have drastically changed over the last few years with the introduction of new actors in conflict zones such as private military companies, multinational corporations, and transnational armed groups such as Al Qaeda and drug cartels. The main challenge has been that international humanitarian law has not yet evolved to comprehensively adapt to these new dynamics.

War on Terror

After the September 11 attacks, declared a on transnational organizations more specifically Al Qaeda (Sassoli, 2006, p 5). In political terms, the war on terror is correct but there have been controversies as to whether international law recognizes it as an armed conflict. As stated earlier, international humanitarian law comes into force when a situation is classified as an armed conflict, but the modern dynamics of differentiating and an armed conflict is vague. Secondly, the status of the individual is complex as it is hard to differentiate a terrorist from a freedom fighter.

There is no clear definition of what terrorism is exactly, the definitions that are in existent are based on a state’s interest. For example, the American definition of terrorism is; ‘premeditated, politically motivated perpetrated against noncombatant targets by sub national groups or clandestine agents while a terrorist group is defined as any group, or which has significant subgroups which practice international terrorism (international terrorism being terrorism involving citizens or the territory of more than one country’ (U.S. Code Title 22, Ch.38, Para. 2656f (d)).

The most controversial definition is the UN definition that states that terrorism is attempting to bring about political and/or social change by deliberately attacking civilians. This definition has made it difficult especially in trying to differentiate resistance movements that oppose forms of occupation and a terrorist organization that both often use violence to obtain a political change. For example, during the colonial period in Kenya, the Mau Mau fighters attacked Europeans in their farms and stole their goods (Davies, 1953, p 224), if the same situation was to be replayed in the 21st century then many scholars would consider the Mau Mau as a terrorist organization.

However, in international law, ‘acts of terrorism are clearly defined’, according to the Geneva Convention (1937), an act of terrorism is defined as “criminal acts directed against a State or intended to create a state of terror in the minds of particular persons, or a group of persons, or the general public” (Article 1, para. 1) “any willful act calculated to endanger the lives of members of the public” (Article 2, para. 3), “willful destruction of or damage to public property” (Article 2, para. 2), and “manufacture, obtaining, possession or supplying of arms or ammunition, explosives or harmful substances with a view to the commission in any country whatsoever” (Article 2, para. 5).

Terrorism in international law is also seen as a form of aggression, aggression is defined as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State”, (United Nations General Assembly Resolution 3314), more specifically in article 3(g) it states that aggression can be “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.”

The UN resolution (Resolution 3314) does give justification for an armed attack to be pursued against the state; however, the issue is that modern international terrorism does not involve the direct participation of state (Sassoli, p 4). As reiterated earlier, international humanitarian law recognizes only three forms of armed conflict, an international armed conflict where it involves the belligerents being two legal armed forces of two different states (Geneva Convention, common article 2). International terrorism seems to have a different dynamics as a government is fighting against a transnational group that does not have any links with a state (Sassoli, p 4), according to the ICRC commentary, humanitarian law does not recognize an international armed conflict between states and non state actors as this would accord armed groups the same privileges enjoyed by members of regular armed forces (p 7).

International humanitarian law’s main challenge has been the legal status of an individual as to whether he is a terrorist or a combatant especially in non-international armed conflicts (ICRC, 2007, p 6) and in situations of self-determination (Chadwick, 1996). According to the ICRC, states engaged in non-international armed conflicts have, with increasing frequency, labeled any act committed by domestic insurgents an act of “terrorism” even though, under IHL, such an act might not have been unlawful (e.g. attacks against military personnel or installations).

For example, the Hamdan case shows how the status of a combatant is confusing in the ‘war on terror’. Salim Ahmed Hamdan, a Yemeni citizen was arrested on charges on “attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged belligerent’’ (court for the District of Columbia,) and was tried in a military commission. During the case, Hamdan pleaded habeas corpus and that he could not be tried by a military commission until his status as a prisoner of war was determined by a competent tribunal as required by Geneva Convention 3 (Duxbury, 2007 p 2). The US government replied that the Geneva conventions did not apply to him as the conflict was not in accordance with the classifications of armed conflict (Duxbury, p 2).