Defining Armed Conflict in International Humanitarian Law
International Humanitarian Law, based on the concepts of jus ad bello, is defined to be the law of war. This means that the laws involved are meant to be active in a situation of an armed conflict or during war. However, just like international law, international humanitarian law requires the political will of states for a situation to be considered as an armed conflict, so that the law can be in force. The scenario has therefore arisen that states have been adamant to recognize a situation as an armed conflict for certain political reasons.
The aim of this paper is to show that the abstract view of international humanitarian law impacts the definition of an armed conflict. This is because of the entry of new actors in conflicts such as private military companies and the changing dynamics of conflict, such as battles against terrorism.
What Exactly is an Armed Conflict?
There are three types of conflicts that are recognized by international humanitarian law: international armed conflict, internationalized armed conflict, and non-international armed conflict.
International humanitarian law does make it clear what an international armed conflict is. According to the Geneva Conventions of 1949, common article 2 states that “all cases of declared war or of any armed conflict that may arise between two or more high contracting parties, even if the state of war is not recognized, the convention shall also apply to all cases of partial or total occupation of the territory of a high contracting party even if the said occupation meets with no armed resistance'' (Geneva Convention, 1949, common art.2). This means that the occurrence of international armed conflict is clear, that is, it would be a conflict between the legal armed forces of two different states. A good example would be the North Korean- South Korean war of 1950.
The second armed conflict recognized by international humanitarian law is a new phenomenon known as 'an internationalized armed conflict'. The situation of an internationalized armed conflict can occur when a war occurs between two different factions fighting internally but supported by two different states (Stewart, 2003, p 315). The most visible example of an internationalized armed conflict was the conflict in the Democratic Republic of Congo in 1998 when the forces from Rwanda, Angola, Zimbabwe and Uganda intervened to support various groups in the DRC (Stewart, 315).
Non-international armed conflicts, according to common article 3 of the Geneva Convention, are ‘armed conflicts that are non-international in nature occurring in one of the High contracting parties’ (Geneva Convention, common article 3, 1949). This means that one of the parties involved is nongovernmental in nature. However, common article 3 also states that it does not apply to other forms of violence such as riots, isolated and sporadic acts of violence. This abstract definition has made it difficult to make a clear distinction between a mere disturbance and an armed conflict, therefore relying heavily on the political will of states to classify the situation as an armed conflict. For a situation to be classified as a non-international armed conflict, it has to achieve two variables: first, the hostilities have to reach a certain minimum level of intensity (Vite, p 75; ICRC, 2008, p 3) and form in a collective character; and second, there has to be a level of organization of the parties (Vite, p 75)
Challenges Facing the Classification of Armed Conflicts
The classification of a situation as an armed conflict means that international humanitarian law comes into force immediately. However, due to certain legal and political reasons various situations are too complex to be considered as armed conflicts.
Abstract Definition of Non-International Armed Conflict
The definition of non-international armed conflict according to the Geneva convention common article 3 is basically that, the situation has to be within the territory of a high contracting party/state and assumes that an armed conflict exists when the situation reaches a certain level that distinguishes it from other forms of violence such as riots, sporadic and isolated forms of violence (situations of internal disturbances) (Geneva convention common art 3, Vite, 2009).
In modern law, for the situation to be recognized as an armed conflict, two variables are used; intensity of the violence and the level of organization of the parties. If one of these is not fulfilled then it is considered to be just a mere disturbance (Vite, p 76). Internal disturbances according to Vite (p 77) are situations in which ‘there is no non-international armed conflict as such, but there exists a confrontation within the country, which is characterized by a certain seriousness or duration and which involves acts of violence.
Prior to the formulation of the Geneva Conventions, traditional international law recognized three stages for a situation to be classified as an internal armed conflict: rebellion; insurgency; belligerency (Cullen, 2010, p 8). The concept of rebellion in international law refers to the situation of short-lived insurrections against the authority of a state, according to Cullen, “a rebellion occurs if the faction seeking to seize the power of the state seems susceptible to a rapid suppression by normal internal security” (Cullen, p 9). Therefore a rebellion according to traditional international law is a political upheaval within a state which the state's internal security, specifically the police, can handle, for example, the political upheavals in Kenya in 1992 with citizens demanding for the promotion of democracy.
The concept of insurgency according to traditional international law 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 conflict... 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).Continued on Next Page »