CC BY
9QbSUMUb УРвУЮ SCIENTIFIC ARTSAKH НАУЧНЫЙ АРЦАХ № 3 (18), 2023
hrU4.UQ-hSnhfô-3nhb, JURISPRUDENCE, ЮРИСПРУДЕНЦИЯ
PROBLEMS OF QUALIFICATION OF A NON-INTERNATIONAL ARMED CONFLICT UNDER INTERNATIONAL HUMANITARIAN LAW *
UDC 341.3 DOI: 10.52063/25792652-2023.3.18-16
TARON SIMONYAN
Yerevan State University, Faculty of Law, Chair of Theory and History of Law and State, Ph.D. in Law, Associate Professor; Founding Partner of «ELL Partnership» Law Firm CJSC, Yerevan, the Republic of Armenia taron.simonyan@ ysu. am ORCID: 0000-0001-8175-9382
MARIA HOVHANNISYAN
Yerevan State University, Faculty of Law, 4th year LLB., Legal expert at the Office of the Representative of the RA on International Legal Matters Yerevan, the Republic of Armenia maria.oganesyannl 6@gmail.com ORCID: 0009-0008-9646-7815
The objective of this research is to provide a detailed guide for the process of qualifying a situation as a non-international armed conflict (NIAC). To achieve this objective, we have established the following tasks: Firstly, we will outline the range of situations that could potentially qualify as NIACs. Secondly, we will examine the situations that, in principle, cannot qualify as NIACs. Lastly, we will identify the requisite threshold that a situation must surpass to merit qualification as a NIAC.
Our research employs both general scientific methods, such as systematic analysis, comparison, induction, and deduction, and special scientific methods, including comparative-analytical and normative-logical approaches.
In the result of a thorough analysis, we have concluded that for a situation to qualify as a NIAC, it must fall within the range of situations that can potentially qualify as NIACs, as well as surpass the required threshold of intensity of the armed conflict and of organization of the parties involved.
Key Words: International humanitarian law, non-international armed conflict, intensity, organization, ICTY, ICTR, ICC.
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INTRODUCTION
The process of categorizing a situation as either an international armed conflict (IAC) or non-international armed conflict (NIAC) represents a pivotal and frequently imperative preliminary measure in ascertaining the applicability of international humanitarian law (IHL) within a given context. This qualification holds significant importance, not solely in the context of establishing the applicability of IHL, but also in instances where the commission of war crimes has transpired during the course of such situations, subsequently warranting potential adjudication before the international criminal tribunals. Nonetheless, the matter of qualification has not yet achieved a consistent approach within both academic discourse and practical implementation, a deficiency that warrants scrutiny. It is imperative to acknowledge, however, that this deficiency is, to some extent, attributable to the inevitable subjectivity inherent in the conceptual framework of the term 'qualification'. While delineating a situation as a non-international armed conflict lacks well-defined, universally accepted specific criteria, the examination of treaty law pertaining to this domain, coupled with an analysis of pertinent case law, serves as a valuable method for discerning the guiding principles and nuanced aspects governing the application of the general, mainly recognized criteria used for the qualification.
To engage in discourse pertaining to the initial query, it is incumbent upon us to initially recognize the imperative of sidestepping two potential pitfalls that have the capacity to compromise the precision of the qualification of the situation. The first pitfall revolves around the accurate determination of whether the context in question corresponds to a NIAC or an IAC. The second pitfall pertains to the precise delineation between a scenario still warranting categorization as internal disturbances and tensions and one that has unmistakably transcended into the domain of a NIAC.
For the purpose of conducting a comprehensive analysis, it is imperative to subject the following provisions of treaty law to meticulous scrutiny.
• Article 3 and 2 Common to the Geneva Conventions of 12 August 1949 (hereinafter respectively: Common article 2 and 3),
• Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977 (hereinafter: Protocol I),
• Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977 (hereinafter: Protocol II),
• Article 8, para. 2, c-f, Rome Statute
SITUATIONS THAT INHERENTLY DO NOT FALL WITHIN THE PURVIEW OF POTENTIAL QUALIFICATION AS A NIAC
For this analysis, it is better to start off with the exclusion of situations that inherently do not fall within the purview of potential qualification as a NIAC. First, according to Common article 2, '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' should be qualified as IAC. Second, according to article 1 of the Protocol I 'armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination...' also should be qualified as IAC. And lastly, according to article 1 of the Protocol II 'situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature' should not be qualified as armed conflicts at all. Further elaboration is warranted with regard to the third category of situations, namely situations
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of internal disturbances and tensions, exemplified by instances such as riots, isolated and sporadic acts of violence and other acts of a similar nature.
SITUATIONS THAT CAN POTENTIALLY BE QUALIFIED AS NIAC
The language employed in Common Article 3 exhibits a notable degree of abstraction and vagueness, thereby failing to furnish a suitable framework for elucidating the essential characteristics of a NIAC. Its textual composition solely serves to establish the requisite condition that such a conflict must occur in the territory of one of the High Contracting Parties. It is exclusively through an examination of Protocol II, as well, that one can attain a more profound comprehension of the intricacies inherent in the nature of a NIAC. It is pertinent to observe that the issue assumes a disconcerting aspect within the prevailing milieu, characterized by the fact that the Geneva Conventions enjoy ratification by 196 states, whereas the scope of adherence to Additional Protocol II encompasses a more limited cohort of 169 states. Notably, within this context, it merits attention that several influential nations, including but not limited to the United States, India, Pakistan, Turkey, Iran, Iraq, Syria, and Israel, have abstained from the process of ratification.
According to the Article 1 of the Protocol II, which 'develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of applications', armed conflicts 'which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol' are to be qualified as NIAC.
Therefore, the following requirements should be duly satisfied for a situation to attain the qualification of a NIAC and for the Article 1 of the Protocol II to be applicable. o It should take place in the territory of a High Contracting Party, o It should take place between its armed forces and dissident armed forces or other organized armed groups,
o those armed groups should be under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.
Obviously, the scope of application of the Common Article 3 is wider than that of Article 1 of the Protocol II, but why? ICRC commentaries suggest that the Conference chose in favour of the solution which makes the scope of protection dependent on intensity of the conflict. (Sandoz, Yves, et al.. Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. ICRC, 1986, page 1351, para. 4457).
REQUISITE THRESHOLD THAT A SITUATION MUST SURPASS TO WARRANT CLASSIFICATION AS A NIAC
Now that we have discerned the situation that are eligible to qualify as NIAC from those that are not, our next step entails the determination of the threshold. Crossing this threshold will signify the transformation of a given situation into a NIAC.
Under contemporary international humanitarian law, we can distinguish three different minimum thresholds of non-international armed conflicts:
1. non-international armed conflicts according to Common article 3 (lowest threshold), as applicable to article 8 para. 2 (c) and (d) Rome Statute;
2. non-international armed conflicts according to article 8 para. 2 (e) and (f) Rome Statute (slightly higher threshold); and
3. non-international armed conflicts according to article 1 Add. Prot. II (highest threshold, but may have been altered by customary international law).
The threshold of the first category, Common article 3 non-international armed conflicts, is only vaguely defined under treaty law, as we have discussed above. A NIAC typically involves armed confrontations within the boundaries of one single state and involving armed confrontations between the authorities of that state and dissident armed forces or non-governmental organized armed groups, or among such armed groups. While Common article 3 does not explicitly require the existence of 'organized armed groups', state practice and opinio iuris seem to suggest a requirement that the groups confronting each other are armed and possess a minimum degree of organization in order to make humanitarian law applicable (Triffterer, Otto and Kai Ambos. Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article. 2nd ed., 2008, p. 313).
The threshold of article 8 para. 2 (e) and (f) Rome Statute does not include the higher requirements of Additional Protocol II, but rather is identical to the threshold of Common article 3, with the only difference that the conflict in addition must be 'protracted' (Triffterer, Otto and Kai Ambos. Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article. 2nd ed., 2008, p. 314). The notion had been drawn from ICTY case law (Prosecutor v. Tadic', IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal, 2 Oct. 1995, para. 70), with one Trial Chamber adding that 'in order to distinguish from cases of civil unrest or terrorist activities, the emphasis is on the protracted extent of the armed violence and the extent of organisation of the parties involved' (Prosecutor v. Delalic' et al., IT-96-21-T, Judgment, 16 Nov. 1998, paras. 183-184).
The threshold of the third category is in contrast to Common article 3, Additional Protocol thus requires that one of the parties to the conflict are governmental armed forces, that adversary organized armed groups are under responsible command, and that such armed groups exercise territorial control. However, since delegations in Rome generally agreed to only codify in article 8 what already constituted customary international law, it seems that the additional requirements spelled out under article 1 of the Protocol have become somewhat void.
It is widely accepted that non-international armed conflicts in the general sense of Common Article 3 also include armed conflicts in which no state is involved, that is, armed conflicts whose parties are exclusively non-state armed groups (Prosecutor v. Tadic', IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal, 2 Oct. 1995, para. 70). Note that Protocol II does not regulate such cases. With the adoption of the ICC Statute in 1998, states reaffirmed that they considered that a conflict that takes place only between different armed groups and does not involve any state can also amount to NIAC. Article 8(2)(d) of the 1998 ICC Statute, determining the scope of application of Article 8(2)(c), does not introduce a limitation to non-international armed conflicts involving at least one State, even though it otherwise makes use of notions developed in Additional Protocol II. Furthermore, according to Article 8(2)(f) of the Statute, Article 8(2)(e) explicitly applies to 'armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.'
A comprehensive examination of the case law of tribunals, such as ICC, ICTY and ICTR, enables us to state that there exists a widely accepted understanding that the classification of a situation as a NIAC necessitates the fulfillment of two essential criteria: (a) intensity of the conflict and (b) organization of the armed groups involved (Prosecutor
v. Bosco Ntaganda, ICC-01/04-02/06-309, Decision pursuant to Art. 61(7)(a) and (b) of the Rome Statute on the charges of the Prosecutor against Bosco Ntaganda, 9 June 2014, para. 716; Prosecutor v. Boskoski and Tarculovski, IT-04-82-T, Trial Judgment, 10 July 2008, para 176; Prosecutor v. Delalic' et al., IT-96-21-T, Judgment, 16 Nov. 1998, paras. 183-184).
It is incumbent upon us to now undertake a discrete examination of each criterion and elucidate its inherent implications. In our considered assessment, the Boskoski case (Prosecutor v. Boskoski and Tarculovski, IT-04-82-T, Trial Judgment, 10 July 2008) provides the most comprehensive elucidation of the essence and parameters of the criteria when compared to the cited cases. Consequently, we shall heavily rely upon this case as a primary source in our research endeavor.
THE INTENSITY CRITERIA EXPLAINED
Various indicative factors have been taken into account by Trial Chambers to assess the "intensity" of the conflict. These include
o the seriousness of attacks and whether there has been an increase in armed clashes,
o the spread of clashes over territory and over a period of time, o any increase in the number of government forces and mobilisation and the distribution of weapons among both parties to the conflict,
o as well as whether the conflict has attracted the attention of the United Nations Security Council, and whether any resolutions on the matter have been passed, o the number of civilians forced to flee from the combat zones, o the type of weapons used, in particular the use of heavy weapons, and other military equipment, such as tanks and other heavy vehicles,
o the blocking or besieging of towns and the heavy shelling of these towns, o the extent of destruction,
o the number of casualties caused by shelling or fighting, o the quantity of troops and units deployed, o existence and change of front lines between the parties, o the occupation of territory, and towns and villages, o the deployment of government forces to the crisis area, o the closure of roads, o cease fire orders and agreements,
o the attempt of representatives from international organisations to broker and enforce cease fire agreements (Prosecutor v. Boskoski and Tarculovski, IT-04-82-T, Trial Judgment, 10 July 2008, para. 177).
THE ORGANIZATION CRITERIA EXPLAINED
Government armed forced are generally recognized to possess the organization criteria (Melzer, Nils and Etienne Kuster. International Humanitarian Law, A Comprehensive Introduction. ICRC, 2017, page 69.). Trial Chambers have taken into account a number of factors when assessing the organisation of non-governmental armed group. These fall into five broad groups
o In the first group are those factors signaling the presence of a command structure, such as the establishment of a general staff or high command, which appoints and gives directions to commanders, disseminates internal regulations, organizes the weapons supply, authorises military action, assigns tasks to individuals in the organisation, and issues political statements and communiqués, and which is informed by the operational units of all developments within the unit's area of responsibility. Also included in this group are factors such as the existence of internal regulations setting out
the organisation and structure of the armed group; the assignment of an official spokesperson; the communication through communiqués reporting military actions and operations undertaken by the armed group; the existence of headquarters; internal regulations establishing ranks of servicemen and defining duties of commanders and deputy commanders of a unit, company, platoon or squad, creating a chain of military hierarchy between the various levels of commanders; and the dissemination of internal regulations to the soldiers and operational units.
o Secondly, factors indicating that the group could carry out operations in an organised manner have been considered, such as the group's ability to determine a unified military strategy and to conduct large scale military operations, the capacity to control territory, whether there is territorial division into zones of responsibility in which the respective commanders are responsible for the establishment of Brigades and other units and appoint commanding officers for such units; the capacity of operational units to coordinate their actions, and the effective dissemination of written and oral orders and decisions.
o In the third group are factors indicating a level of logistics have been taken into account, such as the ability to recruit new members; the providing of military training; the organised supply of military weapons; the supply and use of uniforms; and the existence of communications equipment for linking headquarters with units or between units.
o In a fourth group, factors relevant to determining whether an armed group possessed a level of discipline and the ability to implement the basic obligations of Common Article 3 have been considered, such as the establishment of disciplinary rules and mechanisms; proper training; and the existence of internal regulations and whether these are effectively disseminated to members.
o A fifth group includes those factors indicating that the armed group was able to speak with one voice, such as its capacity to act on behalf of its members in political negotiations with representatives of international organisations and foreign countries; and its ability to negotiate and conclude agreements such as cease fire or peace accords (Prosecutor v. Boskoski and Tarculovski, IT-04-82-T, Trial Judgment, 10 July 2008, paras. 199-203).
DENIAL OF THE EXISTENCE OF OTHER CRITERIA
It is imperative to underscore that certain rulings rendered by international tribunals have, at times, been misconstrued as endeavors to establish novel criteria. For example, in the case of Delalic, (Prosecutor v. Delalic' et al., IT-96-21-T, Judgment, 16 Nov. 1998, para. 184) the Trial Chamber of ICTY has stated that ' [... ] in order to distinguish from cases of civil unrest or terrorist activities, the emphasis is on the protracted extent of the armed violence and the extent of organisation of the parties involved', due to which the misconception was formed that the duration of the armed conflict is also a criterion. To put an end to this misconception, the ICTY later stated, 'Trial Chambers have relied on indicative factors relevant for assessing the "intensity" criterion, none of which are, in themselves, essential to establish that the criterion is satisfied. These indicative factors include [...] duration and intensity of individual confrontations' (Prosecutor v. Haradinaj et al., IT-04-84-T, Trial Judgment, 3 April 2008, para. 49).
Over the years, the purpose of engaging in acts of violence has also been openly rejected as a separate criterion, and a criterion in general. According to the ICTY, 'the determination of the existence of an armed conflict is based solely on two criteria: the intensity of the conflict and organisation of the parties, the purpose of the armed forces to engage in acts of violence or also achieve some further objective is, therefore, irrelevant' (Prosecutor v. Limaj et al., IT-03-66-T, ICTY, Trial Judgment, 30 November 2005, para 170).
CONCLUSION
In the light of our findings presented above, we have concluded that for a situation to qualify as a NIAC, it must meet two mandatory requirements.
• Fall within the range of situations that can potentially qualify as NIACs.
• Surpass the required threshold, namely, first, achieve a certain level of intensity, and second, involve parties that exhibit a sufficient degree of organization.
REFERENCES
1. Sandoz, Yves, et al.. Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. ICRC, 1986.
2. Geneva Conventions of 12 August 1949
3. Melzer, Nils and Etienne Kuster. International Humanitarian Law, A Comprehensive Introduction. ICRC, 2017.
4. Triffterer, Otto and Kai Ambos. Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article. 2nd ed., 2008.
5. Prosecutor v. Tadic', IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal, 2 Oct. 1995
6. Prosecutor v. Delalic' et al., IT-96-21-T, Judgment, 16 Nov. 1998
7. Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06-309, Decision pursuant to Art. 61(7)(a) and (b) of the Rome Statute on the charges of the Prosecutor against Bosco Ntaganda, 9 June 2014
8. Prosecutor v. Boskoski and Tarculovski, IT-04-82-T, Trial Judgment, 10 July 2008
9. Prosecutor v. Haradinaj et al., IT-04-84-T, Trial Judgment, 3 April 2008
10. Prosecutor v. Limaj et al., IT-03-66-T, ICTY, Trial Judgment, 30 November 2005
11. Protocol Additional to the Geneva Conventions Of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977
12. Protocol Additional to the Geneva Conventions Of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977
13. Rome Statute
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НЕКОТОРЫЕ ВОПРОСЫ КВАЛИФИКАЦИИ НМВК В КОНТЕКСТЕ МЕЖДУНАРОДНОГО ГУМАНИТАРНОГО ПРАВА
ТАРОН СИМОНЯН
доцент кафедры теории и истории права и государства юридического факультета Ереванского государственного университета, к. ю. н., партнер-учредитель юридической фирмы «ELL Partnership», г.Ереван, Республика Армения
МАРИЯ ОГАННЕСЯН
студентка 4-ого курса юридического факультета Ереванского государственного университета, эксперт офиса Представителя РА по международно-правовым вопросам г.Ереван, Республика Армения
Целью данного исследования является разработка подробного «руководства» по процессу характеристики ситуации как немеждународного вооруженного конфликта (НПВК). Для достижения этой цели мы поставили перед собой следующие задачи: во-первых, очертить круг ситуаций, которые можно квалифицировать как ОМС, во-вторых, определить круг ситуаций, которые в принципе не могут быть квалифицированы как ОМС и, наконец, определение необходимого порога, который должна преодолеть ситуация, чтобы квалифицироваться как ОМС.
В ходе наших исследований использовались как общенаучные методы, такие, как систематический анализ, сравнение, индукция и дедукция, так и специальные научные методы - сравнительно-аналитический и нормативно-логический.
Мы пришли к выводу о том, что для того, чтобы ситуация могла квалифицироваться как ОМС, она должна сначала попасть в круг ситуаций, которые можно квалифицировать как ОМС. Кроме того, она должна превысить необходимый порог и достигнуть определенного уровня интенсивности, а участвующие стороны должны обладать достаточной степенью организованности.
Ключевые слова: международное гуманитарное право, немеждународный вооруженный конфликт, интенсивность, организация, МТБЮ, МУТР, МУС.
