Do We Need to Change International Humanitarian Law to Fit Modern Armed Conflict?
Written by Helena Gadsby.
International humanitarian law, otherwise referred to as the Law of Armed Conflict, is the area of international law that regulates warfare. Since the end of the Cold War, there has been a change in the practice of warfare, which has resulted in some need for a change in how international humanitarian law operates.
International Humanitarian Law
Popular culture often refers to conflict as war. Yet the expression ‘war’ has become obsolete in modern warfare – there have been no formal declarations of war since the Soviet declaration of war on Japan in August 1945. What is commonly referred to as war is armed conflict. This shift in terminology is down to the adoption of the UN Charter and various international legal documents since then – most notably the Geneva Convention 1949 and its Additional Protocols I and II. The main reason for this shift was due to the nature of war and declaratory nature of its existence; it was required that states declare war on another state in order for it to exist, so states would fail to make a declaration of war in order to avoid being bound by the law regulating it. Equally, the term ‘armed conflict’ was preferable as it is a purely factual description of a situation.
The scope to which humanitarian law covers is vast – it regulates not only the rules of conduct (for example, the weapons that can and cannot be used), but also how to deal with the different actors in the conflict – this ranges from the belligerents and prisoners of war to the protection of victims. The law therefore dictates what is the legitimate use of force in situations of armed conflict and it is applicable to all parties, regardless of the legality of their resort to force. However, there are different rules that apply according to the type of armed conflict.
International and non-international armed conflict: the current model
Under international law, armed conflicts are classified as either an international armed conflict or a non-international armed conflict.
A non-international armed conflict is, as the name suggests, internal in nature. Article 3, Geneva Convention confirms this, emphasis placed in that they occur ‘in one of the High Contracting Parties’. The relevant articles of the Geneva Convention and then Additional Protocol II govern these conflicts but despite this legal regulation, international humanitarian law fails to define precisely what an ‘armed conflict’ is in regard to a non-international armed conflict. This has created ambiguity in the past over how to distinguish between a non-international armed conflict and an internal disturbance. The distinction is of upmost importance because, if it does not meet the threshold for armed conflict, then international humanitarian law will not be applicable and parties will not be regulated in their methods and use of force. Fortunately, the formulation of armed conflict found in the Tadić (1995), a case concerning prosecution over war crimes, is now regarded as good law. In Tadić, the International Criminal Tribunal for the former Yugoslavia established 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.”
This emphasises that three key things are needed to meet the threshold of a non-international armed conflict: duration, intensity and organisation. Therefore the actions in question cannot be mere acts of violence such as riots, isolated and sporadic acts of violence. Should the threshold not be met, it will be domestic law and not international humanitarian law that is applicable.
An international armed conflict involves conflict between states. Article 2 Geneva Convention describes this type of armed conflict as;
‘all cases of declared war or of any 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’.
Unlike a non-international armed conflict, there is no requirement for intensity or duration. All that is required is that two states are in conflict against each other. A clear example of this is the conflict between North and South Korea in 1950 – two States were against each other.
Even though there is distinction between these two types of conflict, a non-international armed conflict has the potential to become ‘internationalized’ through the involvement of forces from other states. This is restricted to cases where the foreign state is intervening on the sides of the insurgents: only then is the key requirement of two states being in conflict met. When a state intervenes in an internal conflict by providing assistance to governmental forces, the conflict is said to remain non-international in nature. Once an armed conflict has become internationalized, it will be categorised at an international conflict until such point as the international intervention ceases. On first glance, this appears to be the solution to the problems of the law. However, there is not actually anything regulating the rules of internationalization and this means that there is still great uncertainty in regards to the rules in this topic.
This traditional distinction between the two types of conflict retains importance in international law, despite the issues that it raises in regard to the modern armed conflict. The current trend of conflicts tends to not fall within the scope of either international armed conflicts or non-international armed conflicts. Instead they are taking place in a globalised context, involving both state and non-state actors.
Simply put, if a non-international armed conflict occurs within the boundaries of one state between the state government and another group within the state, and international armed conflict occurs when two states are fighting each other, then there appears to be a gap in the law in regards to the modern conflicts being fought.
A great example of this is the conflict with so-called Islamic State. Due to the nature of hostilities in the area, it is not as straight forward as a rebel group against government forces. Even when focusing on the conflict in Syria, it is not straightforward. There are many different groups involved in the conflict, some fighting against the Syrian government forces, some fighting IS fighters and some fighting both. Additionally, there is the international aspect of the conflict. Not only is Islamic State occupying land beyond Syrian borders, many states have got involved in the conflict – the UK is not alone in authorising air strikes in Syria. But the international intervention does not make this an international armed conflict – or even an internationalized armed conflict. The UK’s intervention is neither in support nor against the Syrian government, but instead is focused against their personal target.
Clearly, there are definitional problems – the conflict is not non-international as there are international actors and it is not occurring solely in the territory of the state in question. Yet because there are no two states involved in conflict against each other it cannot qualify as international armed conflict.
This leaves international lawyers with the challenge of working out what to do next. Commentators are, and have been for quite some time, unhappy with this dichotomy between international and non-international armed conflict. Thus far, there have been four possible solutions suggested to ‘solve’ the problem: the abolition of different branches of armed conflict, the development of a new type of conflict, redefining non-international conflicts or re-examining international ones.
What modern conflict suggests is that conflict has developed into a new faze, that of being hybrid, where there is cross over in the distinction between international and non-international, which has become blurred. It would not be illogical from this to deduct that the distinction between the two should become irrelevant and that there should only be armed conflict per se, instead of different branches of it. This integration of conflict has had strong academic support. Nonetheless, there is little political support for this idea, and without political support there is no chance of this concept developing beyond academic thinking.
Extra-territorial conflict would be a new type of armed conflict that would deal with these modern conflicts that cross the borders between international and non-international. Whilst extra-territorial conflict is a term found in academia, and has had great academic support, it is not found in treaties. What this means is that there is nothing to regulate these conflicts and states would not be what regulations would apply to them.
The third suggestion, that non-international armed conflicts get redefined, is certainly a strong argument due to the nature of the regulation governing them. International humanitarian law provides greater regulation to international armed than non-international ones and there is wide consensus that the threshold of violence that is required for the application of international humanitarian law in non-international armed conflicts is higher than in international armed conflict. A redefinition would happen through an alteration in state practice and it would be a great way to embrace the development of conflicts and the problems with this type of conflict. Yet, in doing this, it would go against the intentions of the writers/authors of the law. Had they wanted a non-international armed conflict to have such scope, they would have included it in the writings, and so for states to alter practice may cause problems.
Re-examining IACs is the last suggestion being put forward. By doing this, international armed conflicts could include any situation that include at least two states, regardless of the their involvement. Once again, this would develop through state practice in that they would recognise that an international armed conflict had developed as soon as two or more states were involved in a conflict. Although this would not be problematic in regards to the writer’s intention, a change in state practice always causes problems in international law and thus re-examination would not be without problems.
International humanitarian law looks to create a system of law that will be applicable to all in situations of armed conflict. Whilst it does provide a wide range of regulation, the distinction between the two branches is somewhat problematic in regard to modern conflicts. International law has strived to sole this, most notably by the adoption of human rights law and the developments in the international tribunals, but there is still a gap that needs to be filled, which will most likely exist until customary law has developed.
 Prosecutor v. Dusko Tadic (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), IT-94-1, International Criminal Tribunal for the former Yugoslavia (ICTY), 2 October 1995, paragraph 70.