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Published online by Cambridge University Press: 22 July 2021
This paper examines the notion of intensity in the context of common Article 3 and Additional Protocol II (AP II) to the Geneva Conventions in order to establish whether AP II demands a different intensity threshold from the minimum threshold of intensity contemplated in common Article 3. The paper considers the question of whether the inclusion of the term “sustained” in the phrase “sustained and concerted military operations” intrinsic to the threshold in Article 1(1) of AP II introduces a temporal requirement in addition to mere protracted armed violence. The paper argues that the inclusion of the term “sustained” in Article 1(1) of AP II potentially demands prolonged protracted armed violence. The research aims to contribute to the existing literature on the notion of intensity demanded by the scope of application inherent in AP II through an interrogation of the phrase “sustained” military operations by employing the rules of treaty interpretation and by examining relevant case law and scholarly debate. In this way, the author hopes to contribute towards filling a lacuna with regard to the minimum threshold for intensity in the context of treaty law concerned with the classification of non-international armed conflicts.
This paper is based on research supported by the National Research Foundation of South Africa (Grant No. 85104). The author is grateful to Professors Christo Botha, Erika de Wet, Jann Kleffner, Annelize Nienaber and Hennie Strydom, Doctors Aniel de Beer and Walter McKay, Ms Tamalin Bolus, Ms Isabeau de Meyer and Ms Jessie Phyffer, and to the anonymous reviewers for comments on earlier drafts of the paper. The author also expresses her thanks to the Editor-in-Chief of the Review, Mr Bruno Demeyere, and his colleagues at the Review, especially Mr Sai Venkatesh and Mr Ash Stanley-Ryan, for their valued input and their encouragement to bring this paper to fruition.
1 Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflict, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978). See Annyssa Bellal, The War Report: Armed Conflicts in 2018, Geneva Academy, April 2019 (2018 War Report), available at: www.geneva-academy.ch/joomlatools-files/docman-files/The%20War%20Report%202018.pdf (read together with Annyssa Bellal, The War Report: Armed Conflicts in 2017, Geneva Academy, March 2018, available at: www.geneva-academy.ch/joomlatools-files/docman-files/The%20War%20Report%202017.pdf; and Annyssa Bellal, The War Report: Armed Conflicts in 2016, Geneva Academy, March 2017, available at: www.geneva-academy.ch/joomlatools-files/docman-files/The%20War%20Report%202016.pdf (all internet references were accessed in July 2021)) for a summary of situations that were continuing in 2018. These include the violent situations in Afghanistan (p. 51), Egypt (p. 64), Mali (p. 80), South Sudan (p. 87), Ukraine (p. 94) and Yemen (p. 104). See also Geneva Academy, “Conflicts”, RULAC, available at: http://www.rulac.org/browse/conflicts.
2 Common Article 3 is common to all four Geneva Conventions. 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); Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950); Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950). AP II, Art. 1(1): “This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 …” (emphasis added). For a discussion of the drafting history of AP II as well as an analysis of its content, see Moir, Lindsay, The Law of Internal Armed Conflict, Cambridge University Press, Cambridge, 2003, pp. 89–132Google Scholar; Zegveld, Liesbeth, Accountability of Armed Opposition Groups in International Law, Cambridge University Press, Cambridge, 2002, pp. 9–34CrossRefGoogle Scholar. In essence, AP II expands on the contents of common Article 3 by incorporating detailed rules that regulate fundamental guarantees of humane treatment (Articles 4 and 5); judicial guarantees (Article 6); the treatment of the wounded, the ill and the shipwrecked (Articles 7 and 8); and the use of the red cross emblem (Article 12).
3 Common Article 2 gives content to the notion of “international armed conflict” by determining that “[t]he present Convention shall apply to all cases of declared war or of any other 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” (emphasis added). In its Ntaganda decision of 8 July 2019, Trial Chamber VI of the International Criminal Court (ICC) defined an international armed conflict to exist “whenever there is a resort to armed force between states”: ICC, Situation in the Democratic Republic of the Congo, in the Case of The Prosecutor v. Bosco Ntaganda, Case No. ICC-01/04-02/06, Judgment (Trial Chamber VI), 8 July 2019, para. 700. For a better understanding of the construct “international armed conflicts”, see Sassòli, Marco, “Scope of Application: When Does IHL Apply?”, in Sassòli, M., International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, Edward Elgar, London, 2019, pp. 169–180CrossRefGoogle Scholar.
4 The concept of non-international armed conflict is not defined in treaty law. The opposing sides in a non-international armed conflict must be either the armed forces of the territorial State opposing a non-State fighting unit or non-State fighting units opposing one another in the absence of State involvement. In the Tadić Opinion and Judgment, Trial Chamber I of the International Criminal Tribunal for the Former Yugoslavia (ICTY) determined that a non-international armed conflict in the context of common Article 3 exists when the fighting unit of the organized armed group involved in the conflict is sufficiently organized and the violence associated with the conflict is protracted in nature. ICTY, Prosecutor v. Duško Tadić AKA “Dule”, Case No. IT-94-1-T, Opinion and Judgment (Trial Chamber I), 7 May 1997, para. 562: “The test applied by the Appeals Chamber to the existence of an armed conflict for the purposes of the rules contained in common Article 3 focuses on two aspects of a conflict, namely the intensity of the conflict and the organization of the parties to the conflict. In an armed conflict of an internal or mixed character, these closely related criteria are used solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law.” See also ICTY, Prosecutor v. Duško Tadić AKA “Dule”, Case No. IT-94-1-A, A.Ch, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 19 July 1998, para. 70; ICC, Ntaganda, above note 3, para. 703. For an overview of the distinction between international armed conflict and non-international armed conflict, see Mačák, Kubo, Internationalized Armed Conflicts in International Law, Oxford Monographs in International Humanitarian and Criminal Law, 2018, pp. 9–23CrossRefGoogle Scholar.
5 Common Article 2 to the Geneva Conventions gives content to the difference between the actors involved in an armed conflict that is deemed to be either “international” or “not international in character” within the scope of application of the Geneva Conventions: “[T]he present Convention shall apply to all cases of declared war or of any other 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.”
6 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 expands the notion of international armed conflict to include armed conflicts in which peoples oppose colonial governments, racist regimes or alien occupation, or are asserting a right to self-determination. Article 1(4) of AP I determines: “The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.”
7 The two categories are common Article 3-type non-international armed conflict and AP II-type non-international armed conflict. It is important to mention that the existence of distinct categories under treaty law does not mean that more than one category of non-international armed conflict exists under IHL.
8 Trial Chamber I of the ICTY refined the Tadić formula (see ICTY, Tadić, Decision on the Defence Motion, above note 4, para. 70) to serve as the definitive criterion for determining the existence of a non-international armed conflict under common Article 3, specifically in the Tadić Opinion and Judgment, above note 4, para. 562. For a discussion of the organizational criterion, see Martha M. Bradley, “Revisiting the Notion of ‘Organized Armed Group’ in Accordance with Common Article 3: Exploring the Inherent Minimum Threshold Requirements”, African Yearbook on International Humanitarian Law, 2018, pp. 55–58. For an overview of the intensity requirement under common Article 3, see Bradley, Martha M., “Revisiting the Notion of ‘Intensity’ Inherent in Common Article 3: An Examination of the Minimum Threshold which Satisfies the Notion of ‘Intensity’ and a Discussion of the Possibility of Applying a Method of Cumulative Assessment”, International Comparative Law Review, Vol. 17, No. 2, 2017, pp. 13–27CrossRefGoogle Scholar.
9 See Article 1(1) of AP II, which determines its scope of application.
10 See Dinstein, Yoram, Non-International Armed Conflicts in International Law, Cambridge University Press, Cambridge, 2014, p. 38CrossRefGoogle Scholar. Dinstein describes this moment when the application of common Article 3 is triggered thusly: “Whenever the preconditions of a NIAC [non-international armed conflict] are met, the first threshold is crossed. This threshold marks the timeslot when the bare bones of intra-state violence suffice for it to be classified as a NIAC. Once they are past the first threshold, common Article 3 – given the bland formula used in its chapeau … – is activated.”
11 Andrew J. Carswell (ed.), Handbook on International Rules Governing Military Operations, International Committee of the Red Cross (ICRC), Geneva, 2013, pp. 68–70, para. 2.5, p. 59, para. 2.3.3.2, available at: www.icrc.org/en/publication/0431-handbook-international-rules-governing-military-operations. Because a textual interpretation of common Article 3 does not provide insight, Article 31 of the Vienna Convention on the Law of Treaties cannot be employed to aid interpretation. Vienna Convention on the Law of Treaties, 1155 UNTS 331, 23 May 1969 (entered into force 27 January 1980) (Vienna Convention),
12 ICTY, Tadić, Opinion and Judgment, above note 4, para. 562.
13 M. Sassòli, above note 3, p. 181.
14 See Article 1(1) of AP II, which determines its scope of application.
15 AP II, Art. 1(1): “This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and 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.”
16 For an in-depth examination of the territorial control requirement under Article 1(1) of AP II, see Bradley, Martha M., “Classifying Non-International Armed Conflicts: The ‘Territorial Control’ Requirement under Additional Protocol II in an Era of Complex Conflicts”, Journal of International Humanitarian Legal Studies, Vol. 11, No. 2, 2020CrossRefGoogle Scholar.
17 ICTY, Tadić, Decision on the Defence Motion, above note 4, para. 70. For a discussion of the role of the jurisprudence of the ICTY in the development of the notion of “protracted armed violence”, see Hrnjaz, Miloš and Popović, Janja Simentić, “Protracted Armed Violence as a Criterion for the Existence of Non-International Armed Conflict: International Humanitarian Law, International Criminal Law and Beyond’, Journal of Conflict and Security Law, Vol. 25, No. 3, 2020, pp. 7–11CrossRefGoogle Scholar (advance copy), available at: https://doi.org/10.1093/jcsl/kraa009.
18 ICTY, Tadić, Decision on the Defence Motion, above note 4, para. 70. For a general overview of the notion of intensity, see Sivakumaran, Sandesh, The Law of Non-International Armed Conflict, Oxford University Press, Oxford, 2014, pp. 167–170Google Scholar; International Law Association, “The Hague Conference (2010): Use of Force: Final Report on the Meaning of Armed Conflict in International Law”, in Mary Ellen O'Connell (ed.), What Is War? An Investigation in the Wake of 9/11, International Humanitarian Law Series, Vol. 37, Martinus Nijhoff, Leiden and Boston, MA, 2012, pp. 15, 20; 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, 2016 (2016 Commentary on GC I), paras 423–428.
19 International Law Association, above note 18, p. 15, fn. 67. For a discussion of the law enforcement paradigm as applicable to isolated and sporadic acts of violence, see Y. Dinstein, above note 10, pp. 22–23; A. J. Carswell, above note 11, p. 60, para. 2.3.3.5; 2016 Commentary on GC I, above note 18, para. 431, fn. 138.
20 Factors indicating whether the organizational requirement has been met have been categorized to include the existence of a command structure; the military capacity of the armed group; the logistical capacity of the armed group; the existence of an internal disciplinary system and the ability to implement IHL; and the armed group's ability to speak with one voice on its own behalf. ICTY, Prosecutor v. Boškoski and Tarculovski, Case No. IT-04-82-T, Judgment (Trial Chamber), 10 July 2008, paras 199–203; ICTY, Prosecutor v. Ramush Haradinaj Idriz Balaj Lahi Brahimaj, Case No. IT-04-84-T, Judgment (Trial Chamber), 3 April 2008, para. 52. These factors, however, are indicative only, and it has not been clarified whether any of them are constitutive. ICTY, Prosecutor v. Milošević, Case No. IT-02-54-T, Decision on the Motion for Judgment of Acquittal (Trial Chamber), 16 June 2004, paras 23–24.
21 For a discussion of how these requirements relate to the notion of “organized armed group”, see Vité, Sylvain, “Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations”, International Review of the Red Cross, Vol. 91, No. 873, 2000, pp. 79–80Google Scholar; Junod, Sylvie, “Additional Protocol II: History and Scope”, American University Law Review, Vol. 33, No. 1, 1983, p. 37Google Scholar.
22 For a general overview of the importance of conflict classification, see M. M. Bradley, “Revisiting the Notion of ‘Organized Armed Group’”, above note 8, pp. 55–58; Carl Marchand and Gian Luca Beruto (eds), The Distinction Between International and Non-International Armed Conflicts: Challenges for IHL? 38th Round Table on Current Issues of International Humanitarian Law (San Remo, 3–5 September 2015), International Institute of Humanitarian Law, 2016, pp. 46–49; M. Sassòli, above note 3, pp. 168–203. For an overview of the differentiation of IHL applicable to international and non-international armed conflicts as well as the areas of contention owing to this differentiation, see Sassòli, Marco, “International and Non-International Armed Conflicts”, in Sassòli, M., International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, Edward Elgar, London, 2019CrossRefGoogle Scholar.
23 For a discussion of the meaning of the term “the law of non-international armed conflict”, see Y. Dinstein, above note 10, p. 3. For a breakdown and comprehensive discussion of the sources of the law of non-international armed conflict, see S. Sivakumaran, above note 18, pp. 101–152; L. Moir, above note 2, pp. 30–210. Under the law of non-international armed conflict, the legal rules applicable to a common Article 3-type conflict apply to all categories of non-international armed conflict.
24 See M. M. Bradley, “Revisiting the Notion of ‘Organized Armed Group’”, above note 8, pp. 57, 61.
25 The available literature concerning AP II is limited compared to scholarly work about common Article 3; an insightful work into AP II is S. Junod, above note 21, p. 29. This neglect may be either because some scholars consider these additional criteria for its scope of limitation to be clear, or because this instrument is not frequently used. For a discussion of the application of AP II in practice, see L. Moir, above note 2, pp. 119–132. As this treaty is the most comprehensive instrument regulating the law of non-international armed conflict, an objective assessment of whether or not an AP II-type armed conflict exists is critical. For an overview of the content of this treaty, see L. Zegveld, above note 2, pp. 9–34; Cassese, Antonio, “The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts”, International and Comparative Law Quarterly, Vol. 30, No. 2, 1981CrossRefGoogle Scholar, available at: www.jstor.org/stable/759535; L. Moir, above note 2, pp. 109–132.
26 L. Moir, above note 2, pp. 99–108; S. Sivakumaran, above note 18, pp. 182–9; S. Junod, above note 21.
27 For an overview of contemporary armed conflict, see 2018 War Report, above note 1.
28 AP II, Art. 1(1): “This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 …” (emphasis added). For a discussion of the drafting history of AP II as well as an analysis of its content, see L. Moir, above note 2, pp. 89–132; L. Zegveld, above note 2, pp. 9–34; A. Cassese, above note 25, p. 416. In essence, AP II expands on the contents of common Article 3 by including detailed rules regulating fundamental guarantees of humane treatment (Articles 4 and 5); judicial guarantees (Article 6); the treatment of the wounded, sick and shipwrecked (Articles 7 and 8); and the use of the red cross emblem (Article 12). AP II provides specific rules for the protection of children during non-international armed conflicts (Article 4(3)) and offers rules that provide for the protection of medical personnel and units as well as enabling medical personnel to perform their duties (Articles 9–12). AP II further provides rules for the conduct of hostilities, including for the protection of the civilian population against attacks (Article 13); for protecting objects indispensable to the survival of the civilian population (Article 14); for offering protection to works and installations harbouring dangerous forces (Article 15); and for protecting cultural objects (Article 16). AP II also prohibits the forced movement of civilians (Article 17) and allows for and regulates relief operations (Article 18).
29 For an overview of the content and relevance of AP II, see Fausto Pocar and Gian Luca Beruto (eds), The Additional Protocols 40 Years Later: New Conflicts, New Actors, New Perspectives: 40th Round Table on Current Issues of International Humanitarian Law (San Remo, 7th–9th September 2017, International Institute of Humanitarian Law, 2018.
30 Such complex conflicts exist outside the African continent – for instance, the situation in Syria. For a description of the situation in Syria as at the end of 2018, see 2018 War Report, above note 1, pp. 123–135.
31 For an overview of the nature of the conflict in the Central African Republic and the parties involved, see ibid., pp. 82–92.
32 For an overview of the nature of the conflict in the Democratic Republic of the Congo and the parties involved, see ibid., pp. 93–101.
33 For an overview of the nature of the conflict in Mali and the parties involved, see ibid., pp. 102–116.
34 For an overview of the nature of the conflict in South Sudan and the parties involved, see ibid., pp. 116–123. The author wishes to note that the classification of situations by the Geneva Academy as cited in notes 30 to 34 should not be understood as representing the position of the ICRC.
35 Ministry of National Defence of Colombia, Executive Power Military Decree No. 15, 22 April 2016, pp. 4–5, available at: www.mindefensa.gov.co/irj/go/km/docs/Mindefensa/Documentos/descargas/Prensa/Documentos/dir_15_2016.pdf. See also C. Marchand and G. L. Beruto, above note 22, pp. 46–49.
36 A. J. Carswell, above note 11, pp. 68–69, para. 2.5; Charles Garraway, “Military Manuals, Operational Law and the Regulatory Framework of the Armed Forces”, in Nobuo Hayashi (ed.), National Military Manuals on the Law of Armed Conflict, 2nd ed., FICHL Publication Series No. 2, 2010, p. 52. Military manuals serve to disseminate the law of armed conflict for this purpose.
37 For a discussion of the meaning of the term “the law of non-international armed conflict”, see Y. Dinstein, above note 10, p. 3. For a breakdown and comprehensive discussion of the sources of the law of non-international armed conflict, see S. Sivakumaran, above note 18, pp. 101–152; L. Moir, above note 2, pp. 30–210.
38 See M. M. Bradley, “Revisiting the Notion of ‘Organized Armed Group’”, above note 8, p. 57. It is important to emphasize, however, that at all times customary IHL also applies.
39 ICTY, Tadić, Decision on the Defence Motion, above note 4, para. 70. See also 2016 Commentary on GC I, above note 18, paras 423–435.
40 To offer a few examples: ICTY, Prosecutor v. Zejnil Delalic Zdravko Mucic, also known as “Pavo”, Hazim Delic Esad Landzo, also known as “Zenga”, Case No. IT-96-21-T, Judgment (Trial Chamber), 16 November 1998, paras 183–192; International Criminal Tribunal for Rwanda (ICTR), Prosecutor v. Jean-Paul Akayesu, Case No. ICTR 96-4-T, Judgment (Trial Chamber I), 2 September 1998, para. 627; ICTR, Prosecutor v. Alfred Musema, Case No. ICTR-96-13-A, Judgment and Sentence (Trial Chamber I), 27 January 2000, paras 248–251; ICTY, Milošević, above note 20, para. 24; ICTY, Prosecutor v. Fatmir Limaj, Haradin Bala, Isak Musliu, Case No. IT-03-66-T, Judgment (Trial Chamber II), 30 November 2005, paras 171–173; ICTR, Prosecutor v. Georges Anderson Nderubumwe Rutanganda, Case No. ICTR-96-3-T, Judgment and Sentence (Trial Chamber I), 6 December 1999, para. 93; ITY, Haradinaj, above note 20, para. 49; ICTY, Boškoski, above note 20, paras 199–203; ICC, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/00, Judgment Pursuant to Art. 74 of the Judgment (Trial Chamber), 14 March 2012, para. 538.
41 ICTY, Tadić, Opinion and Judgment, above note 4, para. 562 (emphasis added). See also ICTY, Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-A, Judgment (Appeals Chamber), 17 December 2004, para. 341, in which the Court stated that the significance of the term “protracted” in relation to the term “violence” stems from the aim of excluding cases of mere civil unrest or single acts of terrorism from cases of armed conflict not of an international character. This formulation aligns with the wording adopted in Article 1(2) of AP II.
42 Final Record of the Diplomatic Conference of Geneva of 1949, Vol. 2, Section B, Federal Political Department, Berne, 1949 (Final Record), p. 45, available at: www.loc.gov/rr/frd/Military_Law/RC-Fin-Rec_Dipl-Conf-1949.html: “[I]t was indispensable to distinguish between rebellion, which was more than an uprising but had not yet taken the proportion of a civil war, as was defined in international law.” Cf. ICTY, Boškoski, above note 20, para. 175; ICTY, Haradinaj, above note 20, para. 39.
43 2016 Commentary on GC I, above note 18, para. 435. The 2016 Commentary on GC I has been consulted to aid the interpretation of the construct “protracted armed violence”. Commentaries are important analytical tools, constituting “[a] teaching that explores the meaning of the provision – looking at its object and purpose, situating it in context, considering its drafting history, analysing subsequent practice, and canvassing relevant literature”. The ICRC Commentaries constitute an especially invaluable subsidiary source. Sivakumaran, Sandesh, “The Influence of Teachings of Publicists on the Development of International Law”, International and Comparative Law Quarterly, Vol. 66, No. 1, 2017, p. 15CrossRefGoogle Scholar. These Commentaries fill the role of publicist within the ambit of Article 38(1)(d) of the Statute of the International Court of Justice, TS No. 993, 26 June 1945 (entered into force 24 October 1945). See S. Sivakumaran, above note 18, pp. 3–5, 15–16, for an insightful review of the value of the ICRC's scholarly work in general and its Commentaries in particular.
44 2016 Commentary on GC I, above note 18, para. 427.
45 Cullen, Anthony, “Article 3 Common to the Four Geneva Conventions of 1949 and the Threshold of Non-International Armed Conflict in International Humanitarian Law”, in Cullen, A., The Concept of Non-International Armed Conflict in International Humanitarian Law, Cambridge University Press, Cambridge, 2010, pp. 27–29CrossRefGoogle Scholar.
46 Final Record, above note 42, pp. 12, 42–43, 129; A. Cullen, above note 45, pp. 27–51; Draper, G. I. A. D., “Humanitarian Law and Internal Conflicts”, Georgia Journal of International and Comparative Law, Vol. 13, 1983, pp. 263–268Google Scholar. See also International Law Association, above note 18, pp. 42–43. The drafting history is employed because the application of Article 31 of the Vienna Convention was not helpful. Article 32 of the Vienna Convention provides that the drafting history may be employed as a supplementary means of interpretation.
47 It appears that the drafters deemed the term “armed conflict not of an international character” to be synonymous in meaning with the contemporary understanding of the term “civil war”. A. Cullen, above note 45, pp. 42–43: “The Report drawn up by the Joint Committee and presented to the Plenary Assembly interprets the term ‘armed conflict not of an international character’ as having the same meaning as ‘civil war’. … Although some delegations favoured a more flexible and expansive approach to the application of international humanitarian norms, it appears that none contested or objected to the use of the term ‘civil war’ as synonymous with ‘armed conflict not of an international character’” (emphasis added). Final Record, above note 42, p. 129: “At the present Conference, the question immediately arose of deciding what was to be understood by ‘armed conflict not of an international character which may occur in the territory of one of the High Contracting Parties’. It was clear that this referred to civil war, and not to a mere riot or disturbances caused by bandits. States could not be obliged, as soon as a rebellion arose within their frontiers, to consider the rebels as regular belligerents to whose benefit the Conventions had to be applied” (emphasis added). The concept of a “civil war” was understood to be a conflict which in many instances was similar to an international armed conflict contemporary to the time of drafting, but which took place within the borders of one country and where only one of the armed forces confronting each other was the armed force of a state. Final Record, above note 42, p. 11: “As to civil war, the term ‘armed conflict’ should not be interpreted as meaning ‘individual conflict’, or ‘uprising’. Civil war was a form of conflict resembling international war, but taking place inside the territory of a state. It was not a conflict between a number of individuals.”
48 ICTY, Boškoski, above note 20; ICC, Lubanga, above note 40, para. 538; ICTY, Haradinaj, above note 20, para. 49; 2016 Commentary on GC I, above note 18, para. 432. For a discussion of case law promoting a better understanding of the notion of “intensity” under Common Article 3, see M. M. Bradley, “Revisiting the Notion of ‘Intensity’”, above note 8, pp. 17–27.
49 See Bradley, who provides examples of international courts and tribunals employing this threshold test: “Other international tribunals and courts, such as the International Criminal Court (ICC), have confirmed the indicative factors developed by the International Criminal Tribunal for the Former Yugoslavia in relation to ‘protracted violence’. For instance, in the Lubanga case the ICC contributed to the jurisprudence by explaining its understanding of ‘protracted violence’ in relation to Common Article 3. The ICC utilized the indicative factors used by Trial Chamber II of the International Criminal Tribunal for the Former Yugoslavia in the Mrksic case to determine whether the violence was sufficiently protracted. The International Criminal Tribunal for Rwanda referred to these indicative factors as forming part of an ‘evaluation test’ which it employed to determine whether situations were mere internal disturbances and tensions or whether they constituted armed conflicts in the legal sense. In the Akayesu case Chamber I of the International Criminal Tribunal for Rwanda concluded in its assessment of the intensity requirement that the evaluation of this threshold requirement was not dependent on a subjective judgment by the parties to the conflict but that it was an objective test.” M. M. Bradley, “Revisiting the Notion of ‘Intensity’”, above note 8, pp. 21–22, referring to ICC, Lubanga, above note 40, para. 538; ICTR, Akayesu, above note 40, para. 627; ICTR, Rutanganda, above note 40, para. 93; ICTR, Musema, above note 40, paras 248–251.
50 M. M. Bradley, “Revisiting the Notion of ‘Intensity’”, above note 8, pp. 21–22; see also p. 19.
51 For a discussion of the relationship between “duration” and “intensity”, see 2016 Commentary on GC I, above note 18, paras 438–44; S. Sivakumaran, above note 18, pp. 167–8, paras 88–97.
52 See M. M. Bradley, “Revisiting the Notion of ‘Intensity’”, above note 8, pp. 22–27, for a summary of the debate.
53 See 2016 Commentary on GC I, above note 18, para. 440.
54 Ibid.
55 IACHR, Juan Carlos Abella v. Argentina, Case No. 11.137, Report No. 55/97, Inter-Am CHR 271, OEA/Ser.L/V/11.98, doc. 6 rev., 13 April 1998 (La Tablada), para. 155.
56 Ibid.
57 Ibid.
58 Ibid.
59 S. Sivakumaran, above note 18, pp. 167–169.
60 Ibid.
61 Ibid. Moir agrees with Sivakumaran. Moir interprets the case law of the ICTY to suggest that, in an assessment of protracted armed violence, indicative factors concerned with the method of fighting should bear more weight than duration, and confirms that he also considers duration to be only one factor. Moir, Lindsey, “The Concept of Non-International Armed Conflict”, in Clapham, Andrew, Gaeta, Paola and Sassòli, Marco (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, Oxford, 2015, p. 410, para. 53Google Scholar.
62 Lewis, Dustin A., “The Notion of ‘Protracted Armed Conflict’ in the Rome Statute and the Termination of Armed Conflicts Under International Law: An Analysis of Select Issues” International Review of the Red Cross, Vol. 101, No. 912, 2019, p. 1099CrossRefGoogle Scholar.
63 Y. Dinstein, above note 10, pp. 34–35.
64 Ibid.
65 Ibid.
66 Tadesse Kebebew and Joshua Niyo, “Instant Non-International Armed Conflict? Classifying the Situation in Northern Ethiopia under IHL”, Armed Groups and International Law, 9 December 2020, available at: https://armedgroups-internationallaw.org/2020/12/09/instant-non-international-armed-conflict-classifying-the-situation-in-northern-ethiopia-under-ihl/.
67 Ibid. The factors that Kebebew and Niyo identified included the death toll, injuries and property damage; the involvement of the ENDF; the TPLF's use of air missile systems against airports in Behairdar and Gondar; and the recognition that more than 27,000 refugees had crossed into South Sudan at the time of publication of their blog post.
68 Ibid.
69 Ibid., citing IACHR, La Tablada, above note 55, para. 153.
70 T. Kebebew and J. Niyo, above note 66.
71 Ibid.
72 It should be noted that military attacks and military operations are not synonymous. Military “attacks” are defined as acts of violence in offence or in defence, whereas military “operations” do not necessarily involve acts of violence; troop movements, logistics, etc. are covered by this umbrella term. Therefore, it is military operations (which can include preparations to launch a military attack) that need to be continuous, which is different from requiring that the attacks (violence) be continuous.
73 AP II, Art. 1(1).
74 The adjective “concerted” is defined as “agreement in a plan, or design; union formed by such agreement”; C. T. Onions (ed.), Shorter Oxford English Dictionary on Historical Principles, 3rd ed., Clarendon Press, Oxford, 1964, p. 361. Roget's Thesaurus regards the term as synonymous with “concordant”, “synchronized” and “like-minded”; George Davidson (ed.), Roget's Thesaurus, Penguin Books, London, 2006, para. 24. These terms highlight the collective nature of the armed group that is required to coordinate the military operation jointly. The phrase could read “synchronized military operation”. “Synchronized relates” to the term “organized”; C. T. Onions, p. 361. The literal interpretation of “sustained and concerted military operations”, therefore, implies that an armed group under responsible command exercises such control over a part of its territory as to enable such an armed group to carry out continuous and organized or planned military operations (cf. AP II, Art. 1(1)). The ICRC gave content to its understanding of the term “sustained and concerted military operations” by proposing the following definitions: “’Sustained’ (in French the reference is to opérations continués) means that the operations are kept going or kept up continuously. The emphasis is therefore on continuity an[d] persistence. ‘Concerted’ (in French: concertées) means agreed upon, planned and contrived, done in agreement according to a plan. Thus we are talking about military operations conceived and planned by organized armed groups.” Yves Sandoz, Christophe Swinarski and Bruno Zimmerman (eds), Commentary on the Additional Protocols of 8 June 1997 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987 (ICRC Commentary on APs), para. 4469. This interpretation echoes the literal interpretation that the term “concerted” relates to the organizational requirement.
75 ICRC Commentary on APs, above note 74, para. 4469. For a general overview of the minimum threshold requirements inherent in “concerted” military operations, see Martha M. Bradley, “Revisiting the Scope of Application of Additional Protocol II: Exploring the Inherent Minimum Threshold Requirements”, African Yearbook of International Humanitarian Law, 2019, pp. 105–111.
76 Cf. ICRC Commentary on APs, above note 74, para. 4469.
77 AP II, Art. 1(1).
78 Cf. ibid., Art. 1(1).
79 See Y. Dinstein, above note 10, pp. 38–40.
80 Ibid.
81 AP II, Art. 1(1), read together with Art. 1(2).
82 Bryan A. Garner (ed.), Black's Law Dictionary, 3rd ed., Thomson West, St Paul, MN, 2006, p. 696 (emphasis added).
83 Bryan A. Garner (ed.), Black's Law Dictionary, 9th ed., Thomson West, St Paul, MN, 2009, p. 1039.
84 See Y. Dinstein, above note 10, pp. 21–22, for a discussion of below-the-threshold violence.
85 For literature discussing Article 33 in greater detail, see Papaux, Alain and Samson, Remi, “Art 33: Interpretation of Treaties Authenticated in Two or More Languages”, in Corten, Olivier and Klein, Pierre (eds), The Vienna Convention on the Law of Treaties: A Commentary, Vol. 1, Oxford University Press, Oxford, 2011Google Scholar; Linderfalk, Ulf, On the Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties, Springer, Berlin, 2001, pp. 355–369Google Scholar; Dorr, Oliver, “Article 33: Interpretation of Treaties Authenticated in Two or More Languages”, in Dorr, Oliver and Schmalenbach, Kirsten (eds), Vienna Convention on the Law of Treaties: A Commentary, Springer, Berlin, 2012CrossRefGoogle Scholar.
86 AP II, Art. 1(1).
87 Vienna Convention, Art. 33(1): “When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.”
88 Ibid, Art. 33(3): “The terms of the treaty are presumed to have the same meaning in each authentic text.”
89 AP II, Art. 28: “The original of this Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish text are equally authentic, shall be deposited with the depository, which shall transmit certified and true copies thereof to all the Parties to the Conventions.”
90 See O. Dorr, above note 85, p. 594, para. 21: “That every authentic text is in a formal sense equally authoritative does not, however, mean that in practice, all of them would be attributed the same weight. For example, if the treaty was negotiated and drafted in only one of the authentic languages, it would seem natural, as a feature of practical usage, to place more reliance on that text as if it is least ambiguous.” Dorr argues that Article 33 allows some leeway as to practical considerations when interpreting a treaty provision where there is more than one authentic text. In the present case, this author chose to consider the French text as it was one of the negotiating languages of the treaty.
91 AP II (French version), Art. 1(1): “Article premier. Champ d'application matériel. 1. Le présent Protocole, qui développe et complète l'article 3 commun aux Conventions de Genève du 12 août 1949 sans modifier ses conditions d'application actuelles, s'applique à tous les conflits armés qui ne sont pas couverts par l'article premier du Protocole additionnel aux Conventions de Genève du 12 août 1949 relatif à la protection des victimes des conflits armés internationaux (Protocole I) 2, et qui se déroulent sur le territoire d'une Haute Partie contractante entre ses forces armées et des forces armées dissidentes ou des groupes armés organisés qui, sous la conduite d'un commandement responsable, exercent sur une partie de son territoire un contrôle tel qu'il leur permette de mener des opérations militaires continues et concertées et d'appliquer le présent Protocole” (emphasis added).
92 “[To] have combined combat and manoeuvres carried out by military forces in a region in order to achieve a specific objective.” Le Petit Larousse: Grand Format 2005, 100th ed., Larousse, Paris, 2004, pp. 756–757.
93 “[W]ithout interruption, in time or in space.” Ibid., p. 287.
94 This translation was done with the aid of the Larousse Dictionnaire Général: Francais/Anglais, Anglais/Francais, Larousse, Paris, 1994.
95 Le Petit Larousse, above note 92, p. 287.
96 ICRC Commentary on APs, above note 74, para. 4469.
97 Ibid.
98 CDDH/I/26, Pakistan, 11 March 1974, and CDDH/I/79, Brazil, 21 March 1974, as included in the Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977), Vol. 4, Federal Political Department, Bern, 1978, p. 6.
99 Ibid. “Redraft Article 1 to read: The present Protocol which elaborates and supplements Article 3 common to the four Geneva Conventions of August 12, 1949, shall apply to all cases of armed conflict referred to in Article 3 occurring in the territory of a High Contracting Party and in which: (a) Organized armed forces engage in hostile acts against the authorities in power and the authorities in power employ their own armed forces in response. (b) The hostilities are of some intensity and continue for a reasonable period of time. (c) The armed forces opposing the authorities in power occupy a part of the territory of the High Contracting Party. (d) The armed forces opposing the authorities in power are represented by a responsible authority and declare their intention of observing the humanitarian rules laid down in Article 3, common to the Geneva Conventions, and in the present Protocol” (emphasis added).
100 Ibid.
101 CDDH/I/26, above note 98, p. 6.
102 Ibid.
103 See S. Junod, above note 21, p. 37, para. 4; Michael Bothe, Karl Josef Partsch and Waldemar A. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, 2nd edited reprint, Martinus Nijhoff, Leiden, 2013, para. 2.9; L. Moir, above note 2, p. 107, fn. 76; ICRC Commentary on APs, above note 74, para. 4469.
104 M. Bothe, K. J. Partsch and W. A. Solf, above note 103, p. 719, para. 2.9.
105 ICTR, Musema, above note 40, para. 285, counts 8 and 9.
106 Ibid., para. 258.
107 Ibid.
108 Ibid (emphasis added).
109 Black's Law Dictionary, above note 82, p. 1039.
110 Ibid., pp. 696, 125. Black's Law Dictionary defines the word “sustain” as “to support or maintain, esp over a long period; to persist in making (an effort) over a long period”.
111 Black's Law Dictionary furthermore defines the adjective “continuing” to mean “uninterrupted”, and defines the noun “continuance” to mean “the act of keeping up, maintaining or prolonging, duration; time of continuing”: ibid., p. 393.
112 Ibid.
113 SCSL, Prosecutor v. Issa Hassan Sesay, Morris Kallon, Augustine Gbao, Case No. SCSL-04-15-T (Trial Chamber), 2 March 2009.
114 Ibid., para. 947.
115 Ibid., paras 12–17, 947, 980.
116 Ibid.
117 Ibid., para. 947.
118 Ibid., paras 12–17, 947, 979–980.
119 Ibid.
120 Ibid., para. 981: “The Chamber therefore finds that the requirements of Additional Protocol II have been proved beyond a reasonable doubt.”
121 Ibid., para. 980.
122 Ibid., paras 979–981.
123 Author's interpretation of Sesay, above note 113, paras 947, 980, 981, read together with AP II, Art. 1(2).
124 Ibid.
125 Gabriella Venturini, “Temporal Scope of Application of the Conventions”, in A. Clapham, P. Gaeta and M. Sassòli, above note 61, p. 61, para. 53.
126 Venturini comes to this conclusion when reading Tadić, above note 4, together with Haradinaj, above note 20. See G. Venturini, above note 125, p. 61, para. 53. ICTY, Tadić, Decision on the Defence Motion, above note 4, para. 70: “International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there” (emphasis added). The instructive part of Haradinaj, above note 20, para. 100, reads: “[S]ince according to the Tadić test an internal armed conflict continues until a peaceful settlement is achieved, and since there is no evidence of such a settlement during the indictment period, there is no need for the Trial Chamber to explore the oscillating intensity of the armed conflict in the remainder of the indictment period.”
127 The author refers to the discussion by Kebebew and Niyo. See T. Kebebew and J. Niyo, above note 66.
128 The author refers to “sustained operations” for consistency. The relationship between the word “sustained” and the notion of “intensity”, as well as the interplay with the term “concerted”, which is an organizational characteristic, is discussed in above note 74.
129 T. Kebebew and J. Niyo, above note 66.
130 ICTY, Haradinaj, above note 20, para. 49.
131 ICTR, Akayesu, above note 40, para. 602.
132 AP II, Art. 1(2): “This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”
133 ICTR, Akayesu, above note 40, paras 606–607, 622–627.
134 Ibid., para. 607.
135 Ibid.
136 Ibid., para. 618.
137 Ibid.
138 Cf. ibid., para. 603.
139 Cf. ibid., para. 602.
140 Ibid.
141 SCSL, Sesay, above note 113, paras 964, 966.
142 Ibid., paras 970, 978.
143 Ibid., para. 12.
144 Ibid.
145 Ibid., para. 14.
146 Ibid.
147 Ibid., para. 969.
148 Ibid., paras 969, 977.
149 Ibid., para. 981.
150 Ibid., section IX.
151 See facts in ibid., para. 14.
152 Ibid, para. 981. In the Sesay case, Trial Chamber I of the SCSL commented that since AP II has a higher threshold of application extending the two requirements inherent in common Article 3, a situation that satisfies the criteria of an AP II-type armed conflict logically would automatically satisfy the common Article 3 threshold.
153 S. Junod, above note 21, pp. 35, 37; Y. Dinstein, above note 10, pp. 38–39; L. Moir, above note 2, pp. 10, 106.
154 S. Sivakumaran, above note 18, p. 188. Sivakumaran reasons as follows: “Whether the notion of sustained and concerted military operations does indeed presuppose a higher level of violence than protracted armed violence depends in large part on the meaning attributed to the latter concept. Sustained is an element of duration and means ongoing rather than non-stop; and this notion is covered by the idea of protraction. Thus, it is not entirely clear that the Additional Protocol II notion does require a greater level of violence than that required for a non-international armed conflict simpliciter …”
155 See Sivakumaran's discussion of Boškoski and Akayesu in the context of the duration of intensity possibly necessitated by the wording “sustained military operations”. Ibid., p. 188; ICTY, Boškoski, above note 20, para. 197; ICTR, Akayesu, above note 40, para. 626.
156 ICTY, Boškoski, above note 20, para. 197.
157 ICTR, Akayesu, above note 40, para. 626.
158 S. Sivakumaran, above note 18, p. 188.
159 This author's interpretation of Sivakumaran's reasoning between notes 250 and 253. Ibid., p. 188.
160 Ibid., p. 188.
161 Ibid.
162 This author's interpretation of Sivakumaran's reasoning between notes 253 and 256. Ibid., p. 188.
163 Ibid., p. 188.
164 It is submitted that the “correctness” of Sivakumaran's second approach depends on the understanding of the relationship between “protracted armed violence and duration, and that other scholars may deem such an interpretation as correct”.
165 See 2016 Commentary on GC I, above note 18, paras 438–440.
166 A list of States party to AP II is available at: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treatySelected=475. A list of States Parties to Geneva Convention I is available at: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treatySelected=365.
167 Fiston Mahamba, “Eastern Congo Rebels Aim to March on Kinshasa: Spokesman”, Reuters, 29 September 2017, available at: www.reuters.com/article/us-congo-rebels/eastern-congo-rebels-aim-to-march-on-kinshasa-spokesman-idUSKCN1C42R3.
168 Ibid.
169 Ibid.
170 Ibid.; ICTR, Musema, above note 40, para. 258.
171 See reports concerning ADF and other attacks from October 2017 up to 17 June 2020 at Kivu Security Tracker, available at: https://kivusecurity.org/reports.
172 Kivu Security Tracker, “After the Death of At Least 77 Civilians, the Congolese Army's Strategy Against the ADF is Called into Question”, 25 November 2019, available at: https://blog.kivusecurity.org/after-the-death-of-at-least-77-civilians-the-congolese-armys-strategy-against-the-adf-is-called-into-question/; Kivu Security Tracker, “Congolese Army's Optimism Undermined by New ADF Massacres”, 2 March 2020, available at: https://blog.kivusecurity.org/congolese-armys-optimism-undermined-by-new-adf-massacres/.
173 Kivu Security Tracker, “Congolese Army's Optimism Undermined”, above note 172.
174 Ibid.
175 Ibid.
176 Ibid.