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The notion of “protracted armed conflict” in the Rome Statute and the termination of armed conflicts under international law: An analysis of select issues

Published online by Cambridge University Press:  04 September 2020

Dustin A. Lewis
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Abstract

Legal controversies and disagreements have arisen about the timing and duration of numerous contemporary armed conflicts, not least regarding how to discern precisely when those conflicts began and when they ended (if indeed they have ended). The existence of several long-running conflicts – some stretching across decades – and the corresponding suffering that they entail accentuate the stakes of these debates. To help shed light on some select aspects of the duration of contemporary wars, this article analyzes two sets of legal issues: first, the notion of “protracted armed conflict” as formulated in a war-crimes-related provision of the Rome Statute of the International Criminal Court, and second, the rules, principles and standards laid down in international humanitarian law and international criminal law pertaining to when armed conflicts have come to an end. The upshot of the analysis is that under existing international law, there is no general category of “protracted armed conflict”; that the question of whether to pursue such a category raises numerous challenges; and that several dimensions of the law concerning the end of armed conflict are unsettled.

Keywords

protracted armed conflictend of armed conflictnon-international armed conflicttemporal scope of armed conflictInternational Criminal Courtwar crimes
Type
The law
Information
International Review of the Red Cross , Volume 101 , Issue 912: Protracted conflict , December 2019 , pp. 1091 - 1115
Copyright
Copyright © icrc 2020

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Footnotes

*

The author thanks Sonia Chakrabarty and Shira Shamir for their helpful preparatory research, and Naz K. Modirzadeh for her insightful comments and suggestions.

References

1 The call for papers for this issue of the Review states in part: “As of 2016, some 20 ICRC [International Committee of the Red Cross] delegations were operating in protracted crises and around two thirds of the ICRC's budget was spent in protracted conflicts. Prolonged humanitarian action in conflicts of various kinds means that the traditional binary paradigm of relief and development is giving way to policies adapted to address needs when people are struggling to survive in conflicts that last for decades. In 2015, the ICRC cut the word ‘emergency’ from its annual appeal in recognition of the fact that its work is often a mix of both urgent and long-term programming. The ICRC is by no means alone in this effort. The protracted conflicts seen today attract a large humanitarian sector.” ICRC, “Protracted Armed Conflict”, June 2017, available at: www.icrc.org/en/international-review/article/protracted-armed-conflict (all internet references were accessed in April 2020).

2 For instance, in relation to “prolonged occupation”, see International Court of Justice (ICJ), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Separate Opinion of Judge Elaraby (Advisory Opinion), ICJ Reports 2004, p. 255 (“A prolonged occupation strains and stretches the applicable rules, however, the law of belligerent occupation must be fully respected regardless of the duration of the occupation”); ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Separate Opinion of Judge Koroma (Advisory Opinion), ICJ Reports 2004, p. 206 (“While it is understandable that a prolonged occupation would engender resistance, it is nonetheless incumbent on all parties to the conflict to respect [IHL] at all times”). Despite their potential salience, debates regarding “prolonged occupation” are outside of the scope of this article. For discussion of that notion, see, for example, Iain Scobbie, “International Law and the Prolonged Occupation of Palestine”, United Nations Roundtable on Legal Aspects of the Question of Palestine, The Hague, 20–22 May 2015, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2611130; Koutroulis, Vaios, “The Application of International Humanitarian Law and International Human Rights Law in Situation[s] of Prolonged Occupation: Only a Matter of Time?”, International Review of the Red Cross, Vol. 94, No. 885, 2012CrossRefGoogle Scholar; Roberts, Adam, “Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967”, American Journal of International Law, Vol. 84, No. 1, 1990CrossRefGoogle Scholar.

3 See, for example, Buonomano, Dean, Your Brain Is a Time Machine: The Neuroscience and Physics of Time, W. W. Norton, New York, 2017Google Scholar; Muller, Richard A., Now: The Physics of Time, W. W. Norton, New York, 2016Google Scholar.

4 See generally Dudziak, Mary L., War Time: An Idea, Its History, Its Consequences, Oxford University Press, New York, 2012Google Scholar.

5 See Kritsiotis, Dino, “War and Armed Conflict: The Parameters of Enquiry”, in Liivoja, Rain and McCormack, Tim (eds), Routledge Handbook of the Law of Armed Conflict, Routledge, Abingdon, 2016, p. 8Google Scholar.

6 To be certain, several IHL provisions are also applicable in respect of “peacetime”; see, for example, Art. 2(1) common to the 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) (GC I); 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) (GC II); Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (GC III); 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) (GC IV)); 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 21 October 1950) (AP I), Arts 6(1), 18(7), 60(2).

7 See, for example, Dustin A. Lewis, Gabriella Blum and Naz K. Modirzadeh, Indefinite War: Unsettled International Law on the End of Armed Conflict, Harvard Law School Program on International Law and Armed Conflict, Cambridge, February 2017, p. 1, available at: https://dash.harvard.edu/handle/1/30455582.

8 I borrow the phrase “incarnadine spectacle” from Farer, Tom J., “Humanitarian Law and Armed Conflicts: Toward the Definition of ‘International Armed Conflict’”, Columbia Law Review, Vol. 71, No. 1, 1971, p. 37CrossRefGoogle Scholar. While Farer was referring to situations of “internal war”, I use the phrase to refer to any type of armed conflict.

9 See Bellal, Annyssa (ed.), The War Report: Armed Conflicts in 2017, Geneva Academy of International Humanitarian Law and Human Rights, Geneva, 2018, p. 30Google Scholar. Other military occupations identified by the authors of The War Report were the occupations of Eritrea by Ethiopia, of Georgia by Russia, of Syria by Turkey, and of Ukraine by Russia. At least some ongoing or recent conflicts of a relatively long duration – including Transnistria in Moldova, Abkhazia and South Ossetia in Georgia, and Nagorno-Karabakh in Azerbaijan – are, or at least recently were, said to be susceptible to the label of “frozen conflicts.” See Grant, Thomas D., “Frozen Conflicts and International Law”, Cornell International Law Journal, Vol. 50, No. 3, 2017, pp. 371, 377–399Google Scholar. Grant assesses that “frozen conflicts share certain characteristics: (1) armed hostilities have taken place, parties to which include a State and separatists in the State's territory; (2) a change in effective control of territory has resulted from the armed hostilities; (3) the State and the separatists are divided by lines of separation that have effective stability; (4) adopted instruments have given the lines of separation (qualified) juridical stability; (5) the separatists make a self-determination claim on which they base a putative State; (6) no State recognizes the putative State; (7) a settlement process involving outside parties has been sporadic and inconclusive”. Ibid., p. 390 (citation omitted). The term “frozen conflicts” seems to be anchored in “diplomatic vocabulary”. Weller, Marc, “Settling Self-Determination Conflicts: Recent Developments”, European Journal of International Law, Vol. 20, No. 1, 2009, p. 137CrossRefGoogle Scholar. At least for now, the expression, it has been said, “remains, at best, at the edges of legal discourse”. T. D. Grant, above, p. 413.

10 A. Bellal, above note 9, pp. 30–31.

11 Ibid., pp. 29–30. The other three identified “active” international armed conflicts are listed as Egypt versus Libya, Israel versus Syria, and Turkey versus Iraq, all of which are characterized as forming “a series of short-lived international armed conflicts”. Ibid., p. 29.

12 Rome Statute of the International Criminal Court, 2187 UNTS 90, 17 July 1998 (entered into force 1 July 2002) (Rome Statute), Art. 8(2)(f).

13 See, for example, 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 (ICRC Commentary on GC I), paras 201 ff., available at: https://ihl-databases.icrc.org/ihl/full/GCI-commentary; Andrew Clapham, “The Concept of International Armed Conflict”, and Moir, Lindsay, “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, 2015Google Scholar; Kleffner, Jann K., “Scope of Application of International Humanitarian Law”, in Fleck, Dieter (ed.), The Handbook of International Humanitarian Law, 3rd ed., Oxford University Press, Oxford, 2013Google Scholar; Akande, Dapo, “Classification of Armed Conflicts: Relevant Legal Concepts”, in Wilmshurst, Elizabeth (ed.), International Law and the Classification of Conflicts, Oxford University Press, Oxford, 2012Google Scholar. For a succinct essay concerning why classification may – and may not – matter under contemporary international law, see Wilmshurst, Elizabeth, “Conclusions”, in Wilmshurst, E. (ed.), International Law and the Classification of Conflicts, Oxford University Press, Oxford, 2012CrossRefGoogle Scholar.

14 For a sketch of ICC jurisprudence, see below notes 41–46 and corresponding text. For a succinct overview of scholarly commentary, 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, 2009, pp. 80–83CrossRefGoogle Scholar. See also Lindsay Moir, “The Concept of Non-International Armed Conflict”, in A. Clapham, P. Gaeta and M. Sassòli (eds), above note 13, pp. 410–411, paras 53–56.

15 At the time of writing, the definition of “protracted” given in the Oxford English Dictionary Online is “[l]engthened, extended, prolonged … [i]n time”.

16 ICTY, Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-T, Judgment (Trial Chamber II), 10 July 2008, para. 197: “[I]t is noted that during the drafting of Article 8(2)(f) of the [Rome Statute] covering ‘other’ serious violations of the laws and customs of war applicable in non-international armed conflict, delegates rejected a proposal to introduce the threshold of applicability of [AP] II to the section, and instead accepted a proposal to include in the chapeau the test of ‘protracted armed conflict’, as derived from the Appeals Chamber's decision in Tadić” (citations omitted).

17 See also Convention for the Protection of Cultural Property in the Event of Armed Conflict, 249 UNTS 240, 14 May 1954 (entered into force 7 August 1956), Art. 19(1). Even though it is often called “Common Article 3”, while otherwise identical to the corresponding language in Geneva Conventions I, III and IV, the language of the first sentence of Article 3(2) of GC II, due to the nature of that instrument, adds “shipwrecked” to the category of persons – in addition to the “wounded” and “sick” – who “shall be collected and cared for”.

18 See T. J. Farer, above note 8, p. 50.

19 Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978), Art. 1(1).

20 Ibid., Art. 1(1).

21 ICTY, Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2 October 1995 (Tadić Jurisdiction), para. 70 (emphasis added). See, further, the cases cited in ICTY, Boškoski and Tarčulovski, above note 16, para. 175, fn. 703. Certain ICC chambers have also adopted this definition: see, for example, ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Judgment Pursuant to Article 74 of the Statute: Public with Annexes I, II, and A to F (Trial Chamber III), 21 March 2016, para. 128 (Bemba Trial Judgment); reversed on other grounds in ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08 A, Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III's “Judgment Pursuant to Article 74 of the Statute” (Appeals Chamber), 8 June 2018.

22 See, e.g., ICTY, Boškoski and Tarčulovski, above note 16, paras 175–206.

23 ICTY, Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Opinion and Judgment (Trial Chamber), 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; 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” (citation omitted). See further, for example, ICTY, Boškoski and Tarčulovski, above note 16, para. 175, fn. 706 and corresponding text. Regarding acts of terrorism in relation to the “protracted armed violence” aspect(s) in the jurisprudence of the ICTY, see ibid., para. 190: “[T]he Chamber considers that while isolated acts of terrorism may not reach the threshold of armed conflict, when there is protracted violence of this type, especially where they require the engagement of the armed forces in hostilities, such acts are relevant to assessing the level of intensity with regard to the existence of an armed conflict.”

24 See ICTY, Boškoski and Tarčulovski, above note 16, para. 197: “While the jurisprudence of the Tribunal requires an armed group to have ‘some degree of organisation’, the warring parties do not necessarily need to be as organised as the armed forces of a State. Neither does the degree of organisation for an armed group to a conflict to which Common Article 3 applies need [to] be at the level of organisation required for parties to Additional Protocol II armed conflicts, which must have responsible command, and exercise such control over a part of the territory as to enable them to carry out sustained and concerted military operations and to implement the Protocol. Additional Protocol II requires a higher standard than Common Article 3 for establishment of an armed conflict. It follows that the degree of organisation required to engage in ‘protracted violence’ is lower than the degree of organisation required to carry out ‘sustained and concerted military operations’. In this respect, it is noted that during the drafting of Article 8(2)(f) of the Rome Statute of the International Criminal Court covering ‘other’ serious violations of the laws and customs of war applicable in non-international armed conflict, delegates rejected a proposal to introduce the threshold of applicability of Additional Protocol II to the section, and instead accepted a proposal to include in the chapeau the test of ‘protracted armed conflict’, as derived from the Appeals Chamber's decision in Tadić. This indicates that the latter test was considered to be distinct from, and a lower threshold than, the test under Additional Protocol II. This difference in the required degree of organisation is logical in view of the more detailed rules of international humanitarian law that apply in Additional Protocol II conflicts, which mean that ‘there must be some degree of stability in the control of even a modest area of land for them to be capable of effectively applying the rules of the Protocol’. By contrast, Common Article 3 reflects basic humanitarian protections, and a party to an armed conflict only needs a minimal degree of organisation to ensure their application” (citations omitted).

25 See, for example, ICTY, Boškoski and Tarčulovski, above note 16, para. 177: “Various indicative factors have been taken into account by Trial Chambers to assess the ‘intensity’ of the conflict. These include … the spread of clashes over territory and over a period of time” (emphasis added; citations omitted).

26 Sassòli, Marco and Grignon, Julia, “Les limites du droit international pénal et de la justice pénale internationale dans la mise en œuvre du droit international humanitaire”, in Biad, Abdelwahab and Tavernier, Paul (eds), Le droit international humanitaire face aux défis du xxie siécle, Bruylant, Brussels, 2012, p. 145Google Scholar (“[s]ubjectif par essence”).

27 Inter-American Commission of Human Rights, Juan Carlos Abella v. Argentina, Case No. 11.137, Report No. 55/97, 1 November 1997, para. 156.

28 See M. Sassòli and J. Grignon, above note 26, p. 145.

29 Ibid.

30 Ibid., p. 146: “Il n'est pas imaginable qu'elles doivent attendre un certain laps de temps avant de pouvoir savoir si elles sont protégées par, ou si elles peuvent invoquer le droit international humanitaire.”

31 Ibid. See also Sassòli, Marco, “Humanitarian Law and International Criminal Law”, in Cassese, Antonio (ed.), The Oxford Companion to International Criminal Justice, Oxford University Press, Oxford, 2009, p. 119Google Scholar (“Similarly, while it is today accepted in [ICL] that armed violence must be protracted to constitute a (non-international) armed conflict, such a standard is not useful for parties, fighters, victims and humanitarian organizations at the outbreak of a conflict. It is not imaginable that they must wait and see how it develops before they know whether they must comply with IHL, are protected by it, should have been complying with it from the beginning, or may invoke it” (citations omitted)) and fn. 39 (“One may therefore welcome that an ICTY [Trial Chamber] recently interpreted the term ‘protracted’ as referring more to the intensity of the armed violence than to its duration” (citation omitted)).

32 Article 8 bis of the Rome Statute pertains to the crime of aggression.

33 Article 8(1) of the Rome Statute provides that “[t]he Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes”.

34 Rome Statute, Art. 8(2)(c). The ICC may exercise jurisdiction over that conduct only where the enumerated acts are “committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause”.

35 Many of these twelve sets of violations concern conduct-of-hostilities violations, including those laid down in Article 8(2)(e)(i–iv).

36 See notes 23–25 above and corresponding text.

37 Rome Statute, Art. 128. See also Vienna Convention on the Law of Treaties, 1155 UNTS 331, 23 May 1969 (entered into force 27 January 1980), Art. 33.

38 See relevant parts of the second sentence of Article 8(2)(f) of the Rome Statute (Arabic: “ وتنطبق على المنازعات المسلحة التي تقع في إقليم دولة عندما يوجد صراع مسلح متطاول الأجل …”; Chinese: “该项规定适用于在一国境内发生的武装冲突,如果政府当局与有组织武装集团之间,或这种集团相互之间长期进行武装冲突.”; French: “Il s'applique aux conflits armés qui opposent de manière prolongée …”; Russian: “Он применяется в отношении вооруженных конфликтов, которые имеют место на территории государства, когда идет длительный вооруженный конфликт …”; and Spanish: “Se aplica a los conflictos armados que tienen lugar en el territorio de un Estado cuando existe un conflicto armado prolongado …”).

39 Namely, those laid down in Article 8(2)(e) of the Rome Statute.

40 Research for this article was updated most recently in 2018.

41 ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo (Pre-Trial Chamber II), 15 June 2009, para. 235 (Bemba Confirmation of the Charges) (emphasis added).

42 See, for example, Bemba Trial Judgment, above note 21, para. 138: “Article 8(2)(f), which is stated to apply to Article 8(2)(e), contains a second sentence additionally requiring that there be a ‘protracted armed conflict’. This is in contrast to Article 8(2)(d), stated to apply to Article 8(2)(c), which does not include such a requirement. The Pre-Trial Chamber, while noting that this difference ‘may be seen to require a higher or additional threshold of intensity to be met’, did ‘not deem it necessary to address this argument, as the period in question covers approximately five months and is therefore to be regarded as “protracted” in any event’. Given that crimes under both Articles 8(2)(c) and 8(2)(e) have been charged in this case, the Chamber notes that the potential distinction would only have significance if the Chamber were to reach a conclusion that the conflict in question was not ‘protracted’, and therefore finds it unnecessary to address the difference further at this point” (emphasis added; citations omitted).

43 Consider, for instance, Bemba Trial Judgment, above note 21, para. 137 (“The first sentence common to Article 8(2)(d) and 8(2)(f) requires the conflict to reach a level of intensity which exceeds ‘situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature’. In order to assess the intensity of a conflict, Trial Chambers I and II endorsed the ICTY's finding that relevant factors include ‘the seriousness of attacks and potential increase in armed clashes, their spread over territory and over a period of time, the increase in the number of government forces, the mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations (‘UN’) Security Council, and, if so, whether any resolutions on the matter have been passed’. The Chamber follows the approach of Trial Chambers I and II in this respect” (emphasis added; citations omitted)); ibid., para. 140 (“The Chamber considers that the intensity and ‘protracted armed conflict’ criteria [n.b.: plural] do not require the violence to be continuous and uninterrupted” (emphasis added)); ibid., para. 139 (“The Chamber notes that the concept of ‘protracted [armed] conflict’ has not been explicitly defined in the jurisprudence of this Court, but has generally been addressed within the framework of assessing the intensity of the conflict. When assessing whether an armed conflict not of an international character was protracted, however, different chambers of this Court emphasised the duration of the violence as a relevant factor. This corresponds to the approach taken by chambers of the ICTY. The Chamber follows this jurisprudence” (emphasis added; citations omitted)); ICC, The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, Jugement rendu en application de l'article 74 du Statut (Pre-Trial Chamber II), 7 March 2014, para. 1217 (“La Chambre se réfère notamment à la présentation qu'elle a précédemment faite des attaques postérieures à celle de Bogoro afin de conclure que le conflit armé était à la fois prolongé et intense en raison, notamment, de sa durée et du nombre élevé d'attaques perpétrées sur l'ensemble du territoire de l'Ituri, du mois de janvier 2002 au mois de mai 2003. Aussi, pour elle, les éléments de preuve en sa possession suffisent à satisfaire l'exigence d'intensité du conflit” (emphasis added; citation omitted)); Bemba Confirmation of the Charges, above note 41, para. 235 (“The Chamber is also mindful that the wording of article 8(2)(f) of the Statute differs from that of article 8(2)(d) of the Statute, which requires the existence of a ‘protracted armed conflict’ and thus may be seen to require a higher or additional threshold to be met” (emphasis added)).

44 Bemba Confirmation of the Charges, above note 41, para. 235: “The Chamber is also mindful that the wording of article 8(2)(f) of the Statute differs from that of article 8(2)(d) of the Statute, which requires the existence of a ‘protracted armed conflict’ and thus may be seen to require a higher or additional threshold to be met – a necessity which is not set out in article 8(2)(d) of the Statute. The argument can be raised as to whether this requirement may nevertheless be applied also in the context of article 8(2)(d) of the Statute. However, irrespective of such a possible interpretative approach, the Chamber does not deem it necessary to address this argument, as the period in question covers approximately five months and is therefore to be regarded as ‘protracted’ in any event” (emphasis added).

45 Bemba Trial Judgment, above note 21, para. 128.

46 Compare Bemba Trial Judgment, above note 21, p. 68, fn. 318 (“In this regard, the Chamber notes that at the Conference on the Establishment of the Court, the Bureau's initial proposal for the content of Article 8(2)(f) was taken from Article 1(1) of Additional Protocol II, which referred to ‘sustained and concerted military operations’. Several delegates were concerned that the use of this provision would set too high a threshold for armed conflicts not of an international character. In the amended text, in addition to other changes, ‘sustained and concerted military operations’ was replaced by the phrase that now constitutes part of Article 8(2)(f), ‘protracted armed conflict’”), with ICC, Katanga, above note 43, paras 1209, 1211 (“En ce qui concerne enfin la milice ngiti, parfois appelée FRPI à partir de la fin de l'année 2002, la Chambre entend se référer à l'ensemble de ses constatations factuelles relatives à l'organisation de cette milice avant le mois de février 2003: … Enfin, les membres de cette milice poursuivaient des objectifs communs et ils ont, ensemble et sur une longue période, conduit des opérations militaires. … Au vu de ces différents éléments de preuve, la Chambre est en mesure de conclure qu'au moins au mois de janvier 2003, chacun de ces groupes, en l'occurrence l'UPC, l'APC ainsi que la milice ngiti, était armé et présentait un degré d'organisation suffisant, comme en attestent leur structure et leurs modalités de fonctionnement, leur participation à des opérations militaires et, le cas échéant, aux processus politiques alors mis en œuvre” (emphasis added; citation omitted)); ICC, The Prosecutor v. Callixte Mbarushimana, Case No. ICC-01/04-01/10, Decision on the Confirmation of Charges: Redacted Version (Pre-Trial Chamber I), 16 December 2011, para. 103 (“Consistent with the case law of the Chamber, for the purpose of Article 8(2)(f) of the Statute, an organised armed group must have ‘the ability to plan and carry out military operations for a prolonged period of time’” (citations omitted)); ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir: Public Redacted Version (Pre-Trial Chamber I), 4 March 2009, para. 60 (“The Chamber has also highlighted that article 8(2)(f) of the Statute makes reference to ‘protracted armed conflict between […] organized armed groups’, and that, in the view of the Chamber, this focuses on the need for the organised armed groups in question to have the ability to plan and carry out military operations for a prolonged period of time. In this regard, the Chamber observes that, to date, control over the territory by the relevant organised armed groups has been a key factor in determining whether they had the ability to carry out military operations for a prolonged period of time” (citations omitted; square bracket ellipsis interjection in original)); and ICC, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur la confirmation des charges: Version publique avec annexe 1 (Pre-Trial Chamber I), 29 January 2007, para. 234 (“La Chambre relève que l'article 8-2-f du Statut fait mention des ‘conflits armés qui opposent [des groupes armés] de manière prolongée’. Selon la Chambre, ces termes mettent l'accent sur la nécessité que les groupes armés en question aient la capacité de concevoir et mener des opérations militaires pendant une période prolongée” (emphasis added; square bracket interjection in original).

47 On the drafting history of the provision, see Sivakumaran, Sandesh, “Identifying an Armed Conflict not of an International Character”, in Stahn, Carsten and Sluiter, Göran (eds), The Emerging Practice of the International Criminal Court, Brill, Leiden, 2009, pp. 371–373Google Scholar.

48 See above notes 26–31 and corresponding text.

49 See D. A. Lewis, G. Blum and N. K. Modirzadeh, above note 7.

50 Ibid.

51 See also Dinstein, Yoram, War, Aggression and Self-Defence, 6th ed., Cambridge University Press, Cambridge, 2017, pp. 36–64CrossRefGoogle Scholar; Julia Grignon, “The Geneva Conventions and the End of Occupation”, and Gabriella Venturini, “The Temporal Scope of Application of the Conventions”, in A. Clapham, P. Gaeta and M. Sassòli (eds), above note 13; Alice Debarre, “When Does War End?”, Humanity in War, 17 December 2015, available at: https://lawsofarmedconflict.wordpress.com/2015/12/17/when-does-war-end/; Grignon, Julia, L'applicabilité temporelle du droit international humanitaire, Schulthess, Zürich, 2014Google Scholar; Milanovic, Marko, “The End of Application of International Humanitarian Law”, International Review of the Red Cross, Vol. 96, No. 893, 2014CrossRefGoogle Scholar; Bartels, Rogier, “From Jus in Bello to Jus Post Bellum: When Do Non-International Armed Conflicts End?”, in Stahn, Carsten, Easterday, Jennifer S. and Iverson, Jens (eds), Jus Post Bellum, Oxford University Press, Oxford, 2014Google Scholar; Chesney, Robert M., “Postwar”, Harvard National Security Journal, Vol. 5, No. 1, 2014Google Scholar; Ferraro, Tristan, “Determining the Beginning and End of an Occupation under International Humanitarian Law”, International Review of the Red Cross, Vol. 94, No. 885, 2012CrossRefGoogle Scholar; Koutroulis, Vaios, Le début et la fin de l'application du droit de l'occupation, Pedone, Paris, 2010Google Scholar; Kolb, Robert and Hyde, Richard, An Introduction to the International Law of Armed Conflicts, Hart, Portland, OR, 2008, pp. 99–106Google Scholar; Bell, Christine, “Peace Agreements: Their Nature and Legal Status”, American Journal of International Law, Vol. 100, No. 2, 2006CrossRefGoogle Scholar; Derek Jinks, “The Temporal Scope of Application of International Humanitarian Law in Contemporary Conflicts”, Background Paper, Program on Humanitarian Policy and Conflict Research, 2003, available at: https://web.archive.org/web/20170217170439/http://www.hpcrresearch.org/sites/default/files/publications/Session3.pdf.

52 See M. Milanovic, above note 51, p. 165, explaining that the analysis by an actor of when IHL ceases to apply may be affected “by whether that actor ultimately wants IHL to continue applying, in light of the consequences of continuation or termination” (emphasis original). This section draws extensively on D. A. Lewis, G. Blum and N. K. Modirzadeh, above note 7, pp. 13–20.

53 GC IV, Art. 6, para. 2; AP I, Art. 3(b). That provision of AP I also contains the following savings clause: “except for those persons whose final release, repatriation or re-establishment takes place thereafter. These persons shall continue to benefit from the relevant provisions of the Conventions and of this Protocol until their final release, repatriation or re-establishment.”

54 Tadić Jurisdiction, above note 21, para. 70.

55 See the discussion in J. Grignon, “The Geneva Conventions and the End of Occupation”, above note 51, pp. 1584–1585.

56 AP II contemplates that some of its provisions may continue to apply even after the conflict. See AP II, Art. 2(2): “At the end of the armed conflict, all the persons who have been deprived of their liberty or whose liberty has been restricted for reasons related to such conflict, as well as those deprived of their liberty or whose liberty is restricted after the conflict for the same reasons, shall enjoy the protection of Articles 5 and 6 until the end of such deprivation or restriction of liberty” (emphasis added).

57 With respect to discerning the end of a non-international armed conflict under its jurisdiction, an ICC Trial Chamber considers “that the intensity and ‘protracted armed conflict’ criteria do not require the violence to be continuous and uninterrupted. Rather, as set out in the first sentence common to Article 8(2)(d) and 8(2)(f) [of the Rome Statute], the essential criterion is that it go beyond ‘isolated or sporadic acts of violence’.” Bemba Trial Judgment, above note 21, para. 140. This approach forms part of a broader package of jurisprudence according to which it seems that, at least in the current ICC framework, once a non-international armed conflict comes into existence (by going beyond, among other things, “isolated and sporadic acts of violence”), that armed conflict will not terminate until a “peaceful settlement” is reached. Bemba Trial Judgment, above note 21, paras 140–141. This appears to remain the case, at least in principle, irrespective of whether, for instance, even an extremely long (relatively speaking) period of cessation of hostilities takes place.

58 Tadić Jurisdiction, above note 21, para. 70; Bemba Trial Judgment, above note 21, para. 141.

59 For proposals on other potential tests to determine the end of a contemporary non-international armed conflict, including those involving designated “terrorist” entities, see D. A. Lewis, G. Blum and N. K. Modirzadeh, above note 7, pp. 96–103.

60 See ICRC Commentary on GC I, above note 13, paras 491–492.

61 For instance, in respect of international armed conflict, concerning prisoners of war (who shall, under the first sentence of Article 118 of GC III, be “released and repatriated without delay after the cessation of active hostilities”), certain wounded and sick prisoners of war (who “shall be repatriated direct” under the chapeau of Article 110 of GC III), “protected persons” as defined in Article 4 of GC IV (restrictive measures concerning them shall, under the first sentence of Article 46 of GC IV, be “cancelled as soon as possible after the close of hostilities”), interned persons (internment of them shall, under Article 133 of GC IV, “cease as soon as possible after the close of hostilities”) and certain other persons (under Article 75(6) of AP I, relevant persons shall be protected “until final release, repatriation or reestablishment, even after the end of the armed conflict”). See Weizmann, Nathalie, “The End of Armed Conflict, the End of Participation in Armed Conflict, and the End of Hostilities: Implications for Detention Operations under the 2001 AUMF”, Columbia Human Rights Law Review, Vol. 47, No. 3, 2016Google Scholar; Scholdan, Bettina, “‘The End of Active Hostilities:’ The Obligation to Release Conflict Internees under International Law”, Houston Journal of International Law, Vol. 38, No. 1, 2016Google Scholar; Marco Sassòli, “Release, Accommodation in Neutral Countries, and Repatriation of Prisoners of War”, and Bruce Oswald, “End of Internment”, in A. Clapham, P. Gaeta and M. Sassòli (eds), above note 13; Pearlstein, Deborah N., “Law at the End of War”, in Minnesota Law Review, Vol. 99, No. 1, 2014Google Scholar; Pearlstein, Deborah N., “How Wartime Detention Ends”, Cardozo Law Review, Vol. 36, No. 2, 2014Google Scholar. For an argument that more or less the same norms will be applicable in respect of persons deprived of liberty irrespective of the existence or not of an armed conflict, see R. M. Chesney, above note 51.

62 Protocol on Prohibitions or Restrictions on the Use of Mines, Boobytraps and Other Devices as Amended on 3 May 1996 (Protocol II as amended on 3 May 1996) Annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, 3 May 1996, 2048 UNTS 133 (entered into force 3 December 1998), Arts 9(2), 10(1) (affixing temporal formulations concerning “the cessation of active hostilities” to obligations in respect of mines, booby traps and certain other devices).

63 Protocol on Explosive Remnants of War to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (Protocol V), 28 November 2003, 2399 UNTS 126 (entered into force 12 November 2006), Arts 3(1–3), 4(2) (affixing a number of obligations concerning clearance, removal or destruction of explosive remnants of war, or certain information concerning such activities, to the period “after the cessation of active hostilities”).

64 1907 Hague Regulations, Art. 54: “Submarine cables connecting an occupied territory with a neutral territory shall not be seized or destroyed except in the case of absolute necessity. They must likewise be restored and compensation fixed when peace is made [à la paix]” (emphasis added).

65 Ibid., Art. 53, para. 2: “All appliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the transport of persons or things, exclusive of cases governed by naval law, depots of arms, and, generally, all kinds of munitions of war, may be seized, even if they belong to private individuals, but must be restored and compensation fixed when peace is made [à la paix]” (emphasis added).

66 D. A. Lewis, G. Blum and N. K. Modirzadeh, above note 7, pp. 19–20.

67 See ICRC Commentary on GC I, above note 13, paras 398–390.

68 See D. A. Lewis, G. Blum and N. K. Modirzadeh, above note 7, pp. 17–18.

69 ICTY, Prosecutor v. Ante Gotovina, Ivan Čermak, and Mladen Markač, Case No. IT-06-90-T, Judgment (Trial Chamber I), 15 April 2011, para. 1694.

70 See D. A. Lewis, G. Blum and N. K. Modirzadeh, above note 7, pp. 17–18.

71 See ibid., p. 16, noting that “EU Directive 2011/95/EU provides one example. That Directive sets out guidance on international protection for refugees or persons eligible for ‘subsidiary protection.’ Article 2(f) of the Directive establishes that a person eligible for such ‘subsidiary protection’ may include certain third-country nationals or stateless persons who do not qualify for refugee status but who are facing, in certain scenarios, a real risk of ‘suffering serious harm.’ In turn, Article 15(c) of the Directive establishes that such ‘serious harm’ may consist of ‘serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict’” (citations omitted).

72 See, for example, ibid., pp. 15–16.

73 See, for example, Pejic, Jelena, “Conflict Classification and the Law Applicable to Detention and the Use of Force”, in Wilmshurst, Elizabeth (ed.), International Law and the Classification of Conflicts, Oxford University Press, Oxford, 2012, pp. 104–105Google Scholar: “The principle of proportionality in attack prohibits attacks against legitimate military objectives that may be expected to cause incidental death, injury to persons or damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. The crucial difference between the relevant [IHL] and human rights rules is that under the former, the principle of proportionality aims to limit incidental (‘collateral’) damage to protected persons and objects, while nevertheless recognizing that an operation may be carried out even if such damage is likely, provided that it is not excessive in relation to the concrete and direct military advantage anticipated. In contrast, the aim of the principle of proportionality under human rights law is to prevent harm from happening to anyone else except to the person against whom force is being used. Even such a person must be spared lethal force if there is another, non-lethal way of achieving the aim of a law-enforcement operation” (emphasis added; citation omitted).

74 But see, for example, Fortin, Katharine, The Accountability of Armed Groups under Human Rights Law, Oxford University Press, Oxford, 2017CrossRefGoogle Scholar.

75 See AP I, Art. 16(1); AP II, Art. 10(1). See also GC I, Art. 18, para. 3.

76 See D. A. Lewis, G. Blum and N. K. Modirzadeh, above note 7, p. 14.

77 See, for example, ibid., p. 1.

78 According to that privilege, under IHL qualifying fighters “cannot be prosecuted for lawful acts of war in the course of military operations even if their behaviour would constitute a serious crime in peacetime”. Dörmann, Knut, “The Legal Situation of ‘Unlawful/Unprivileged Combatants’”, International Review of the Red Cross, Vol. 85, No. 849, 2003, p. 45Google Scholar.

79 See D. A. Lewis, G. Blum and N. K. Modirzadeh, above note 7, pp. 13–14.

80 See, for example, Jennifer K. Elsea and Matthew C. Weed, Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications, Congressional Research Service, 14 April 2014, available at: https://fas.org/sgp/crs/natsec/RL31133.pdf, pp. 26–75; McNair, Lord and Watts, A. D., The Legal Effects of War, 4th ed., Cambridge University Press, Cambridge, 1966, pp. 117–202Google Scholar.

81 See D. A. Lewis, G. Blum and N. K. Modirzadeh, above note 7, p. 105.

82 Ibid. See also Iverson, Jens, “War Aims Matter: Keeping Jus Contra Bellum Restrictive While Requiring the Articulation of the Goals of the Use of Force”, Minnesota Journal of International Law, Vol. 27, No. 1, 2018Google Scholar; Blum, Gabriella, “Prizeless Wars, Invisible Victories: The Modern Goals of Armed Conflict”, Arizona State Law Journal, Vol. 49, Special Issue, 2017Google Scholar; Tess Bridgeman, “When Does the Legal Basis for U.S. Forces in Syria Expire? The End Point of the ‘Unwilling or Unable’ Theory of Self-Defense”, Just Security, 14 March 2018, available at: www.justsecurity.org/53810/legal-basis-u-s-forces-syria-expire/; Nikolaevich, Startsun Viktor and Vladimirovich, Balkanov Il'ya, “Indefinite War: Unregulated Field of International Law Pertaining to an Armed Conflict Termination Criteria”, Journal of Military Law, No. 3, 2017Google Scholar; Blum, Gabriella and Luban, David, “Unsatisfying Wars: Degrees of Risk and the Jus ex Bello”, Ethics, Vol. 125, No. 3, 2015CrossRefGoogle Scholar; Blum, Gabriella, “The Fog of Victory”, European Journal of International Law, Vol. 24, No. 1, 2013CrossRefGoogle Scholar.

83 D. Kritsiotis, above note 5, p. 8.

84 See Schmitt, Michael N., “Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance”, Virginia Journal of International Law, Vol. 50, No. 4, 2010Google Scholar.

85 Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict, 3rd ed., Cambridge University Press, Cambridge, 2016, p. 10CrossRefGoogle Scholar, para. 26, arguing that “[e]very single norm of [the law of international armed conflict] is moulded by a parallelogram of forces, working out a compromise formula between the demands of military necessity and humanitarian considerations”.

86 See V. Koutroulis, above note 2, pp. 192–193.

87 See ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, para. 216. See also ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, paras 104–106; ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para. 25.

88 For its part, one of the elements of the crime against humanity of enforced disappearance of persons – as laid down in Article 7(1)(i) of the Rome Statute – is that “[t]he perpetrator intended to remove such person or persons from the protection of the law for a prolonged period of time”. ICC, Elements of Crimes, Art. 7(1)(i), para. 6 (emphasis added). As to the status of the Elements of Crimes in the Rome Statute, see Articles 9(1) and 21(1)(a) of the Statute.