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The Tremors of Tadić

Published online by Cambridge University Press:  19 March 2012

Dino Kritsiotis
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Abstract

This Article considers the impact, or tremors, of paragraph 70 of the decision on interlocutory appeal on jurisdiction of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v. Tadić, which was delivered in October 1995. It establishes, and seeks to make clear, that the commitment of the Appeals Chamber in paragraph 70 of that decision was to provide definitions for both of the concepts of international and non-international armed conflicts, even though some impressions might be that the Appeals Chamber tended to run together these different concepts in order to provide a singular and overarching definition of “armed conflict.” In separate and successive turns, the Article explores the specific components of each concept as identified by the Appeals Chamber—first, for international armed conflicts, and, then, for non-international armed conflicts—before testing them against particular facts from practice as well as hypothetical examples, but the Article also makes use of a comparative investigation as to what the Appeals Chamber said for each form of armed conflict when contrasted with each other. We examine the extent to which these components have threaded themselves through subsequent practice—specifically the relationship of the 1998 Rome Statute of the International Criminal Court with the concept of non-international armed conflict—so as to chart the full progress of the jurisprudence of the Appeals Chamber in the afterlife of Tadić: hence the designation of the “tremors” of Tadić.

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Israel Law Review , Volume 43 , Issue 2 , 2010 , pp. 262 - 300
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2010

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References

1 Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber) (Oct. 2, 1995) [hereinafter Tadić (Appeals Chamber)].

2 Consider Greenwood, Christopher, International Humanitarian Law and the Tadić. Case, 7 Eur. J. Int'l L. 265 (1996)CrossRefGoogle Scholar and Warbrick, Colin & Rowe, Peter, The International Criminal Tribunal for Yugoslavia: The Decision of the Appeals Chamber on the Interlocutory Appeal on Jurisdiction in the Tadić Case, 45 Int'l & Comp. L.Q. 691 (1996)CrossRefGoogle Scholar.

3 Schabas, William A., The International Criminal Court: A Commentary on the Rome Statute 202 (2010)CrossRefGoogle Scholar.

4 Where Trial Chamber II of the ICTY described it as “[t]he test for determining the existence of an armed conflict”—which has been “applied consistently” by the Tribunal in Tadić Trial Judgment, paras 561-571; Aleksovski Trial Judgment, paras 43-44; Čelebići Trial Judgment, paras 182-192; Furundžija Trial Judgment, para 59; Blaškić Trial Judgment, paras 63-64; Kordić Judgment, para 24; Krstić Judgment, para 481; Stakić Trial Judgment, para 568. See also Prosecutor v. Fatmir Limaj, Haradin Bala & Isak Musliu, Case No. IT-03-66-T Judgment, (Trial Chamber II) (Nov. 30, 2005) para. 84 and n.294, and, further, La Haye, Eve, War Crimes in Internal Armed Conflicts 10–12 (2008)CrossRefGoogle Scholar.

5 The Statute was originally published as an annex to the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993): U.N. Doc. S/25704 (May 3, 1993). Article 9(2) of the Statute provides for the concurrent jurisdiction of the ICTY and of national courts: “The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal.”

6 For a useful background discussion, see Weller, Marc, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, 86 Am. J. Int'l L. 569 (1992)CrossRefGoogle Scholar. See also Gray, Christine, Bosnia and Herzegovina: Civil War or Inter-State Conflict? Characterization and Consequences, 68 British Y.B. Int'l L. 155 (1997)Google Scholar and Sassòli, Marco, The Legal Qualification of the Conflicts in the Former Yugoslavia: Double Standards or New Horizons for International Humanitarian Law?, in International Law in the Post-Cold War World: Essays in Memory of Li Haopei 307 (Yee, Sienho & Tieya, Wang eds., 2001)Google Scholar.

7 Alongside the power to prosecute persons violating the crime of genocide (Article 4). This itinerary of the jurisdiction ratione materiae of the Tribunal is usefully contrasted with Article 1 of the Statute of the Tribunal—specifically its mention of “the power to prosecute persons responsible for serious violations of international humanitarian law” (emphasis added)—since both grave breaches (Article 2) and the laws or customs of war (Article 3) are dependent on the existence of a “war” or, to be more precise, some form of armed conflict. The same is true with respect of crimes against humanity (Article 5), defined in the Statute as “crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population” (emphasis added). The crime of genocide (Article 4) is, however, fastened to no such condition: see, further, Schabas, William A., Genocide in International Law: The Crime of Crimes 7 (2d ed. 2009)CrossRefGoogle Scholar.

8 Roberts, Adam & Guelff, Richard, Documents on the Laws of War 22–25 (3d ed. 2000)Google Scholar. In consequence, neither the concept of prisoners-of-war (dealt with in Geneva Convention relative to the Treatment of Prisoners of War, art. 129, Aug. 12, 1949, 75 U.N.T.S. 135 [hereinafter GC III]) nor the concept of belligerent occupation (covered in Geneva Convention relative to the Protection of Civilian Persons in Time of War, art. 146, Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter GC IV]) would be applicable to non-international armed conflicts. In this vein, it is useful to recall that the indictment against Tadić made reference to “prison camps” (e.g., at 2.1.); “a state of armed conflict and partial occupation” (at 3.1.; 3.2.); to grave breaches (e.g. at 3.2., 4.2., 5.2., 5.5., 5.8., 5.11., 5.14., 5.17., 5.20., 5.23., 5.26., 5.29., 5.32., 6.2., 7.2., 7.5., 7.8., 8.2., 9.2., 10.2., 10.5., 10.8., 10.11., 10.14., 10.17., 10.20., 10.23., 11.2., 11.5., 11.8., 11.11., 11.14., 11.17., 11.20., 11.23., 11.26., 11.29., 11.32., 11.35., 11.38., 11.41., 11.44., 11.47., 11.50., 11.53.) and to protected persons (at 3.3.); see Prosecutor of the Tribunal Against Duško Tadić (a/k/a “Dule”) and Goran Borovnica, Case No. IT-94-1-I. The indictment was amended on two subsequent occasions, in Sept. 1995 and, then, again, in Dec. 1995. All indictments are available on the ICTY website, www.icty.org/case/tadic/4.

9 According to the second paragraph of Article 49/50/129/146 of the four Geneva Conventions (respectively) (Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949,75 U.N.T.S. 85 [hereinafter GC I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949,75 U.N.T.S. 85 [hereinafter GC II]; GC III and GC IV, supra note 8) each High Contracting Party “shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may, also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case”—an arrangement that is altogether different from that designed for those war crimes deemed not to be grave breaches, including those war crimes committed in non-international armed conflicts (the subject of the third paragraph of Article 49/50/129/146): “Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.” See Röling, Bert V.A., Criminal Responsibility for Violations of the Laws of War, 12 Revue Belge de droit international 8, 13 (1976)Google Scholar and Plattner, Denise, The Penal Repression of Violations of International Humanitarian Law Applicable in Non-International Armed Conflicts, 30 Int'l Rev. Red Cross 409 (1990)CrossRefGoogle Scholar. See also infra notes 34 and 35 (and accompanying text).

10 Article 6/6/6/7 of the four Geneva Conventions as observed in Tadić (Appeals Chamber), supra note 1, at 490-492, para. 73. The concept of “protected persons” is defined, for example, in GC IV, supra note 8, art. 4(1) (“Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party the conflict or Occupying Power of which they are not nationals”) (emphasis added). This comparative point was noted by the Appeals Chamber: Tadić (Appeals Chamber), supra note 1, at 493-494, para. 76. Note: the concept of protected persons is invoked in the definition of the concept of grave breaches of the Geneva Conventions, id. See also Spieker, Heike, Protected Persons, in Crimes of War: What the Public Should Know 295–296 (Gutman, Roy & Rieff, David eds., 1999)Google Scholar and Brown, Bartram S., Nationality and Internationality in International Humanitarian Law, 34 Stanford J. Int'l L. 347 (1998)Google Scholar.

11 As the High Contracting Parties would put it in the preamble of the First Additional Protocol (Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3), they deemed it “necessary” to “reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application.” In the preamble of the Second Additional Protocol (Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125 U.N.T.S. 609), the High Contracting Parties simply emphasized “the need to ensure a better protection” for the victims of non-international armed conflicts. Furthermore, the First Additional Protocol adopts and expands the system of “grave breaches” to “the repression of breaches and grave breaches of this Protocol” (Article 85(1)); the Second Additional Protocol does not even mention the term.

12 See Shaw, Malcolm N., International Law 1191 (6th ed. 2008)CrossRefGoogle Scholar. See also Roberts & Guelff, supra note 8, at 481, and Neff, Stephen C., Justice in Blue and Gray: A Legal History of the Civil War 19 (2010)Google Scholar.

13 Tadić (Appeals Chamber), supra note 1, at 486, para. 66.

14 Id. at 499, para. 84.

15 Id. at 524, para. 137 (“In the light of the intent of the Security Council and the logical and systematic interpretation of Article 3 as well as customary international law, the Appeals Chamber concludes that, under Article 3, the International Tribunal has jurisdiction over the acts alleged in the indictment, regardless of whether they occurred within an internal or an international armed conflict. Thus, to the extent that Appellant's challenge to jurisdiction under Article 3 is based on the nature of the underlying conflict, the motion must be denied”) and at 526, para. 142 (“We conclude, therefore, that Article 5 may be invoked as a basis of jurisdiction over crimes committed in either internal or international armed conflicts”) respectively.

16 Id. at 488, para. 70.

17 Supra note 3.

18 See also O'Connell, Mary Ellen, Defining Armed Conflict, 13 J. Conflict & Sec. L. 393, 395 (2008)Google Scholar (“The Geneva Conventions … while stating in Common Article 2 that they apply in ‘armed conflict’, do not define armed conflict”). While it is true that the Geneva Conventions make their application contingent upon the occurrence of an “armed conflict” as opposed to a “war” (although see id. at 396 (meaning of war and meaning of armed conflict)), Common Article 2 tethers this concept of an armed conflict to that “which may arise between two or more of the High Contracting Parties.” In so doing, Common Article 2 hints at the qualification of the armed conflict to which it refers—that is an international armed conflict—to be distinguished from a so-called “armed conflict not of an international character,” or non-international armed conflict, the concern of Common Article 3 of the Geneva Conventions. Consider, further, Balendra, Natasha, Defining Armed Conflict, 29 Cardozo L. Rev. 2461 (2008)Google Scholar.

19 Infra notes 118-120 (and accompanying text).

20 Tadić (Appeals Chamber), supra note 1, at 486-487, para. 67. Consider, however, what is said in Article 1 of the ICTY Statute: supra note 7.

21 Id.

22 Supra note 19.

23 Supra note 20.

24 Notwithstanding the reference to “armed conflict” in its title, and to “cultural property [which] has suffered grave damage during recent armed conflicts” and “the principles concerning the protection of cultural property during armed conflict” in its preamble, the Convention goes on to pronounce that it is applicable (in Article 18(1)) “in the event 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 or more of them” and, also, “[i]n the event of an armed conflict not of an international character occurring within the territory of one of the High Contracting Parties,” where “each party to the conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural property” (Article 19(1)). See also Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict art. 3, Mar. 26, 1999, 2253 U.N.T.S. 212, to the effect that the Protocol “shall apply in situations referred to in Article 18 paragraphs 1 and 2 of the Convention and in Article 22 paragraph 1” of the Protocol (i.e. “in the event of an armed conflict not of an international character, occurring within the territory of one of the Parties”). See also O'Keefe, Roger, The Protection of Cultural Property in Armed Conflict 96–98 (2006)CrossRefGoogle Scholar.

25 In the preamble to the Optional Protocol, States Parties made reference to “the harmful and widespread impact of armed conflict on children” and condemned “the targeting of children in situations of armed conflict.” See Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, adopted May 25, 2000, G.A. Res. 54/263, Annex I, 54 U.N. GAOR Supp. (No. 49) at 7, U.N. Doc. A/54/49, Vol. III (2000), entered into force February 12, 2002. They perceived “a need to increase the protection of children from involvement in armed conflict” and welcomed the unanimous adoption of the International Labour Organization Convention No. 182 on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, which prohibits, inter alia, “forced or compulsory recruitment of children for use in armed conflict,” before recalling the obligation “of each party to an armed conflict to abide by the provisions of international humanitarian law.” The preamble also speaks of “the full protection of children, in particular during armed conflict and foreign occupation,” and of “taking into consideration the economic, social and political root causes of the involvement of children in armed conflict” and “the need to strengthen international cooperation in the implementation of this Protocol, as well as the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.” Even so, the preamble notes the inclusion in the Rome Statute of the International Criminal Court of the war crimes “of conscripting or enlisting children under the age of 15 years or using them to participate actively in hostilities in both international and non-international armed conflict” (emphasis added). Note, too, the treatment of armed conflicts in the plural in Article 38 of the 1989 United Nations Convention on the Rights of the Child, art. 38(1), Nov. 20, 1989, 1577 U.N.T.S. 3: “States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child” (emphasis added); “[i]n accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflicts” (Article 38(4) (emphases added)). See Van Bueren, Geraldine, The International Legal Protection of Children in Armed Conflicts, 43 Int'l & Comp. L.Q. 809, 812 and 817–820 (1994)CrossRefGoogle Scholar. For other possible invocations of this style, see O'Connell, supra note 18, at 395 (although note, also at 395, that “[t]he United Kingdom argued against demands that the conflict in Northern Ireland be labelled an armed conflict” (emphasis added)).

26 One of which—Resolution 1820 adopted on June 19, 2008—is considered in some detail below: see infra notes 73 to 74 (and accompanying text). In the preamble to Resolution 1325, adopted on Oct. 31, 2000, the Security Council recognized “that an understanding of the impact of armed conflict on women and girls, effective institutional arrangements to guarantee their protection and full participation in the peace process can significantly contribute to the maintenance and promotion of international peace and security,” and noted “the need to consolidate data on the impact of armed conflict on women and girls” (tenth and eleventh preambular paragraphs respectively). That the Security Council intended its directive to refer to both international and non-international armed conflicts is evident from the ninth operative paragraph of the resolution, where the Council:

[c]all[ed] upon all parties to armed conflict to respect fully international law applicable to the rights and protection of women and girls, especially as civilians, in particular the obligations applicable to them under the Geneva Conventions of 1949 and the Additional Protocols thereto of 1977, the Refugee Convention of 1951 and the Protocol thereto of 1967, the Convention on the Elimination of All Forms of Discrimination Against Women of 1979 and the Optional Protocol thereto of 1999 and the United Nations Convention on the Rights of the Child of 1989 and the two Optional Protocols thereto of 25 May 2000, and to bear in mind the relevant provisions of the Rome Statute of the International Criminal Court (emphasis added).

Furthermore, in the tenth operative paragraph of the resolution, the Council called upon “all parties to armed conflict to take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in situations of armed conflict.” Here, “situations” of armed conflict is clearly intended to denote that the special measures for protection called for are not to be confined to any one of the forms of armed conflict emanating from the Geneva Conventions: see also Neuwirth, Jessica, Women and Peace and Security: The Implementation of U.N. Security Council Resolution 1325, 9 Duke J. Gender L. & Policy 253 (2002)Google Scholar.

27 See Greenwood, supra note 2, at 270.

28 Supra notes 8-10 (and accompanying text).

29 Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion on Jurisdiction (Trial Chamber)) Aug. 10, 1995), para. 53 [hereinafter Tadić (Trial Chamber)].

30 Id. at 442, para. 50, which continues: “nothing in the words of the Article expressly require [the] existence [of an international armed conflict]; once one of the specified acts is allegedly committed upon a protected person of the power of the [Tribunal] to prosecute arises if the spatial and temporal requirements of Article 1 are met”. This is a reference to the specification in the Statute of the Tribunal that the competence of the tribunal extends to the prosecution of persons responsible for serious violations of international humanitarian law “committed in the territory” of the former Yugoslavia “since 1991.” See, further, supra note 7.

31 Id. at 443, para. 52. For a countenance against literal enforcement and “the height of legalism” in interpreting the concept of grave breaches, consider Meron, Theodor, Classification of Armed Conflict in the Former Yugoslavia: Nicaragua's Fallout, in War Crimes Law Comes of Age: Essays 286, 290–291 (Meron, Theodor ed., 1998)Google Scholar.

32 Id. at 443, para. 52 (“In the case of what are commonly referred to as ‘grave breaches’, this conventional law has become customary law, though some of it may well have been conventional law before being written into the predecessors of the present Geneva Conventions.”)

33 Id. at 447, para. 65.

34 Tadić (Appeals Chamber), supra note 1, at 497, para. 80, adding that “States parties to the 1949 Geneva Conventions did not want to give other States jurisdiction over serious violations of international humanitarian law committed in their internal armed conflicts—at least not the mandatory universal jurisdiction involved in the grave breaches system” See also Meron, Theodor, International Criminalization of Internal Atrocities, 89 Am. J. Int'l L. 554, 568–571 (1995)CrossRefGoogle Scholar; Boelart-Souominen, Sonja, Grave Breaches, Universal Jurisdiction and Internal Armed Conflict: Is Customary International Law Moving Towards a Uniform Enforcement Mechanism for All Armed Conflicts?, 5 J. Conflict & Sec. L. 63 (2000)CrossRefGoogle Scholar and Moir, Lindsay, Grave Breaches and Internal Armed Conflicts, 7 J. Int'l Crim. Justice 763 (2009)CrossRefGoogle Scholar.

35 Id. at 497-498, para. 81. By contrast, it is worth noting at this point that when the Security Council adopted Resolution 955 on Nov. 8, 1994, creating the International Criminal Tribunal for Rwanda “for the sole purpose of prosecuting persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens,” no provision was made for the prosecution of grave breaches of the Geneva Conventions. According to the Statute annexed to Resolution 955, the Tribunal was to have competence for prosecuting genocide (Article 2), crimes against humanity (Article 3) and violations of Article 3 common to the Geneva Conventions and of the Second Additional Protocol (Article 4)—perhaps making the assumptions of the Security Council a touch more explicit this time round: see van den Herik, L.J., The Contribution of the Rwanda Tribunal to the Development of International Law 204 (2005)Google Scholar.

36 Cf. Meron, supra note 34, at 556:

The offences listed in Articles 2 and 3 of the Yugoslavia Statute (grave breaches of the Geneva Conventions and violations of the laws or customs of war) indicate that the Security Council considered the armed conflicts in Yugoslavia as international. The facts on the ground and the applicable rules of international law strongly support this conclusion. Treating the conflicts in Yugoslavia as international armed conflicts enhances the corpus of the applicable international humanitarian law and fully respects the principle of nullum crimen sine lege (footnote omitted).

37 Even though Common Article 3 concerns “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.” See also Moir, Lindsay, The Law of Internal Armed Conflict 58–61 (2002)CrossRefGoogle Scholar and Werle, Gerhard, Principles of International Criminal Law 302 (2005)Google Scholar.

38 It is in subsequent jurisprudence that the Appeals Chamber emphasized “substantial relations more than … formal bonds” for protected persons: Prosecutor v. Tadić, Case No. IT-94-1-A, Judgment, (Appeals Chamber) July 15, 1999, para. 166. See, further, Steiner, Henry J., Philip Alston & Ryan Goodman, International Human Rights in Context: Law, Politics, Morals 1269 (3rd ed. 2008)Google Scholar. Note, though, the observation of the International Court of Justice in the Nicaragua case (1986), that “a principle enshrined in a treaty, if reflected in customary international law, may well be so unencumbered with the conditions and modalities surrounding it in the treaty. Whatever influence the Charter may have had on customary international law in these matters, it is clear that in customary international law it is not a condition of the lawfulness of the use of force in self-defense that a procedure so closely dependent on the content of a treaty commitment and of the institutions established by it, should have been followed.” See Military and Paramilitary Activities in and Against Nicaragua (Nic. v. U.S.A.) 1986 I.C.J. Rep. 14, 105, para. 200 (June 27). The Court was here referring to the “reporting requirement” of Article 51 of the United Nations Charter—that “[m]easures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” Consider, for example, the customary possibilities for the internationalization of non-international armed conflicts with the procedural provision as set out in the First Additional Protocol (supra note 11 and infra note 47).

39 Tadić (Appeals Chamber), supra note 1, at 524, para. 137. See also the approach of the Trial Chamber on this question (supra note 33) and, further, Akhavan, Payam, The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment, 90 Am. J. Int'l L. 501, 503 (1996)CrossRefGoogle Scholar.

40 Note, however, the observation of Secretary-General Boutros Boutros-Ghali, in respect of the 1994 Statute of the International Criminal Tribunal for Rwanda, supra note 35, that “the Security Council has elected to take a more expansive approach to the choice of the applicable law than the one underlying the Statute of the Yugoslav Tribunal, and included within the subject-matter jurisdiction of the Rwanda Tribunal international instruments regardless of whether they were considered part of customary international law or whether they have customarily entailed the individual criminal responsibility of the perpetrator of the crime. Article 4 of the Statute, accordingly, includes violations of Additional Protocol II, which, as a whole, has not yet been universally recognized as part of customary international law, and for the first time criminalizes Common Article 3 [of the Geneva Conventions].” See Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955, U.N. Doc. S/1995/134 (Feb. 13, 1995), 3-4, para. 12.

41 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, supra note 5, at 9 (para. 34).

42 Tadić (Appeals Chamber), supra note 1, para. 70.

43 Greenwood, Christopher, The Concept of War in Modern International Law, 36 Int'l & Comp. L.Q. 283 (1987)CrossRefGoogle Scholar.

44 Although the tradition continues to persist in certain quarters, see Solis, Gary D., The Law of Armed Conflict: International Humanitarian Law in War (2010)CrossRefGoogle Scholar. One is tempted to ask after the qualification contained in the title to this volume—of international humanitarian law “in war”—in view of the claim, at 21, that “not all armed conflicts are wars, but all wars are armed conflicts.” If it is accepted that international humanitarian law applies in (international and non-international) armed conflicts—as would appear to be the case from the first half of the title—what is the point of then affixing international humanitarian law to “war”? Is this meant to suggest that, contrary to the terms of Common Article 2 of the Geneva Conventions, the concept of war is coterminous with the concept of an (international) armed conflict? Or does it imply a life and relevance for international humanitarian law outside of the condition of war—but excluded from the remit of this volume? It is a point I emphasize each and every year in my classes on international humanitarian law, using one of the assigned texts of the syllabus—that of Adam Roberts and Richard Guelff and the third edition of their Douments on the Laws of War (supra note 8)—as an obvious and perfectly placed counterfoil for the point I am making here.

45 Emphasis added. The alternative nomenclature of “international humanitarian law” might suggest itself for this corpus but it would not instantly convey the respective specificities pertaining to the law for international armed conflicts or that for non-international armed conflicts. It has occasioned criticism, too, on the grounds of its “slightly Orwellian ring”: Lowe, Vaughan, International Law 266 (2007)CrossRefGoogle Scholar (though admitting, at 266-267, that the term “does emphasize one very important aspect of this body of law, of rapidly growing importance, which is that in modern conflicts the role and responsibilities of the armed forces are likely to extend well beyond the cessation of fighting and into the period of reconstruction and re-establishment of the social structure in areas blighted by the fighting.”)

46 Lassa Oppenheim has emphasized the historical significance of States in this respect—well before the advent of the Geneva Conventions, see Oppenheim, Lassa, International Law: A Treatise (Vol. II: Disputes, War, Neutrality) 203, para. 56 (Lauterpacht, Hersch ed., 7th ed. 1952)Google Scholar.

47 As has been the way with conventional international humanitarian law: Article 1(4) of the First Additional Protocol (supra note 11) provides that international armed conflicts shall “include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, 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.” However, this is followed by the procedural provision of Article 96(3) of the First Additional Protocol:

The authority representing a people engaged against a High Contracting Party in an armed conflict of the type referred to in Article 1, paragraph 4, may undertake to apply the Conventions and this Protocol in relation to that conflict by means of a unilateral declaration addressed to the depositary. Such declaration shall, upon its receipt by the depositary, have in relation to that conflict the following effects:

(a) the Conventions and this Protocol are brought into force for the said authority as a Party to the conflict with immediate effect;

(b) the said authority assumes the same rights and obligations as those which have been assumed by a High Contracting Party to the Conventions and this Protocol; and

(c) the Conventions and this Protocol are equally binding upon all Parties to the conflict.

See also Murray, Christina, The 1977 Geneva Protocols and Conflict in Southern Africa, 33 Int'l & Comp. L.Q. 462 (1984)CrossRefGoogle Scholar and Dugard, John, The Treatment of Rebels in Conflicts of A Disputed Character: The Anglo-Boer War and the “ANC-Boer War” Compared, in Humanitarian Law of Armed Conflict—Challenges Ahead: Essays in Honour of Frits Kalshoven 448 (Delissen, Astrid J.M. & Tanja, Gerard J.M. eds., 1991)Google Scholar. See also Rubin, A.P., The Status of Rebels and the Geneva Conventions of 1949, 21 Int'l & Comp. L.Q. 472, 474–476 (1972)CrossRefGoogle Scholar and Stewart, James G., Towards A Single Definition of Armed Conflict in International Humanitarian Law: A Critique of Internationalized Armed Conflict, 85 Int'l Rev. Red Cross 313, 319 (2003)Google Scholar (“international armed conflict is not a synonym for inter-State warfare, nor does the full extent of international humanitarian law presuppose that the collective belligerents must be States”). Consider, too, the flexibility advocated by Meron “in some other conflicts involving the disintegration of a state or political entity and the resulting struggle between peoples and ethnic groups”: supra note 31, at 290.

48 See The State Of Israel, The Operation in Gaza, 27 December 2008–2018 January 2009: Factual and Legal Aspects Para. 36 (2009), http://www.mfa.gov.il/MFA/Terrorism-+Obstacle+to+Peace/Hamas+war+against+Israel/Operation_Gaza_Context_of_0peration_5_Aug_2009.htmGoogle Scholar. This could be regarded as giving some legal form to the rhetoric Israel used in Sept. 2007 when it labeled the Gaza Strip a “hostile territory”: Erlanger, Steven & Cooper, Helene, Israel Calls Gaza “Hostile” In Step to Tighten Penalties, N.Y. Times, Sept. 20, 2007, A12Google Scholar. Israel's invocation of these provisions of the First Additional Protocol occurred because these “accurately reflect[] customary international law”—and it used the same principles to make its assessments of the behavior of Hamas: id. at 53. The Goldstone Commission formed the view that “Israel has without doubt at all times relevant to the mandate of the Mission exercised effective control over the Gaza Strip,” and that the situation was in fact one of belligerent occupation with “the international community continu[ing] to regard [Israel] as the occupying Power.” See Report of the United Nations Fact Finding Mission on the Gaza Conflict, Human Rights in Palestine and Other Occupied Arab Territories, U.N. Doc. A/HRC/12/48 (Sept. 15, 2009), at 85, paras. 276–277. But see, however, Shany, Yuval, Faraway So Close: The Legal Status of Gaza After Israel's Disengagement, 8 Y.B. Int'l Hum. L. 369 (2005)CrossRefGoogle Scholar. In contrast, Israel considered the actions of Hezbollah in Lebanon in the summer of 2006 as acts of Lebanon: “The Lebanese Government, of which Hezbollah is a member,” Prime Minister Ehud Olmert announced in July 2006, “is trying to undermine regional stability. Lebanon is responsible and Lebanon will bear the consequences of its actions”: Israel Ministry of Foreign Affairs, PM Olmert: Lebanon is Responsible and Will Bear The Consequences (July 12, 2006), http://www.mfa.gov.il/MFA/Government/Communiques/2006/PM+Olmert+-+Lebanon+is+responsible+and+will+bear+the+consequences+12-Jul-2006.htm. See also Zimmermann, Andreas, The Second Lebanon War: Jus ad bellum, jus in bello and the Issue of Proportionality, 11 Max Planck Y.B. U.N. Law 99, 126–129 (2007)Google Scholar.

49 Tadić (Appeals Chamber), supra note 1, at 493-494, para. 76. See also Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict 27–28 (2d ed. 2010)CrossRefGoogle Scholar and Kress, Claus, War Crimes Committed in Non-International Armed Conflicts and the Emerging System of International Criminal Justice, 30 Israel Y.B. Hum. Rts. 103, 105 (2000)Google Scholar. Tadić, of course, produced as part of its ensuing jurisprudence the test of overall control for the internationalization of non-international armed conflicts—but this came much later, in July 1999. See Prosecutor v. Tadić, Case No. IT-94-1-AR72, Judgment (Appeals Chamber) (July 15, 1999), paras. 83-171, and, further, Milanovic, Marko, State Responsibility for Genocide, 17 Eur. J. Int'l L. 553, 576–581 (2006)CrossRefGoogle Scholar. Therein, the Appeals Chamber ruled that “in case of an internal armed conflict breaking out on the territory of a State, it may become international (or, depending on the circumstances, be international in character alongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State” (para. 84), and at para. 131:

In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity. Only then can the State be held internationally accountable for any misconduct of the group. However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to intemational law.

See, further, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 I.C.J. 404 (Feb. 26), and Cassese, Antonio, The Nicaragua and Tadić Tests Revisited in the Light of the ICJ Judgment on Genocide in Bosnia, 18 Eur. J. Int'l L. 649 (2007)CrossRefGoogle Scholar.

50 Emphases added.

51 According to Article 1 (3) of the First Additional Protocol, “[t]his Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 common to those Conventions.” See also Baxter, Richard R., The Duties of Combatants and the Conduct of Hostilities (Law of the Hague), in International Dimensions of Humanitarian Law 98 (UNESCO ed., 1998)Google Scholar. Cf. Article 1(1) of the Second Additional Protocol, supra note 11.

52 See Hampson, Françoise J., The Relationship Between International Humanitarian Law and Human Rights Law from the Perspective of A Human Rights Treaty Body, 90 Int'l Rev. Red Cross 549, 553 (2008)Google Scholar. Consider, in this respect, whether the exchange of “lethal fire” on the border between Israel and Lebanon in Aug. 2010 was sufficient to have amounted—or ought to have amounted—to an international armed conflict between the two States: see Kersher, Isabel & Bakri, Nada, Lethal Clash at Israel-Lebanon Border, N.Y. Times, Aug. 4, 2010, at A9Google Scholar. See also Kershner, Isabel, U.N. Supports Israel Account of Border Clash, N.Y. Times, Aug. 5, 2010, at A8Google Scholar.

53 See O'Connell, Mary Ellen, The Nicaragua Case: Preserving World Peace and the World Court, in International Law Stories 339, 364 (Noyes, John E., Dickinson, Laura A. & Janis, Mark W. eds., 2007)Google Scholar (for the apparent equation of the concepts of force and armed conflict (“conduct of force”)). See, further, Vité, Sylvain, Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations, 91 Int'l Rev. Red Cross 69, 72 (2009)Google Scholar.

54 Nicaragua case, supra note 38, at 114, para. 216 (emphasis added).

55 A tactic the Court used when examining the relationship between the concept of force and the concept of armed attack, where the Court distinguished between “the most grave forms of the use of force (those constituting an armed attack)” and “other less grave forms.” See Nicaragua case, supra note 38, at 101, para 191. It did so as part of its analysis of the jus ad bellum; as an instance of “other less grave forms” of force, the Court mentioned “a mere frontier incident”: id. at 103, para. 195.

56 Levie, Howard, The Status of Belligerent Personnel “Splashed” and Rescued by A Neutral in the Persian Gulf Area, 82 Proceedings Am. Soc. Int'l L. 597 (1988)Google Scholar (concluding, at 598, that “[i]solated incidents can result in a state of [international] armed conflict”).

57 Id. See also Corn, Geoffrey S. & Smidt, Michael L., “To Be or Not to Be, That is the Question”: Contemporary Military Operations and the Status of Captured Personnel, Army Lawyer 1 (1999)Google Scholar.

58 Emphasis added. See also Greenwood, Christopher, Scope of Application of Humanitarian Law, in The Handbook of International Humanitarian Law 50 para. 203 (Fleck, Dieter ed., 2d ed. 2008)Google Scholar.

59 Nicaragua case, supra note 38, at 104, para. 195.

60 Supra note 55 (though this is not to be taken as the Court confirming that force of this kind would itself be sufficient to constitute an international armed conflict as envisaged by the Court: supra note 54).

61 Oppenheim, supra note 46, at 205, para. 57. See also Neff, Stephen C., Towards A Law of Unarmed Conflict: A Proposal for A New International Law of Hostility, 28 Cornell Int'l L.J. 1, 7 (1995)Google Scholar.

62 Id. at 208, para. 58.

63 Dinstein, Yoram, War, Aggression and Self-Defence 14 (4th ed. 2005)CrossRefGoogle Scholar. To be sure, Dinstein considers the matter in the context of the concept of war, but his argument is perhaps even more prevalent in light of the legislative intention behind Common Article 2: “an objective inquiry … may prompt the conclusion that [two States] are in the midst of war, although from the subjective standpoint of its intentions (animus belligerendi), neither country desires war.”

64 See Hampson, supra note 52, at 553, and Vité, supra note 53, at 72-73. Conceivably, this factor would assist us in working through different forms of declarations of war: on this point, see also Greenwood, supra note 58.

65 As occurred in Mar. 2007 when a routine training exercise of a company of Swiss soldiers ended with them getting lost and marching into neighboring Liechtenstein, : Swiss Troops Get Lost in Liechtenstein, N.Y. Times, Mar. 3, 2007, at A3Google Scholar.

66 See Kritsiotis, Dino, Topographies of Force, in International Law and Armed Conflict: Exploring the Faultlines—Essays in Honour of Yoram Dinstein 29, 74–75 (Schmitt, Michael & Pejic, Jelena eds., 2007)Google Scholar. See, further, Dinstein, supra note 63, at 245.

67 See Hampson, supra note 52, at 553.

68 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) 2005 I.C.J. 168, 198, para. 52 (Dec. 19).

69 Id. para. 105.

70 Rule 93 of the ICRC study on customary international humanitarian law provides that, for both international and non-international armed conflicts, “[r]ape and other forms of sexual violence are prohibited.” See Henckaerts, Jean-Marie, Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Confict, 87 Int'l Rev. Red Cross 175, 206 (2005)Google Scholar.

71 MacKinnon, Catharine A., Women's September 11th: Rethinking the International Law of Conflict, 47 Harvard Int'l L.J. 1, 11 (2006)Google Scholar.

72 MacKinnon identifies war crimes trials, military tribunals, potentially justified acts of self-defence—and prisoners-of-war: id. See, however, Hampson, supra note 52, at 553.

73 Resolution 1820 (2008) (June 19,2008) (sixth preambular para.). See also BBC Newsonline, UN Classifies Rape As a “War Tactic, Jüne 20, 2008, http://news.bbc.co.uk/1/hi/7464462.stmGoogle Scholar.

74 Id. (first operative paragraph).

75 First Additional Protocol, supra note 11, art. 54(2).

76 Rule 53 of the ICRC study on customary international humanitarian law provides that, for both international and non-international armed conflicts, “[t]he use of starvation of the civilian population as a method of warfare is prohibited.” See Henckaerts, supra note 70, at 203.

77 Note, however, that Common Article 3 is formulated in negative terms and presents itself—at least on its surface—as a default definition for all of those armed conflicts not coming within the compass of Common Article 2 (i.e., it apples “[i]n the case of armed conflict not of an international character”) (emphasis added). This appears to have been the approach to the Geneva Conventions taken by the United States Supreme Court in Hamdan v. Rumsfeld, 548 U.S. 557, 567 (2006) (“there is at least one provision of the Geneva Conventions [i.e., Common Article 3] that applies here even if the relevant conflict is not one between signatories”). See also Sands, Philippe, Torture Team: Rumsfeld's Memo and the Betrayal of American Values 33–35 (2008)Google Scholar (referring to the “safety net” of Common Article 3). However, the firm intentions behind this provision (see infra note 83) do need to be fully and frankly emphasized: see Hampson, supra note 52, at 554.

78 An important stipulation, one not to be underestimated because it raises the question of whether governmental armed forces that suddenly turn on the civilian population—with no other “party” in sight—can properly be said to have instituted a non-international armed conflict. As Trial Chamber I of the International Criminal Tribunal for Rwanda said in respect of Common Article 3 in Prosecutor v. Jean-Paul Akayesu, Case No. ICTY-96-4-T (Sept. 2, 1998): “The term ‘armed conflict’ in itself suggests the existence of hostilities between armed forces organized to a greater or lesser extent. This consequently rules out situations of internal disturbances and tensions. For a finding to be made on the existence of an internal armed conflict in the territory of Rwanda at the time of the events alleged, it will therefore be necessary to evaluate both the intensity and organization of the parties to the conflict” (para. 620). The Chamber found “there to have been a civil war between two groups”—those of the governmental forces (the Rwandan Armed Forces (FAR)) and the Rwandan Patriotic Front (RPF). “Both groups were well-organized and considered to be armed in their own right” (para. 621). See also van den Herik, supra note 35, at 215-220.

79 Second Additional Protocol, supra note 11, art. 1 (1). This qualification is important not only because of its relation with Common Article 3 of the Geneva Conventions—but because it acts as a qualification of the statement, also found in Article 1(1), that the Second Additional Protocol “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.” The Second Additional Protocol was therefore not intended as a default mechanism for all of those armed conflicts not coming within the provenance of the First Additional Protocol.

80 Emphases added. The implication is that one of the Parties to non-international armed conflicts as understood in the Second Additional Protocol must be the armed forces of a High Contracting Party. The provenance of the Protocol would have been different had Article 1(1) been worded so as to apply between armed forces of the High Contracting Party and dissident armed forces or between other organized armed groups: infra note 84.

81 Emphases added. See Abi-Saab, Rosemay, Humanitarian Law and Internal Conflicts: The Evolution of Legal Concern, in Humanitarian Law of Armed Conflict—Challenges Ahead: Essays in Honour of Frits Kalshoven 209 at 216 (Delissen, Astrid J.M. & Tanja, Gerard J.M. eds., 1991)Google Scholar and Stewart, supra not 47, at 319. In Akayesu, Case No. ICTR-96-4-T, supra note 78, Trial Chamber I of the International Criminal Tribunal for Rwanda identified the following four “conditions” for the application of the Second Addition Portocol as contained in Article 4 of its Statute:

(i) an armed conflict took place in the territory of a High Contracting Party, namely Rwanda, between its armed forces and dissident armed forces or other organized armed groups;

(ii) the dissident armed forces or other organized armed groups were under responsible command;

(iii)the dissident armed forces or other organized armed gropus were able to exercise such control over a part of their territory as to enable them to carry out sustained and concerted military operations; and

(iv)the dissident armed forces or others organized armed groups were able to implement Addditional Protocl II (para. 623).

Trial Chamber I further concluded (at para.627) that:

in addition to the requirments of Common Article 3 being met, that the material conditions in listed above relevant to Additional Protocol II have been fulfilled. It has been shown that there was a conflict between, on the one hand, the RPF, under the command of General Kagame, and, on the other, the governmental forces, the FAR. The RPF increased its control over the Rwandan territory from that agreed in the Arusha Accords to over half of the country by mid-May 1994, and carried out continuous and sustained military operations until the cease fire on 18 July 1994 which brought the war to an end. The RPF troops were disciplined and possessed a structured leadership which was answerable to authority. The RPF has also stated to the Internatinal humnanitarian law. The Chamber finds the said conflict to have been an internal armed conflict within the meaning of Additional Protocol II. Further, the Chamber finds that conflict took place at the time of the events alleged in the Indictment.

82 Second Additional Protocol, supra note 11, art. 1(2).

83 At the Geneva Conference, it was feared by certain delegations that the term “armed conflict not of an international character” was of such vagueness “that it might be taken to cover any act committed by force of arms—any form of anarchy, rebellion, or even plain banditry.” See Commentary on Geneva Convention (III) Relative to the Treatment of Prisoners of War 35 (de Preux, Jean ed., 1960)Google Scholar. However, the preferred option was to set out a series of “convenient criteria” to guide the application of Common Article 3 in practice:

(1) That the Party in revolt against the de jure Government possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention.

(2) That the legal Government is obliged to have recourse to the regular military forces against insurgents organized as military and in possession of a part of the national territory.

(3) (a) That the de jure Government has recognized the insurgents as belligerents; or

(b) That it has claimed for itself the rights of a belligerent; or

(c) That it has accorded the insurgents recognition as belligerents for the purposes only of the present Convention; or

(d) That the dispute has been admitted to the agenda of the Security Council or the General Assembly of the United Nations as being a threat to international peace, a breach of the peace, or an act of aggression.

(4) (a) That the insurgents have an organization purporting to have the characteristics of a State.

(b) That the insurgent civil authority exercises de facto authority over the population within a determinate portion of the national territory.

(c) That the armed forces act under the direction of an organized authority and are prepared to observe the ordinary laws of war.

(d) That the insurgent civil authority agrees to be bound by the provisions of the Convention.

Id. at 35-36. See also Vité, supra note 53, at 76.

84 Emphasis added.

85 But see supra note 78, and infra note 116. Note, though, that, under the Tadić formulation, armed groups must be organized, irrespective of whether they are engaged in a non-international armed conflict with governmental authorities or other such organized groups within a State: id. See also Hampson, supra note 52, at 555.

86 See Schabas, supra note 3, at 204. To be sure, the last three words of this statement are Protocol- (or convention-) specific; but the idea of being able/enabled “to carry out sustained and concerted military operations” is not. Even these words do not appear in the Appeal Chamber's definition—unless one is prepared to read this consideration into the duration of armed violence as discussed above (supra note 83 and accompanying text). That said, it could be argued that the Second Additional Protocol's use of the word “enable” suggests a criteria of the potential to engage in protracted armed violence, whereas the Tadić formulation appears to require that the protracted armed violence is already in existence or underway.

87 See Bothe, Michael, War Crimes, in The Rome Statute of the International Criminal Court: A Commentary (Vol. I) 379, 423 (Cassese, Antonio, Gaeta, Paola, & Jones, John R.W.D. eds., 2002)Google Scholar (arguing that the formulation of Article 8(2)(f) “is a replica of the definition given by the ICTY [in Tadić]”).

88 So thought Pre-Trial Chamber II of the International Criminal Court in Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, (June 15, 2009), Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo in respect of Article 8(2)(d) and the first sentence of Article 8(2)(f) of the Statute (which “requires any armed conflict not of an international character to reach a certain level of intensity which exceeds that of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. In the view of the Chamber, this is ultimately a limitation on the jurisdiction of the Court itself, since if the required level of intensity is not reached, crimes committed in such a context would not be within the jurisdiction of the Court” (para. 225)).

89 See Sivakumaran, Sandesh, Identifying an Armed Conflict Not of An International Character, in The Emerging Practice of the International Criminal Court 363 (Stahn, Carsten & Sluiter, Göran eds., 2008)Google Scholar and Cullen, Anthony, The Definition of Non-International Armed Conflict in the Rome Statute of the International Criminal Court: An Analysis of the Threshold of Application Contained in Article 8 (2)(f), 12 J. Conflict & Sec. L. 419 (2008)CrossRefGoogle Scholar. See also Dörmann, Knut, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary 384–387 & 441–442 (2003)CrossRefGoogle Scholar and Spieker, Heike, The International Criminal Court and Non-International Armed Conflicts, 13 Leiden J. Int'l L. 395 (2000)CrossRefGoogle Scholar.

90 Supra note 11.

91 Supra note 83. See also Kress, supra note 49, at 116, and Sivakumaran, supra note 89, at 365.

92 That is that Article 8(2)(f) uses the term “protracted armed conflict” where Tadić used the term of “protracted armed violence.” On this point, see Sivakumaran, supra note 89, at 373 (“The deliberate substitution of ‘protracted armed violence’ with ‘protracted armed conflict’ makes little sense. To define an armed conflict by reference to a protracted armed conflict is singularly unhelpful. And if an armed conflict is defined, in part, as protracted armed violence, then a protracted armed conflict is simply protracted, protracted armed violence. The additional ‘protracted’ adds little value”). See also Cullen, supra note 89, at 435 & ff. Article 8(2)(f) might therefore be regarded as a replica of Tadić—but it is not an exact replica: supra note 87. Dörmann has argued that “[t]he addition of the word ‘protracted’ to ‘armed conflict’ seems to be redundant, since protracted violence is a constituent element of an armed conflict not of an international character.” See Dörmann, supra note 89, at 441.

93 See Robinson, Darryl & von Hebel, Herman, War Crimes in Internal Conflicts: Article 8 of the ICC Statute, 2 Y.B. Int'l Human. L. 193, 205 (1999)Google Scholar.

94 See supra note 80. See also Greenwood, supra note 58, at 55, para. 210 (providing examples of Lebanon during the 1980s and Somalia after 1991 for the broader compass of Common Article 3).

95 See Sassòli, Marco & Bouvier, Antoine A., How Does the Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law (Vol. I) 110 (2d ed. 2006) (emphasis addd)Google Scholar.

96 Kress, supra note 49, at 117-118. See also, Condorelli, Luigi, War Crimes and Internal Conflicts in the Statute of the International Criminal Court, in The Rome Statute of the International Criminal Court: A Challenge to Impunity 107, 112–113 (Politi, Mauro & Nesi, Giuseppe eds., 2001)Google Scholar.

97 As advanced in the Report of the Preparatory Committee on the Establishment of An International Criminal Court, U.N. Doc. A/CONF/.183/2/Add.1 (Apr. 14, 1998), at 22.

98 Id. See also U.M. Doc. A/CONF.C.1/L.53 (July 6, 1998). This, of course, is now reflected in Article 8(2)(d) and the first sentence of Article 8(2)(f) of the Statute: supra notes 90 & 91 (and accompanying text).

99 On how this unfolded, see Cullen, supra note 89, at 427 & 431-432.

100 U.N. Doc. A/CONF.183/C.1/L.59 (July 10, 1998), at 7.

101 U.N. Doc. A/CONF. 183/INF/11 (July 13, 1998), at 2. For New Zealand: “These types of non-international armed conflicts must also fall under the jurisdiction of the Court.”

102 Id.

103 See Cullen, supra note 89, at 429-431.

104 U.N. DOC. A/CONF. 183/C.1/SR.35 (July 13, 1998).

105 For an especially useful recounting of the drafting history, consider Sivakumaran, supra note 89, at 371-377. It is interesting that, following Sierra Leone's experience with non-international armed conflict, the Statute of the Special Court for Sierra Leone awarded competence to the Special Court “to prosecute persons who committed or ordered the commission of serious violations of [Common] Article 3 … to the Geneva Conventions …, and of Additional Protocol II thereto” (Article 3). However, in addition to this provision, Article 4 provides that:

The Special Court shall have the power to prosecute persons who committed the following series violations of international humanitarian law:

a. intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

b. internationally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

c. conscripting or enlisting children under the age of 15 years into the armed forces or groups or using them to participate actively in hostilities.

See also U.N. Doc. A/CONF.183/SR.25 (July 8, 1998).

106 See Sivakumaran, supra note 89, at 375, and Cullen, supra note 89, at 435-437.

107 See supra notes 70-76 (and accompanying text).

108 See also supra notes 78 & 81.

109 See Spieker, supra note 89, at 399. Following through from some of the conventional evidence: Common Article 3(1) is addressed to persons “taking no active part in 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.” As for the Second Additional Protocol, Article 2(2) mentions “the end of the armed conflict”; Article 4(1) all persons “who do not take a direct part or who have ceased to take part in hostilities”; Article 5(2)(c) makes reference to “the combat zone”; Article 6 (5) staples its obligation to “the end of hostilities”; Article 7(1) on the taking part “in the armed conflict”; Article 13(1) concerns the general protection of the civilian population “against the dangers arising from military operations” and Article 13(3) on protection of civilians “unless and for such time as they take a direct part in hostilities.”

110 See Lee Anderson, Jon, Downfall, New Yorker, Apr. 12, 2010, at 26Google Scholar. Note the findings of a recent study, that more than sixty percent of rape victims in the eastern DRC have been gang-raped by armed men—and that there has been an exponential increase in the incidence of civilian rape in the course of this (non-international) armed conflict: Harvard Humanitarian Initiative, “Now, The World is Without Me”: An Investigation in Eastern Democratic Republic of Congo (2010), http://www.oxfam.org.uk/resources/policy/conflict_disasters/downloads/rr_sexual_violence_drc_150410.pdfGoogle Scholar.

111 See MacKinnon, supra note 71, at 12. See also Charlesworth, Hilary & Chinkin, Christine, Sex, Gender: and September 11, 96 Am. J. Int'l L. 600, 602 (2002)CrossRefGoogle Scholar.

112 Supra note 76.

113 Cf. Quénivet, Noëlle, The Moscow Hostage Crisis in the Light of the Armed Conflict in Chechnya, 4 Y.B. Int'l Human. L. 348 (2001)CrossRefGoogle Scholar.

114 See supra notes 78 & 81.

115 Prosecutor v. Tadić, Case No. IT-94-1-T (Trial Chamber: Opnion & Judgement) (May 7, 1997) 193-194, para. 562. See also supra notes 78 & 83.

116 Id. See also La Haye, supra note 4, at 11-13.

117 Id. See also supra note 83.

118 Tadić (Appeals Chamber), supra note 1, at 486, para. 67.

119 Id. emphasis added. For an important discussion of these topics in realtion to international armed conflicts, consider Greenwood, Christopher, Self-Defence and the Conduct of International Armed Conflict, in International Law At a Time of Perplexity: Essays in Honour of Shabtai Rosenne 273, 275–278 (Dinstein, Yoram & Tabory, Mala eds., 1989)Google Scholar.

120 See Henckaerts, supra note 70, at 187.

121 Supra notes 77-79 (and accompanying text).

122 See International Law Association Committee on the Use of Force, Initial Report on the Meaning of Armed Conflict in International Law 6 (2008)Google Scholar (“There is nowadays thought to be growing convergence between the rules governing international and non-international armed conflicts and in the future it may be less important to classify the type of conflict”). Though this report maintains the division between international and non-international armed conflicts in its analysis, it provides as examples of “armed conflicts” (id. at 9) the 1956 Suez Invasion and the 1967–70 Biafran War—both in the same breath!

123 Supra note 120. Although one might wonder whether the term “international humanitarian law” properly imparts the extent of the lex specialis for international armed conflicts as it does the lex specialis for non-international armed conflicts, see supra notes 8-10. See, however, infra note 125.

124 Stewart writes that “[a] particular sticking point in developing a single law of armed conflict is defining a generic definition of the term in light of the different levels of intensity that trigger international and non-international armed conflicts at present”: (supra note 47, at 345). Note how the International Law Association Committee on the Use of Force advances the idea of a generic med conflict as lex ferenda (supra note 122).

125 Tadić (Appeals Chamber), supra note 1, at 506 para. 97. And the Appeals Chamber continued:

Why protect civilians from belligerent violence, or ban rape, torture or the wanton destruction of hospitals, churches, museums or private property, as well as proscribe weapons causing unnecessary suffering when two sovereign States are engaged in war, and yet refrain from enacting the same bans or providing the same protection when armed violence has erupted “only” within the territory of a sovereign State? If international law, while of course duly safeguarding the legitimate interests of States, must gradually turn to the protection of human beings, it is only natural that the aforementioned dichotomy should gradually lose its weight.

Id. And, further, at 516, para. 119:

elementary considerations of humanity and common sense make it preposterous that the use by State of weapons prohibited in armed conflicts between themselves be allowed when States try to put down rebellion by their own nationals on their own territory. What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife.

See also Willmott, Deidre, Removing the Distinction Between International and Non-International Armed Conflict in the Rome Statute of the International Criminal Court, 5 Melbourne J. Int'l L. 196 (2004)Google Scholar.

126 Supra notes 21 & 118.

127 Id.

128 Supra note 16.

129 Id.

130 As opposed to members of al-Qaeda—a non-State actor—although membership of al-Qaeda would not necessarily foreclose the possibility of an international armed conflict occurring on September 11, 2001, between Afghanistan and the United States, depending on the precise nature of the relationship between al-Qaeda and Afghanistan: see Dinstein, supra note 49, at 27.

131 Rule 148 of the ICRC study on customary international humanitarian law: Henckaerts, supra note 70, at 211. Cf. Rule 145 (“Where not prohibited by international law, belligerent reprisals [in international armed conflicts] are subject to stringent conditions”). See also Rules 146 and 147: id. at 210-211 and infra note 141.

132 See respectively Stewart, supra note 47, at 320, and Dinstein, Yoram, The International Law of Belligerent Occupation 33–34 (2009)CrossRefGoogle Scholar. On the borderline between a belligerent occupation that lapses into hostilities and “a law and order problem, in relation to which the occupying power has an obligation to restore order,” see Hampson, supra note 52, at 554. In The Public Committee against Torture in Israel. v. The Government of Israel, the Israeli Supreme Court reached the conclusion that at the “centre” of the “normative system” governing relations between Israel and terrorist organizations is “the international law regarding international armed conflict,” and that “[a]n armed conflict which takes place between an occupying Power and rebel or insurgent groups—whether or not they are terrorist in character—in an occupied territory, amounts to an international armed conflict.” See HCJ 769/02 The Public Committee against Torture in Israel v. The Government of Israel, para. 18, [Dec. 14, 2006] (unpublished), English translation, elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf. For a critical engagement with the reasoning of the Court, consider Marko Milanovic, , Lessons for Human Rights and Humanitarian Law in the War on Terror: Comparing Hamdan and the Israeli Targeted Killings Case, 89 Int'l Rev. Red Cross 373, 381–386 (2007)Google Scholar.

133 See GC III, supra note 8, art. 118(1).

134 Article 75 of the 1977 First Additional Protocol (supra note 11) concerns “persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol” (Article 75(1)). According to Article 75(6): “Persons who are arrested, detained or interned for reasons related to the armed conflict shall enjoy the protection provided by this Article until their final release, repatriation or re-establishment, even after the end of the armed conflict.” See also Article 75(3): “Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.”

135 Case CCT 17/96 Azanian Peoples Organization (AZAPO) v. President of South Africa 1996 (4) SA 672 (CC), para. 31 (per Mahomed DP) (S. Afr.).

136 Henckaets, Jean-Marie & Doswald-Beck, Louise, Customary International Humanitarian Law (I: Rules; II: Practice) (2005)CrossRefGoogle Scholar.

137 Personal correspondece of Jean-Marie Henckaerts with the author (June 11, 2010) (on file with the author).

138 See Pejic, Jelena, Status of Armed Conflicts, in Prespectives on the ICRC Study on Customary International Humanitarian Law 77 (Wilmshurst, Elizabeth & Breau, Susan eds., 2007)Google Scholar.

139 Hence, on eight of these occasions, the “rule” for non-international armed conflicts is described as being “arguabley” customary international humanitarian law, when a identical customary rule has been deemed established for internationl armed conflicts: see Rules, 21, 23, 24, 44, 45, 52, 63, & 82. See also Henckaerts, supra note 70, at 198.

140 See Henckaerts, supra note 70, at 198-212.

141 Thirteen rules applicable only in international armed conflicts (Rules 3, 4, 41, 49, 51, 106, 107, 108, 114, 130, 145, 146 and 147) and two applicable only in non-international armed conflicts (Rules 148 and 159)—as per the correspondence with the author (supra note 137). See also supra note 131.

142 We emphasize general structure, because even though there are departures to the format of the study—as found for Rule 10 in Henckaerts & Doswald-Beck, I: Rules, supra note 136, at 34–35; Rule 26: id. at 86; Rule 30: id. at 103; Rule 33: id. at 112-113; Rule 35: id. at 119-120; Rule 36: id. at 120-121; Rule 38: id. at 127; Rule 39: id. at 131-132; Rule 40: id. at 133; Rule 42: id. at 139-140; Rule 43: id. at 143; Rule 56: id. at 200-201; Rule 66: id. at 227-229; Rule 67: id. at 229-230; Rule 68: id. at 231-232; Rule 69: id. at 232-233; Rule 73: id. at 256-258; Rule 83: id. at 285-286; Rule 87: id. at 306-307; Rule 88: id. at 308-310; Rule 89: id. at 311-314; Rule 90: id. at 315-317; Rule 91: id. at 319-320; Rule 92: id. at 320-323; Rule 93: id. at 323-336; Rule 94: id. at 327-329; Rule 95: id. at 330-332; Rule 96: id. at 334-336; Rule 97: id. at 337-339; Rule 98: id. at 340-343; Rule 100: id. at 352-354; Rule 101: id. at 371-372; Rule 102: id. at 372-373; Rule 103: id. at 374-375; Rule 104: id. at 375-378; Rule 105: id. at 379-380; Rule 117: id. at 421-423; Rule 132: id. at 468-470; Rule 133: id. at 472-474; Rule 136: id. at 482-484; Rule 137: id. at 485-487; Rule 138: id. at 489; Rule 139: id. at 495; Rule 140: id. at 498-499; Rule 141: id. at 500; Rule 142: id. at 501; Rule 143: id. at 505; Rule 144: id. at 509-513; Rule 149: id. at 530; Rule 152: id. at 556-558; Rule 154: id. at 563; Rule 155: id. at 565-567; Rule 156: id. at 568-569; Rule 157: id. at 604-605; Rule 158: id. at 607-610; Rule 160: id. at 614-618 and Rule 161: id. at 618-619—these are still articulated in terms of identical rules for both international and non-international armed conflicts.

143 International Committee of the Red Cross, How Is the Term “Armed Conflict” Defined in International Humanitarian Law, Opinion Paper 5 (Mar. 2008), http://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdfGoogle Scholar (all emphases removed).

144 See, e.g., Corn, Geoffrey S., Hamdan, Lebanon, and the Regulation of Armed Hostilities: The Need to Recognize a Hybrid Category of Armed Conflict, 40 Vanderbilt J. Trans'l L. 295 (2007)Google Scholar. Consider, however, Paulus, Andreas & Vashakmadze, Mindia, Asymmetrical War and the Notion of Armed Conflict—A Tentative Reconceptualization, 91 Int'l Rev. Red Cross 95 (2009)CrossRefGoogle Scholar.