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International Humanitarian Law, based on the concepts of jus ad bello, is defined to

be the law of war. This means that the laws involved are meant to be active in a
situation of an armed conflict or during war. However, just like international law,
international humanitarian law requires the political will of states for a situation to
be considered as an armed conflict, so that the law can be in force. The scenario
has therefore arisen that states have been adamant to recognize a situation as an
armed conflict for certain political reasons.
The aim of this paper is to show that the abstract view of international humanitarian
law impacts the definition of an armed conflict. This is because of the entry of new
actors in conflicts such as private military companies and the changing dynamics of
conflict, such as battles against terrorism.
What Exactly is an Armed Conflict?
There are three types of conflicts that are recognized by international humanitarian
law: international armed conflict, internationalized armed conflict, and noninternational armed conflict.
International humanitarian law does make it clear what an international armed
conflict is. According to the Geneva Conventions of 1949, common article 2 states
that all cases of declared war or of any armed conflict that may arise between two
or more high contracting parties, even if the state of war is not recognized, the
convention shall also apply to all cases of partial or total occupation of the territory
of a high contracting party even if the said occupation meets with no armed
resistance'' (Geneva Convention, 1949, common art.2). This means that the
occurrence of international armed conflict is clear, that is, it would be a conflict
between the legal armed forces of two different states. A good example would be
the North Korean- South Korean war of 1950.
The second armed conflict recognized by international humanitarian law is a new
phenomenon known as 'an internationalized armed conflict'. The situation of an
internationalized armed conflict can occur when a war occurs between two different
factions fighting internally but supported by two different states (Stewart, 2003, p
315). The most visible example of an internationalized armed conflict was the
conflict in the Democratic Republic of Congo in 1998 when the forces from Rwanda,
Angola, Zimbabwe and Uganda intervened to support various groups in the DRC
(Stewart, 315).
Non-international armed conflicts, according to common article 3 of the Geneva
Convention, are armed conflicts that are non-international in nature occurring in
one of the High contracting parties (Geneva Convention, common article 3, 1949).
This means that one of the parties involved is nongovernmental in nature. However,
common article 3 also states that it does not apply to other forms of violence such
as riots, isolated and sporadic acts of violence. This abstract definition has made it
difficult to make a clear distinction between a mere disturbance and an armed
conflict, therefore relying heavily on the political will of states to classify the
situation as an armed conflict. For a situation to be classified as a non-international
armed conflict, it has to achieve two variables: first, the hostilities have to reach a
certain minimum level of intensity (Vite, p 75; ICRC, 2008, p 3) and form in a

collective character; and second, there has to be a level of organization of the


parties (Vite, p 75)
Challenges Facing the Classification of Armed Conflicts
The classification of a situation as an armed conflict means that international
humanitarian law comes into force immediately. However, due to certain legal and
political reasons various situations are too complex to be considered as armed
conflicts.
Abstract Definition of Non-International Armed Conflict
The definition of non-international armed conflict according to the Geneva
convention common article 3 is basically that, the situation has to be within the
territory of a high contracting party/state and assumes that an armed conflict exists
when the situation reaches a certain level that distinguishes it from other forms of
violence such as riots, sporadic and isolated forms of violence (situations of internal
disturbances) (Geneva convention common art 3, Vite, 2009).
In modern law, for the situation to be recognized as an armed conflict, two variables
are used; intensity of the violence and the level of organization of the parties. If one
of these is not fulfilled then it is considered to be just a mere disturbance (Vite, p
76). Internal disturbances according to Vite (p 77) are situations in which there is
no non-international armed conflict as such, but there exists a confrontation within
the country, which is characterized by a certain seriousness or duration and which
involves acts of violence.
Prior to the formulation of the Geneva Conventions, traditional international law
recognized three stages for a situation to be classified as an internal armed conflict:
rebellion; insurgency; belligerency (Cullen, 2010, p 8). The concept of rebellion in
international law refers to the situation of short-lived insurrections against the
authority of a state, according to Cullen, a rebellion occurs if the faction seeking to
seize the power of the state seems susceptible to a rapid suppression by normal
internal security (Cullen, p 9). Therefore a rebellion according to traditional
international law is a political upheaval within a state which the state's internal
security, specifically the police, can handle, for example, the political upheavals in
Kenya in 1992 with citizens demanding for the promotion of democracy.
The concept of insurgency according to traditional international law is ambiguous
and vague in defining what exactly an insurgency is. One of the main reasons as to
why international law and even international humanitarian law is ambiguous in its
definition is due to the fact that to recognize an insurgency would be construed as
an indication that the recognizing state regards the insurgents as legal contestants,
and not as mere lawbreakers (Cullen, p 11). Therefore insurgents and rebel groups
would be recognized as lawful combatants.
The recognition of an insurgency in international law may also bring about the
internationalization of an event; this is because third party states can recognize the
situation as an insurgency according to their own interests without owing
allegiance. Cullen explains further by stating The indeterminate scope of
insurgency allows for the concepts manipulation by states wishing to define their

relationship with insurgents. Third states may recognize the existence of insurgency
without explicitly declaring an allegiance or adopting a position of neutrality
towards the conflict... the recognition of insurgency serves as a partial
internationalization of the conflict, without bringing the state of belligerency into
being. This permits third states to participate in an internal war without finding
themselves at war, which would be the consequence of intervention on either side
once the internal war (Cullen, p 11-12).
Changing Dynamics of Conflict
Modern conflicts have drastically changed over the last few years with the
introduction of new actors in conflict zones such as private military companies,
multinational corporations, and transnational armed groups such as Al Qaeda and
drug cartels. The main challenge has been that international humanitarian law has
not yet evolved to comprehensively adapt to these new dynamics.
War on Terror
After the September 11 attacks, United States declared a war on terror on
transnational organizations more specifically Al Qaeda (Sassoli, 2006, p 5). In
political terms, the war on terror is correct but there have been controversies as to
whether international law recognizes it as an armed conflict. As stated earlier,
international humanitarian law comes into force when a situation is classified as an
armed conflict, but the modern dynamics of differentiating terrorism and an armed
conflict is vague. Secondly, the status of the individual is complex as it is hard to
differentiate a terrorist from a freedom fighter.
There is no clear definition of what terrorism is exactly, the definitions that are in
existent are based on a states interest. For example, the American definition of
terrorism is; premeditated, politically motivated violence perpetrated against
noncombatant targets by sub national groups or clandestine agents while a terrorist
group is defined as any group, or which has significant subgroups which practice
international terrorism (international terrorism being terrorism involving citizens or
the territory of more than one country (U.S. Code Title 22, Ch.38, Para. 2656f (d)).

The most controversial definition is the UN definition that states that terrorism is
attempting to bring about political and/or social change by deliberately attacking
civilians. This definition has made it difficult especially in trying to differentiate
resistance movements that oppose forms of occupation and a terrorist organization
that both often use violence to obtain a political change. For example, during the
colonial period in Kenya, the Mau Mau fighters attacked Europeans in their farms
and stole their goods (Davies, 1953, p 224), if the same situation was to be
replayed in the 21st century then many scholars would consider the Mau Mau as a
terrorist organization.
However, in international law, acts of terrorism are clearly defined, according to
the Geneva Convention (1937), an act of terrorism is defined as criminal acts
directed against a State or intended to create a state of terror in the minds of

particular persons, or a group of persons, or the general public (Article 1, para. 1)


any willful act calculated to endanger the lives of members of the public (Article
2, para. 3), willful destruction of or damage to public property (Article 2, para. 2),
and manufacture, obtaining, possession or supplying of arms or ammunition,
explosives or harmful substances with a view to the commission in any country
whatsoever (Article 2, para. 5).
Terrorism in international law is also seen as a form of aggression, aggression is
defined as the use of armed force by a State against the sovereignty, territorial
integrity or political independence of another State, (United Nations General
Assembly Resolution 3314), more specifically in article 3(g) it states that aggression
can be the sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of armed force against another State of such
gravity as to amount to the acts listed above, or its substantial involvement
therein.
The UN resolution (Resolution 3314) does give justification for an armed attack to
be pursued against the state; however, the issue is that modern international
terrorism does not involve the direct participation of state (Sassoli, p 4). As
reiterated earlier, international humanitarian law recognizes only three forms of
armed conflict, an international armed conflict where it involves the belligerents
being two legal armed forces of two different states (Geneva Convention, common
article 2). International terrorism seems to have a different dynamics as a
government is fighting against a transnational group that does not have any links
with a state (Sassoli, p 4), according to the ICRC commentary, humanitarian law
does not recognize an international armed conflict between states and non state
actors as this would accord armed groups the same privileges enjoyed by members
of regular armed forces (p 7).
International humanitarian laws main challenge has been the legal status of an
individual as to whether he is a terrorist or a combatant especially in noninternational armed conflicts (ICRC, 2007, p 6) and in situations of selfdetermination (Chadwick, 1996). According to the ICRC, states engaged in noninternational armed conflicts have, with increasing frequency, labeled any act
committed by domestic insurgents an act of terrorism even though, under IHL,
such an act might not have been unlawful (e.g. attacks against military personnel or
installations).
For example, the Hamdan case shows how the status of a combatant is confusing in
the war on terror. Salim Ahmed Hamdan, a Yemeni citizen was arrested on charges
on attacking civilians; attacking civilian objects; murder by an unprivileged
belligerent; destruction of property by an unprivileged belligerent (court for the
District of Columbia,) and was tried in a military commission. During the case,
Hamdan pleaded habeas corpus and that he could not be tried by a military
commission until his status as a prisoner of war was determined by a competent
tribunal as required by Geneva Convention 3 (Duxbury, 2007 p 2). The US
government replied that the Geneva conventions did not apply to him as the conflict
was not in accordance with the classifications of armed conflict (Duxbury, p 2).

The Supreme Court stated that an international armed conflict was a conflict
between states, whereas the aim of Common Article 3 was to provide minimum
protections in situations involving rebels in conflicts not of an international nature
but the Court took a broad approach to Common Article 3 and came to the
conclusion that it operated in Hamdans circumstances (Duxbury, p 3). The two
different views on the war on terror show how it is difficulty in determining the
dynamics of the situation.
Importance of Classifying Armed Conflicts
The classification of a situation to be an armed conflict means that international
humanitarian law comes into force immediately; this means that it provides a
framework for the behavior of belligerent parties and the protection of noncombatants and the respect of the environment and the property of civilians.
The failure to classify a state of affairs as an armed conflict has grave legal and
humanitarian consequences (Duxbury, p 10). This is because, International
humanitarian law has a close relationship with human rights law that aims to
protect the rights and dignity of civilians during peace and armed conflict with
parties of the conflict having legally binding obligations concerning the rights of
persons not involved in the conflict (United Nations, 2010). The main principles of
international humanitarian law includes: principle of distinction where a combatant
should distinguish a non combatant (including a soldier) who has surrendered from
a soldier and the distinguishing of military targets from civilian territories, the
limited use of certain weapons such as biological weapons, and the protection of the
environment (Dinstein, 2004, p 55). Therefore, if it is not in force, belligerent parties
will have an extent of freedom in carrying out there activities without checks.
However, there are still situations that are recognized as armed conflicts but there
are still breaches of international humanitarian law. In such situations, the role of
the Security Council comes in to play in its role of promoting international peace
and security according to the UN Charter (Chapter 7, 1945). In the recent times, the
Security Council has been more proactive in promoting human rights especially in
situations of armed conflicts by imposing economic and political sanctions and more
specifically in the establishment of tribunals as is the case of Yugoslavia, Sierra
Leone (Fleck, 2008, p 275).
Conclusion
The politics behind classification of armed conflicts as often brought about the
failure of international humanitarian law in playing its part. Because of states
interests, conflicts continue to happen with breaches of human rights and
destruction of property continuing to happen. For international humanitarian law to
play a crucial part, it needs to adapt and continuously evolve to cater for the
changing dynamics of conflicts experienced today.
References
Chadwick (1996) Self determination, terrorism and international humanitarian law,
1st ed. Hague: Martinus Nijhoff Publishers

Cullen, A. (2010), The Concept of Non-international Armed conflict in international


humanitarian law, Cambridge studies in international law and comparative law, 66:
1-10
Duxbury, A. (2007), Drawing Lines in the Sand- Characterizing conflicts for the
purposes of teaching International humanitarian law, Melbourne Journal of
International law, volume 8: 1-14
Galicki, Z. (2005), International law and terrorism, American Behavioral Scientist,
48(6):743-757
Geneva Conventions (1949), Convention for the Amelioration for the Wounded and
Sick in Armed forces in the field
Sassoli, M. (2006), Transnational armed groups and international humanitarian law,
Harvard University, 6:1-50
Stewart, G.S. (2003), Towards a single definition of armed conflict in international
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Vite, S. (2009), Typology of armed conflicts in international humanitarian law: legal
concepts and actual situations, International Review of the Red Cross, 91(873): 6995
ICRC (2008), How is the term armed conflict defined in international humanitarian
law, Opinion Paper, Geneva
ICRC (2007), International Humanitarian Law and the challenges of contemporary
armed conflicts, Geneva, (30IC/07/8.4)
League of Nations (1938), Convention for the Prevention and Punishment of
terrorism (C.546(1).M383(1))
United Nations (1974), Definition of Aggression General Assembly Resolution 3314,
New York: United Nations
United Nations (2010), Report of the Office of the High Commissioner on the
outcome of the expert consultation on the issue of protecting the human rights of
civilians in armed conflict, New York: United Nations (A/HRC/14/40)
United States District court for the District of Columbia Civil Action No. 04-1519 (JR)

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