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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
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
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