The concept of armed conflict in international humanitarian law and problems of its applicability in modern armed conflicts
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Abstract
The present article deals with the problem whether the concept of armed conflict embedded in international humanitarian law is sufficient to meet legal challenges posed by the new armed conflicts of XXI century.
The first part of the article analysis the concept of armed conflict according to the current framework of International Humanitarian Law. The main attention is focused on two points: requirement for the party to the armed conflict and intensity of the armed conflict. It is widely accepted that only state can be a party to the international armed conflict with the specific exception to the nations seeking selfdetermination, however, many more problems arises while dealing with the requirement for non-state party to the non-international armed conflict. Neither commentaries nor jurisprudence provides precise criteria for such party except its capability to wage protracted armed violence and organisation. Therefore it is evident that in most cases (with exception of Second Additional Protocol) the main decision on the existence of noninternational armed conflict is taken by the state (or international community). Therefore even objective criteria as party’s organisation and conflict’s intensity becomes subjective in the course of actual application by the states.
The second part of the article analyses two contemporary armed conflicts, namely Israel – Hezbollah armed conflict in 2006 and USA and Al Qaeda conflict since 2001, related to the Afghanistan (2001) and Iraq (2003) campaigns. Two problematic points can be raised there. First, how to qualify an armed conflict that is taking place in more than one state (Israel and Lebanon) but only one party to that conflict is state – party. The current legal framework provides that such conflict shall be qualified as non-international armed conflict, however, such qualification provides much less protections for the victims of the conflict. Second, whether the current approach of USA administration to interpret Common Article 3 of 1949 Geneva Conventions as not connected with the physical territory of High Contracting Party is enough grounded in international law and what threats it may pose not only for International Humanitarian Law, but also to Human Rights Law. The overall conclusion can be drawn that the current legal framework is very much unclear towards non-international armed conflicts with non-state entities acting in inter-state framework. Such lack of clarity might adversely affect victims of armed conflict.
The first part of the article analysis the concept of armed conflict according to the current framework of International Humanitarian Law. The main attention is focused on two points: requirement for the party to the armed conflict and intensity of the armed conflict. It is widely accepted that only state can be a party to the international armed conflict with the specific exception to the nations seeking selfdetermination, however, many more problems arises while dealing with the requirement for non-state party to the non-international armed conflict. Neither commentaries nor jurisprudence provides precise criteria for such party except its capability to wage protracted armed violence and organisation. Therefore it is evident that in most cases (with exception of Second Additional Protocol) the main decision on the existence of noninternational armed conflict is taken by the state (or international community). Therefore even objective criteria as party’s organisation and conflict’s intensity becomes subjective in the course of actual application by the states.
The second part of the article analyses two contemporary armed conflicts, namely Israel – Hezbollah armed conflict in 2006 and USA and Al Qaeda conflict since 2001, related to the Afghanistan (2001) and Iraq (2003) campaigns. Two problematic points can be raised there. First, how to qualify an armed conflict that is taking place in more than one state (Israel and Lebanon) but only one party to that conflict is state – party. The current legal framework provides that such conflict shall be qualified as non-international armed conflict, however, such qualification provides much less protections for the victims of the conflict. Second, whether the current approach of USA administration to interpret Common Article 3 of 1949 Geneva Conventions as not connected with the physical territory of High Contracting Party is enough grounded in international law and what threats it may pose not only for International Humanitarian Law, but also to Human Rights Law. The overall conclusion can be drawn that the current legal framework is very much unclear towards non-international armed conflicts with non-state entities acting in inter-state framework. Such lack of clarity might adversely affect victims of armed conflict.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
