CYIL 2010

ARMED CONFLICTS AND THE USE OF FORCE LAW principles must be observed to protect the parties to the conflict and civilians from unnecessary suffering. A violation of these international rules involves the international responsibility of a state and the criminal liability of the individuals concerned for war crimes and crimes against humanity. Nevertheless, international humanitarian law still applies different rules to international and internal armed conflicts. The view was expressed that there is a need to reach a single definition of armed conflict and to remove the dichotomy between international and internal armed conflicts. 44 This is a call for a “single law of armed conflict which would include not only international and internal armed conflicts, but also the so-called internationalized armed conflicts containing both international and non-international elements. At present there is a substantive difference between the legal regulation of international and internal armed conflicts. Only Article 3 common to the Geneva Conventions, and the articles of Additional Protocol II, apply to internal conflicts. The Hague law is not applicable to internal armed conflicts. The combatants in non-international armed conflicts are not afforded prisoner of war status. Former ICTY President A. Cassese expressed the view that “there has been a convergence of the two bodies of international law with the result that internal strife is now governed to a large extent by the rules and principles which had traditionally only applied to international conflicts...”. 45 International practice seems to suggest that a pre-existing internal armed conflict may be rendered international by foreign military intervention. Already in 1996, Ch. Gray asked the question of whether the conflict in Bosnia and Herzegovina was a “civil war” or an “interstate conflict”. 46 In the Tadic case, the Appeal Chamber of the ICTY came to the conclusion that an internal armed conflict may become international if another state intervenes in that “conflict” or some of the participants in the internal armed conflict act on behalf of that other state”. 47 In the Blaškič case, 44 See “the distinction between international wars and internal conflicts is no longer tenable or compatible with the thrust of humanitarian law as the contemporary law of armed conflict has come to be known”, in W. M. Reisman and J. Silk, Which law applies to the Afghan conflict? AJIL 1988, No. 1, p. 465. See also, I. Detter, The Law of War , Cambridge University Press, London 2002, p. 49. 45 A. Cassese, Memorandum of 22 March 1996 to the Preparatory Committee for the Establishment of the International Criminal Court , in G. J. Stewart, op. cit. (note 6), p. 322. 46 Ch. Gray, Bosnia and Herzegovina: Civil War or Inter-State Conflict? Characterization and Consequences , in BYIL 1996, Oxford 155. 47 Prosecutor v. Tadič, IT – 94 – 1AR72, Decision in the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paras. 70, 84, 127. “The ICTY Appeals Chamber in the Tadic Jurisdiction Appeal declared that: International humanitar ian law applies from the initiation of such conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached...” The Appeals Chamber also noted that: “It is indisputable that an armed conflict is international if it takes place between two or more States. In addition, in case of an internal armed conflict breaking out on the territory of a State, it may become international (or, depending upon 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” (par. 84). C. Greenwood, International Law and the Tadic Case , EJIL 1996, N. 2, see also http://www.ejil.org/ journal/Vol7/No2/art8-01.htmlTopofPage.

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