CYIL vol. 11 (2020)

MILAN LIPOVSKÝ CYIL 11 (2020) acts on behalf of the other state. 16 There is another extremely important question connected to internationalization of a conflict. Does internationalized conflict automatically mean the application of all humanitarian law applicable to IACs (as the Tadić judgment declares) or not (as it is claimed by other sources of international law)? These particular issues will be discussed further in this chapter. 2.3 The lowest threshold for the application of humanitarian law – the difference between NIAC and law enforcement It also needs to be said that the lowest threshold for the application of humanitarian law is the existence of an armed conflict itself. The APII declares that it does not apply to internal disturbances and tensions. A contrario to the definition of an NIAC, though there may be violence during internal disturbances and riots used by any party, it is either limited in time (i.e. not protracted), or in organization of the group(s), or intensity/severity, or a combination of these factors. These three requirements have been confirmed by case law as well. 17 The Rome Statute (RS) 18 applies to both IAC and NIAC (Article 8 RS) but does not define either. We can however deduce the lowest standard of applicability of humanitarian law from Article 8(2)(d) (as well as 8(2)(f )) which states that since [previous letter] applies to “ armed conflicts not of an international character [it] does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature .” This threshold confirms the aforementioned standard set by APII and reflects customary international law. 19 In an obvious reference to the Tadić judgment Article 8(2)(f ) RS then adds that it “ applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups .” The lowest threshold between law enforcement and an armed conflict is thus related to the time frame, intensity, and organization rather than to additional conditions laid down in Additional Protocol II of the Geneva Conventions. Thus, the latter conditions (that are indeed higher 20 ) may be denoted as a conventional requirement that customary law reflected in the RS does not respect. 2.4 Conclusions of the typology of armed conflicts in current international law Based on the above stated, we may conclude that current international law recognizes four (undisputed) categories of armed conflicts. The following chapters describe and discuss the remaining disputed categories. The current four categories include: IAC, IAC involving national liberation movements as described in API, NIAC according to Tadić, and a particular NIAC according to APII. 21 16 ICTY, Prosecutor v. Dusko Tadić , IT-94-1-A, ACh, judgment of 15 July 1999, para. 84. 17 One needs to remember that the requirement of time is considered within the requirement of intensity. ICTY, Prosecutor v. Boškovski and Tarčulovski , IT-04-82-T, judgment of 10 July 2008, para. 175. 18 Rome Statute of the International Criminal Court, 2187 UNTS 3, adopted 17 July 1998, entered into force 1 July 2002. 19 SCHMITT, M. N. Classification of Cyber Conflict. In: International Law Studies Series , vol. 89, 2013, p. 238. 20 MARAUHN, T., NTOUBAND, Z.F. Armed Conflict, Non-International. In: MPEPIL , p. 632. 21 SCHMITT, M. N. Classification of Cyber Conflict. In: International Law Studies Series , vol. 89, 2013, pp. 238-239.

318