CYIL vol. 11 (2020)

MILAN LIPOVSKÝ CYIL 11 (2020) In reaction to the Tadić judgment, the ICJ stated that the overall control test may be suitable for the classification of the type of an armed conflict 37 , though it refused to make a qualified statement because it was not necessary in order to decide its own case. But, it explicitly refused the reasoning of the ICTY in that the test would be suitable for attributing responsibility to a state 38 and maintained its position claiming that the applicable test for Article 8 is effective control. It ’would not be far-fetched to claim that the reasoning of the ICTY Appeal’s Chamber is much more convincing than reasoning of the ICJ in both the Nicaragua and Bosnian genocide cases. When dealing with state responsibility, the only common denominator that the tribunals may agree upon is that effective control is indeed necessary when it comes to a non-organized military group. In other areas they disagree. However, if we only focus on the classification of an armed conflict (and assume that it is another question than that of state responsibility), there is an area of agreement too. The ICJ did not reject the overall test regarding the classification of an armed conflict, it just claimed it is another matter (which the ICTY claims it is not). Thus, we may conclude that when it comes to the necessary level of control over organized military groups by a supporting state for the purposes of classification of an armed conflict as international, the case law uniformly agrees upon the overall control test. 3.4 The applicable law When it comes to internationalized armed conflicts, such as the one based on support by a state towards the armed group in another state, a large question remains – is the law of NIAC or IAC applicable? Unfortunately, the matter has been largely left opened by treaty law despite attempts to rectify this vacuum. 39 Current international law operates on various approaches, but none are completely convincing. The ICJ seems to prefer the so-called mixed regime, which accepts different regimes for different actors in a single internationalized conflict. For example in the case of a state supporting an armed group fighting another state’s government, the ICJ case law is interpreted as having suggested that in a single internationalized armed conflict the applicable law between the supporting government and the government fighting the insurgents, is IAC law while for the relationship between the rebels and the government they fight, it is NIAC law. 40 At the same time, it is suggested that the ICTY approaches similar matters differently and claims that the entire internationalized conflict is regulated by the law of IAC (complete internationalization regime). When reading the Nicaragua judgment however, one needs to keep in mind that the ICJ did not necessarily prefer the mixed regime. Its statement resulted from the fact that there was not one internationalized conflict (after all it concluded that the US did not have the required control over contras – the armed group), instead there were several conflicts, 37 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), judgment, ICJ Reports 2007, p. 43, para. 404. 38 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), judgment, ICJ Reports 2007, p. 43, paras. 404-406. 39 BÍLKOVÁ, V., New Challenges to the Classification of Armed Conflicts. In: Recueils de la Societe Internationale de Droit Penal Militaire et de Droit de la Guerre , vol. 20, 2015, p. 293. 40 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), judgment in merits, ICJ Reports 1986, p. 14, para. 219.

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