The notion of “protracted armed conflict” in the Rome Statute and the termination of armed conflicts under international law: An analysis of select issues

When do non-international armed conflicts (NIACs) end? Determining the existence of a NIAC requires a detailed, fact-intensive inquiry. Since the International Criminal Tribunal for the Former Yugoslavia's seminal decision in the Tadić case, international courts and tribunals have evaluated the existence of NIACs under the Tadić test's two-pronged inquiry into intensity and organization. Although that decision also pronounced that international humanitarian law (IHL) continues to apply until a “peaceful settlement is achieved,” neither international tribunals nor scholars have articulated a comparably widely accepted and well-developed test for determining the end of NIACs. At the same time – and especially since 9/11 – States have increasingly relied on IHL to meet the threat posed by non-State actors, broadening the scope of conflict-related liabilities in armed conflict without conferring the privileges or immunities otherwise inherent in IHL. This one-sided approach twists the purpose of IHL and places members of organized armed groups into legal black holes without temporal limitations, as States resist the termination of “armed conflict” irrespective of the continuing intensity of violence or the level of organization of non-State actors. Ultimately, the current approach gives States broad discretion without appropriate safeguards, which undermines the proper application of human rights and humanitarian principles within conflict and prevents the establishment of a sustainable peace. This paper argues that the most appropriate test for ascertaining the end of a NIAC is one that combines objective consideration of the diminution of organized and intense hostilities below the Tadić threshold with the likelihood that hostilities will not again rise above that threshold. It thus draws from but does not fully endorse the preferred approach of the International Committee of the Red Cross (ICRC), which focuses on the lasting termination of hostilities,1 while abjuring a general temporal limitation. Although commendable for its effort to avoid the legal uncertainty that attends the revolving conflict classification problem, the ICRC's approach unfortunately tends to encode existing uncertainty surrounding the termination of NIACs and to indistinctly prolong the application of IHL to erstwhile conflict situations. In contrast, the authors suggest that a test for the end of NIAC based on a specific period (five months following the diminution of organized and intense hostilities below the Tadić threshold), subject to an evaluation of the risk that those hostilities may resume, better balances certainty of legal application with the promotion of a return to peace. The authors will employ the facts of diverse case studies, including the FARC in Colombia, the LTTE in Sri Lanka, numerous armed groups in Mali, and the United States with Al-Qaeda, to build a legal standard that courts can use to determine IHL's continuing applicability to an erstwhile armed conflict.

Section: The 2012 Violence In Malimentioning

confidence: 99%

Establishing a practical test for the end of non-international armed conflict

Farley,

Pradhan

2024

“…61 According to Lewis, jurisprudence illustrates that the duration dimension is often factored into the "broader analysis of the intensity of hostilities" as but a single criterion which is taken into account in the assessment of the existence of a non-international armed conflict. 62 Dinstein cautions that the intensity of violence is not an alternative to protracted hostilities, and emphasizes that the approach followed in the Haradinaj case is correct. 63 He argues that if duration was meant to be a compulsory indicator of "protracted armed violence", then the Tadić formulation would have included it specifically as a third criterion.…”

Section: Protracted Armed Violence and Durationmentioning

confidence: 99%

Additional Protocol II: Elevating the minimum threshold of intensity?

Bradley¹

2020

This paper examines the notion of intensity in the context of common Article 3 and Additional Protocol II (AP II) to the Geneva Conventions in order to establish whether AP II demands a different intensity threshold from the minimum threshold of intensity contemplated in common Article 3. The paper considers the question of whether the inclusion of the term “sustained” in the phrase “sustained and concerted military operations” intrinsic to the threshold in Article 1(1) of AP II introduces a temporal requirement in addition to mere protracted armed violence. The paper argues that the inclusion of the term “sustained” in Article 1(1) of AP II potentially demands prolonged protracted armed violence. The research aims to contribute to the existing literature on the notion of intensity demanded by the scope of application inherent in AP II through an interrogation of the phrase “sustained” military operations by employing the rules of treaty interpretation and by examining relevant case law and scholarly debate. In this way, the author hopes to contribute towards filling a lacuna with regard to the minimum threshold for intensity in the context of treaty law concerned with the classification of non-international armed conflicts.

The International Committee of the Red Cross and the International Criminal Court: Turning international humanitarian law into a two-headed snake?

Pinto¹

2020

The International Committee of the Red Cross and the International Criminal Court are two very different entities that simultaneously apply international humanitarian law but do so after their own perspectives. This article proposes a cautious yet critical approach to some of their divergent interpretations (conflict classification, the difference between direct and active participation in hostilities, intra-party sexual and gender-based violence, and the notion of attack) and examines how the broader legal system copes with these points of divergence. The analysis considers the institutional characteristics of these two organizations and the pluralistic nature of international humanitarian law as well as its dynamic rapport with international criminal law in order to highlight the versatility needed to face the challenges posed by contemporary armed conflicts.