Classification of Armed Conflicts:

Threshold and Geographic Scope

Larry Maybee
Regional Legal Adviser
ICRC Regional Delegation – Beijing
Scope of application

International Armed
Conflict (IAC) (Art. 2)

Non-international Armed
Conflict (NIAC) (Art. 3)

Internal Disturbances and

Tensions
IHL DOES NOT APPLY
When considering the application
of IHL:

 Must first characterise the violence / conflict /

hostilities by asking:

1. Is it an Armed Conflict?

2. If so, is it an International Armed Conflict (IAC)

or an Non-International Armed Conflict (NIAC)?
INTERNATIONAL ARMED CONFLICTS
(what law applies?)
Applicable law – IAC

LOAC
AP II G I-IV, AP I
Art.3
Art.3
IHRL
DDHH LOAC
National
law

PEACE CONFLICT
internal international
International armed conflicts:
See definition in GC Common Article 2:

• One State uses armed force against another

• Cases of total/partial military occupation
(even if there is no armed resistance)
• Formal declaration of war is not required
• Views of the Parties are irrelevant
• Where a State declares war but no hostilities

See also definition in AP I Article 1.4:

• Includes fights against colonial domination, alien

occupation & racist regimes (exercising self-
determination)
• Effect of unilateral declaration (AP I, Article 96(3))
KEY LEGAL INSTRUMENTS…
• 1864 GENEVA CONVENTION

• 1868 ST. PETERSBURG DECLARATION

• 1899 & 1907 HAGUE CONVENTIONS

• 1925 GENEVA GAS PROTOCOL

• 1929 GENEVA CONVENTIONS

• 1949 GENEVA CONVENTIONS 1949

 GCI: Wounded and Sick
 GCII: Wounded, Sick and Shipwrecked
 GCIII: Treatment of POWs
 GCIV: Protection of Civilian Persons

• 1977 ADDITIONAL PROTOCOLS TO THE GENEVA CONVENTIONS

 API: International Armed Conflict
 APII: Non-International Armed Conflict

• TREATIES PROHIBITING / LIMITING THE USE OF WEAPONS

• 1998 INTERNATIONAL CRIMINAL COURT (ROME) STATUTE

 Common Article 2

International armed conflicts

 " … all cases of declared war or of any other

armed conflict which may arise between two or
more [States], even if the state of war is not
recognized by one of them."

A B
AF AF
 Common Article 2

International armed conflicts

 "all cases of partial or total occupation of

the territory of a High Contracting Party,
even if the said occupation meets with
no armed resistance."

A B
AF AF
A B
AF AF

A B
AF AF

A "People"
AF NLF
NON-INTERNATIONAL ARMED
CONFLICTS (NIAC)
(what law applies?)
Applicable law – NIAC

LOAC
AP II G I-IV, AP I
Art.3
Art.3
IHRL
DDHH LOAC
National
law

PEACE CONFLICT
internal international
 Common Article 3

Non international armed conflicts

 armed conflict
 not of an international character
 occurring in the territory of a High Contracting Party

A
AF AG
Non-international armed conflicts...
• Defined as a confrontation between the existing
governmental authority and group(s) of persons
subordinate to this authority

• See definitions in GC Common Art. 3 & AP II,

Article 1 (Note: the different thresholds for NIAC)

• Tadic decision (ICTY):

"An armed conflict exists whenever there is a resort to armed
force between States or protracted armed violence between
governmental authorities and organised armed groups or
between such groups within a State"

• Therefore, require Organisation & Intensity for a NIAC

 Non International Armed Conflicts

"organized military force"

Indicative factors:

 the existence of a command structure and disciplinary

rules and mechanisms within the group
 the ability of the group to gain access to weapons,
other military equipment, recruits and military training
 its ability to plan, coordinate and carry out military
operations, including troop movements and logistics
 its ability to define a unified military strategy and use
military tactics;
 its ability to speak with one voice and negotiate and
conclude agreements
 …
 Non International Armed Conflicts

“protracted armed violence”

Indicative factors:

 the number, duration and intensity of individual

confrontations
 the type of weapons & other military equipment used
 the number of persons and type of forces taking part
in the fighting
 the number of casualties
 the extent of material destruction
 the number of civilians fleeing combat zones
 …
Issues in the updated ICRC
Commentary for CA3:
• Beginning of a NIAC (threshold issues)
• Geographic scope of application
 Internal NIAC
 Spill over NIAC
 Cross border NIAC
 Transnational NIAC

• Involvement of foreign troops

• Involvement of multinational forces

• End of a NIAC (cessation of hostilities +)

A
AF AG

A AG
AG

A B
AF AG
 NIAC

A
AF AG
 "internationalization"

 provide financial support, military

equipment, or training

 ICTY: "overall control" test: play a

role in the organization, coordination
or planning of military operations

 ICJ: "effective control" test: give

specific instructions or directives
Mixed / Internationalized Armed
Conflicts

NIAC IAC
C
AF

A
AF AG
Classification challenges…

• Identifying the government

 E.g. Libya and Yemen – Who is actually in
charge?

• Attribution of militia and groups

 E.g. Iraq and the Isg – Who belongs to
which Party?

• The requirement of ‘intensity’

 E.g. Israel and Syria – Does one air strike
start a NIAC?
The challenge of multinational forces
(United Nations & NATO):

 When can a “multinational force” become a party to an

armed conflict (see next slide):

 ICRC believes the same criteria apply as other actors

 Will depend on facts on the ground and specific case
 Classification – Multinational Forces
The Support Based Approach

IHL will apply to multinational forces where:

• Pre-existing NIAC on territory where MNF intervenes
• Actions related to the conduct of hostilities by MNF
• Military operations in support of a Party to a conflict
• Pursuant to an official decision
to support the party to the conflict
• The above help establish “belligerent intent”
The challenge of multinational forces
(United Nations & NATO):

 When can a “multinational force” become a party to an

armed conflict (see next slide)

 Who is a party to the armed conflict?

 Depends on the command/control relationship in MNF
 Presumption that a UN force will be party (not the
individual troop contributing countries), BUT…
 For other coalitions (i.e. NATO) will depend on the C2
arrangements, BUT usually the individual TCN have
more control over planning & conducting operations, so
will also be Party to the conflict
 Differentiate between different ‘components’ of a MNF
 The end of armed conflict
 For IAC:
 Lack of guidance in GC, and peace treaties not common
 “General close of military operations” not easily determined
 Until a “general conclusion of peace is achieved” (Tadic)
 Progressive (uneven) decrease in intensity of hostilities
 Suspension of hostilities and/or ceasefire agreements
 Look at other indicators (i.e. deployment of troops, forces)
that there is an intent to end (not to resume) hostilities

 For NIAC:
 Increasingly complex to determine (facts on the ground)
 When violence drops below the threshold (‘protracted armed
violence’)? OR
 Peaceful settlement = no real risk of resumption of hostilities
 How to determine the intention of the parties
 THANK YOU FOR YOUR
ATTENTION – ANY QUESTIONS?
 CASE STUDIES: THE MATERIAL
APPLICATION OF IHL
(CONFLICT CLASSIFICATION)

Larry Maybee
Regional Legal Adviser
ICRC Delegation for East Asia
Requirements (answer for each case):

• Is it a situation of armed conflict or not?

• If so, what kind of armed conflict is it?

• What parts of IHL will apply (i.e. treaties,

principles and customary law rules)?

• If a UNPKO, what is the status of the UN force

and its contributing countries?
Case studies (syndicates)…

• Syrian Civil War (2011 – Present)

• Libyan Civil War (2011 – Present)

• Democratic Republic of Congo (MONUSCO)

DEMOCRATIC REPUBLIC OF CONGO
(MONUSCO)
MONUSCO – UNSCR 1925 (2010)

“Support the efforts of the Government of the

Democratic Republic of the Congo to bring the
ongoing military operations against the FDLR, the
Lord’s Resistance Army (LRA) and other armed
groups, to a completion, in compliance with
international humanitarian, human rights and
refugee law and the need to protect civilians,
including through the support of the FARDC in
jointly planned operations, as set out in paragraphs
21, 22, 23 and 32 of resolution 1906 (2009);”
MONUSCO – UNSCR 2348 (2017)
Para 16…
“Calls for joint operations by the FARDC and
MONUSCO, including joint planning and tactical
cooperation, in accordance with MONUSCO’s
mandate, to ensure all efforts possible are being
made to neutralise armed groups and stresses the
need to carry out operations in strict compliance
with international law, including international
humanitarian law and international human rights
law, as applicable;”

Para 34(i)(d)…
…Neutralize armed groups through the Intervention
Brigade: in support of the authorities of the DRC…
carry out targeted military operations with the
support of the whole MONUSCO…
LIBYA & NATO
LIBYA (NATO) – UNSCR 1973 (2011)

Authorizes Member States that have notified the

Secretary-General, acting nationally or through
regional organizations or arrangements, and acting
in cooperation with the Secretary-General, to take
all necessary measures, notwithstanding
paragraph 9 of resolution 1970 (2011), to protect
civilians and civilian populated areas under threat
of attack in the Libyan Arab Jamahiriya, including
Benghazi, while excluding a foreign occupation
force of any form on any part of Libyan territory...