About the author(s):
Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.
On 13–14 March 2013 a two-day workshop was held at Chatham House to consider what law applied to the situations of violence in respect of Syria, Yemen and Libya during the period 2010–2013. The ‘programme paper’ (published in March 2014) contains a detailed record of the workshop and the discussion that followed concerning the legal classification of these situations of armed violence.
In considering the legal classification of the situations of Syria, Yemen and Libya, the paper identifies some interesting questions in need of further research:-
The intensity criteria
• If the level of the intensity of violence in an existing NIAC dips below a certain threshold, does the situation still qualify as a NIAC?
• What indicators should be taken into account to determine that the intensity of violence has dipped to such a degree that the situation is more appropriately governed by IHRL alone?
• How, if at all, should the temporal dimension of a dip in the violence be factored into any assessment?
• In a situation where violence breaks out between state forces and an organized armed group, can an armed conflict be activated only when the exchange of violence on the part of both parties crosses a certain threshold?
• The intensity of violence is generally not regarded as relevant to whether an IAC exists. However, in the light of state practice, should it be?
Groups and parties
• Who is a ‘party’ to an armed conflict?
• Does a ‘party’ to an armed conflict possess the same attributes as an OAG?
• Is there a link between the two?
• Should the violent acts of the various armed groups operating in a particular space be ‘combined’ for the purpose of assessing the intensity threshold?
• If so, on what basis is that particular space defined?
• If territory is not under the effective control of the state but the level of violence within that area meets the intensity threshold, should LOAC apply even if the organizational element necessary for concluding the existence of an armed conflict cannot be identified/does not exist?
Recognition
• To what extent is the classification of an armed conflict contingent on the recognition of a government?
• What are the consequences for the classification of a conflict involving multinational operations if states adopt different political positions?