About the author(s):
Both authors of this blog were born in Yugoslavia, a country that no longer exists. Its dissolution started with the so-called Ten-Day War, which was fought from 27 June to 7 July 1991 between the Slovenian Territorial Defence and the Yugoslav People’s Army, resulting in some 60 fatalities and 330 wounded. There is a controversy as to whether this armed conflict was in fact international (IAC) or non-international in nature. If one presumes that at the end of June 1991 Slovenia was not a sovereign state (thus excluding the IAC possibility), what remains is whether the conflict that lasted only 10 days could be viewed as a NIAC to begin with. The issue thus revolves around the question of whether the duration of a conflict should be regarded as an independent criterion for the existence of NIAC or as a part of the intensity criterion. This dilemma stems from the widely accepted definition of armed conflict (ICTY, Tadi? case, Jurisdiction, para. 70) and the issue of its true meaning remains controversial, both in International Humanitarian Law (IHL) and International Criminal Law (ICL).
The authors of this blog would like to express their gratitude for the opportunity to share their thoughts on this issue, which have been presented in greater detail in their recent article. The main arguments of this blog and the paper are the following: there are strong reasons to advocate that the term protracted armed violence in the NIAC definition should be understood as part of the criterion of the intensity of violence and not as a separate criterion of its duration. Even if Article 8(2)(f) of ICC Statute did introduce a new type of NIAC (with the scope of its application placed between the scope of application of Common Article 3 to the Geneva Conventions (CA 3) and the Additional Protocol II of 1977 (AP II)), this fact should be limited only to the application of ICC Statute and should bear no validity from the perspective of IHL. Finally, there is also a real peril that various (judicial) bodies will interpret the term protracted armed violence in the literal sense (as the duration of violence, which is a separate criterion for the existence of NIAC).
Customary criteria for the existence of NIAC and the practice of the ICTY
When the ICTY began to operate in 1993, there was no single legally binding definition of NIAC in IHL treaties – there still isn’t – and there were several factors that needed to be looked into in order to establish that a NIAC was taking place. These factors stemmed both from the doctrine (p. 53) and the authoritative interpretation of the Geneva Conventions by Jean Pictet and his team, done under the auspices of the ICRC. The Pictet’s Commentaries to CA 3 contain a list of ‘convenient criteria’ (p. 49) that should be taken into consideration when assessing whether or not a NIAC is taking place; yet they are not a condition sine qua non for its existence. Still, these criteria reflect the two necessary requirements for the establishment of the existence of NIAC: the organisation of parties to the conflict and the intensity of the conflict.
In the Tadi? case, the ICTY provided a relevant definition of the armed conflict, thereby including NIAC: “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.” This quote became the much repeated and re-used definition of NIAC. Taking just one look at the wording of the definition, one cannot easily discern the two mentioned criteria for the existence of NIAC. While the organisation of the parties to the conflict is explicitly mentioned, the criterion of intensity is somewhat implicit. Namely, protracted armed violence, which in its ordinary meaning refers to the duration of violence, is interpreted by the ICTY as its intensity (see e.g. ICTY, Tadi?, Trial Chamber, para. 562). This is important to note and accentuate because introducing the independent criterion of duration into the definition of NIAC would undermine its legal certainty and contribute to the already existing complexity of the establishment of NIAC. As several authors note, having in mind that the duration could be established only post factum, this would leave the initial phases of the conflict outside the scope of IHL, and would in certain cases leave persons in need of the protection, unprotected (see e.g. Grignon, p.158; Commentaries, 2016/2017, para. 439). The position that protracted armed violence is used as the moniker of the intensity criterion, in which duration is only one of the indicators, was supported by the jurisprudence that followed. Namely, in the following case-law, the ICTY used this term to denote the criterion of intensity (e.g. Prosecutor v. Ramush Haradinaj, Idriz Balaj, Lahi Brahimaj, case no. IT-04-84-T (ICTY, 3 April 2008), para. 49). The confirmation of the Tadi? reading of the term ‘protracted’ could be found in the jurisprudence of other courts: the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL).
The ICC Statute and its practice
During the Rome Conference, there was no consensus among the states on the inclusion of the war crimes committed in NIACs. Many states claimed that refusal to include war crimes committed in NIACs would be a serious deviation from the widely accepted practice of the ICTY. A compromise was needed, so a proposal was made to include a higher threshold of application along the lines of Additional Protocol II (AP II). Most of the states, however, refused to accept this proposal as well. Finally, the representative of Sierra Leone proposed a new text, which actually echoed the Tadi? judgment and eventually became paragraph 2(f) of Article 8 (for more details see our article, pp. 483-484). The only difference between the definition from the Tadi? case and the one that is contained in Article 8 2(f) is that the notion ‘protracted armed violence’ from the Tadi? case was replaced in the Article by the term ‘protracted armed conflict’. The position one takes about the reasons for the change in the wording is important because of its further implications. Namely, the question that is left unanswered is how Article 8(2)(f) is to be interpreted in relation to Article 8(2)(d) (in which there is no mention of the protracted armed conflict), and whether Article 8(2)(f) in fact introduced a new type of NIAC in which the duration of the conflict is an independent criterion for the existence of NIAC. This uncertainty provoked a discord in the doctrine of International Law (there is no sufficient space here for the elaboration of different argumentation on this topic, but see Peji?, p. 193).
The practice of the ICC in this regard is inconsistent (our article offers a more nuanced assessment of the ICC practice in this regard): the Pre-Trial Chamber in the Lubanga case found that “it seems clear that the FNI (Front National Intégrationniste) was capable of carrying out large-scale military operations for a prolonged period of time” (para. 237); the Trial Chamber in this case included armed attacks carried out over a period of time as part of the intensity criterion (para. 538) and the Trial Chamber in the Katanga case followed this approach (para. 1187); the Pre-Trial Chamber in the Bemba case was actually the first one to directly note that Article 8(2)(f), unlike Article 8(2)(d), contains a second sentence, additionally requiring the existence of a protracted armed conflict (para. 235); the Trial Chamber in this case concluded that “on the basis of the length of the armed conflict, namely more than four and a half months, and the regular hostilities, the Chamber also finds beyond reasonable doubt that the armed conflict was ‘protracted’ within the meaning of Article 8(2)(f).” (para. 663) In most of the analysed cases, the Court inclined to the interpretation along the lines of ICTY practice, but it is obvious that different Chambers had difficulties deconstructing the proper meaning of ‘protracted armed conflict’ and the role of its duration. It is, therefore, reasonable to believe that the Chambers will try to avoid dealing with the dilemma of correct interpretation of the term ‘protracted armed conflict’. This could be a reasonable strategy for the Court when dealing with violence that is both relatively intense and relatively prolonged, which will probably be the case more often than not.
Beyond IHL and ICL
Leaving the scope of application of IHL and ICL, we enter the realm of other international bodies that addressed the issue of NIAC. There, we find a rather unexpected visitor: the Court of Justice of the European Union. In the Diakité case, the Court had to provide the interpretation of the term ‘internal armed conflict’ from Article 15(c) of the Qualification Directive, dealing with subsidiary protection. The judgment was succinct, but one could discern several references to the duration of the conflict as an independent criterion for the existence of NIAC (see paras. 34 and 35 of the Judgement; this is even more obvious in the Opinion of the Advocate General, para. 45). Even though CJEU at the end completely disregarded the IHL criteria for the establishment of a NIAC for the purpose of this case, in its analysis it did consider that the concept this type of conflict in IHL includes duration as the third independent criterion. The Advocate General did the same, while also equating the concept of ‘protracted armed violence’ from ICTY jurisprudence with the ‘protracted armed conflict’ from ICC Statute without mentioning all the unsettled ambiguities. This case reveals that it is difficult to expect all judicial institutions to have the capacity of nuanced reading of the term ‘protracted armed violence’.
Another forum in which the issue of interpretation might emerge is the (not yet fully functioning) African Court of Justice and Human and Peoples’ Rights and its possible jurisdiction for trying war crimes according to the Malabo Protocol (not yet in force). Article 14 of the Protocol introduces a new Article 28(D)(f) to the Statute which is virtually the same as Article 8(2)(f) of the ICC Statute (including the second sentence and the term ‘protracted armed conflict’). This means that the term ‘protracted armed conflict’ has found its way into the African context and that in the future it might be important to see how it will be interpreted: differently than in the ICC context (p. 15), or in consonance with the practice of ICC – which might be more difficult to imagine having in mind that the ICC practice itself is not consolidated in this regard.
The use of the word ‘protracted’ in the definition of NIAC by the ICTY raises some difficulties. Ambiguities about the interpretation of this notion are illustrated by the yet unsettled practice of the ICC and in the practice of institutions outside the ICL field. The authors of this blog believe that there are convincing arguments that the intensity of the violence and organisation of the parties to the conflict should be considered as the only criteria for the existence of NIAC, both from the perspective of lex lata and lege ferenda. Duration of the conflict is and should remain only one of the indicators for intensity of the violence in IHL.
It is possible to argue that Rome Statute or ICL in general recognize duration of violence as separate criterion for the existence of NIAC. However, as Sassòli rightly warns, even if the Rome Statute or ICL do recognise duration of violence as a separate criterion for the existence of NIAC, in some situations “such a standard is not useful for parties, fighters, victims and humanitarian organisations at the outbreak of a conflict. It is not imaginable that they must wait and see how it develops before they know whether they must comply with IHL, are protected by it, should have been complying with it from the beginning, or may invoke it” (p.119).
Having in mind the fact that there are some indicators that institutions outside the system of IHL and ICL will interpret the term ‘protracted armed violence’ as prolonged armed violence it seems that fragmentation of international law in this regard is here to stay.