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Vol. 39, Nº 68 (Enero - Junio) 2021, 735-757
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 09/11/2020 Aceptado el 15/02/2021
International Legal Problems of
Qualication of Armed Conicts
DOI: https://doi.org/10.46398/cuestpol.3968.47
Mykhaylo Buromenskiy *
Vitalii Gutnyk **
Abstract
The article addresses the qualication problems of armed
conicts. The study was conducted through the analysis of
international legal doctrine, international treaties, decisions of
international organizations. Attention is paid to the jurisprudence
of the International Criminal Tribunal for the former Yugoslavia
and the International Criminal Court. It is noted that International
Humanitarian Law has been in place since the beginning of
the armed conict. Therefore, the application of International
Humanitarian Law does not require any recognition of the existence of
armed conict (international or non-international); this conict exists
because of armed clashes. It is emphasized that the need to classify the
conict arises in view of domestic and international legal factors (to bring to
international criminal justice those who have committed war crimes; state
responsibility for internationally wrongful acts, etc.). Attention was paid to
the non-existence of a single body, which was empowered to determine the
existence of an armed conict. Different international agencies may have
different qualications for the same armed conict. It is concluded that it
is necessary to establish a Committee of Experts under the UN Secretary-
General, to avoid different qualications from the same armed conict.
Keywords: armed conict; war; crime’s war; hybrid warfare;
International Criminal Court.
* Doctor of legal sciences, professor of International Law Department, Taras Shevchenko National
University of Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-9287-5116. Email:
mykhayloburomenskiy@gmail.com
** Doctor of legal sciences, professor of International Law Department, Ivan Franko National University
of Lviv, Ukraine. ORCID ID: https://orcid.org/0000-0003-1401-4393. Email: vitalik_gutnik@ukr.net
736
Mykhaylo Buromenskiy y Vitalii Gutnyk
International Legal Problems of Qualication of Armed Conicts
Problemas jurídicos internacionales de calicación de
los conictos armados
Resumen
El artículo aborda los problemas de calicación de los conictos
armados. El estudio se realizó mediante el análisis de la doctrina jurídica
internacional, tratados internacionales, decisiones de organismos
internacionales. Se presta atención a la jurisprudencia del Tribunal Penal
Internacional para la ex Yugoslavia y la Corte Penal Internacional. Se
observa que el Derecho Internacional Humanitario se ha venido aplicando
desde el inicio del conicto armado. Por tanto, la aplicación del Derecho
Internacional Humanitario no requiere ningún reconocimiento de la
existencia del conicto armado (internacional o no internacional); este
conicto existe por el hecho de enfrentamientos armados. Se enfatiza que
la necesidad de calicar el conicto surge en vista de los factores de orden
legal interno e internacional (para llevar ante la justicia penal internacional
a quienes han cometido crímenes de guerra; responsabilidad del Estado
por hechos internacionalmente ilícitos, etc.). Se prestó atención a que no
existe un organismo único, que esté facultado para determinar la existencia
de un conicto armado. Diferentes organismos internacionales pueden
tener diferentes calicaciones para el mismo conicto armado. Se concluye
que es necesario establecer una Comisión de Expertos dependiente del
Secretario General de la ONU, a n de evitar diferentes calicaciones de un
mismo conicto armado.
Palabras clave: conicto armado; guerra; crímenes de guerra; guerra
híbrida; Corte Penal Internacional.
Introduction
Wars have accompanied human civilization during its history, and
today it is difcult to imagine what would be the development of society
if states had invested their scientic and human potential, as well as
nancial resources into the overall well-being of humanity, rather than
the development of weapons and warfare. Nowadays, it is not possible to
calculate victims of the wars and claim the exact toll of human lives. And it
is impossible to say surely what our society could be without such conicts.
Unfortunately, for many countries, the priority remains the armed forces,
waging war, and not the well-being of its population.
Wars force us to rethink not only human values, but also the values based
on which the state and the world community as a whole must function.
That is why each new stage of development of public international law is
connected with the existing crises of world scale and the desire of states
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to revise the ‘rules of the game’ in the international arena to prevent such
crises in the future.
However, armed conicts are still existing; this is reality of nowadays.
Therefore, the issue of qualication of armed conicts is continuing to be
actual.
Qualication of armed conicts is needed both to determine which
norms of the International Humanitarian Law (IHL) are applicable to
armed conict and, if it violated, to bring the perpetrators to justice before
national and international courts. In addition, depending on the type of
armed conict, the international legal responsibility of the state may arise.
This article is devoted to analyzing of the existing problems of
international legal qualication of armed conicts, investigating and
detecting who has the right to qualify armed conicts and what are the
consequences of such qualications. In the article is solved the following
tasks:
• to dene the types of armed conict.
• to characterize the current problems in the practice of qualifying
armed conicts by state.
• to nd out the specic features of the qualifying of armed conicts
by international organizations and international criminal courts.
• to formulate suggestions concerning body that should dene the
existence or absence of armed conicts.
1. Theoretical Framework
The qualication of armed conicts has been the subject of research
by scholars. Sylvain Vite in his article “Typology of armed conicts in
international humanitarian law: legal concepts and actual situations”
studied international and non-international armed conicts, as well as paid
special attention to “controversial classication of certain armed conicts”,
in particular: “control of a territory without military presence on the
ground”, “foreign intervention in non-international armed conicts” (Vite,
2009: 83). In the article “Armed conict under international humanitarian
law”, O. C. Nwachukwu made similar work researching the specic features
of international, non-international and mixed armed conicts (Nwachukwu,
2014). A comparison of the term’s “war” and “armed conict” was made by
V. Bernard (Bernard, 2014).
James G. Stewart and Dietrich Schindler studied internationalized
armed conict. In the scientic article “Towards a Single Denition
of Armed Conict in International Humanitarian Law: a Critique of
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Mykhaylo Buromenskiy y Vitalii Gutnyk
International Legal Problems of Qualication of Armed Conicts
Internationalized Armed Conict” J. G. Stewart paid attention to the test for
internationalization of armed conict, the effect of internationalization, and
political inuence on characterization of internationalized armed conict
(Stewart, 2003). Dietrich Schindler in his work “International humanitarian
law and internationalized internal armed conicts” researched different
relationships in internationalized internal armed conicts and forcible
installation of a new government through the intervention of a foreign State
(Schindler, 1982).
Hybrid warfare was subject of study rstly by F. G. Hoffman (Hoffman,
2009). After this, hybrid warfare as an armed conict, waged by specic
methods was subject of researching by M. A.
Piotrowski (Piotrowski, 2015),
N. Antonyuk and M. Malskyy (Antonyuk and Malskyy, 2016), S. Iqbal
(Iqbal, 2018), A. Celso (Celso, 2019), etc.
2. Methodology
The study was conducted through the critical analysis of international legal
doctrine, international treaties, decisions of international organizations.
Particular attention is paid to the case-law of the International Criminal
Tribunal for the former Yugoslavia and the International Criminal Court.
The subjects of the research were customary and treaty norms of IHL
as well as practice of international criminal courts. The subject of the study
were armed conicts (Arakelian et al., 2020)
Dialectical, comparative, historical and formal dogmatic methods are
used in this article.
3. Types of armed conicts
3.1 International and non-international armed conicts
Traditionally, the norms of IHL distinguish two types of armed conicts:
international and internal (non-international).
International armed conict is considered as a conict which occurs
between two or more States, and non-international is a conict, between
governmental forces and non-governmental armed groups, or between
only these groups (Melzer, 2016; Djukić and Pons, 2018; Tileubergenov et
al., 2016). As Nils Melze stresses:
For centuries, sovereign States have regulated their relations in both peace
and war through treaties and custom, a tradition based on mutual recognition of
national sovereignty and international legal personality. Conversely, governments
have long been reluctant to subject their efforts to maintain law and order and
public security within their territorial borders to the purview of international law
(Melzer, 2016: 53).
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Essentially, states do not want to provide any guarantees for separatists,
and they want to have a free hand in “internal affairs” (Cameron, 2008;
Thürer, 2011). The legal regulation of international armed conicts is
carried out primarily by the Geneva Conventions of 1949 and the Additional
Protocol I to the Geneva Conventions of 1977.
Article 2 of the Geneva Conventions of 1949 provides the commonly
accepted denition of an international armed conicts. In accordance
with common art. 2 to the Geneva Conventions of 1949 this Convention
is applying to all cases of declared war or of any other armed conict that
arising between two or more of countries, even if the state of war is not
recognized by one of that countries; the Convention is applying also to all
cases of occupation (partial or total) of the territory of a state, even if the
said occupation does not meet with armed resistance.
Certainly, an international armed conict is foremost an inter-state
conict. But at the same time, the Additional Protocol I extend the denition
of international armed conicts. According to art. 1 (4) of the Protocol,
international armed conicts also include “armed conicts in which peoples
are ghting against colonial domination and alien occupation and against
racist régimes in the exercise of their right of self-determination”.
Hence, IHL provides for two types of international armed conicts:
1) inter-state conict (classic inter-state warfare and partial or total
occupation) and 2) armed conict in accordance with the principle of self-
determination (wars of national liberation).
The legal regulation of non-international armed conicts is carried out
by the common art. 3 to Geneva Conventions of 1949 and the Protocol
Additional to the Geneva Conventions of 1949 and Relating to the Protection
of Victims of Non-International Armed Conicts (Protocol II).
According to art. 1 (1) of the Protocol II, internal armed conicts are
armed conict between armed forces of state and dissident armed forces
or “other organized armed groups which, under responsible command,
exercise such control over a part of its territory as to enable them to
carry out sustained and concerted military operations and to implement
this Protocol”. Hence, non-international armed conict means armed
conict that take place either between 1) one or more armed groups and
government’s forces or 2) only between armed groups (Vite, 2009).
At the same time, according to art. 1 (2) of the Protocol II, non-
international armed conicts do not cover situations of internal disturbances
and tensions, including “riots, isolated and sporadic acts of violence and
other acts of a similar nature, as not being armed conicts”.
The general distinction between internal (non-international) armed
conicts and situations of internal disturbances and tensions is made by
two criteria:
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Mykhaylo Buromenskiy y Vitalii Gutnyk
International Legal Problems of Qualication of Armed Conicts
1) hostilities must be a minimum level of intensity (this criterion includes
the duration, number and intensity of individual confrontations;
the type of weapons used; the number and caliber of munitions;
the number of persons and type of armed forces partaking in the
ghting; the number of victims; involvement of UN Security Council
etc.) (International Criminal Tribunal for the Former Yugoslavia,
2008; Wilmshurst, 2012; Gill and Fleck, 2015; Murray, 2016).
2) non-governmental armed forces involved in the conict are “parties
to the conict”, meaning that they are organized armed forces (Luban
et al., 2018; Ziadeh, 2019; ICRC, 2008).
In the context of the study of international / non-international armed
conicts, it should be noted that the term “armed conict” has almost
completely supplanted the term “war”. Sometimes it chances to nd the
opinion that “war” is only a political term, in contrast to “armed conict”,
which has a legal meaning in contemporary IHL (Bernard, 2014). With
this opinion can only be partially agreed. Indeed, after the Second World
War, in particular in the 1949 Geneva Conventions, the term “war” is used
much less frequently than “armed conict”. Moreover, the 1949 Geneva
Conventions introduced the concept of armed conict into IHL in the rst
time. S. Vite emphasizes that:
Those who drafted those instruments wanted to show that the applicability of
IHL was henceforth to be unrelated to the will of governments. It was no longer
based solely on the subjectivity inherent in the recognition of the state of war
but was to depend on veriable facts in accordance with objective criteria (Vite,
2009: 72).
At the same time, IHL continues to use concepts of “laws and customs
of war”, “war crimes”. Moreover, the title of the Third Geneva Convention
(1949) “The Third Geneva Convention relative to the treatment of prisoners
of war” and the Fourth Geneva Convention (1949) “Geneva Convention
relative to the protection of civilian persons in time of war”. The term “war”
can also be found in the text of the 1949 Geneva Conventions. That is, in
IHL, the aspect has changed from “war” to “armed conict”, but the term
“war” continues to be used.
3.2 Other possible types of armed conict in the doctrine of
IHL and the practice of international criminal tribunals
As noted above, the norms of IHL distinguish two types of armed
conicts: international and non-international (internal). At the same
time other types of armed conicts can be found in the doctrine and the
practice of international criminal tribunals. Why do new types of armed
conict begin to emerge in the doctrine and practice? The reason for this
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seems to be that the denition of international / non-international conicts
contains the ideal constructions, because any armed conict cannot be
exclusively international or non-international. As a consequence, since
every international armed conict has more or less armed clashes that
can be dened as a non-international armed conict, and conversely, in
a non-international armed conicts can be involved a third country that
will internationalize such conict, and therefore the concepts of other types
of armed conict are emerged: internationalized, mixed and hybrid armed
conict (Dzhafarova et al., 2020).
a. Internationalized armed conict
The treaty norms of IHL contain no specic provisions on
internationalized armed conicts. As usually, the term “internationalized
armed conict” scientists describe as non-international armed conict that
are rendered international (Stewart, 2003; Cassese, 2009; Melzer, 2016).
It is worth paying attention to the opinion of J.G. Stewart, who emphasizes
that the factual circumstances can achieve internationalization are as
usually combined and includes armed conict between two internal groups
(both are supported by different States); “direct hostilities between two
States that militarily intervene in an internal armed conict” to support
opposing sides; armed conicts “involving a foreign intervention in support
of an insurgent group” ghting against governmental armed forces (Stewart,
2003: 315).
Since the treaty rules of IHL do not dene the internationalized armed
conict, the question arises which rules of IHL should be applied to such
conict: those applicable to international or non-international armed
conicts? By the way, the problem of application of IHL to internationalized
armed conict is not so new. As D. Schindler underlined, back at the time
of the Vietnam armed conict in the 1960s, two different opinions were
offered concerning the applicability of IHL in internationalized armed
conicts (Schindler, 1982). According to one, a non-international armed
conict becomes an international by the mere fact of armed intervention by
foreign state. IHL should be applied to all the parties of the armed conict,
even between the government of the State in which the non-international
armed conict has broken out and the insurgents. According to the other
opinion, an internationalized armed conict should be divided into its
international and non-international components (Schindler, 1982).
It seems that the rightest position on the application of IHL to internalized
armed conicts is now adopting by the ICRC. According to the position of
ICRC in an internalized armed conict could be dened three situations:
1) it remains a non-international (when one or more (third) States or an
international organization intervene in support of a state involved in a war
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Mykhaylo Buromenskiy y Vitalii Gutnyk
International Legal Problems of Qualication of Armed Conicts
against an organized armed group); 2) it becomes an international (when
one or more (third) States or an international organization intervene in
support of an organized armed group involved in a war against government
forces); 3) it becomes “mixed” (depending on the nature of parties to the
armed conict).
b. “Mixed” armed conict
The treaty norms of IHL contain no specic provisions also on “mixed”
armed conicts.
‘Mixed’ armed conicts mean conicts that combine, on the one hand,
international, and on the other hand, non-international armed conicts
(Bouvier, 1986; Nwachukwu, 2014). In such conicts it is possible to dene
clearly in which cases there is an international one and in which there is a
non-international armed conict.
Concept of “mixed” armed conict was used in the practice of the
International Criminal Tribunal for the former Yugoslavia (ICTY) (Kolb and
Hyde, 2008; Doria et al., 2009). In the Tadic case, the Appeals Chamber
of the ICTY stressed that the members of the UN Security Council knew
in 1993 (during drafting of the Statute), that in the former Yugoslavia the
armed conicts could have been characterized as both international and
non-international, or alternatively, as a non-international armed conict
alongside an international one, or as a non-international conict that
had become internationalized because of support of the third state, or
as an international conict that had afterward been replaced by one or
more non-international conicts, or some combination (international/
internal) these conicts (International Criminal Court, 1995). Moreover,
the different nature of the conicts in the former Yugoslavia is in evidence
by the agreements reached by parties to conicts in order to abide by
certain norms of IHL. The Appeals Chamber of the ICTY (Tadic case)
emphasized that the fact reecting the conict being international is that
on 27 November 1991 representatives of the Yugoslavia Peoples’ Army, the
Federal Republic of Yugoslavia, Croatia, and the Republic of Serbia reached
into an agreement on the implementation of the Geneva Conventions of
1949 and the Additional Protocol I of 1977 (International Criminal Court,
1995). In contrast to the abovementioned agreement, an agreement
reached on 22 May 1992 between the various factions of the conict within
the Bosnia and Herzegovina reected the non-international aspects of the
conicts (International Criminal Court, 1995).
At the same time, the weakness of the conception of “mixed” armed
conict is fairness of the division of participants in armed conicts, when
in hostilities take part the governmental armed forces on the one hand and
the anti-governmental armed forces and their supporting third-country
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governmental forces are involved in armed clashes on the other hand. Would
it be fair to distinguish such persons, in particular by providing different
levels of protection by IHL treaties? In reality, the Geneva Conventions of
1949 and the First Additional Protocol of 1977 will apply to governmental
armed forces, and only Common article 3 to the Geneva Conventions and
the Additional Protocol II of 1977 to anti-governmental forces.
c. Hybrid warfare
The concept of “hybrid warfare” is not common used in international
legal doctrine. International law norms do not contain the concept of ‘hybrid
warfare’ either. However, this concept is used actively to characterize armed
conict in Syria (Celso, 2019), Lebanon (Piotrowski, 2015), Libya (Iqbal,
2018) etc.
The concept of “hybrid warfare” is still more military and political
than legal. One of the authors of this concept is Frank G. Hoffman, who
speaking about hybrid warfare, mainly draws attention to the methods
of such warfare. In particular, in his view, hybrid warfare brings together
regular and irregular armed forces, state and non-state actors; involvement
of high-tech capabilities such as antisatellite weapons with terrorism etc.
(Hoffman, 2009).
S. Iqbal gave very similar notion of hybrid warfare and including to
hybrid warfare political war, conventional and unconventional warfare,
information and cyber warfare, supporting local unrest, mass propaganda
(including fake news), diplomacy, intervention in foreign elections (Iqbal,
2018). Hybrid warfare is seen as an armed conict, waged by specic
methods by a number of other scientists too (Josan and Voicu, 2015;
Lanoszka, 2016).
However, the question arises whether it is advisable to use the term
‘hybrid’ instead of the term ‘international’ / ‘non-international’ in modern
armed conicts? It seems that the classic division of armed conicts
(international / non-international) contains some ideal constructions.
Because it is difcult to imagine any armed conict that would be exclusively
international or non-international, especially that did not contain “political
wars”, information wars and propaganda, partial support from the local
people in the form of collaborators, etc. If we rethink the Second World War,
based on the above denition of hybrid warfare, this war, which contained
mass propaganda (Welch, 2017), active use of collaborators (Armstrong,
1968) etc., could also be considered “hybrid”. Certainly, such a course of
thinking about the classication of the Second World War as “hybrid” is
false. The example of World War II is just one example that conrms that
the term “hybrid” war can be applied to any armed conict. Further, if this
term can be applied to any armed conict and apriori all armed conicts
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Mykhaylo Buromenskiy y Vitalii Gutnyk
International Legal Problems of Qualication of Armed Conicts
are hybrid, then the expediency of using such a term is lost because it does
not allow to distinguish one armed conict from another.
Besides, qualifying an armed conict, it is necessary to nd out who
is organizing this conict. The concept of hybrid warfare minimizes
the possibility of identifying the parties of armed conict (regardless of
whether it is an international or internal (non-international) conict).
The application of the concept of hybrid warfare creates the problem of
compliance with IHL obligations, including related to prohibited methods
and means of warfare, as well as the protection of victims of war.
3.3 The practice of qualifying armed conicts: current
problems
As outlined above, the Geneva Conventions of 1949 apply to all cases of
armed conicts (international or non-international). ICRC paid attention,
that “when the armed forces of two States are involved, sufce it for one
shot to be red or one person captured (in compliance with government
instructions) for IHL to apply” (ICRC, 2011; Fundamentals of IHL, 2011).
Hence, IHL has been applied since the fact of beginning of the armed
conict. As a result, to begin applying IHL does not require any decision
of state or international organization (or any other subject), including
a decision concerning a type of armed conict. But at the same time, in
case of violation of IHL, responsibility arises both within the framework of
national and international justice, the qualication of armed conict may
be made by the state or international courts. An international organization
can also qualify an armed conict.
3.4 Qualifying armed conicts by state
Since States are parties of the Geneva Conventions of 1949 and the
Additional Protocols of 1977, so the primary responsibility for qualifying an
armed conict lies on the States. But, even if a state does not recognize that
there is an armed conict in its territory (but, for example, recognize the
existence of a counter-terrorist operation), it does not mean that there is no
armed conict; in this case the IHL must also be applied.
As stressed above, nowadays there are no direct obligations of state to
establish the existence of an armed conict in order to apply IHL. Drafters
of The Geneva Conventions of 1949 wanted to show that the applicability
of IHL was henceforth to be unrelated to the wishes of states (Vite, 2009).
S. Vite pointed, “it was no longer based solely on the subjectivity inherent
in the recognition of the state of war, but was to depend on veriable facts
in accordance with objective criteria” (Vite, 2009: 72).
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At the same time, the Geneva Conventions of 1949 oblige States to take
measures to criminalize certain violations of IHL, which may be regarded as
“grave breaches”, and to prosecute persons who committed them. However,
after the entry into force of the Geneva Conventions and the rst Additional
Protocol, customary international law has evolved and demanded that all
“serious violations” of IHL (not merely “grave breaches”) be investigated
and prosecuted (Global Rights Compliance, 2016).
States have primary responsibility for bringing to justice those who have
committed serious violations of the IHL (Radosavljevic, 2008; Konforta
and Vajda, 2014; Hoon, 2017). Undoubtedly, in order to establish which
norms of the IHL were violated it is necessary for state to determine rst
which (international or non-international) armed conict took place.
3.5 Qualifying of armed conicts by international
organization
International organizations may qualify armed conict. But taking into
account the limited scope of this scientic article we will focus more on the
qualication of armed conict by the UN Security Council.
In accordance with the art. 24 (1) of the UN Chapter, the UN Security
Council has the “primary responsibility for the maintenance of international
peace and security”. In view of this, the Security Council uses the right to
qualify the existence of armed conict (Resolution 771, 1992; Resolution
918, 1994; Resolution 2259, 2015; Resolution 2042, 2012; Resolution 2139,
2014). It should be noted that the UN Security Council is very cautious in
classifying armed conicts. The Security Council as usually, does not use
the words “international armed conict” or “non-international armed
conict” in its resolutions. However, it is possible to nd out from the text
of the resolutions which armed conict is in question, in particular when
analyzing which parties of the armed conict are involved, which treaty
norms should be applied by the parties of the conict etc. Also the UN
Security Council uses the term “occupation” rarely and very cautiously
(Resolution 884, 1993).
De facto, the UN Security Council also qualied an armed conict through
its resolutions, establishing international criminal tribunals, including the
ICTY and the International Criminal Tribunal for Rwanda (ICTR). The
ICTR’s ratione materiae jurisdiction over war crimes is dened in Art. 4 of
the ICTR Statute and covers “Violations of Article 3 Common to the Geneva
Conventions and of Additional Protocol II”. Therefore, conclusion can be
made based on the ICTR Statute that, the UN Security Council qualied in
1994 the armed conict in Rwanda as a non-international armed conict.
Instead, according to Art. 2 and Art. 3 of the Statute of the ICTY, war crimes
are divided into two groups “grave breaches of the Geneva Conventions of
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International Legal Problems of Qualication of Armed Conicts
1949” and “violations of the laws or customs of war”. As a result, the armed
conict in the former Yugoslavia was not limited to any type of armed
conicts.
UN Security Council, determining that the situation in state continues
to constitute a threat to international peace and security may refer the
situation to the International Criminal Court (ICC). UN Security Council
used this power referring the situation in Darfur (Sudan) (Resolution 1593,
2005) and Libya (Resolution 1970, 2011) to the ICC. In fact, this referral
conrmed of the existence of an armed conict.
3.6 Qualifying of armed conicts by international criminal
courts
International criminal courts, that have power to prosecute for
committing of war crimes, also can qualify armed conicts. Qualication of
armed conict by international criminal courts will be considered in more
details in the example of the ICTY and the ICC.
As emphasized by L.R. Blank and G.P. Noone, in the conict in the
former Yugoslavia, conict characterization was put the test multiple
times over the course of the conict (Blank and Noone, 2018). Slovenia
and Croatia declared independence from Yugoslavia in May 1991. After 10
days of ghting, Yugoslav forces withdrew from Slovenia. Armed conict
continued in Croatia and spread to Bosnia in May 1992 when Bosnia and
Herzegovina also declared independence. Serbs in Bosnia formed a separate
Bosnian Serb entity (“Republika Srpska”) and ghting between and among
all three ethnic groups exploded. Over the next three years, the world
learned of concentration camps, ethnic cleansing, mass killings, and other
atrocities throughout Bosnia and the contested portions of Croatia (Blank
and Noone, 2018). The conict in Bosnia-Herzegovina ended in November
1995 with the reaching of the General Framework Agreement on Peace (the
so-called “Dayton Agreement”); in Croatia it ended with the signing of the
Erdut Agreement (was signed in November 1995 as well) (Young, 2001).
When the UN Security Council established the ICTY in 1993, it did not
specify what type of armed conict took place in the former Yugoslavia.
According to UN Security Council Resolution 827 only decided that
the ICTY is established “for the sole purpose of prosecuting persons
responsible for serious violations of IHL committed in the territory of the
former Yugoslavia…” (Resolution 827, 1993). To prosecute, the ICTY was
empowered to determine the type of armed conict.
The denition of armed conict was given by the ICTY in the D. Tadic
case:
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An armed conict exists whenever there is a resort to armed force between
States or protracted armed violence between governmental authorities and
organized armed groups or between such groups within a State. IHL applies from
the initiation of such armed conicts and extends beyond the cessation of hostilities
until a general conclusion of peace is reached; or, in the case of internal conicts, a
peaceful settlement is achieved (International Criminal Court, 1995: 70).
In Blaskić case, Trial Chamber of the ICTY, found, that an armed conict
which begins in the territory of one State and which is thus at rst view
non-international may be deemed as international where the armed forces
of another State intervene in the conict or at least where some participants
in the non-international armed conict act on behalf of this other State
(International Criminal Tribunal for the Former Yugoslavia, 2000) and
based on Croatia’s direct intervention in Bosnia and Herzegovina, the Trial
Chamber of the ICTY dened that this conict as international (International
Criminal Tribunal for the Former Yugoslavia, 2000). Similar decision of
the Trial Chamber was in Kordić and Čerkez case, where Chamber nds
that “the conict between the Bosnian Croats and the Bosnian Muslims
in Bosnia and Herzegovina was internationalized by the intervention of
Croatia in that conict through its troops” (International Criminal Tribunal
for the Former Yugoslavia, 2001).
In the Statute of the International Criminal Court (ICC) ratione
materiae jurisdiction over war crimes is dened in Art. 8 and includes war
crimes committed both during international and non-international armed
conicts.
The ICC has paid attention, that the concept of armed conict, is not
dened in the Statute or in the Elements of Crimes of the ICC but is developed
at other international courts and the ICC has derived assistance from the
jurisprudence of the ICTY (Tadić case)
(International Criminal Court, 2018;
2012; 2014). The ICC has accepted the denition of armed conict given
by the ICTY in the abovementioned D. Tadic case (International Criminal
Court, 2018; 2012; 2014).
The IСС repeatedly qualied armed conicts. In D. Ongwen case, to
dene the contextual element of article 8 (War crimes) of the Statute of the
ICC, Pre-Trial Chamber concluded existence of a non-international armed
conict: From 1 July 2002 to 31 December 2005 a protracted internal armed
conict between the government armed forces of Uganda (together with
associated local armed units in northern Uganda) and the Lord’s Resistance
Army (LRA). These hostilities exceeded, in intensity, internal disturbances
and tensions (International Criminal Court, 2016).
In the case of Lubanga Dyilo, Trial Chamber I of the ICC concerning
the mental element in conduct of T. Lubanga, concluded that he was
aware of the factual circumstances that established the existence of non-
international armed conict and he was the fully aware connection “between
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International Legal Problems of Qualication of Armed Conicts
the crimes of conscripting and enlisting children under the age of 15 to use
them to participate in the armed conict or the factual circumstances that
established the existence of the armed conict” (International Criminal
Court, 2012: 1349-1350).
In the same time, the ICC concluded existence in the Democratic
Republic of the Congo (DRC) number of simultaneous armed conicts
(both international and non-international armed conict). Chamber
considered that as a result of the presence of Uganda as an occupying
Power, the armed conict which occurred in Ituri could be dened as an
international armed conict from July 2002 to 2 June 2003 (the date of the
effective withdrawal of the Ugandan armed forces) (International Criminal
Court, 2007). Protracted violence carried out by multiple non-state armed
groups remained an internal armed conict “notwithstanding concurrent
international armed conict” (International Criminal Court, 2012: 563).
It should be emphasized that the IСС qualies the existence of an armed
conict linked to the alleged war crimes in context of separate accused.
Therefore, if the accused persons committed different war crimes in the
same state, different qualications of the armed conict could be possible,
including different time frames for the existence of the same armed conict.
For example, in the Al Mahdi case (situation in Mali), Trial Chamber
VIII of the ICC found that in Mali a non-international armed conict existed
between Malian Government forces and groups including Ansar Dine and
AQIM: “During the time frame of the facts alleged in that case, namely
between approximately 30 June 2012 and 11 July 2012” (International
Criminal Court, 2016: 38).
But in Al Hassan case (the same situation in Mali), Pre-Trial Chamber I
of the ICC, to decide question concerning the issuance of a warrant for the
arrest of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud considered
it necessary to deal with question of this armed conict in Mali in respect of
his case (International Criminal Court, 2018).
About jurisdiction ratione materiae (war crimes), in view of the totality of
the material submitted, the Chamber found than non-international armed
conict existed in Mali between January 2012 and January 2013 between
the government’s armed forces of Mali and several non-state armed groups
including Ansar Dine and AQIM (International Criminal Court, 2018).
That is, in the rst case (Al Mahdi case), the ICC found that non-
international armed conict in Mali existed for less than one month
(between 30 June 2012 and 11 July 2012), in another (Al Hassan case) - one
year (between January 2012 and January 2013). Hence, the IСС denes
the existence of an armed conict to nd the contextual element of article
8 (War crimes) of the Statute of the ICC and takes into consideration war
crimes attributed to particular person.
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4. Discussion
As noted above, IHL has been applied since the fact of beginning of
the armed conict. Therefore, in general, to apply IHL do not need any
recognition of the armed conict; it exists due to the fact of armed clashes
and not since the moment of the statement of its existence. However, the
need for qualication of armed conict arises in view of both the factors of
domestic and international legal order.
In case of an armed conict on the territory of a state, the government
of such state needs to dene an appropriate legal regime in the hostilities
zone. On the other hand, the relevant legal regime should be dened
within the framework of the international legal order, to bring to justice
those who have committed war crimes, as well responsibility of state for
internationally wrongful acts.
As it can be seen from the above study of the practice of qualifying armed
conicts, there is no single body that is entitled to determine the existence
of an armed conict.
States themselves can determine the existence of an armed conict in
their territory. But even if states determine that there is no armed conict at
all and there is, for example, an anti-terrorist operation’s regime, that does
not mean that there is no armed conict (Antonyuk and Malskyy, 2016);
IHL will be applied in this situation and violations of these norms will mean
responsibility for this.
The UN Security Council may also determine the existence of an armed
conict. However, in the last few decades, the Security Council has shown
its Inefciency; its decisions are often politicized (Peters, 2016; Kolb,
2017). In addition, the qualication of an armed conict by the UN Security
Council is not binding on other international institutions.
International criminal courts are also empowered to determine the
existence of an armed conict. But international criminal courts decide on
the qualication of an armed conict in relation to a specic case in the
context of war crimes charges. Therefore, as it is seen in the above study on
the qualication by the ICC of the armed conict in the situation in Mali,
the same armed conict was recognized in one case (Al Mahdi case) as
having existed for two weeks (between 30 June 2012 and 11 July 2012) and
in the other case (Al Hassan case) for one year (between January 2012 fand
January 2013).
Therefore, each subject may qualify the armed conict, and such
qualication is not compulsory for other subjects.
It seems that the legal identication for the existence of an armed
conict should be exercised by a single body that would be independent
and impartial. In fact, this will make it possible to achieve legal certainty
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International Legal Problems of Qualication of Armed Conicts
about the existence (or absence) of an armed conict with all possible legal
consequences.
At rst sight, such an authority could be the International Committee
of the Red Cross (ICRC), which operates based on principles “humanity,
impartiality, neutrality, independence, voluntary service, unity and
universality” (art. 4 (1) (a) of the Statutes of the ICRC).
On the other hand, the ICRC’s main goal protection of and assistance
to military and civilian victims of armed conict and of their direct results
(Zwitter et al., 2015). Therefore, the ICRC avoids political statements that
can complicate relations with the parties of armed conict and protection of
victims of war. Hence, given the fact that the ICRC is trying as an impartial
organization to maintain good relations with the parties of the conict
(to facilitate the protection of victims of war), empowering the ICRC to
determine the type of armed conict will be ineffective.
Then who may determine the existence of an armed conict? It seems
that a new permanent body of the United Nations – the Commission of
Experts for determination of armed conicts should be established for
this purpose, that will be authoritative and non-political. The Commission
should be composed of 11-15 experts who would have the necessary
experience and have an impeccable reputation. Such a Commission should
be established as a subsidiary body under the UN Secretary-General. The
Commission, as a subsidiary body, should carry out the identication of
armed conicts in order to take such identication as a basis for further
qualication by the competent body.
It should be noted that the UN has the practice of establishing of a
commission of experts ad hoc. For analyzing of information on the armed
conict in the former Yugoslavia in accordance with the Security Council
Resolution 780 (1992) of 6 October 1992 by the Secretary-General was
established the Commission of Experts to examine and analyze information
to providing the UN Secretary-General “with its conclusions on the
evidence of grave breaches of the Geneva Conventions and other violations
of IHL committed in the former Yugoslavia” (Resolution 780, 1992).
Commission of Expert was empowered to obtain information “through its
own investigation or efforts”
(Resolution 780, 1992).
Among other things, this Commission stated in its Final Report that
the armed conict in the former Yugoslavia had a mixed (international /
non-international) character but emphasized that “determining when these
conicts are internal and when they are international is a difcult task
because the legally relevant facts have not been generally agreed upont”
(United Nations, Security Council, 1992: 43). The Commission was one of
the initiators of the establishment of the ICTY (Aksar, 2004).
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Returning to the permanent Committee of Experts that is proposed to
establish to qualify all armed conict, it seems that the Commission should
be formed of highqualied and impartial persons and the results of the
work of these will be beyond doubt. The mechanism for appointing such
persons should be non-political, transparent, and effective to prevent the
appointment of non-qualied persons to the Commission.
Conclusions
According to the treaty norms of IHL, there are only two types of armed
conicts: 1) international and 2) non-international.
The division into international and non-international conicts contains
the ideal constructions because any armed conict cannot be exclusively
international or non-international. Therefore, since every international
armed conict has armed clashes that can be dened as a non-international
armed conict, and conversely, in a non-international armed conict
a third country can be involved that will internationalize such conict,
therefore the concepts of other types of armed conict are emerged:
internationalized, mixed and hybrid armed conict. Today it is difcult
to imagine any armed conict that would not contain “political wars”,
information wars and propaganda, partial support from the local people in
the form of collaborators, etc.
Nevertheless, the practice is that, in the end, every armed conict
is classied as international or non-international, or at the same time
the regime of both international and non-international armed conict is
applied.
IHL has been applied since the fact of beginning of the armed conict.
Therefore, applying IHL does not need any recognition of existence of the
armed conict; this conict exists due to the fact of armed clashes. But at
the same time, the need to qualify an armed conict arises in view of both
the factors of domestic (to dene a legal regime in the hostilities zone) and
international legal order (to bring to international criminal justice those
who have committed war crimes; responsibility of state for internationally
wrongful acts etc.). The practice of qualication of armed conicts is shown
that there is no single body who is entitled to determine the existence of
an armed conict. Therefore, different international bodies, or even the
same body (including the IСС) may have different qualications of the one-
armed conict.
It seems that a new permanent body of the United Nations – the
Commission of Experts should be established to dene of an armed conict.
The Commission should be authoritative and non-political and composed
of 11-15 experts who would have the necessary experience and have an
impeccable reputation.
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International Legal Problems of Qualication of Armed Conicts
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