This is an extract of our Armed Conflict document, which we sell as part of our International Humanitarian Law Outlines collection written by the top tier of U.C. Berkeley School Of Law (Boalt Hall) students.
The following is a more accessble plain text extract of the PDF sample above, taken from our International Humanitarian Law Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
IAC vs. NIAC 1) Abbreviations a) IAC = International Armed Conflict b) NIAC = Non International Armed Conflict 2) Elements of IAC a) CA2 i) Opposing states ii) Intervention of armed forces (armed attack + response in kind) (1)Armed attack tests (a) Use of weapons (b)effect iii) Regardless of declaration of war, or whether the states recognize the conflict as a war b) API i) Extends definition to include AC in which peoples are fighting against colonial domination, alien occupation, or racist regimes in the exercise of their right to self-determination (wars of national liberation). Art. 1.4 ii) Mixes jus ad bellum and in bello iii) To have this take effect, the national liberation forces must make a declaration of article 6 of API (1)There is no instance where the national liberation forces have made that declaration and been a party to API c) Tadic (ICTY) i) an armed conflict exists whenever there is a resort to armed force between States, of some degree of intensity and duration ii) d) IAC by proxy: state A has overall control of the group attacking State B. Threshold of control. Both tests lead to IAC. i) Overall control model: financing, training, equipping, organizational support, coordinating, planning ii) Effective control model: providing arms, providing training, financing (Nicaragua case) 3) Elements of NIAC i) CA3 (1)"armed conflicts not of an international character occurring in the territory of one of the High Contracting parties." (a) Hostilities may occur b/w governmental armed forces and non-governmental armed groups or between such groups only (b)Note: since all 4 GCs have been ratified, any AC will occur "in the territory of one of the High Contracting Parties" (2)Must reach certain threshold of confrontation (intensity, organization) (SEE CIL) (i) Hostilities must reach minimum level of intensity
1. This might happen when, for example a. Hostilities are of a collective character b. Or when govt. is obliged to use military force against insurgents, instead of just police force
2. Non-governmental groups involved in the conflict must be considered as "parties to the conflict." Must possess organized armed forces. a. Command structure b. Capacity to sustain military operations ii) APII (1)Applies to ACs "which take place in the territory of a HCP b/w its armed forces 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." (narrower than CA3) (a) Only applies to ACs between State armed forces & dissident armed forces/other organized armed groups. Contrary to CA3. (i) BUT REMEMBER
1. APII "develops and supplements" CA3 "without modifying its existing conditions of application." So the restrictive definition is relevant for the application of APII only, but does not extend to the law of NIAC in general.
2. The Statute of the ICC, art. 8, para. 2(f) confirms the existence of a definition of a NIAC not fulfilling the criteria of APII (2)Art. 1(2) - excludes internal disturbances and tensions from the definition of NIAC iii) Tadic (ICTY): (1)Protracted armed violence (2)Organized groups (including all non-state groups) (3)Must reach minimum level of intensity iv) Common International Law (1)Intensity factors (a) Frequency, gravity, duration (b)Number and type of forces involved (police vs. military) (c) Type of weapons/equipment (d)Number of victims, scope of destruction (e) Impact on civilian populations (2)Organization factors (a) Structure/hierarchy of the group (b)Whether the group has a chain of command/ability to give orders (c) Capacity to recruit and train new members (d)Capacity to train and carry out coordinated operations
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