IAC vs. NIAC

1. Abbreviations

   1. IAC = International Armed Conflict

   2. NIAC = Non International Armed Conflict

2. Elements of IAC

   1. CA2

      1. Opposing states

      2. Intervention of armed forces (armed attack + response in kind)

         1. Armed attack tests

            1. Use of weapons

            2. effect

      3. Regardless of declaration of war, or whether the states recognize the conflict as a war

   2. API

      1. 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

      2. Mixes jus ad bellum and in bello

      3. 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

   3. Tadic (ICTY)

      1. an armed conflict exists whenever there is a resort to armed force between States, of some degree of intensity and duration

   4. IAC by proxy: state A has overall control of the group attacking State B. Threshold of control. Both tests lead to IAC.

      1. Overall control model: financing, training, equipping, organizational support, coordinating, planning

      2. Effective control model: providing arms, providing training, financing (Nicaragua case)

3. Elements of NIAC

   1. CA3

      1. “armed conflicts not of an international character occurring in the territory of one of the High Contracting parties.”

         1. Hostilities may occur b/w governmental armed forces and non-governmental armed groups or between such groups only

         2. 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)

         1. Hostilities must reach minimum level of intensity

            1. This might happen when, for example

               1. Hostilities are of a collective character

               2. 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.

               1. Command structure

               2. Capacity to sustain military operations

   2. 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)

         1. Only applies to ACs between State armed forces & dissident armed forces/other organized armed groups. Contrary to CA3.

            1. 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

   3. Tadic (ICTY):

      1. Protracted armed violence

      2. Organized groups (including all non-state groups)

      3. Must reach minimum level of intensity

   4. Common International Law

      1. Intensity factors

         1. Frequency, gravity, duration

         2. Number and type of forces involved (police vs. military)

         3. Type of weapons/equipment

         4. Number of victims, scope of destruction

         5. Impact on civilian populations

      2. Organization factors

         1. Structure/hierarchy of the group

         2. Whether the group has a chain of command/ability to give orders

         3. Capacity to recruit and train new members

         4. Capacity to train and carry out coordinated operations

         5. Capacity to procure weapons and logistics

         6. Existence of code of conduct within the group

         7. Control of territory* (just in APII)

   5. Commentators

      1. M. Sassoli

         1. Articles 1 and 7 of the Statute of the ICTR extend the jurisdiction of NIAC to neighboring countries. Even a conflict spreading across borders remains a NIAC. Internal conflicts are distinguished from IAC by the parties involved rather than by the territorial scope of the conflict.

4. Why would we want to classifiy a civil war as a NIAC?

   1. In IHL, governments have the right to use more force than under HRL, because the right to life of each citizen is under a higher attack.

   2. NIAC classification opens the door to the ICC

5. Differences in rules?

   1. IAC and NIAC are bridged in terms of

      1. Conduct of hostilities

      2. Means and methods

         1. Targeting = same proportionality test

      3. Treatment of those in power over a party to the conflict

   2. IAC and NIAC do not overlap in:

      1. Occupation rules

      2. POW/combatant status rules

         1. Captured fighters in NIAC = no POW status. They are breaking domestic law by taking up arms against the government

   3. Jurisdiction

      1. All states treaty bound to IAC in CA2 and with the NIAC rules in CA3, but APs are not universally ratified

      2. Surrounding states to NIAC get asked by SC to protect civilians

         1. Libya

            1. SC authorizes all surrounding states (NATO) to apply “all necessary measures” to make sure that the rules are followed by Libya and its rebels. All necessary means to protect civilians. (R2P)

            2. Examples:

               1. No overhead flights

               2. Freezing of assets

               3. Annexing individuals (prohibiting flights and freezing assets)

                  1. 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

6. Examples

   1. “Global War on Terror” = 2006 Hamdan

      1. Found: anything that’s not an IAC is a NIAC (concerning conflict with Alqaida in Afghanistan)

   2. Syria (one of the few times the ICRC has stated a classification of conflict)

   3. Maybe Mexico

      1. 30,000 fatalities in the last four years

      2. degree of organization: under command

      3. territorial control

      4. protracted violence

      5. military must step in because the police can’t handle it

Determination of Armed Conflict

1. Treaties to...

Buy the full version of these notes or essay plans and more in our International Humanitarian Law Outlines.