ICRC Opinion Paper, March 2008, available at: http://www.icrc.org (last visited 9 March 2011), emphasis in original. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of non-international armed conflicts, 8 June 1977, UN Doc A/32/144, Appendix II (1977) 16 International Legal Materials 1442. The Pakistani draft requires that hostilities should be of some intensity (which admittedly is not very telling).100 The Geneva Conventions apply at times of war and armed conflict to governments who have ratified its terms. Bond 1974, p. 60. Government, to support or fulfil the war efforts (See Musema judgment, para. Common Article 3 of the Geneva Conventions and Additional Protocol II refer to "armed forces" and Additional Protocol II also to "dissident armed forces and other organized armed groups". Dinstein is of the view that according to Tadi there are two threshold tests only, suggesting that duration is only one indicator of the existence of protracted armed violence.65, Kebebew and Niyo question whether an instant non-international armed conflict is possibleor, to phrase it differently, if some time needs to elapse prior to the classification of an ongoing non-international armed conflictand whether this is the case in the ongoing situation in northern Ethiopia, where tensions heightened subsequent to an attack by the Tigray People's Liberation Front (TPLF) against the Ethiopian National Defence Force's (ENDF) Northern Command.66 858, June 2005, pp. The Geneva Conventions and their Additional Protocols form the core of international humanitarian law, which regulates the conduct of armed conflict and seeks to limit its effects. substantial support for the war effort on the part of the accused. Politische, rechtliche und strafgerichtliche Dimensionen. 24 International Court of Justice (ICJ), Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 27 June 1986, Judgment, para. Article 3 ICTY is viewed as a general, residual clause covering all serious violations of international humanitarian law not falling under Articles 2, 4 and 5 of the Statute, as well as violations of Common Article 3 of the Geneva Conventions, which specifically applies to cases of armed conflict not of an international character. ICTY Milosevic 2004, para 15. proven will be assessed in the light of those provisions. ICTY Boskoski and Tarculovski 2008, para 197. This question was explored in the third substantive part of the contribution. ICTR Akayesu 1998, para 607. Abi-Saab 1991, p. 215. In order to determine whether the minimum threshold test inherent in the notion of intensity differs in the case of common Article 3 and AP II types of non-international armed conflict, specifically in the context of duration as a constitutive element of the notion of intensity under AP II, three central questions were asked. 75(3), para. United Nations Security Council 2013, Resolution 2106 (2013), UN Doc S/RES/2106 (2013), 24 June 2013, pream para 13; United Nations Security Council 2012, Resolution 2068 (2012), UN Doc S/RES/2068 (2012), 19 September 2012, pream para 3. As discussed previously in this contribution, the instant nature, or rather, instant evaluation of the armed conflict at its initial stages between the TPLF and the ENDF in northern Ethiopia, assessed by Kebebew and Niyo, is possible. United Kingdom Ministry of Defence 2005, para 3.5.1. These concepts are not further defined in the practice pertaining to non-international armed conflicts. Sivakumaran proposes that the reasoning of these courts indeed presupposes that sustained armed violence necessitates a level of violence higher than protracted armed violence.158 This implied distinction refers to non-international armed conflicts in the traditional sense (armed conflicts not of an international character) where violence is protracted in nature only.140, With reference to the SCSL, the Sesay case provides insight into the differing nature of the notion of intensity as it relates to protracted armed violence and sustained military operations.141 of this Article. 6, p. 12, available at: http://www.reliefweb.int/rw/lib.nsf/db900sid/EVOD-6WQFE2/$file/OccasionalPaper6.pdf?openelement (last visited 10 March 2011). 62 Customary Law Study, Rule 100. 4. Cameron, Lindsey Cornmon article 3 and additional protocol ii. the category of victim applies also to that of potential perpetrator. IV of 1907. an exit visa for his family and his sisters. Concerns about the impact of the treaty on state sovereignty resulted in a text that offers more clarity but is also more restrictive than originally envisaged. Applicability Test For Add. Protocol and Common Article 3 | PDF Classification of conflict - How does law protect in war? Oxford University Press, Oxford, pp 3279, Ambos K (2001) Zur Bestrafung von Verbrechen im internationalen, nicht-internationalen und internen Konflikt. the armed conflict. The application of AP II does not cease if there are brief interludes of lower-intensity fighting or brief periods of inaction when preparations are being made for the next series of military operations.124 civilian is anyone who falls outside the category of perpetrators, namely individuals of all Cookie Settings. therefore diverges from the judgments of the ICTR, which require a proximate connection ICC Bemba 2009, para 234. From Criminal Defense Wiki. See, for example, J. Pictet (ed. Non-international armed conflicts are . Therefore, this section aims to determine the content of the minimum threshold demanded by the notion of intensity under AP II and whether duration is a constitutive element of such intensity. For example, the French government in 1956, after several years of asserting that the conflict in Algeria was a suppression of an uprising, admitted the applicability of Common Article 3 and recognise[d] a separate legal status for Algerian detainees in order to mitigate the impact of French law. Forsythe 1978, p. 277. 29: States of Emergency (Article 4), UN Doc. 2002]. The United Nations Secretary-General explained that Common Article 3 is more fully elaborated in Article 4 of the 1977 Additional Protocol II. Geneva Conventions and their additional protocols | Wex | US Law | LII Customary IHL - Rule 3. Definition of Combatants The criteria that have to be met, as explained above, are the existence of organized parties and a certain level of hostilities, without which there can be no non-international armed conflict in the first place. What has been said with regard to defining Afr J Int Compa Law 7:804, United Kingdom Ministry of Defence (2005) The manual of the law of armed conflict. The list, as has been rightly pointed out, sets a far higher threshold of application than is actually required by the Article itself. Depending on their qualications, different rules apply. ICC Lubanga 2012, Prosecutor v. Lubanga, Case No ICC-01/04-01/06, Judgment, Trial Chamber I, 14 March 2012, para 506. The case law of the ICTY was instructive. ICTR Akayesu 1998, para 625; ICTR Musema 2000, para 256. 17 See White House Memorandum of February 7, 2002 on the Humane treatment of Taliban and Al Qaeda detainees, available at: http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf (last visited 10 March 2011). Kebebew and Niyo maintain that one could plausibly argue that the requirement for a temporal factor in determining the intensity threshold of violence is overridden by the clear, short, but amplified intensity and concentration of violence in the Tigray region.71 In a July 2004 Advisory Opinion, the Court stated that humanitarian and human rights law are not mutually exclusive. 2 What is more Applicability Test of Additional Protocol II and Common Article 3 for Common Article 3 of the Geneva Conventions Abi-Saab 1991, p. 216. 9 ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2 October 1995, para. 22 Marco Sassli, Transnational armed groups and international humanitarian law, HPCR Occasional Paper Series, Winter 2006, No. Case W Reserve J Int Law 11:37, Forsythe DP (1978) Legal management of internal war: the 1977 protocol on non-international armed conflicts. The need for AP II is evidenced by the desperate situation prevailing on the African continent as multiple complex conflicts coexist in single territories,30 Case No SCSL-04-16-T, Judgment, Trial Chamber, 20 June 2007, para 243 [hereafter SCSL Brima et al. For a detailed drafting history of Common Article 3 see Moir 1998, p. 337. (Cf. 85104). It is not debatable that violence must be protracted to begin with in order for any type of non-international armed conflict to exist, including that defined by AP II. The conditions listed in the Commentaries to the Geneva Conventions for example that the de iure government has recognized the insurgents as belligerents or that the insurgent civil authority exercises de facto authority over persons within a determinate portion of the national territory are clearly stated to provide useful guidance, but no more than that. It should also be remembered that, under the terms of Common Article 3, the parties are encouraged to conclude special agreements extending the application of the Geneva Conventions (which in fact means IHL rules in general), as a way of mutually agreeing on rules regulating the conduct of hostilities. persons who do not bear ICTY Tadic 1995, Prosecutor v. Tadic, Case No IT-94-1-AR72, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paras 127 and 130 [hereafter ICTY Tadic 1995]. To sum up this section, it has been argued that the degree of violence associated with AP II-type armed conflicts is prolonged and is ongoing as a result of sustained military operations as articulated in Article 1(1) of this treaty. ICC Bemba 2009, Prosecutor v. Bemba, Case No ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, Pre-Trial Chamber, 15 June 2009, para 231 [hereafter ICC Bemba 2009]. 1998, Prosecutor v Delalic et al., Case No IT-96-21-T, Judgment, Trial Chamber, 16 November 1998, ICTY Hahdzihasanovic and Kubura 2005, Prosecutor v Hadzihasanovic and Kubura, Case No IT-01-47-AR3.3, Decision on Joint Defence Interlocutory Appeal of Trial Chamber Decision on Rule 98bis Motions for Acquittal, Appeals Chamber, 11 March 2005, ICTY Haradinaj 2008, Prosecutor v Haradinaj et al., Case No IT-04-84-T, Judgment, Trial Chamber, 3 April 2008, ICTY Kordic and Cerkez 2004, Prosecutor v Kordic and Cerkez, Case No IT-95-14/2-A, Appeals Judgment, Appeals Chamber, 17 December 2004, ICTY Kunarac et al. Keywords: Non-international armed conflict (NIAC); Common Article 3 (CA3); Additional Protocol II (AP2); Minimum protections; Customary law. Jump to navigation Jump to search. In: Wilmhurst E (ed) International law and the classification of conflicts. Moyo, Nkosana In fact, the Chamber considered all these operations to be sustained and concerted, even though there were periods of no or low-intensity conflict,121 https://doi.org/10.1007/978-94-6265-008-4_2, Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies, Shipping restrictions may apply, check to see if you are impacted, Tax calculation will be finalised during checkout. para. Treaties, States parties, and Commentaries - Additional Protocol (II Furthermore, in the event that the law of non-international armed conflict applies, different rules pertain depending on whether common Article 3 or AP II applies.24 Eur J Int Law 22:219, Spieker H (2001) Twenty-five years after the adoption of Additional Protocol II: breakthrough or failure of humanitarian legal protection? This research . Duration in itself, for example, is not a decisive indicator but should be considered when making an assessment of whether or not a situation is sufficiently intense to satisfy the notion of intensity in terms of common Article 3.51, The status of the requirement of duration as merely an indicative factor has been subjected to some scrutiny.52 In the instant case, victim D., the wife of the uncle of Witness 3, Witness 32 and his brother In: Delissen AJM, Tanja GT (eds) Humanitarian law of armed conflict. The provisions of Common Article 3(1)(d) were further elaborated in Article 6 of Additional Protocol II with respect to non-international armed conflicts meeting the requisite threshold and are considered to reflect customary law. According to Sivakumaran, it is possible that the degree of violence associated with the notions both of protracted armed violence and sustained and concerted military operations refers to protracted armed violence.163 This question was addressed in the final substantive part of the contribution. In essence, the minimum threshold of the notion of intensity inherent in the word sustained requires that military operations are prolonged in time. by soldiers. 84 See Article 22 of the Regulations Respecting the Laws and Customs of War on Land annexed to Hague Convention No. See discussion in Boelaert-Suominen 2000a, p. 87. Moon, Suerie terAs Law Review : Jurnal Hukum Humaniter dan HAM, 2019. consequently, the terms of a treaty are presumed to have the same meaning in each authentic text.88 Similar formulations are to be found in subsequent ICTY cases as well. Musema, para. or agents or persons otherwise holding public authority or de facto representing the. 2007, paras 251. Common Art. Generally, it is often difficult to determine situations that comply with the criteria of Additional Protocol II. Cornmon Article 3 and Additional Protocol II similarly do not specify classes of. A This paper examines the notion of intensity in the context of common Article 3 and Additional Protocol II (AP II) to the Geneva Conventions in order to establish whether AP II demands a different intensity threshold from the minimum threshold of intensity contemplated in common Article 3. Internal armed conflict under international humanitarian law ICJ Nicaragua 1986, para 186. International Court of Justice 1969, North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark and Federal Republic of Germany/Netherlands), [1969] ICJ Rep 3, 20 February 1969, paras 7374. Oxford University Press, Oxford, Van den Herik L (2005) The contribution of the Rwanda tribunal to the development of international law. ICTY Limaj 2005, Prosecutor v. Limaj et al. The 2016 Commentary interprets the minimum threshold of the intensity of violence test included in common Article 3 to be at a point at which situations formerly regarded as instances of sporadic violence are reclassified as being armed conflicts not of an international character in that they come to resemble protracted armed violence.44 Protocols I and II additional to the Geneva Conventions - ICRC 2, 2005, p. 195CrossRefGoogle Scholar. the reason being that duration is not an absolute requirement to be met to constitute a protracted armed conflict.165 Asser Press, The Hague. Established in 1869, the International Review of the Red Cross is a peer-reviewed, academic journal produced three times a year by the International Committee of the Red Cross (ICRC) and published by Cambridge University Press. Cambridge University Press, Cambridge, Sandoz Y et al (eds) (1987) Commentary on the additional protocols to the Geneva Conventions. The relationship between the respective sets of rules is expressly provided for in Article 1(1) of Protocol II, pursuant to which the Protocol develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application. The purpose of the minimum threshold of violence test enshrined in the notion of intensity under AP II is to identify two scenarios: situations that are regulated by domestic and human rights law (as depicted in Article 1(2) and excluded from the ambit of AP II) and conflicts that are regulated by AP II (arguably, the notion determined by Article 1(1) of AP II). with the support of the National Patriotic Front of Liberia from a training camp situated in Liberia.144 1 Additional Protocol II to the Geneva Conventions has a higher threshold of applicability than Common Article 3, even though the ICRC had initially hoped, before and at the Diplomatic Conference of 1974-1977, that their scope of applicability would be the same. HPCR Policy Brief, January 2003, Kretzmer D (2009) Rethinking the application of international humanitarian law in non-international armed conflicts. and 18 See Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (hereafter, the Hamdan case), pp. 3, 2007, p. 261CrossRefGoogle Scholar. specifies or defines the category of persons capable of committing war crimes. 90; Ramush Haradinaj et al., ICTY, Trial Chamber I, Judgment of 3 April 2008, Case No. Nevertheless, the Appeals Chamber finds that under all of these circumstances there must 872, December 2008, pp. Ooms, Gorik As all the conditions for applying common Art. In respect of the DRC, a fleeting period of territorial control was documented when the National People's Coalition for the Sovereignty of Congo (Coalition Nationale du Peuple pour la Souverainet du Congo, CNPSC) briefly captured a number of strategic towns in June 2017 and controlled a kilometres-wide section of territory in the city of Uvira on Lake Tanganyika.167 for this article. members of armed forces who have laid down their arms and those placed hors de combat. As is determined in this section, the notion of intensity in the context of sustained military operations requires that violence resulting from military operations should be long-lasting and should fulfil a temporal requirement. This comparison is drawn below. See Commentary on the Additional Protocols, above note 51, Commentary on Additional Protocol II, paras. Conventions to persons holding positions in the armed forces or the civilian government 250251. Common Article 3 of the four Geneva Conventions of 1949 and Additional Protocols I and II. J Conflict Secur Law 12:419, Cullen A (2010) The concept of non-international armed conflict in international humanitarian law. would be very hard to dissociate from the massacres of Tutsis and of moderate Hutus. It is evident that the notion of intensity inherent in AP II requires protracted armed violence, but what is questionable is whether Article 1(1) necessitates something more than protracted armed violence alone. continuously and that are done in agreement according to a plan and on the other, of Correspondence to organization within the armed groups or dissident armed forces, but this does not, necessarily mean that there is a hierarchical system of military organization similar to that AP II has been authenticated in English, Arabic, Chinese, Spanish, French and Russian.89, AP II was negotiated in both English and French. In: Lijnzaad L, van Sambeek J, Tahzib-Lie B (eds) Making the voice of humanity heard. Geneva Conventions (1949), Common Arts. 2-3 - Harvard University International humanitarian law (IHL) is based on the premise that armed conflicts can be categorised as either international under Common Article 2 of the Geneva Conventions or Article 1(4) of Additional Protocol I or non-international under Common Article 3 of the Geneva Conventions and/or Article 1 of Additional Protocol II. in Article 1 will have the effect that Protocol II will be applicable to a smaller range of internal conflicts than Article 3 common to the Conventions of 1949. The case study of events in the Democratic Republic of the Congo (DRC) will now be provided as a concrete representation of the requirements in order to clarify the abstract reasoning in the argument. Transnational Publishers, Ardsley, Boelaert-Suominen S (2000a) Grave breaches, universal jurisdiction and internal armed conflict: is customary law moving towards a uniform enforcement mechanism for all armed conflicts? Asser Press, The Hague, eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0). Applicability Test of Additional Protocol II and Common Article 3 for A contemporary understanding of the notion of intensity thus depends on the meaning of the term protracted armed violence.45 Nomos Verlag, Baden-Baden, pp 325353, Ash RW (2007) Square pegs and round holes: Al-Qaeda detainees and common Article 3. For the opposing view, see A. Bouvier and M. Sassli, (eds), How Does Law Protect in War?, ICRC, Geneva, Vol. See also ICC Lubanga 2007, Prosecutor v. Lubanga, Case No ICC-01/04-01/06-803, Decision on the Confirmation of Charges, Pre-Trial Chamber I, 29 January 2007, para 23 [hereafter ICC Lubanga 2007]. New Haven Press, New Haven, McCarthy C (2008) Legal conclusion or interpretative process? 229237. The situations described demonstrate the difference between the definitions of protracted armed violence under common Article 3 and sustained protracted armed violence under AP II in that they indicate that in addition to violence being protracted, it also must be prolonged. As Akande explains, [w]hile the word protracted suggests that the criterion relates exclusively to the time over which armed conflict takes place, it has come to be accepted that the key requirement here is the intensity of the force. Akande 2012, p. 52. Treaty law, however, provides for two distinct categories of non-international armed conflict.7 Black's Law Dictionary defines this verb to indicate a continuation of an action: To continue (something).109 70, emphasis added. Mburu, Daniel M. 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