The two 1977 Additional Protocols contain updates on the substantive law and the first comprehensive regulation of the conduct of hostilities in international armed conflict. While Protocol I extended the range of international armed conflicts to which it applies by including ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination’. Protocol II on non-international armed conflicts introduced stringent requirements for the applicability of its rules and a minimum threshold below which it should not apply. It also included wording in Article 1 clarifying the continued validity of Article 3 common to the Geneva Conventions.

Recent developments have, however, somewhat reduced the significance of the triggering provisions of the 1977 Additional Protocols; while most of the countries involved in recent conflicts have not become party to Protocol I precisely because they were opposed to the inclusion of non-state entities and the loosening of requirements for armed forces. Protocol II has seldom been applicable to recent internal conflicts because insurgent groups rarely, if ever, meet the requirements of its Article 1. For a conflict to rise above the minimum threshold laid down in Article 1(2) of Protocol II, such armed groups need to have a responsible command, exercise sufficient control over territory to enable them to carry out sustained and concerted military operations and possess the ability to implement the Protocol. Some of these requirements are also part of the definition of non-international armed conflict as contained in Common Article 3, but not all. In particular, the control over territory requirement would disregard humanitarian needs in conflicts in which insurgents vanish ‘like a fish in the water’ within the local population or in which control regularly switches from one day to the next. In these cases, as in ‘internal disturbances and tensions’, the protection laid down in Common Article  remains necessary. Moreover, states are reluctant to recognize that any use of armed force on their territory might go beyond mere ‘situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature’ that Protocol II excluded from its scope of application. While the provisions of Protocol I on the conduct of hostilities have nevertheless entered customary law to an extent well beyond the treaty’s scope of application, Common Article 3 of the Geneva Conventions has remained the central focus of the law of non-international armed conflict. In its own words, Protocol II ‘develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application’.

From the beginning, the amendment to the ‘armed conflict’ provision in Article 1 of Protocol I was a departure from the underlying principle of the definition of ‘armed conflict’ in the Geneva Conventions, namely to distinguish between jus ad bellum and jus in bello. The rationale for introducing an ‘objective’ determination of the existence of an armed conflict lies in the purely factual nature of the analysis that eschews more ideological or politically sensitive questions and is intended to guarantee the equal application of International Humanitarian Law(IHL) to all parties to the conflict. Alas, Article 1(4) of Protocol I appears to have brought issues of jus ad bellum back into the scope of applicability of International Humanitarian Law(IHL). In practice, the provision has provided arguments against ratifying Protocol I, thus hampering its universality. No party to any conflict will accept that the other party is ‘fighting against colonial domination and alien occupation and against racist regimes in the exercise of the right to self- determination’, as little as any party will admit to waging a war of aggression or to violating the prohibition on the use of force. 

The most disappointing aspect of the two Protocols, however, relates to the absence of clarifications as to the minimum threshold for the existence of an international armed conflict and, with regard to non-international armed conflicts, the complication due to the split applicability of the provisions of Protocol II and Common Article 3. The conclusion to be drawn from this shortcoming of the Additional Protocols is that the Geneva Conventions’ definition of armed conflict remains in place, but that for Protocol II to apply, internal armed conflicts need to fulfil the additional requirements of Article 1 thereof.

The Rome Statute of the International Criminal Court(ICC) exacerbates the problem by introducing additional categories and maintaining a distinction between Common Article 3 and other serious violations of IHL in armed conflicts not of an international character. In its definition of war crimes, Article 8(2)(c) of the Rome Statute criminalizes the violation of Common Article 3. However, addressing the first concern would lead to the inclusion of additional war crimes in the law of non-international armed conflict, a proposal that, as the Rome Statute shows, does not yet enjoy the support needed from states to become customary law. The second concern can be accommodated by a contextual interpretation of the ‘protracted’ character of an armed conflict that also takes the intensity of a conflict into account. By itself, the word ‘protracted’ refers only to length, not intensity, but in the relevant paragraph of its Tadic jurisdiction decision. the expert also speaks of the ‘intensity requirements applicable to both international and internal armed conflicts’– the Tadic case: in Akayesu, its Appeals Chamber emphasized that there should be a test evaluating the intensity of the violence and the organization of the parties involved. Moreover, it stressed that the intensity criterion did not depend on the assessment of the conflicting parties and should be objective in character. While the criterion of intensity may give a broader scope to IHL than mere temporal ‘protractedness’, it remains doubtful, however, whether it conforms to the Tadic decision.

While the inclusion of an additional element such as ‘protracted’ may warrant some criticism, the provision should rather be lauded for contributing to the definition of (non-international) armed conflicts. By applying this definition only for the application of customary rules beyond Common Article 3, and thus preserving the latter’s character as a minimum rule for all conflicts, the Rome Statute contributes to extending the customary international law of non-international armed conflict beyond the undue restrictions of Protocol II’s Article 1. An understanding of ‘protracted’ in that article as being less than ‘sustained’, because it allows for temporary periods of calm. 

The International Committee Of Red Cross (ICRC) made several attempts to derive a list of customary rules from the Additional Protocols that would be applicable to non-international armed conflicts. The whole issue of the scope of application of IHL seems to be so controversial that the ICRC customary law study presupposes the applicability of IHL in international and non-international armed conflict, but does not define the terms. However, the existence of minimum rules such as those in Common Article 3 and also Article 75 of Protocol I, which contains fundamental guarantees and lists certain acts ‘that are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents’, does not seem to be in doubt, at least in principle. By maintaining the equal application of the most important rules for both kinds of conflicts, the ICRC study on custom, in line with the Rome Statute of the ICC, seems to submit that the main differences between international and non-international armed conflict relate to the status of the fighters, but not to the substance of the applicable rules of IHL. In any event, when there is an uncertainty as to whether the armed conflict is internal or inter- national in character, the ‘hard core’ of humanitarian law provisions will be applicable.

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