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PETRA DITRICHOVÁǧOCHMANNOVÁ
CYIL 7 ȍ2016Ȏ
and the Geneva Conventions become applicable from an actual opening of hostilities.
Practice shows that determination of IAC does not pose a great concern, as there is no
other legal regime that could de-conflict the clash of two equal domestic legal systems.
38
Determination of NIAC and especially its delineation from the law enforcement
paradigm brings more challenges, because less serious forms of violence are expressly
excluded in Article 1 of the APII stating that “situations of internal disturbances
and tensions such as riots and isolated sporadic acts of violence and other acts of
a similar nature are not being armed conflicts”.
39
To narrow down this requirement,
jurisprudence and doctrine tried to bring a common understanding for setting
up a clear threshold for existence of an armed conflict. The threshold focused on
a certain level of intensity of the violence and a certain level of organization of the
armed group.
40
In 1995 the ICTY in the
Tadic
case introduced the famous standard
of “protracted”
41
violence. Despite a possible criticism with respect to indicative
accuracy of this standard,
42
this factor continues to be the leading delineation
between transitions from the internal sporadic violence (still governed by law
enforcement paradigm) to armed conflict and governed by the LOAC paradigm.
Additionally, conduct of NIAC, the prevailing nature of current armed conflicts,
brings a number of practical challenges. At the number of NIACs, especially when
a state intervenes on the invitation of another state, armed forces are, in addition to
conducting of hostilities, often expected to act as law enforcement agents restoring
public security, law and order. As mentioned by the ICRC in their study on use of
force in armed conflicts “in NIAC when a State is using force against fighters, it
may be considered as simultaneously conducting hostilities and maintaining law and
order – since fighters are also frequently criminals under domestic law”.
43
It is interesting to note that the issue of intensity of hostilities started to gain
momentum even with regard to acknowledgment of IAC. Despite the consistent
38
ANDREAS PAULUS, “Non-international Armed Conflict under Common Article 3” in
Proceedings
of the 10th Bruges Colloquium: Armed Conflicts and Parties to Armed Conflicts under IHL: Confronting
Legal Categories to Contemporary Realities
, October 2009, p. 30.
39
Article 1 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts (APII).
40
Common Article 3 GC, APII, Tadic case (ICTY), “NIAC are protracted armed confrontations occurring
between governmental armed forces and the forces of one or more armed groups, or between such groups
arising on the territory of a State. The armed confrontation must reach a minimum level of intensity and
the parties involved in the conflict must show a minimum of organization.” ICRC Opinion Paper, How
is the Term “Armed Conflict” is Defined in International Humanitarian Law, March 2008.
41
ICTY,
The Prosecutor v. Dusko Tadic
, Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, IT-94-1-A, 2 October 1995, § 70.
42
PAUL BERMAN, “When does violence cross the armed conflict threshold: current dilemmas”,
in
Proceedings of the Bruges Colloquium, Scope of Application of International Humanitarian Law
,
13th Bruges Colloquium, No.43, 2013, p. 37-38.
43
ICRC Expert Meeting, The Use of Force in Armed Conflicts – Interplay between the Conduct of
Hostilities and Law Enforcement Paradigm, November 2013, p. 1.