Tamás Hoffmann, Can foreign military intervention internationalize a noninternational armed conflict? – A critical appraisal
Introduction
Probably the most difficult challenge for international humanitarian law is the integration of
transnational conflicts - i.e. armed conflicts with a transboundary character that involve nonState actors - to the system of the law of armed conflicts. 1 An important aspect of this
question of classification of foreign military interventions to non-international armed
conflicts. In this short paper I will attempt to investigate this oft-neglected question through
the perusal of State practice, legal literature and the practice of international criminal bodies.
The theory of internationalization
An influential current of legal scholarship argues that a foreign military intervention into
conflicts taking place in the territory of another State has an internationalizing effect on the
non-international armed conflict taking place in another country, transforms or ‘contaminates’
them, therefore all conflicts will have to be deemed as international armed conflict. 2 This
theory is based mainly on the Cold War experience of ‘wars by proxy’ where civil wars were
used as substitutes for actual conflict between the Great Powers, and where thus both sides
were supported and influenced – sometimes through direct military involvement – by these
external powers.
The basis of this theory widely varies from author to author and seems to be generally
grounded in a gut feeling that significant foreign involvement in an internal conflict should
obviously transform the entire conflict to a single international armed conflict. Farer
attempted to derive this conclusion from the text of Common Article 3 of the 1949 Geneva
Conventions. While the paragraph does not define non-international armed conflicts, 3 it refers
1
For a more detailed analysis of the question see T. Hoffmann, Squaring the Circle? – International
Humanitarian Law and Transnational Armed Conflicts. in: D. Momtaz, M. J. Matheson (eds.) The Rules and
Institutions of International Humanitarian Law put to Test in Recent Armed Conflicts. Centre for Studies and
Research of the Hague Academy of International Law. Brill. (forthcoming)
2
T. J. Farer, The Humanitarian Laws of War in Civil Strife: Towards a Definition of ”International Armed
Conflict”, in Droit Humanitaire et Conflits Armés, Université de Bruxelles, pp. 15-50.; E. David, Principes des
Droits International Humanitaire, Bruylant, 2003. pp. 148-152 and cited references. While it has been suggested
that indirect participation by a foreign foreign power in an internal conflict, manifested e.g. in the provision of
supplies, arms or diplomatic assistance, is enough to transform the entire conflict, as it is shown below, that
argument was clearly rejected.
3
Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the
High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their
arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all
circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith,
sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with
respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a
regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by
to ‘armed conflicts not of an international character’, which in his view implies that even
some armed conflicts which are not restricted to inter-state hostilites can be deemed as
international armed conflicts if they contain an international element. 4 Since wars of national
liberation and civil wars with foreign intervention are obviously armed conflicts with an
international character, they cannot fall under the scope of Common Article 3. 5 The classic
approach which tends to favour the incumbents ‘expresses the values of a vanished
international system, the world of European mastery,’ 6 so it is time international law
dispensed with this old-fashioned approach.
A similar approach contends that in cases of foreign military intervention the
international element of the conflict is so dominant that it completely absorbs its noninternational character. 7 Kalshoven argues that ‘it seems justified for the purposes of the
present subject to attribute the aforesaid internationalizing effect to intervention taking the
form of direct and significant participation of foreign armed forces, as that will incontestably
deprive the armed conflict of its original character as a purely intestine affair.’ 8 Even though
this strategy would greatly restrict the freedom of states to suppress rebellions which
traditionally belonged to the ‘domaine réservé’, Farer points out that ‘where civil strife has
assumed the proportions of factual belligerency, the powers surroundered are largely
illusory.’ 9 Consequently, the theory is grounded on the notion that foreign intervention
inevitably implies control over rebel forces and thus qualifying every conflict as international
is the only way to reveal the real nature of the entire situation. 10 The existence of this doctrine
seems to stem from a single policy consideration that from the moment that the intervention
civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to
the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or
part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
4
Meyrowitz approvingly remarks that ‘international conflict is not synonymous with interstate conflict. In
addition, the law of war does not presuppose, for all its rules, that the belligerent collectivities must be states.’ H.
Meyrowitz, The Law of War in the Vietnamese Conflict, in R. A. Falk (ed.) The Vietnam War and International
Law. Vol. 2. Princeton, 1969., p. 533.
5
See T. J. Farer, Humanitarian Law and Armed Conflicts: Toward the Definition of “International Armed
Conflict.” Columbia Law Review. Vol. 71. 1971. pp. 37-72. Farer emphasizes that ‘in light of contemporaneous
assertions of international concern with domestic phenomena, it is improbable that the “founding fathers” of the
Geneva Conventions intended to hold all civil conflicts within the limits of Article 3.’ T. J. Farer, The
Humanitarian Laws of War in Civil Strife: Towards a Definition of “International Armed Conflict.” in Droit
Humanitaire et Conflits Armés. Université de Bruxelles, 1970. p. Still, this author finds much more persuasive
the argumentation of Austin who insists that ‘[T]he adoption of such extrinsic criterion for achieving
internationalization of an armed conflict through the back-door interpretation by article 3 is not suitable either
for today or for that matter, to situations which might arise in the future.’ R. Austin, in Droit Humanitaire et
Conflits Armés. Université de Bruxelles, 1970. p. 80.
6
T. J. Farer, Harnessing Rogue Elephants: A Short Discourse on Foreign Intervention in Civil Strife. Vol. 82.
1969. p. 526.
7
M. Hess, Die Anwendbarkeit des Humanitäres Völkerrechts, Insbesonderen in Gemischten Konflikten. Zürich,
1983. p. 151.
8
F. Kalshoven, The Law of Warfare: A Summary of its Recent History and Trends in Development. A. W.
Sijthoff, Leiden. 1973. p. 15. See in similar vein Castren suggesting that civil wars cannot be classified as
internal conflict if ‘the maintenance of international peace is seriuosly threatened’ or ‘it already constitutes part
of an international war: in both cases of these civil war takes on characteristics of an important international
issue.’ E. Castren, Civil War. Helsinki, 1966. p. 82.
9
Farer, The Humanitarian Laws of War in Civil Strife, supra, p. 23.
10
J. Doria, Angola: A Case Study in the Challenges of Achieving Peace and the Question of Amnesty or
Prosecution of War Crimes in Mixed Armed Conflicts, Yearbook of International Humanitarian Law. Vol. 5,
2002. p. 24.
reaches a certain level it becomes artificial to maintain the distinction between the
international and the internal conflict. 11 Nevertheless, this theory does not necessarily
consider all foreign military interventions internationalising internal conflicts. Meyrowitz
expounds that ‘[T]he problem of foreign intervention on the nature of an internal conflict does
not lead to any general and theoretical answer. The solution depends on the forms and degree
of intervention, the goals pursued by the intervening power or powers, as well as the
relationship between the intervening state and the assisted state in political and military
strategy.’ 12 The important question is determining whether the international or the internal
characteristic is ‘the one which decides its legal characterization.’ 13
A different theoretical approach submitted that through foreign intervention the
hitherto non-international conflict reaches such a great intensity that the entire regulation of
IHL should apply. 14 However, this interpretation is based on the idea that the distinction
between international and non-international armed conflict relies on the level of intensity of
the respective conflict. This construct seems to be generally rejected in modern doctrine. 15
Another attempt to prove the phenomenon of internationalisation suggested that
invitation of foreign forces by the established government is an implied recognition of
belligerency, as the fact of the invitation is an admission that the insurgents represent such
power that the incumbent cannot cope with them alone, thus it elevates the rebels to the level
of the incumbent. 16 Farer concludes that ‘incumbent reliance on foreign troops persuasively
evidences the achievements by the rebels of the factual requisites of belligerency and may
even be regarded as tacit recognition of belligerency by the incumbents and their allies.’ 17
Nevertheless, this thesis fails to explain why should recognition of belligerency, which was
traditionally a discretionary decision of the government in power be suddenly regarded as an
objective fact. 18
Finally, other authors tried to characterise the situation as an agency between the
foreign power and the party receiving foreign military assistance. In this view, the beneficiary
of military aid will have to be deemed as some sort of agent of the foreign power, which
internationalises the entire conflict. 19
These views have finally been tested during the preparatory discussions for the
codification of Additional Protocols to the 1949 Geneva Conventions. In 1970, Farer could be
11
David, supra, p. 151. In this vein see the Report of the Commission of Experts Established to Investigate
Allegations of War Crimes in the Former Yugoslavia which stated that: ‘The Commission is of the opinion…
that the character and complexity of the armed conflicts concerned, combined with the web of agreements on
humanitarian issues the parties have concluded among themselves, justify an approach whereby it applies the
law applicable in international armed conflicts ot the entirety of the armed conflicts in the territory of the former
Yugoslavia.’ Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution
780 (1992), UN Doc. S/25274, 25 January 1993, para. 45. Following the same line of reasoning, Meyrowitz
argued that due to dominant US presence in the hostilities, classifying the confrontation between South Vietnam
and the National Liberation Front of South Vietnam (the Vietcong) as civil war ‘seems like a legal construction
without any relation to political and military reality.’ Meyrowitz, supra, p. 531.
12
Meyrowitz, p. 532.
13
Meyrowitz, p. 531, fn. 32.
14
D. Bindschedler-Robert, The Law of Armed Conflict. Carnegie Endowment for International Peace, New
York, 1971. p. 53 (de lege ferenda)
15
See e.g. A. Cullen, The Definition of Non-international Armed Conflict in the Rome Statute of the
International Criminal Court: An Analysis of the Threshold of Application Contained in Article 8(2)(F). Journal
of Conflict and Security Law. Vol. 12, 2007. pp. 419-444.
16
Farer, The Humanitarian Laws of War in Civil Strife, supra, p. 52.
17
Farer, The Humanitarian Laws of War in Civil Strife, supra, p. 47.
18
On recognition of belligerency see H. Lauterpacht, Recognition and International Law. CUP, 1947. pp. 175269.; H. Wehberg, La Guerre Civile et le Droit International. Recueil des Cours, Vol. 63, 1938. pp. 83-111.
Present day belligerent recognition fell into desuetude. See David, supra, p. 138.
19
J. Salmon, in: Droit Humanitaire et Conflits Armés. Université de Bruxelles, 1970. p. 55.
justified in stating that ‘[O]ne of the most assured things that might be said about the words
"armed conflict not of an international character" is that no one can say with assurance
precisely what meaning they were intended to convey.’ 20 However, the meaning of the notion
was soon clarified. Even though wars of national liberation were elevated to the level of
international armed conflict in Art. 1 (4) of Additional Protocol I, states fiercely defended
their privileges in other respects.
The International Committee of the Red Cross during the 1971 Geneva Conference of
Government Experts for the Reaffirmation and Development of International Humanitarian
Law proposed a text for further codification that was based on the assumption that acceptance
of foreign military aid by the established government constitutes an implicit recognition of
belligerency. It set forth that:
When, in case of non-international armed conflict, one or the other party, or both,
benefits from the assistance of operational armed forces afforded by a third State, the
parties to the conflict shall apply the whole of the international humanitarian law
applicable in international armed conflicts.” 21
This proposal was almost unanimously rejected by the participants. 22 Following the
failure of its proposal, the International Committee has significantly modified its conception
and the submitted a new proposition in 1972 at the Second session of Conference of Experts.
The new proposal would have allowed for the application of the full body of international
humanitarian law if the established government or both parties to the civil war were assisted
by foreign States, but not if the insurgents alone received outside assistance. 23 Nevertheless, it
was still considered to favour too strongly the insurgents and it became apparent that States
wanted to avoid any reference to foreign intervention. 24 Consequently, it became undeniable
that States only accept the legal dichotomy of international and non-international armed
conflicts and decline to accept any third way. 25
In the face of this evidence of State practice expressly denying the hypothesis that a
foreign intervention can internationalize prior non-international conflicts, the concept hardly
seems tenable. In fact, there is some evidence that the doctrine of internationalization has
been rejected even before World War II. 26 In the last decades, there does not seem to exist
any indication that States accept the notion of internationalization.
20
Farer, Humanitarian Law and Armed Conflicts, supra, p. 43.
International Committee of the Red Cross, Report on the Work of the Conference of Government Experts,
1971, para. 284.
22
D. Schindler, International Humanitarian Law and Internationalized Armed Conflicts, International Review of
the Red Cross, 1982. p. 259.
23
International Committee of the Red Cross, Report on the Work of the Conference of Government Experts,
1972., Vol. I, para. 2.332
24
Admittedly, this result might have been partially due to a certain level of ignorance on the part of the
governmental experts. As Rosas convincingly argues: ‘one of the main objections to the ICRC proposal… was
that it is inappropriate to refer to foreign intervention in the Protocols at all, as intervention (at least in many
cases) is unlawful under general international law… for these reasons, and because the basic approach was
regarded as unacceptable, the government experts rejected the idea of having a reference to foreign participation
in the Additional Protocols, without, however, having studiedin depth all the specific problems which arise even
from the traditional approach.” A. Rosas, The Legal Status of Prisoners of War. Helsinki, 1976. p. 286
25
Hess, p. 158.
26
The Federal Social Court of the Federal Republic of Germany refused to acknowledge that Germany was a
belligerent party in the Spanish Civil War. It emphasized that: “At all events, German support was not one of the
major factors leading to the outbreak of the Civil war; On the contrary, as late as October 1936, the German
Reich still regarded the Nationalists as insurgents… When these facts are taken into account Germany cannot be
regarded as a party to the Spanish Civil War.” Spanish Civil War Pension Entitlement Case, F. R. G., Federal
Social Court, 14 Dec. 1978. International Law Reports, Vol. 80. p. 672.
21
However, this doctrine received official endorsement in the jurisprudence of the
International Criminal Tribunal for the Former Yugoslavia (ICTY). 27 Consequently, the legal
scholarship is still divided in this issue. For instance, in the specific case of the Kosovo
intervention opinions greatly vary. Although Cryer relying on the ICTY jurisprudence
submits that “direct military intervention which has the effect of supporting a campaign is
enough to internationalize the conflict”, 28 Fujita deems necessary to establish a link between
the KLA and NATO forces to find the conflict between the Former Yugoslavia and the
Albanian insurgents international. 29
In the same question, Greenwood argues that: ‘[T]he mere fact that a conflict between
States comes into being alongside a conflict within one of those States cannot, in and of itself,
be sufficient to make the law of international armed conflicts applicable to the latter. At least
until the end of May 1999, however, NATO kept its distance from the KLA/UCK and even
after that time it is far from clear that the relations between them were sufficiently close for
the conflict between the KLA/UCK and the FRY to be regarded as part of the international
armed conflict, rather than a separate internal conflict governed by a different set of rules.’ 30
In stark contrast, Ronzitti considers that the KLA was so close to NATO countries that the
Kosovar militias, under the control of NATO, did not represent an autonomous party to the
conflict. 31
While Pejic is probably justified in asserting that this is only a ‘minority view’, 32 it is
undeniable that there is still academic support for this proposition. 33 Even though Moir aptly
remarks that ‘[G]iven the reluctance of States to accept openly even the limited measure
protection contained in common Article 3, however, it seems unlikely that outside
interference on behalf of the insurgents would persuade the authorities to be any more
charitable and implement the entire jus in bello against enemies within the State’, 34 many
international lawyers will find difficult to reconcile the perceived discrepancy between the
reality of the situation and the apparent characterisation by the States themselves.
A possible strategy is to avoid categorically taking sides. 35 Melzer’s approach is very
instructive in this respect. According to him:
[A]dmittedly, some of the conflicts described have simultanously led to parallel
international confrontations between the intervening and the invaded State and,
arguably, some of them could even be regarded as entirely international. The multitude
27
See more in detail infra.
R. Cryer, The Fine Art of Friendship: Jus in Bello in Afghanistan. Journal of Conflict and Security Law. Vol.
7, 2002. p. 42.
29
H. Fujita, The Kosovo Conflict in Light of U. N. law (Jus Contra Bellum and Jus in Bello), in: C. Charmody,
Y. Iwasada and S. Rhodes (eds.) Trilateral Perspectives on International Legal Issues: Conflict and Coherence.
The American Society of International Law, 2003. p. 258.
30
C. Greenwood, The Applicability of International Humanitarian Law and the Law of Neutrality to the Kosovo
Campaign, in: A. E. Wall (ed.) Legal and Ethical Lessons of NATO’s campaign. Naval War College, 2002. pp.
45-46.
31
N. Ronzitti, Comment, ibid. p. 114.
32
J. Pejic, Status of Armed Conflicts, in: E. Wilmhurst, S. Breau (eds.) Perspectives on the ICRC Study on
Customary International Humanitarian Law. C.U.P., 2007. pp. 90-91.
33
L. Moir, The Law of Internal Armed Conflict. C.U.P., 2002. p. 46.
34
Moir, p. 47.
35
Another – also widespread – strategy is of course completely avoiding addressing the issue. See inter alia A. P.
V. Rogers, Law on Battlefield. M.U.P., 1996.; M. C. Bassiouni, The New Wars and the Crisis of Compliance
with the Law of Armed Conflict by Non-state Actors. The Journal of Criminal Law & Criminology. Vol. 98. No.
3. 2008. pp. 712-810. Any discussion of the legal effect of foreign military intervention to non-international
armed conflicts is conspicuously missing from the inquiry of the International Law Association as well. See
International Law Association, Initial Report on the Meaning of Armed Conflict in International Law. 2008.
28
of available examples illustrates, however, that contemporary non-international armed
conflict regularly involves extraterritorial military operations without necessarily
transforming the entire confrontation into an international armed conflict. 36
Nevertheless, as it becomes clear even from this quote, an even more accepted solution
is classifying such conflicts as containing both international and non-international armed
conflicts.
‘Theory of pairings’ – Parallel application of legal regimes
The most widely accepted doctrine applicable to transnational conflicts in legal
literature is the parallel application of international and non-international armed conflicts. 37 It
submits that the application of the law of armed conflict is contingent on the attitude of the
States involved, not on the nature or geographical scope or activity of an armed group. Under
consistent State practice, a conflict has to be divided into its components and international and
non-international armed conflicts can exist parallel, depending on the parties involved
resulting in ‘mixed’ conflicts. 38
According to this concept, a State intervening to a civil war is fighting an international
armed conflict if it clashes with the armed forces of the respective government but an
internationalized non-international armed conflict – subject to the rules of internal armed
conflict - if supporting the government engages in hostilities with the rebel troops. However, a
formal recognition from the international community of the rebels as the legitimate
government of the State will render the internationalized non-international armed conflict to
international armed conflict and vice versa. 39
36
N. Melzer, Targetted Killing in International Law. O.U.P., 2008. pp. 244-245. Dinstein is similarly
ambiguous. He implies that intervention on the side of the rebels will transform the conflict to international
armed conflict by saying that ‘armed conflicts may also be mixed vertically in the sense that what has started as
an intra-State armed conflict evolves into an inter-State armed conflict… One potential development is that the
intra-State armed conflict through the military intervention of a foreign State on the side of rebels against the
central Government.’ Nevertheless, in the next paragraph he affirms that the law of international armed conflict
‘relates to hostilities carried out between belligerent States.’ Y. Dinstein, The Conduct of Hostilities under the
Law of International Armed Conflict. C.U.P., 2004. p. 15.
37
D. Schindler, The Different Types of Armed Conflicts According to the Geneva Conventions and Additional
Protocols. Recueil des Cours, Vol. 163, 1979. pp. 150-151.; D. Schindler, supra, pp. 258-264; A. Rosas, supra, p.
283.; R-J. Wilhelm, supra, pp. 356-359; D. Bindschedler-Robert, supra, pp. 52-53; H.-P. Gasser,
Internationalized Non-international Armed Conflicts, supra, p. 147; M. Bothe, Völkerrechtliche Aspekte des
Angola-Konflikts, Zeitschrift für Öffentliches Recht. Vol. 37, 1977. pp. 590-598; J. Salmon, Comments, in:
Droit..., supra, p. 55; Hess, supra; R. Bierzanek, Quelques Remarques sur l’Applicabilité du Droit International
Humanitaire des Conflits Armés aux Conflits Internes Internationalisés, in: Studies and Essays on International
Humanitarian Law and Red Cross Principles in Honour of Jean Pictet. ICRC, Martinus Nijhoff. p. 285; J. Doria,
Angola: A Case Study in the Challenges of Achieving Peace and the Question of Amnesty or Prosecution of War
Crimes in Mixed Armed Conflicts. Yearbook of International Humanitarian Law, Vol. 5, 2002. pp. 19-20.; Y.
Dinstein, supra, p. 14. R. Pinto, Les Regles du Droit International concernant la Guerre Civile. Recueil des
Cours. 1965. p. 464.
38
M. Sassòli, Transnational Armed Groups and International Humanitarian Law. Winter 2006, Program on
Humanitarian Policy and Conflict Research at Harvard University, Occasional Paper Series, No. 6. p. 5. See e.g.
the civil war in Yemen between 1962 and 1970 where royalists considered the conflict international in relation to
Egyptian forces and internal vis-à-vis the rebels. K. Boals, The Relation of International Law to the Internal War
in Yemen, in: R. A. Falk (ed.) The International Law of Civil War. Baltimore, 1971. p. 306.
39
See e.g. the Vietnamese intervention to Cambodia where the recognition of the new People’s Republic of
Cambodia arguably meant that the Vietnamese forces present were no longer subject to the rules governing the
international conflicts. Gasser, supra, p. 155.
The possible coexistence of separate armed conflicts was affirmed by the International
Court of Justice in the Nicaragua case, where the Court found that the conflict between the
contras and Nicaragua fell under Common Article 3 of the Geneva Conventions, constituting
a non-international armed conflict, while the actions of the United States against Nicaragua
qualified as international armed conflicts. The ICJ pronounced that:
The conflict between the contras’ forces and those of the Government of Nicaragua is
an armed conflict which is ‘not of an international character’. The acts of the contras
towards the Nicaraguan Government are therefore governed by the law applicable to
conflicts of that character; whereas the actions of the United States in and against
Nicaragua fall under the legal rules relating to international conflicts.’ 40
Correspondingly, the ICTY pronounced that: ‘…in case of an internal armed conflict
breaking out on the territory of a State, it may become international (or, depending upon the
circumstances, be international in character alongside an internal armed conflict.)’ 41
Apart from its acceptance in international jurisprudence, the theory holds sway over the
United Nations 42 and the International Committee of the Red Cross 43 as well. While in 1965,
the ICRC called for the application of the entire body of international humanitarian law in the
Vietnam conflict evidently because it perceived international involvement as a factor
internationalising the conflict, 44 in later mixed conflicts it favoured breaking down the
conflict to its constituent elements. In a message to the Afghan authorities the ICRC indicated
that the civil war in Afghanistan was governed primarily by the provisions applicable to noninternational armed conflicts. 45 A further ICRC Statement explicitly held that “combatants
captured by enemy forces in the international armed conflict between the Taliban and the USled coalition must be treated in accordance with the Third Geneva Convention,” 46 implying
that other aspects of the hostilities did not rise to the level of international armed conflict.
Regardless of the apparent popularity of the concept, supporters of a ‘global approach’
toward armed conflicts regarding the applicability of one set of legal regulation to an armed
conflict the only logical and desirable approach vehemently criticize it based on its
impracticality. 47 Meron calls the result “a crazy quilt of norms that would be applicable in the
40
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Merits), [1986] ICJ Rep. 14,
114., para. 219.
41
Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Appeal Judgment, 15 July 1999, para. 84. For an analysis
supporting this conclusion see C. Greenwood, International Law and the Tadić Case. European Journal of
International Law, Vol. 7, 1996. pp. 269-275.
42
Roberto Garretón, Special Rapporteur of the Commission on Human Rights regarded the armed conflict in the
Democratic Republic of the Congo as a complex net of “various armed conflicts, some international, others
internal and yet other internal conflicts that have been internationalized”. R. Garretón, Report on the Situation of
Human Rights in the Democratic Republic of the Congo submitted in accordance with Commission on Human
Rights Resolution 1999/56, UN Doc. E/CN.4/2000/42, para. 20.
43
See e.g. Afghanistan: ICRC calls on all parties to conflict to respect international humanitarian law,
Communication to the Press 01/47, ICRC,Geneva, 24 October 2001. The Human Rights Watch also succumbed
to this theory. See e.g. Human Rights Watch, Up in Flames – Humanitarian Law Violations and Civilian Victims
in the Conflict Over South Ossetia, p. 28
44
Respect for the Rules of Humanity in Vietnam. International Review of the Red Cross, No. 53, 1965. p. 417.
45
ICRC, Memorandum to Afghan Government, September 2001, cited by . Adam Roberts, The Laws of War in
the War on Terror. Israel Yearbook on Human Rights. Vol. 32, 2003. p. 211, fn. 34.
46
Afghanistan: ICRC calls on all parties to conflict to respect international humanitarian law, Communication to
the Press 01/47, ICRC,Geneva, 24 October 2001.
47
For references on the ‘global approach’ see J. G. Stewart, Towards a Single Definition of Armed Conflict in
International Humanitarian Law. International Review of the Red Cross. Vol. 85. 2003, p. 337. and references
cited.
same conflict, depending on whether it is characterized as international or noninternational.” 48
Arguing from a different perspective, Kolb warns that we return to the medieval legal
conception where the application of the law did not depend on objective factors but on
personal status, or more precisely on the relationship between two persons. 49 Yet, this
argument is unconvincing since the application of the law still depends on status as the
regulative system of the Geneva Conventions is based on the concept of protected persons and
only a distinct caste of people – the combatants – can participate lawfully in hostilities.
The argument questioning the practicality of splitting the conflicts seems persuasive. It
is certain that the global approach would lead to less difficulties in terms of practical
application. The parallel application of the norms of international and non-international armed
conflicts leads to different obligations depending on the status of parties to the hostilities
which seemingly contradicts the reality of the conflict. Meron captures this sentiment when
asks that ‘consider a conflict in a country where practically all the fighting is done by a
foreign power alongside the rebels, but where the rebels maintain their independence from the
intervening country. Thus, this conflict does not satisfy the Nicaragua criterion. Could anyone
seriously suggest, however, that this is not an international armed conflict?’ 50
This perceived irreality is compounded by the fact that often the qualification of such
complex situations is only possible in hindsight and the determination of the conflict can
change following the materialization of new evidence. This retroactive qualification poses
difficulties on the battlefield since law can only protect the victims of war if it can be applied
immediately and not after meticulous research. From the point of view of criminal
prosecution it is acceptable but not from the direction of actual application. Sceptics argue
that this conundrum involves a choice between a theory that cannot work and a practice that is
not justified. 51
Nevertheless, this choice is nothing but illusory. The theory of parallel application of
legal regimes seem to be strongly entrenched in practice and legal scholarship. Moreover, it
might possibly be the only logical interpretation of the system of international humanitarian
law that is based on the distinction between international and non-international armed
conflicts. Although the characterization of a mixed conflict will inevitably present difficulties,
the absence of immediate qualification does not necessarily cause gaps in the legal
framework. Moreover, no matter how seemingly illogical or impractical the normative
framework is, if States affirm its validity, it will be in force. 52
It has also been suggested that the classification of mixed conflicts as international
armed conflict was necessary since the widest possible extension of the scope of international
armed character is essential in order to protect the victims of war. 53 Wilhelm for instance
described the perceived injustice which can arise from other approaches owing to the fact to
the possibility that if a foreign soldier intervening on behalf of the insurgents, he is eligible to
prisoner of war status in case of capture while the insurgents will be probably treated as a
48
T. Meron, Classification of Armed Conflict in Former Yugoslavia: Nicaragua’s Fallout. American Journal of
International Law. Vol. 92, 1998. p. 241, p. 238.
49
R. Kolb, Ius in Bello – Le Droit International des Conflits Armés. Bruylant, 2003. p. 89.
50
T. Meron, The Hague Tribunal: Working to Clarify International Humanitarian Law. American University
International Law Review. 1998., Vol. 13. p. 1515.
51
Stewart, supra, p. 335.
52
As Cryer aptly put it the fact that ‘the distinction is illogical does not mean that it is not lex lata.’ R. Cryer, The
Fine Art of Friendship, supra, p. 41.
53
‘The distinction between a domestic and international armed conflict is not wholly academic. For the tragic
victims of armed conflict – the prisoners, the sick, the wounded, and other non-combattants – it could represent
the difference between a decent and a miserable life, or even between life of any kind and death.’ T. J. Farer, The
Humanitarian Laws of War in Civil Strife, supra, p. 15.
common criminal. 54 However, even if the entire conflict was viewed as a single international
armed conflict, the insurgents would probably still not be entitled to POW status.
In fact, humanitarian considerations might actually militate against the acceptance of
this view. The mere fact of a foreign intervention would not give combatant privileges to
insurgents as they still had to conform to the strict provisions stipulated in Art. 4 of Geneva
Convention III. If we accept that foreign intervention internationalises the conflict – even if it
is not directly aimed at supporting the insurgents, then captured rebels can be regarded as
traitors for assisting the enemy even if such cooperation has never taken place in reality. Such
a scenario could even result in the execution of the insurgents which would obviously defeat
the purpose of this concept. 55
The jurisprudence of international judicial bodies
The International Criminal Tribunal for the Former Yugoslavia (ICTY)
The ICTY had to where due to the dissolution of the Federal Republic of Yugoslavia and the
involvement of various parties to the conflicts the classification of the situation was especially
difficult. The most straightforward and uncomplicated strategy would have been classifying
the entire situation as an international armed conflict, and there existed clear signs that the
international community preferred that option. The UN Commission of Experts established to
design the legal framework of the ICTY opined that due to the complexity of the situation the
whole series of events in the territory of the former Yugoslavia should be deemed as a single
international armed conflict 56 and this approach received strong doctrinal support. 57
Nevertheless, the Tadić Jurisdiction Appeals Judgment persuasively argued that the armed
conflicts in Bosnia and Herzegovina could be classified as non-international and it was
accepted as such by the parties themselves. 58
This choice however, obviously rendered the determination of the highly complex
situation much more difficult therefore it is unsurprising that the Chamber introduced new
tests to remedy this problem. In the 1999 Tadić Appeals Judgment the Tribunal pronounced
that:
It is indisputable that an armed conflict is international if it takes place between two or
more States. In addition, in case of an internal armed conflict breaking out on the
territory of a State, it may become international (or, depending upon the
circumstances, be international in character alongside an internal armed conflict) if (i)
another State intervenes in that conflict through its troops, or alternatively if (ii) some
of the participants in the internal armed conflict act on behalf of that other State. 59
54
R. J. Wilhelm, Problèmes Relatifs à la Protection de la Personne Humaine par le Droit International dans les
Conflits Armés Ne Présentant pas un Caractère International. Recueil des Cours, Vol. 137. 1972. p. 359.
55
Y. Sandoz, International Humanitarian Law in the Twenty-first Century. Yearbook of International
Humanitarian Law. Vol. 6, 2003. p. 31. If a combatant is the national of the capturing State then he can be
deemed to have violated the duty of allegiance to his home country and thus denied to obtain prisoner of war
status and immunity from prosecution for taking part in hostilities even if he otherwise meets all the
requirements of belligerents. See Public Prosecutor v. Oie Hee Koi, 4 Dec. 1967, ILR, Vol. 42, p. 441.
56
See supra, para. 45.
57
T. Meron, ‘The Normative Impact on International Law of the International Tribunal for Former Yugoslavia’,
in Y. Dinstein and M. Tabory (eds.), War Crimes in International Law. 1995., pp. 214-17; J. C. O’Brien, ‘The
International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia’, Vol. 87.,
1993. American Journal of International Law. pp. 647-8.
58
Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT94-1-AR72, Appeals Chamber, 2 October 1995., paras. 72-8.
59
Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Appeal Judgment, 15 July 1999, para. 84.
The decision reintroduces the concept that foreign military intervention can
internationalise a non-international armed conflict and devises a new test of attribution.
Interestingly while the judgment devotes 37 pages to the explanation and proof of the
controversial notion of ‘overall control’, 60 it apparently deems so obvious the
internationalising effect of military intervention that it fails to dedicate a single paragraph to
prove its customary status or the legal criteria of its application, especially on the requisite
degree of the intervention. Similarly, commentators almost exclusively focused on the validity
of the ‘overall control’ test and glossed over the mysterious and unexplained reappearance of
military intervention in the classification of armed conflicts. 61
This decision has become a standard point of reference in the ICTY jurisprudence. The
Chamber relied on it determining that foreign involvement internationalized the internal
conflict in the Blaskić 62, Aleksovski 63, Kordić & Čerkez 64, Nalelitić 65 and Brđanin 66 cases.
Still, the judgments reveal very little about the actual application of the doctrine. What seems
to be relevant for the ICTY is the factual proof of a foreign intervention. 67 Accordingly, in
Kordić & Čerkez the Tribunal found that the existing proof of presence of appr. 5000
Croatian troops was enough to qualify the entire conflict as an international armed conflict. 68
The only case where the Chamber expounded the qualitative aspects of the
internationalization through military intervention doctrine was in the Rajić decision where the
Court emphasized that the fact of intervention is relevant if it is carried out ‘significantly and
continuously.’ 69 Still, as it was only a Rule 61 judgment, i.e. a verdict passed in the absence
of the accused, its actual effect on the jurisprudence of the ICTY is uncertain.
Based on the perusal of the ICTY jurisprudence, Stewart rightly states that ‘the
reasoning would seem to suggest that foreign military intervention that only indirectly affects
an independent internal conflict is sufficient to render that conflict international.’ 70
Nevertheless, no matter how well-established this doctrine is in the ICTY jurisdiction, there
seems to some apprehension with its actual application. Even though theoretically the mere
fact of direct military intervention justified the classification of the conflict as international,
the Chambers always rely on the doctrine of ‘overall control’ as well, as if they had some
doubts that it could be convincing enough in itself. Typically, in Kordić & Čerkez the
Chambers, after proving the fact of actual military intervention pronounced that:
60
Ibid., paras. 88-162.
The majority of the authors analyzed the introduction of the doctrine of overall control and the expansion of
the protected person status instead. See e.g. M Sassòli and L. M. Olson, International Criminal Tribunal for the
Former Yugoslavia, Appeals Chamber, July 15 1999, American Journal of International Law, Vol. 94, 2000. pp.
571-578.
62
Prosecutor v. Blaskić, Case No. IT-95-14-T, 3 March 2000. paras. 76-94.
63
Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, 24 March 2000. para. 137.
64
Prosecutor v. Dario Kordić & Mario Čerkez, Case No. IT-95-14/2-T, 26 February 2001.
65
Prosecutor v Nalelitić, Case No. IT-98-34-T, 31 March 2003.
66
Prosecutor v Brđanin, Case No. IT-99-36-T, 1 September 2004. Indeed, the doctrine has become so accepted
in the ICTY jurisprudence that in the Nalelitić case the Defence itself agreed with it. See Nalelitić, supra, para.
182.
67
See Blaskić, supra, para. 76. ‘An armed conflict which erupts in the territory of a single State and which is
thus at first sight internal may be deemed international where the troops of another State intervene in the conflict
or even where some participants in the internal armed conflict act on behalf of this other State. The intervention
of a foreign State may be proved factually.’
68
Kordić & Čerkez, supra, paras. 80-109.
69
Prosecutor v. Rajić, Case No. IT-95-12-R61, Review of the Indictment Pursuant to Rule 61, 13 September
1996. para. 21.
70
J. G. Stewart, Towards a Single Definition of Armed Conflict in International Humanitarian Law. International
Review of the Red Cross. Vol. 85. 2003. p. 328.
61
Although this finding would, by itself, be sufficient to dispose of the question of the
international status of the conflict, the Chamber will, in the interest of completeness,
also consider whether the second criterion for internationalising an internal conflict
has been met. 71
These apprehensions have become painfully evident in the cases concerning the crimes
committed in Kosovo. Cryer based on the ICTY jurisprudence argues that ’[T]he intervention
in Afghanistan completely changed the course of the conflict between the United Front and
the Taliban, leading to the collapse of the latter, defeat on the ground being by a force that
weeks before, prior to the intervention, was struggling to hold on to 10 per cent of the
country. It is difficult not to take the view that the Coalition intervention was enough to
internationalize the conflict between the parties assisted by the Coalition and the Taliban.’ 72
Yet, the actual cases dealing with crimes committed after the NATO intervention of 24
March 1999, suggest that the Tribunal wants to avoid to determine that the hostilities between
the Serbian forces and the Albanian militants (KLA) became international armed conflict,
even though the NATO intervention was clearly of the magnitude to internationalize the
conflict. This is amply demonstrated by the recent Milutinović judgment which avoids
qualifying the armed conflict under the pretext that the charges did not include grave breaches
therefore it was unnecessary to resolve the type of the conflict. 73 Similarly, in the Đorđević
case the indictment shies away from classifying the armed conflict. Nevertheless, the fact that
the only war crimes count is based on murder as a violation of Common Article 3 suggests
that the Prosecution considers the situation as a non-international armed conflict, i.e. does not
necessarily embraces the notion of internationalization in the Kosovo situation. 74
In light of the dubious customary status of the doctrine, its inconsistent application and
the hardly insignificant detail that it seems very difficult to reconcile it with the parallel
application of legal regimes which has also become settled jurisprudence of the Tribunal, it is
not easy to explain its existence. Examining the determination of customary norms by the
ICTY, Turns submitted that the Appeals Chamber followed a ‘reverse methodology’ in
identifying the relevant customary norms, starting from the premise that the alleged acts were
serious violations of the rules of customary norms necessarily giving rise to individual
criminal responsibility, and consequently, also necessarily applicable in non-international
armed conflicts. 75 According to him, this methodology was introduced for ‘the policyoriented purpose of “easier” war crimes prosecutions’. 76 A similarly opportunistic application
of this doctrine appears to be the most plausible interpretation. Hence, it seems that sole
reason of the introduction of this theory was to enable the Chamber to extend the scope of the
law of international armed conflicts in order to ‘humanize humanitarian law.’ 77
Kordić & Čerkez, supra, para. 110. (emphasis by author)
Cryer, supra, p. 45.
73
Prosecutor v. Milutinović, Case No. IT-05-87-T, 26 February 2009. para. 1217, fn. 3327. The Prosecutors
indictment suggested that it regarded the whole period between 1 January 1999 and 20 June 1999 as a noninternational armed conflict as the indictment included under Count 4 ‘[M]urder, a violation of the laws or
customs of war, punishable under Article 3 of the Statute of the Tribunal and recognized by Article 3 (a) (1)
(murder) of the Geneva Conventions.’ Prosecutor v. Milutinović et. al. Case No. IT-05-87-PT Third Amended
Joinder Indictment, 21 June 2006.
74
Prosecutor v. Đorđević, Case No. IT-05-87/1-PT D1197-D1150, 09 July 2008. Fourth Amended Indictment.
75
See D. Turns, At the “Vanishing Point” of International Humanitarian Law: Methods and Means of Warfare in
Non-International Armed Conflicts. German Yearbook of International Law. Vol. 45., 2002. pp. 130-1.
76
Ibid., p. 120.
77
See esp. in T. Meron, The Humanization of Humanitarian Law. American Journal of International Law. Vol.
94., 2000. pp. 256-260.
71
72
The International Criminal Court
The International Criminal Court has also encountered the problem of mixed conflicts in its
first case. In the Lubanga confirmation of charges decision the ICC had to resolve the
classification of armed conflict in the Ituri region of the Democratic Republic of Congo
(DRC) which involved clashes between ethnic militia groups with the involvement of
Uganda.
The Court decided to adopt the ICTY approach. With a verbatim quote of the Tadić
test, it accepted that foreign military intervention can internationalize a non-international
armed conflict without examining the customary status of the test. 78 In further analysis, the
Chamber referred to the judgment of the International Court of Justice in the Congo v.
Uganda case where the ICJ determined that Uganda was an occupying power in the Ituri
region 79 and ascertained that ‘as a result of the presence of the Republic of Uganda as an
occupying Power, the armed conflict which occurred in Ituri can be characterised as an armed
conflict of an international character from July 2002 to 2 June 2003, the date of effective
withdrawal of the Ugandan army.’ 80 This conclusion effectively equates occupying status
with direct military intervention and thus relies on the authority of the ICJ to prove that the
entire conflict was internationalized.
However, the International Court of Justice never expressed the view that occupation
transformed the entire conflict in the region into an international armed conflict. Even though
it emphasized that there is credible evidence that the Ugandan army incited ethnic conflict in
the region and took no action to prevent it, 81 it also affirmed that there is no evidence that the
Congolese rebel groups were under the control of Uganda. 82 The failure of Uganda to prevent
violations of international humanitarian law in the occupied territory incurred its
responsibility under international law 83 but this does not necessarily imply that every conflict
in the region took place within the framework of the law of international armed conflict. It is
perfectly possible to assume that non-international armed conflicts took placedue to the
fighting between militias paralelly to an international armed conflict. Such an interpretation
can be deduced from the assertion of the Court that it ‘wishes to stress that the civil war and
foreign military intervention in the DRC created a general atmosphere of terror pervading the
lives of the Congolese people.’ 84 The reference to ‘civil war’ implies that the ICJ might not
necessarily regarded the entire situation as an international armed conflict.
The Katanga confirmation of charges decision – which also dealt with crimes
committed in the Ituri region in the same time – followed a similar pattern. Although the
Prosecution originally raised charges for crimes committed in the context of a noninternational armed conflict, 85 it later amended the charges to include crimes committed in
both international and non-international armed conflict. 86 The legal representatives of the
78
Prosecutor v. Lubanga, ICC-01/04-01/06, 29 January 2007. para. 209.
Ibid., paras. 212-217., quoting Armed Activities on the Territory of Congo (Democratic Republic of Congo v.
Uganda), Judgment, 19 December 2005, I.C.J. Reports 2005, p. 59, para. 175.
80
Ibid., para. 220.
81
Armed Activities Case, supra, para. 209.
82
Ibid., paras. 160 and 177.
83
Ibid., para. 219.
84
Ibid., para. 212.
85
ICC-01/04-01/06-356-Conf-Anx1, para. 7.
86
ICC-01/04-01/07-649-AnxlA, para. 38. The Prosecution underlined that ‘for the purpose of this criminal case,
it is immaterial whether the conflict, which involved the groups latter known as the FNI and the FRPI, is
characterized as noninternational or international. Each of the counts qualified as "war crimes" in this Document
arises from conduct which constitutes a war crime regardless of whether the conflict is international or noninternational. All of these counts describe conduct equally proscribed under the Rome Statute whether Article
8(2)(a) and (b), or Article 8(2)(c) and (e), serve as their statutory underpinning. For that reason, the Prosecution
79
victims, however, contended that due to the direct involvement of Uganda in the territory of
Ituri, the armed conflict could be characterized as international. 87
The Court, however, relying on the Lubanga decision classified the entire conflict as
international. It held that:
Relying on a decision of the International Court of Justice ("the ICJ") in the case of the
Democratic Republic of Congo v. Uganda, the Chamber held in the Lubanga Decision
that:
The Chamber considers an armed conflict to be international in character if it takes place between
two or more States; this extends to the partial or total occupation of the territory of another State,
whether or not the said occupation meets with armed resistance. In addition, an internal armed
conflict that breaks out on the territory of a State may become international - or, depending on the
circumstances, be international in character alongside with an internal armed conflict - if (i)
another State intervenes in that conflict through its troops (direct intervention), or if (ii) some of
the participants in the internal armed conflict act on behalf of that other State (indirect
intervention). 88
Surprisingly the Katanga Chamber attributed the Tadić test quoted by the Lubanga
decision to the International Court of Justice. As it has been demonstrated above, even though
the Lubanga decision asserted that occupation internationalizes an armed conflict, the ICJ did
not draw such conclusion and the Lubanga Chamber in reality relied on the ICTY
jurisprudence. It is difficult to determine whether this false attribution is due to a simple
mistake or to a deliberate attempt to continue the process started in the Lubanga decision to
link the concept of internationalization to the International Court of Justice and thus gain
more authority.
There is some indication that ICC could even consider extending the concept of
internationalization further than the ICTY jurisprudence. The Bemba Arrest Warrant which
deals with the situation in the Central African Republic addresses armed conflict between the
government and rebel forces but mentions that ‘other foreign armed forces were allegedly
involved in the conflict, in particular, combatants referred to as Bataillon de sécurité
frontalière or Brigade anti-Zaraguina, led by Mr Abdoulaye Miskine and composed, inter
alia, of Chadian mercenaries.’ 89 Apparently due the presence of international elements in the
internal conflict, the Arrest Warrant submits that ‘this conflict can be described as a conflict
of a non-international character or, alternatively, as a conflict of an international character.’ 90
Even though the ICC is still in its formative phase so it is too early speculate about its future
jurisprudence, but if the Court accepted the proposition that the presence of foreign non-state
actors could internationalize a non-international armed conflict, that would represent a clear
break from any mainstream theory.
is charging KATANGA and NGUDJOLO in the alternative, based on counts reflecting the same conduct but
related to war crimes in the context of a conflict of international character and of non-international character.
The Prosecution will therefore present evidence in its possession pertaining to both the international and noninternational aspects of the armed conflict.’
87
ICC-01/04-01 /07-689-tENG, para. 13. It might be interesting to note that arguably the victims representatives
could have a vested interest in extending the responsibility to Uganda for establishing a potential cause of action
for future compensation.
88
Prosecution v. Katanga, Case No. ICC-01/04-01/07, 30 September 2008. para. 238.
89
ICC-01/05-01/08, 23 May 2008. Para. 14 of the Modified Arrest Warrant bears identical language. ICC-01/0501/08, 10 June 2008. para. 10.
90
Ibid., para. 11.
Conclusion
The perusal of State practice and academic writing suggests that the notion that a foreign
military intervention can internationalize a non-international armed conflict is generally
discarded but is unfortunately resuscitated by the jurisprudence of the International Criminal
Tribunal for the Former Yugoslavia. The continued existence of this doctrine largely depends
on the International Criminal Court. The Court was established based on the experience of the
work of the ad hoc tribunals and the hierarchy of sources established by Article 21 of the ICC
Statute was clearly intended ‘to restrain the margin of appreciation of the judges to the greates
possible extent.’ 91 Given the fact that a significant part of the staff of the ICC originally
worked for the ad hoc tribunals and that the ICTY jurisprudence is generally regarded as a
persuasive source of international criminal law, it is understandable that the judges
automatically fall back to the jurisprudence they are familiar with. However, the intention of
the drafters for the International Criminal Court clearly required to curb the almost unbridled
innovative spirit which characterized the ICTY. 92 The requirement of conformity to the
nullum crimen sine lege principle demands that such standards as the concept of
internationalization should only be applied if they are firmly grounded in customary
international law. Hopefully the ICC will in the future be more critical to the reception of past
jurisprudence.
91
G. Hafner and C. Binder, The Interpretation of Article 21 (3) ICC Statute Opinion Reviewed, Austrian Review
of International and European Law, Vol. 9, 2004. p. 175. Pellet even accused the drafters of ‘a veritable
brainwashing operation led by criminal lawyers.’ A. Pellet, Applicable Law, in A. Cassese, P. Gaeta and J. R. W.
D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), Vol. I, p. 1057.
92
On the role of the ICTY – and more specifically of Antonio Cassese see T. Hoffmann, The Gentle Humanizer
of Humanitarian Law – Antonio Cassese and the Creation of the Customary Law of Non-International Armed
Conflicts. in: Carsten Stahn, Larissa van den Herik (eds.) Future Perspectives on International Criminal Justice.
T.M.C. Asser – C.U.P. (forthcoming)