THE ORGANISATIONAL REQUIREMENTS FOR THE
THRESHOLD OF NON-INTERNATIONAL ARMED CONFLICT
Uluslararası Nitelikte Olmayan Silahlı Çatışmalarda
Organizasyonel Gereklilik
Dr. Timur DEMİR *
ABSTRACT
There are two types of non-international armed conflicts in international
humanitarian law. These are non-international armed conflicts in the meaning of
Common Article 3 and non-international armed conflicts falling within the definition
provided in Article 1 of Additional Protocol II. However none of them define the
conditions or threshold of non international armed conflict. International tribunals,
in particular the case law of the International Criminal Tribunal for the Former
Yugoslavia has played an important role in the definition or conditions of these
situations. Two requirements, 'protracted armed violence' and 'a certain level of
organization' are needed for the existence of non-international armed conflict under
international law. If the organizational requirement is not satisfied in a situation,
international humanitarian law can not be applicable. Case law highlights indicative
factors regarding organizational structure of an armed group. Even if none of these
factors have a central role in determining the existence of the armed conflict, the
ability to command and control members of the group, and carry out the group’s
operations are particularly important.
Key Words: Non-international armed conflict, Common Article 3, Organizational
Requirement
ÖZET
Uluslararası insancıl hukukunda iki tür uluslararası nitelikte olmayan silahlı çalışma
tipi vardır. Bunlar Ortak 3. madde anlamında uluslararası nitelikte olmayan silahlı
çatışmalar ve 2. Ek Protokol'ün 1. maddesi kapsamına giren uluslararası nitelikte
olmayan silahlı çatışmalardır. Buna karşın, bunlardan hiçbiri uluslararası nitelikte
olmayan bir silahlı çatışmanın şartlarını ve sınırlarını belirlemez. Uluslararası
mahkemeler, özellikle Eski Yugoslavya Uluslararası Ceza Mahkemesi'nin kararları
bu hususların tanımlanmasında ve şartlarının belirlenmesinde önemli bir rol
oynamıştır. Uzun süreli silahlı çatışmalar ve belirli bir seviyedeki organizasyon,
uluslararası nitelikte olmayan silahlı çatışmaların iki şartıdır. Grubun organizasyon
yapısı yeterli değilse, uluslararası insancıl hukuku da uygulanabilir hale gelemez.
Silahlı bir grubun organizasyonel yapısı ile ilgili olarak mahkeme kararları bazı
belirleyici faktörlere vurgu yapmıştır. Bu faktörlerin hiçbirinin silahlı bir çatışmaya
*
Judge, Ministry of Justice, General Directorate International Law and Foreign Relations, Human
Rights Department
Human Rights Review, Volume: III, Issue: 1, June 2013
The Organisational Requirements for The Threshold of Non-International Armed Conflict
Dr. Timur DEMİR
ilişkin merkezi bir konumu bulunmasa da; üyeleri kontrol ve yönlendirme kapasitesi,
operasyonların yapılması önemli birer etkendir.
Anahtar Kelimeler: Uluslararası nitelikte Olmayan Silahlı Çatışma, Ortak 3.
Madde, Organizasyonel Gereklilik.
***
INTRODUCTION
128
International law is not applicable to all kinds of conflicts between parties.
However, it is not an easy issue to classify a situation as a
non-international armed conflict due to the threshold of non-international
armed conflict. If a conflict between two parties is classified as
non-international armed conflict, all the principles of international law
must be taken into account by parties. In this regard, the organizational
requirement is one of the most important factors for the existence of a
non-international armed conflict. If the organizational requirement is not
satisfied in a situation, international humanitarian law can not be
applicable. In addition, if an armed group is not sufficiently organized,
the conflict between parties may be defined as internal disturbances or
internal tensions. However, neither Geneva Conventions nor Additional
Protocol II define the organizational requirement explicitly. Instead,
international tribunals play an important role in the definition. This study
examines the threshold of organizational requirements for a
non-international armed conflict, and in particular its distinguishing
characteristics from situations of internal disturbances. First, the
classification of non-international armed conflicts and requirements, then
the organizational requirements which are shaped by the case law of the
international tribunals will be examined. This paper will conclude that
even if none of the indicative factors have a central role in determining
the existence of the armed conflict, the ability to command and control
members of the group, and carry out the group’s operations are
significant factors.
I. CLASSIFICATION
CONFLICTS
OF
NON-INTERNATIONAL
ARMED
A. Treaty Law
1. General
While many states are keen to sign an agreement on rules and principles
which govern the conduct of states in an international armed conflicts,
many of them are, however, reluctant to regulate the situations of
Human Rights Review, Volume: III, Issue: 1, June 2013
The Organisational Requirements for The Threshold of Non-International Armed Conflict
Dr. Timur DEMİR
non-international armed conflicts. This is because such situations were
seen as issues that 'belonged essentially to the domestic affairs of the
national sovereign states'. 1 Nevertheless, some minimum standards which
are applicable in the situations of non-international armed conflict were
adopted in Common Article 3 to the Geneva Conventions by the
contracting states in 1949. Other conventions such as Article 19 of the
Hague Convention for the Protection of Cultural Property in the Event of
Armed Conflict, The Hague (14 May 1954) and the Second Additional
Protocol to the Geneva Conventions (1977) also contains some issues
with regard to non-international armed conflict.
2. Types of Non-International Armed Conflicts
There are two types of non-international armed conflicts in international
humanitarian law. These are non-international armed conflicts in the
meaning of Common Article 3 and non-international armed conflicts
'falling within the definition provided in Article 1 of Additional Protocol
II.' 2 This difference is important in terms of threshold of the armed
conflict. Thus, it directly affect the organizational requirement.
While Common Article 3 sets out minimum standards for parties to the
conflict, it does not define the conditions or threshold of non international
armed conflict. 3 Besides, it does not specify explicitly when international
law will apply. 4 On the other hand, the standards of Additional Protocol II
is higher than the standards of Common Article 3 5 and Additional
Protocol II to the Geneva Conventions provides more protections for
victims of non-international armed conflicts. 6 As one of the prerequisites
for a situation to be classified as a non-international armed conflict is the
organizational requirement and Additional Protocol II has some
additional prerequisites, it can be said that there is a strong relationship
1
2
3
4
5
6
Tom Haeck, Armed Conflict, Internal Disturbances or Something else?, Lambert Academic
Publishing, 2012, p.3.
How is the Term "Armed Conflict" Defined in International Humanitarian Law?, International
Committee of the Red Cross (ICRC) Opinion Paper, March 2008, p.1.
Common Article 3 to the Geneva Conventions
Dapo Akande, Classification of Armed Conflicts: Relevant Legal Concepts, (Edited by) Elizabeth
Wilmshurst, International Law and the Classification of Conflicts, Oxford 2012, p.51.
Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 197.
Roderic Alley, Internal Conflict and the International Community Wars Without End?, Ashgate,
2004, p.120; Final Report On The Meaning Of Armed Conflict In International Law, International
Law Association The Hague Conference (2010), Use Of Force, available at:
http://www.ila-hq.org/en/committees/draft-committee-reports- the-hague-2010.cfm, Last
visited on 14.02.2013, p.13.
Human Rights Review, Volume: III, Issue: 1, June 2013
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The Organisational Requirements for The Threshold of Non-International Armed Conflict
Dr. Timur DEMİR
between 'the content of applicable law' and 'the organization of the armed
group'. 7
Additional Protocol II, as stated in Article 1, develops and supplements
Article 3 Common to the Geneva Conventions of 12 August 1949 without
modifying its existing conditions of application. 8 However, the definition
of non-international armed conflict in Article 1 of Additional Protocol II
is different from the one in Common Article 3 in two aspects. The first
requirement is territorial control 'as to enable them to carry out sustained
and concerted military operations and to implement this Protocol". 9 This
requirement directly affects the organizational requirement. In this sense,
comparing a non-international armed conflict in the meaning of Common
Article 3, 'the degree of organization required to engage in protracted
violence is lower than the degree of organization required to carry out
sustained and concerted military operations.' 10 Secondly, contrary to
common Article 3, Additional Protocol II is not applicable to armed
conflicts occurring only between non-state armed groups. 11
130
However, neither Common Article 3 nor Additional Protocol II indicates
an explicit and complete definition or conditions of non-international
armed conflict 12, except the negative definition 13 of non international
armed conflict, which exists in Article 1(2) of Additional Protocol II that
states that "this Protocol shall not apply to situations of internal
disturbances and tensions, such as riots, isolated and sporadic acts of
violence and other acts of a similar nature, as not being armed
conflicts." 14 In other words, while the article states what can not be
classified as non-international armed conflict, it does not state explicitly
'what a non-international armed conflict is'. 15 However, international
tribunals, in particular the case law of the International Criminal Tribunal
for the Former Yugoslavia (ICTY) has played an important role in the
definition or conditions of these situations.
7
8
9
10
11
12
13
14
15
Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Oxford University Press,
2012, p.185.
Additional Protocol II, Article 1(1)
How is the Term "Armed Conflict" Defined in International Humanitarian Law?, Supra fn2, p.4.
Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 197.
How is the Term "Armed Conflict" Defined in International Humanitarian Law?, Supra fn2, p.4.
Tom Haeck, Armed Conflict, Internal Disturbances or Something else?, Supra fn1, p.15.
Anthony Cullen, The Concept of Non-International Armed Conflict in International
Humanitarian Law, Cambridge University Press, 2010, p.107.
Article 1(2) of the Additional Protocol II.
Tom Haeck, Armed Conflict, Internal Disturbances or Something else?, Supra fn1, p.15.
Human Rights Review, Volume: III, Issue: 1, June 2013
The Organisational Requirements for The Threshold of Non-International Armed Conflict
Dr. Timur DEMİR
B. Requirements For Non-International Armed Conflict
In the Tadic Trial Judgment, the first case of the ICTY, the Chamber
applied the test to determine whether the existence of an armed conflict
for the purposes of Common Article 3 was established. 16 As stated in the
Tadic Case, "an armed conflict exists whenever there is a resort to armed
force between States or protracted armed violence between governmental
authorities and organized armed groups or between such groups within a
State." 17 According to this judgment, two requirements, 'protracted armed
violence' and 'a certain level of organization' are needed for the existence
of a non-international armed conflict under international law. 18 As
emphasized by the International Criminal Tribunal for Rwanda (ICTR),
these two criteria are 'clearly related and should be considered together
when assessing whether a particular situation amounts to an armed
conflict'. 19
The term 'protracted armed violance' is not detailed in the Tadic case. But
the ICTY, in the Haradinaj judgment, accepted that the criterion of
protracted armed violence must be interpreted "as referring more to the
intensity of the armed violence than to its duration." 20 In this sense, not
only protracted conflicts such as between US and Al Qaeda or Israel and
the Hezbollah 21, but also some short term conflicts such as occurred in La
Tablada 22 which lasted approximately 30 hours, can be classified as
non-international armed conflict.
Once these two conditions have been satisfied, international humanitarian
law comes into force. 23 In other words, if the organizational requirement
is not satisfied in a situation, international humanitarian law can not be
applicable to that situation. If either of these two conditions is not
16
17
18
19
20
21
22
23
Prosecutor v. Dusko Tadic Case, Trial Chamber, Opinion and Judgment, 7 May 1997, IT-94-1-T,
para 562.
Prosecutor v. Dusko Tadic Case, 2 October 1995, Decision On The Defence Motion For
Interlocutory Appeal On Jurisdiction, ICTY, para.70.
Noam Lubell, Extraterritorial Use of Forcfe Against Non-State Actors, Oxford: Oxford University
Press, 2010, p. 105.
Prosecutor v. Akayesu, Case ICTR-94-4-4-T, 2 September 1998, Para 620; Initial Report on the
Meaning of Armed Conflict in International Law, International Law Associatiton Committee on
the Use of Force, Rio de Janeiro Conference(2008), p.22.
Prosecutor v. Haradinaj and ors, Judgment, ICTY, Case IT-04-84-T, 3 April 2008, para 49.
Noam Lubell, Extraterritorial Use of Forcfe Against Non-State Actors, Supra fn18, p. 105.
In this case the criteria of protracted armed violence had not been met in this incident. But Inter
American Commission on Human Rights concluded that the conflict between the attackers and
members of the Argentine armed forces triggered application of the provisions of Common
Article 3 and other rules relevant to the conduct of internal hostilities.
Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.182.
Human Rights Review, Volume: III, Issue: 1, June 2013
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The Organisational Requirements for The Threshold of Non-International Armed Conflict
Dr. Timur DEMİR
existence, the situation between two parties may be defined as 'internal
disturbances or internal tensions.' 24 Thus, since the definition of an armed
conflict is not concrete, the question of whether a situation might be
classified as an armed conflict or whether a situation meets the criteria of
Common Article 3 to the Geneva Conventions must be decided on a case
by case basis. 25
II. Organizational Requirements
A. Treaty Law
An armed conflict between governmental armed forces and
non-governmental armed groups or between such groups can falls within
the meaning of Common Article 3. 26 Since non-governmental armed
groups can be parties to the conflict, the satisfaction of the organizational
requirements in a non-international armed conflict is more complex in
comparison to international armed conflicts. 27
132
Whilst, Common Article 3 specifies fundamental principals of humanity
and minimum standards that are applicable in non-international armed
conflicts28, it does not define the required degree of organization for
non-state armed groups party to a non-international armed conflict.29
However, according to the Seville Agreement ‘an armed conflict exists
when the armed action is taking place between two or more parties and
reflects a minimum of organization’. 30 In this sense, armed groups must
be organized 'to a greater or lesser extent' in order to be qualified as a
24
25
26
27
28
29
30
Sylvain Vite, Typology of armed conflicts in International humanitarian law: legal concepts and
actual situations, Volume 91, Number 873, March 2009, ICRC, p.77
Final Report On The Meaning Of Armed Conflict In International Law, International Law
Association
The
Hague
Conference
(2010),
Use
Of
Force,
available
at:
http://www.ila-hq.org/en/committees/draft-committee-reports- the-hague-2010.cfm, Last
visited on 14.02.2013, p.15; Prosecutor v. Musema , Judgment and Sentence, Trial Chamber I,
Case No. ICTR-96-13-A, 27 January 2000, para. 249; Situation In The Republic Of Cote d'Ivoire,
(Pre-Trial Chamber III) Decision Pursuant to Article 15 of the Rome Statute on the Authorisation
of an Investigation into the Situation in the Republic of Côte d'Ivoire, No.: ICC-02/11, Date: 3
October 2011, para 46.
Jelena Pejic, The Protective Scope of Common Article 3: More Than Meets The Eye, (2011) 93
(881) International Review of the Red Cross, p.3.
Final Report On The Meaning Of Armed Conflict In International Law, Supra fn25, p.29.
Common Article 3
Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 194.
Article 5/2 of the Seville Agreement on The Organization of The International Activities of The
Components of The International Red Cross and Red Crescent Movement, International Review
of the Red Cross, No. 322, 25-27 November 1997, Available online at:
http://www.icrc.org/eng/resources/documents/misc/57jp4y.htm, Last visited: 06.02.2013.
Human Rights Review, Volume: III, Issue: 1, June 2013
The Organisational Requirements for The Threshold of Non-International Armed Conflict
Dr. Timur DEMİR
party to a non-international armed conflict. 31 This characteristic of the
organization has been emphasized by the international tribunals.
B. Jurisprudence
Even if Common Article 3 to the Geneva Conventions does not provide a
specific criteria regarding the classification of parties to non-international
armed conflict, the general consensus is that armed groups must possess
'a minimum degree of organization and discipline -enough to enable them
to respect international humanitarian law- in order to be recognized as a
party to the conflict'. 32 It requires inherently that the armed forces of each
party to the conflict 'have to be under a certain command structure and
have the capacity to sustain military operations' 33, and they have to be
'sufficiently organized to confront each other with military means.' 34
The ICTY, in particular, through its judgments, have developed the
concept of organized armed groups 35 , and indicative factors on the
minimal level of organization have been elaborated by international
jurisprudence. 36 On one hand, these factors indicate a high level of
organization, on the other hand, they are also useful in distinguishing
non-international armed conflict from banditry. 37 Being able to decide
whether or not an armed group might be 'sufficiently organised', it is
necessary to take into account these indicative factors, however 'none of
which are, in themselves, essential to establish whether the
“organization” criterion is fulfilled.' 38 In other words, these findings do
not indicate definite threshold of level of organization. 39
31
32
33
34
35
36
37
38
39
Knut Dörmann, (with contributions by) Louise Doswald-Beck, Robert Kolb, Elements of War
Crimes Under the Rome Statute of the International Criminal Court : Sources and Commentary,
2003, ICRC, p.442.
Armed Conflicts Linked to the Disintegration of State Structures: Preparatory Document drafted
by the International Committee of the Red Cross for the First Periodical Meeting on
International Humanitarian Law, Geneva, 19–23 January 1998; ICRC, 23 January 1998. Available
online at: http://www.icrc.org/eng/resources/documents/misc/57jplq.htm, Last visited:
06.02.2013.
How is the Term "Armed Conflict" Defined in International Humanitarian Law?, Supra fn2, p.3.
Haradinaj Trial Judgement, para 60.
Tom Haeck, Armed Conflict, Internal Disturbances or Something else?, Supra fn1, p.20.
Jelena Pejic, The Protective Scope of Common Article 3: More Than Meets The Eye, Supra fn26,
p.4.
Noam Lubell, Extraterritorial Use of Forcfe Against Non-State Actors, Supra fn18, p. 109-110.
Haradinaj Trial Judgement, para 60.
Noam Lubell, Extraterritorial Use of Forcfe Against Non-State Actors, Supra fn18, p.110; Sandesh
Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.170.
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C. Indicative Factors on The Minimal Level of Organization
Since the organization of an armed group is usually different from state's
armed forces, the comparison between the organization of an armed
group and state's military is misleading. 40 ICRC Commentary on
Additional Protocol II states that 'some degree of organization of the
insurgent armed group or dissident armed forces, but this does not
necessarily mean that there is a hierarchical system of military
organization similar to that of regular armed forces. It means an
organization capable, on the one hand, of planning and carrying out
sustained and concerted military operations, and on the other, of
imposing discipline in the name of a de facto authority.' 41
134
An armed group, at the beginning of the violence, may not meet the
requisite level of organization or it can consist of some small groups
which operates without sufficient coordination. 42 In this sense, 'the
coordination, cohesion and structure of the group' can develop with
time. 43 However, armed groups which 'operate in conditions of secrecy'
are underground organizations and the structure of these type of groups
and may not be easily identifiable. 44 Even if an armed group itself
declares the purpose or obligations of the organization, which indicate the
existence of the very well organized structure; in the case of
inconsistency between the declaration and 'the facts on the ground', the
declaration should not be regarded as determinative factor of whether the
requisite level of organization is met or not. 45
There are several indicative factors which indicate the existence of
organizational structure of an armed group. But 'some degree of
organisation by the parties' is sufficient to establish 'the existence of an
armed conflict'46 and the settled case law does not require an armed
group to have an organization as the armed forces of a state. 47 However it
should be noted that the minimum level of organization includes "the
40
41
42
43
44
45
46
47
Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.174.
Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (Editors), ICRC Commentary on the
Additional Protocol II of 8 June 1977 to the Geneva Conventions of 12 August 1949, p.1352, para
4463.
Gzim Ostreni, (Witness Statement), Boskoski Trial, Exhibit P497, para 20.
Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.172.
Ibid, p.172.
Ibid, p.171.
Limaj Trial Judgement, para 89.
Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 197, Oric
Trial Judgement, para 254.
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The Organisational Requirements for The Threshold of Non-International Armed Conflict
Dr. Timur DEMİR
ability to command, and control members of the group, and the carry out
the group's operations". 48
1. The Existence of Responsible Command and Hierarchical
Structure
While the requirement of responsible command does not exist in relevant
texts, the existence of the organization of the armed group requires the
existence of responsible command implicitly. 49 As stated in the Tadic
Case, an organised group, party to non-international armed conflict, 'has a
structure, a chain of command' ... and its members 'do not act on their
own but conforms to the standards prevailing in the group and is subject
to the authority of the head of the group' 50 It is obvious that 'whether the
group is under a responsible command, or has an established hierarchy' is
one of main issues in determining the sufficient organisational structure of
an armed group. 51 If a command structure exists in an organized armed
group, 'the leaders train the members of the group, give clear orders and
instructions, be informed of the actions of subordinates and react
promptly to them'. 52
Responsible command does not require the existence of 'hierarchical
pyramidal structure with one individual at the top'. 53 Instead, it requires
effective control on the acts of another, especially the authority, to
prevent or if necessary punish some unlawful acts of other individuals. 54
This point is emphasized by Article 28 of the Rome Statute of
International Criminal Court which states that 'A military commander or
person effectively acting as a military commander shall be criminally
responsible for crimes within the jurisdiction of the Court committed by
forces under his or her effective command and control, or effective
authority and control as the case may be...' 55
However, a de jure superior position does not directly lead to effective
control or similarly effective control does not necessarily indicate a de
48
49
50
51
52
53
54
55
Noam Lubell, Extraterritorial Use of Forcfe Against Non-State Actors, Supra fn18, p. 109.
Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.174.
Tadic Appeals Judgement, para 120
Situation In The Republic Of Cote d'Ivoire, (Pre-Trial Chamber III) Decision Pursuant to Article
15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic
of Côte d'Ivoire, No.: ICC-02/11, Date: 3 October 2011, para 46.
Anne-Marie La Rosa and Carolin Wuerzner, Armed groups, sanctions and the implementation of
International humanitarian law, IRRC, Volume 90 Number 870 June 2008, p.329.
Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.175.
Ibid, p.175.
Article 28 of the Rome Statute of International Criminal Court.
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jure superior position. 56 In other words, the requirement of the existence
of responsible command can be satisfied by 'horizontally structured
armed groups'. 57 The important thing is whether or not there is a
command having 'capable of ensuring generally the execution of its orders,
including, as far as possible, respect of the laws and customs of war ...' 58
136
There are several judgments of international tribunals pointing out this
requirement. For instance, the ICTR Trial Chamber, in the Akayesu Case
pointed out that 'the armed forces opposing the government must be under
responsible command, which entails a degree of organization within the
armed group or dissident armed forces.' 59 The ICTY Trial Chamber, in the
Hadzihasanovic Case stated that; 'military organization implies
responsible command and that responsible command in turn implies
command responsibility.' 60 The ICC Pre-Trial chamber, in the Katanga
Decision, accepted the existence of armed conflict between different
parties and emphasized that those armed groups 'had a certain degree of
organisation, insofar as such groups acted under a responsible command
and had an operative internal disciplinary system' 61 Similarly, as stated in
the Boskoski Judgment, an armed group needs to have a 'hierarchical
structure and its leadership requires the capacity to exert authority over
its members' in order to be classified as organised armed group. 62
According to the settled case law, there are some findings which indicate
the existence of a command or hierarchical structure. In this regard, the
establishment of a general staff or high command 63, the functions of
general staff such as the appointment of zone commanders64, acts of zone
commanders in accordance with directions from the general staff 65, the
activeness of general staff in making appointments for the development
56
57
58
59
60
61
62
63
64
65
Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.176.
Ibid, p.176.
Conference Of Government Experts On the Reaffirmation and Development of International
Humanitarian Law Applicable in Armed Conflicts, Part 4: Rules Applicable In Guerrilla Warfare,
Geneva, 24 May-12 June 1971, Submitted by the ICRC, p.13.
Prosecutor v. Akayesu, Case ICTR-94-4-4-T, 2 September 1998, Para 626.
Prosecutor v. Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura, Case: IT-01-47-AR72, 16
July 2003,
Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility,
Paras 16-17.
Situation In The Democratic Republic Of The Congo In The Case Of The Prosecutor v. Germain
Katanga and Mathieu Ngudjolo Chui, Decision on The Confirmation Of Charges,
ICC-01/04-01/07, 30 September 2008, Pre-Trial Chamber, para 239.
Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 195.
Limaj Trial Judgement, para 94; Haradinaj Trial Judgement, paras 60, 65-68.
Limaj Trial Judgement, para 96.
Limaj Trial Judgement, para 98.
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The Organisational Requirements for The Threshold of Non-International Armed Conflict
Dr. Timur DEMİR
and functioning of the organization, 66 the authority of commanders over
the movement of soldiers 67, the position of general staff in supply of
weapons 68, the existence of statements issued by general staff in order to
inform the public 69 , the assignment of duties to individuals in the
organization by the general staff 70 , the existence of obligations of
operational units to inform the general staff about developments in their
responsible areas 71 , the establishment and the existence of the
headquarters in different locations72, the availability and distribution of
the regulations among individuals in the armed units at different
positions 73, the existence of the regulations which establish ranks of
servicemen, the existence of 'duties of the unit commanders and deputy
unit commanders, as well as the duties of the company, platoon, and
squad commanders' 74, 'the existence of official joint command structure'75,
the existence of official spokesperson who is responsible for
communication with the domestic and foreign media 76, the existence of
communiqués in order to facilitate the communications between the
armed organization and the public, and to inform the public about
military actions undertaken by armed units 77 are examples of indicators
on the existence of this type of structure highlighted by the international
tribunals. However, as explained before, these are only indicators.
2. Ability to Speak With One Voice
The existence of the ability to speak with one voice is directly related to
the hierarchical structure of the organization. This is because the 'ability
to speak with one voice and with a level of persuasive authority on behalf
of its members' confirms whether or not the organization achieves a level
of organizational stability and effectiveness. 78 Characteristics of the
organization such as the capacity and role of the organization in
66
67
68
69
70
71
72
73
74
75
76
77
78
Limaj Trial Judgement, para 99.
Limaj and ors, Judgment, ICTY, IT-03-66-T, 30 November 2005, para 107.
Limaj Trial Judgement, para 100.
Limaj Trial Judgement, para 46.
Limaj Trial Judgement, para 46.
Limaj Trial Judgement, para 97.
Haradinaj Trial Judgement, para 65, Limaj Trial Judgement, para 104.
Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 254,
Limaj Trial Judgement, paras 98-110.
Limaj Trial Judgement, para 111; Haradinaj Trial Judgement, para 60.
Prosecutor v. Slobodan Milosevic, Trial Chamber, Decision On Motion For Judgement Of Acquittal,
16 June 2004, Case No. IT-02-54-T, para 23.
Limaj Trial Judgement, para 102.
Limaj Trial Judgement, para 103.
Limaj Trial Judgement, para 129.
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negotiations with representatives of different international organizations
including European Community and foreign missions 79, the recognition
of the organization by international representatives 80, 'to enter into and
abide by an agreement with NATO to gradually disarm and disband'81,
organization's involvement in political negotiations in order to resolve
crisis 82 , the ability to 'negotiate and conclude agreements such as
cease-fire or peace accords' 83 indicate this ability.
3. Level of Discipline and The Ability to Implement The Basic
Obligations of Common Article 3
138
The requirement of a sufficient level of organization for an armed group
is essential in terms of being able to comply with the basic requirements
of Common Article 3. 84 As noted by the International Law Association
Committee on the Use of Force, "The underlying theme is that there must
be a sufficient level of organization through a command structure in order
for the basic requirements of Common Article 3 to the 1949 Geneva
Conventions to be implemented." 85 The important thing is to have the
ability of an armed group to enforce the law, rather than willingness to
implement the requirements. 86 In this regard, when members of an armed
group frequently violates international humanitarian law, and are not
punished for these violations, it indicates the lack of an 'internal
disciplinary system' in the organizational structure. 87 On the other hand
those violations can also indicate 'a high level of planning and a
coordinated command structure for their implementation.'88 However, the
existence of disciplinary rules and mechanisms is clear evidence of the
growing formality and effectiveness of the organizational structure of the
armed group. 89
Even if it has been alleged that the Tadic Formula does not stipulate
armed groups to be capable of meeting international humanitarian law
79
80
81
82
83
84
85
86
87
88
89
Limaj Trial Judgement, para 125.
Limaj Trial Judgement, para 129.
Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 289.
Limaj Trial Judgement, para 129.
Haradinaj Trial Judgement, para 60; Hadzihasanovic Trial Judgement, para 20.
Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.177.
Final Report On The Meaning Of Armed Conflict In International Law, Supra fn25, p.29.
Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.178.
A.P.V. Rogers, Combatant Status, Available online at:
http://www.crimesofwar.org/a-z-guide/combatant-status/, visited on 13.02.2013.
Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 204.
Limaj Trial Judgement, para 117.
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Dr. Timur DEMİR
obligations90, the level of discipline and the ability to implement and
enforce the basic obligations of Common Article 3 are important
indicators for the organizational structure. 91 The important thing which
must be taken into account is to ascertain whether an armed group
'possesses the organisational ability to comply with the obligations of
international humanitarian law'. 92 Nevertheless, it does not mean that the
armed group's internal disciplinary system, for those who break these
rules must be highly developed. 93 On the contrary, 'at least a semblance is
required as part of its organization.' 94 Therefore the determination must
be made on a case-by-case basis as always. 95 Examples such as the
existence of 'disciplinary rules and mechanisms within the group' 96; the
existence of military training provided to soldiers 97, the availability and
effective distribution of internal regulations 98 indicate such a level.
4. A Level Of Logistics
These factors are directly related to the extent and effectiveness of the
organized groups. 99 For and armed group to be classified organized, a
certain level of logistics is needed.
Various findings of international tribunals such as an organization's
ability to recruit new members100, the existence of military training to
recruits 101, the ability of the group to gain access to weapons and other
military equipment 102 , the supply of different types of military
weapons 103, the capacity of organization to transport weapons across the
borders 104, the supply and use of uniforms in the organization 105, the
existence of communications equipments including radio transmitters and
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
Final Report On The Meaning Of Armed Conflict In International Law, Supra fn25, p.15.
Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 202.
Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 205.
Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.179.
Ibid, p.179.
Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 204.
Haradinaj Trial Judgement, para 60.
Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 284,
Limaj Trial Judgement, para 119.
Limaj Trial Judgement, para 110.
Limaj Trial Judgement, para 118.
Haradinaj Trial Judgement, para 85, Limaj Trial Judgement, para 118, Prosecutor v. Boskoski and
Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 290.
Haradinaj Trial Judgement, paras 60, 86(For instance, in this case, recruits receive an average of
two weeks’ training), Limaj Trial Judgement, para 119.
Haradinaj Trial Judgement, para 60.
Limaj Trial Judgement, para 121.
Haradinaj Trial Judgement, para 82.
Limaj Trial Judgement, para 123.
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The Organisational Requirements for The Threshold of Non-International Armed Conflict
Dr. Timur DEMİR
mobile phones 106 the ability to procure, transport, and distribute arms107
indicate such a level.
5. Operations In An Organized Manner
The existence of an organization indicates that violence should be carried
out in a collective manner rather than individually. 108 The Motives of the
armed group is not determinative on whether or not an armed conflict not
of an international character exists. 109 Organized groups do not
necessarily have a political purpose in order to be a party to a
non-international armed conflict. 110
In this regard, violence committed by either an assassin or terrorist 'acting
essentially alone, or the disorganized mob violence of a riot' can not be
classified as an armed conflict. 111 Even if members of an organized
armed group are recruited from the civilian population, they must
develop 'a sufficient degree of military organization to conduct hostilities
on behalf of a party to the conflict', but that does not require the level of
intensity or sophistication as State armed forces have. 112
140
These factors indicate that organized groups can carry out military
operations in an organized manner. 113 Practices such as 'the group’s
ability to coordinate military planning and activities and to determine a
unified military strategy, as well as the ability to conduct military
operations of a larger scale' 114, the effects produced by the organized
group 115, the percentage of the territory where controlled by the organised
groups and the group's capacity and efforts to control territory 116, the
requirement of members of armed group to wear uniform during
operations117, the division of territory into several zones by the organized
106
107
108
109
110
111
112
113
114
115
116
117
Limaj Trial Judgement, para 124.
Prosecutor v. Slobodan Milosevic, Trial Chamber, Decision On Motion For Judgement Of Acquittal,
16 June 2004, Case No. IT-02-54-T, para 23.
Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.177.
Ibid, p.182.
Dapo Akande, Classification of Armed Conflicts: Relevant Legal Concepts, Supra fn4, p.52.
Final Report On The Meaning Of Armed Conflict In International Law, Supra fn25, p.28.
Nils Melzer, Legal Adviser, ICRC, Interpretive Guidance on the Notion of Direct Participation in
Hostilities
under
International
Humanitarian
Law,
Available
online
at:
http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf, Last visited on: 14.02.2013,
p.28.
Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, paras 200,
255.
Limaj Trial Judgement, paras 105, 129; Haradinaj Trial Judgement, paras 60, 87.
Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 290.
Limaj Trial Judgement, para 155; Haradinaj Trial Judgement, para 75.
Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 285.
Human Rights Review, Volume: III, Issue: 1, June 2013
The Organisational Requirements for The Threshold of Non-International Armed Conflict
Dr. Timur DEMİR
group and the presence of a commander in each zone where a
commander is responsible for 118, the existence of responsibility of zone
commanders for the establishment of the brigades 119, the capacity of
organized armed groups to coordinate their actions 120, the successful
distribution of written or oral orders or decisions 121, 'the level of military
success' achieved by the organized armed group against government
forces 122, the existence of designated zones of operation 123 indicate such
a level.
6. Territorial Control
While Common Article 3 does not require the existence of the territorial
control, Article 1 of Additional Protocol II requires armed groups to
exercise territorial control 'as to enable them to carry out sustained and
concerted military operations and to implement this Protocol". 124 The
existence of territorial control has been regarded as a prerequisite for an
armed conflict not of an international character in some judgments 125 due
to the confusion derived from ICRC Commentaries on Common Article
3. 126
However, there is not any requirement of territorial control in the
non-international armed conflict, rather, the important point here, is 'to
enable them to carry out sustained and concerted military operations and
to implement this Protocol'. 127 If an armed group implements the Protocol
without any territorial control, it would mean that the requirement of the
Protocol is met. 128 However, if an armed group decides to detain, intern
or sentence people, territorial control would be needed in order for it to
be able to implement the Protocol. 129
Although the existence of territorial control indicates strong evidence of
requirements of non-international armed conflict 130 (intensity and
118
119
120
121
122
123
124
125
126
127
128
129
130
Limaj Trial Judgement, para 95.
Limaj Trial Judgement, para 106.
Limaj Trial Judgement, para 108.
Limaj Trial Judgement, para 105.
Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 290.
Prosecutor v. Slobodan Milosevic, Trial Chamber, Decision On Motion For Judgement Of Acquittal,
16 June 2004, Case No. IT-02-54-T, para 23.
How is the Term "Armed Conflict" Defined in International Humanitarian Law?, Supra fn2, p.4.
For Instance: Prosecutor v. Akayesu, Case ICTR-94-4-4-T, 2 September 1998, Para 619.
Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.180.
Ibid, p.186.
Ibid, p.186.
Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.187.
Haradinaj Trial Judgement, para 60.
Human Rights Review, Volume: III, Issue: 1, June 2013
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The Organisational Requirements for The Threshold of Non-International Armed Conflict
Dr. Timur DEMİR
organization of the parties to the conflict), lack of territorial control does
not mean that requirements of intensity and organization of the parties are
not met. 131 'A means of proof must not be turned into a condition
precedent' 132
CONCLUSION
The treaty law neither provides us with the definition of non-international
armed conflict, nor any explicit information regarding the sufficient level
of organization for being able to party to a non-international armed
conflict. But the jurisprudence of international tribunals have given
significant guidance in assessing the organizational structure of an armed
group. While the Tadic formula is important for the characterization of
non-international armed conflict and has been applied many times in the
case law of the ICTY and ICTR; particularly the Boskoski Judgment
highlights indicative factors regarding organizational structure of an
armed group. Even if none of these factors have a central role in
determining the existence of the armed conflict, the ability to command
and control members of the group, and carry out the group’s operations
are significant factors.
***
142
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