Lieber Studies Making and Shaping LOAC Volume – The Development of the LOAC by International Criminal Tribunals

Editors’ note: This post is based on the author’s chapter in Making and Shaping the Law of Armed Conflict (Sandesh Sivakumaran and Christian R. Burne eds. 2024), the tenth volume of the Lieber Studies Series published with Oxford University Press.

International Humanitarian Law (IHL) and International Criminal Law (ICL) are separate disciplines in public international law. IHL regulates conduct in warfare and offers certain forms of protection to individuals during armed conflict. ICL encompasses the international law that relates to international crimes and international courts. A war crime is a serious violation of IHL and triggers individual criminal responsibility under ICL. It is this classification of a war crime as an international crime that links IHL and ICL. The interplay between IHL and ICL can be seen in the judicial decisions that contribute positively to the development of IHL and ICL. However, in other cases, these decisions have obscured rather than clarified this link.

This point is made clearer in my chapter “The Development of the Law of Armed Conflict by International Criminal Tribunals” included in Sivakumaran and Burne (eds.) Making and Shaping the Law of Armed Conflict. The chapter samples a selection of cases to show how judicial decisions of international criminal courts and tribunals have influenced the development of IHL. For example, it highlights how such decisions have clarified key terms such as “armed conflict” and “rape” in the context of armed conflict, but also how they can serve as a cautionary tale against judicial activism.

This post outlines the valuable contribution made by international criminal courts and tribunals regarding the concept of “armed conflict” in IHL. There are two types of armed conflict: international armed conflict (IAC); and non-international armed conflict (NIAC). Judicial practice has made a seminal contribution by clarifying when a NIAC exists and, consequently, when the law of NIAC applies.

The Importance of Conflict Classification

To determine whether the rules of IHL apply, it is necessary to classify the conflict. The type of conflict determines the applicable rules under IHL. In the same way, classification is the preliminary issue to be decided before the adjudication of war crimes by international criminal courts and tribunals. It is important, if obvious, to understand that war crimes are committed only during an armed conflict.

In the first case before the International Criminal Tribunal for the former Yugoslavia (ICTY), the Tadić case, the Appeals Chamber’s first task was to respond to the lack of definition of the term “armed conflict” in the Geneva Conventions as a prerequisite to the prosecution of war crimes. The Appeals Chamber confirmed that an IAC refers to inter-State armed conflict. Regarding NIAC, the test the Appeals Chamber applied for the purposes of applying the rules contained in Common Article 3 to the Geneva Conventions focuses on two elements: first, the intensity of the conflict; and second, the organization of the parties to the conflict.

At an operational level, it is important for States to clearly understand conflict classification. Military commanders and lawyers must appreciate the correct legal framework when planning military operations. For instance, if they foresee that they might detain individuals, then the rules of detention differ between IACs and NIACs and also between the different types of NIAC, as they are formulated under a Common Article 3 or Additional Protocol II. This distinction is relevant to the actions not only of the territorial State but also of troop-contributing States operating in complex battle arenas.

In practice, soldiers and their commanders often are not in direct contact with their legal advisors when operating on the ground. Training levels among officers of different ranks may vary, as will the relative practicability of considering the nuances of conflict classification in a real-time life and death situations. Likewise, some organised armed groups wish to operate within the confines of the law of NIAC, but their fighters cannot be expected to entertain various theories on conflict classification. This reality necessitates simple and clear-cut triggers for the application of either Common Article 3 or Additional Protocol II.

The Minimum Threshold of “Organization”

International criminal courts and tribunals have contributed to clarifying the two elements inherent in the Tadić formulation. Regarding the “organization” criterion, the ICTY Appeals Chamber in Tadić referred to the non-State party to the conflict as an “organized armed group.” In the same situation, Trial Chamber I clarified the purpose served by the notion of “organization” in the construct of an “organized armed group.” This concept is significant because it differentiates between mere criminals, bandits, protestors or terrorists, whose conduct is regulated by domestic law and human rights law, from organized armed groups that are bound by the law of NIAC. However, the tribunal neglected to provide insight into the degree of organization that is needed to qualify a group as being sufficiently organized to be a party to a NIAC.

In the Boškoski case, Trial Chamber II of the ICTY laid down criteria in this regard to indicate whether the “organization” criterion is satisfied. These may be grouped as follows: possession of a command structure; the existence of an internal disciplinary system and possession of the ability to implement the laws of armed conflict; engaging in military tactics and achieving military objectives by carrying out military operations in an organized manner; the logistical capacity of the armed group; and the ability of the armed group to speak with one voice. In 2024, the International Committee of the Red Cross agreed that the indicators of organization, as identified in the ICTY’s case law, remain essential tools for assessing an armed group’s degree of organization.

In Boškoski, the court stressed that the factors identified are not an exhaustive list and that each armed group should be evaluated on a case-by-case basis. Furthermore, it must be underlined that these requirements are merely indicative factors, as the tribunal has not explained to what extent or degree these requirements must be fulfilled. This fudging of the issue allows for flexibility and makes these indicators fit for purpose as not all organized armed groups are similar in structure.

The Katanga Case and the Notion of Organization

The ICC provided a valuable contribution in elucidating the notion of “organized armed group” in the Katanga case. Identifying a sophisticated organized armed group with a vertical structure and territorial control is unproblematic. In practice, it is far more difficult to establish whether IHL applies in the case of an armed group with a basic organization.

Trial Chamber II of the ICC provided some clarity in this context in Katanga. The Court determined that the minimum threshold of organization inherent in the notion “organized armed group” is fulfilled to the extent that there is a leader and there are followers, even if the hierarchical structure of the group lacks sophistication. In this case, Trial Chamber II required a relatively low threshold of organization in order for the Walendu-Bindi Collectivité to qualify as an organized armed group. The ICC found that essentially this group “formed a somewhat rag-tag collection.” This description is instructive. Although the Walendu-Bindi Collectivité lacked a command structure with more than two levels of hierarchy akin to the more sophisticated organized armed groups previously classified by international criminal tribunals, the ICC concluded that this group met the minimum threshold of organization.

The ICC’s analysis of the organizational structure of the Walendu-Bindi Collectivité in the Katanga case shows, at a minimum, that a non-State fighting unit must be able to organize itself to the extent that it can execute a military attack. The ICC allowed for a flexible interpretation of a command structure and of communication and did not emphasize any need for the clear existence of a headquarters. An efficient ability to conduct a military operation as a collective may be construed as the minimum requirement. This contribution by Trial Chamber II is important as it clearly indicates that a sophisticated command structure is not required for a non-State fighting unit to meet the minimum threshold of organization.

There is judicial support for the approach followed in Katanga. In Limaj, Trial Chamber II of the ICTY previously had used the term “some degree of organization” to describe the minimum degree of organization demanded by the Tadic formula. The approach followed in Katanga in making an assessment adds practical value from an operational perspective. In the IHL paradigm, those responsible for conflict classification, especially as the situation on the ground is constantly evolving, do not have the benefit of hindsight. It is a privilege that is the preserve of after-the-fact classification by war crime tribunals and courts. The Katanga approach enables assessment in real time of when a non-State entity is evolving to be sufficiently organized to transform into an organized armed group and is capable of launching military attacks that are sufficiently severe that the fighting between the parties equates to “protracted armed violence.” This approach is cognizant of the fact that organized armed groups often operate in secret and intelligence often is delayed or limited.

The Katanga approach correctly identifies that the two notions established in Tadić are not mutually exclusive but are interlinked. Without having a necessary degree of “organization,” it would not be possible to engage in fighting of a military nature that will meet the threshold of “protracted armed violence.” Similarly, the existence of fighting that is protracted in nature confirms that the non-State party is sufficiently organized.

Concluding Remarks

The value of the contribution made by international courts and tribunals in defining the types of hostilities that constitute a NIAC cannot be overstated. It is of critical importance to be able to identify when IHL applies to a situation. A majority of contemporary armed conflicts are non-international in nature, which territorial States are eager to downplay as examples of sporadic acts of violence despite the level of intensity and protracted violence that is displayed. The serious consequences of this deception are at the expense of those who need protection under the law of NIAC.

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Martha M. Bradley is Associate Professor in the Department of Public Law at the University of Johannesburg, South Africa.

Photo credit: R. Boed