Armed conflicts have become increasingly complex over the past years. Many contemporary situations do neither reflect the traditional concept of international armed conflicts where one or more states use force against each other, nor the classical civil wars where there are armed confrontations between government armed forces and armed groups within the territory of a single state.
Instead, many armed conflicts are 'internationalised' due to the presence of some international element: for example, states may intervene in an ongoing non-international armed conflict, leading to fragmentation of belligerent relationships. In case of interventions abroad, consent of the territorial state plays an important role. This is also the case when states use armed force directed against a non-state armed group in the territory of another state. Moreover, states may also intervene indirectly by supporting proxy forces. Finally, in many instances multinational coalitions participate in armed conflicts.
Due to this increasing complexity, some challenge the adequacy of the binary framework of international humanitarian law where every situation is either an international armed conflict or a non-international armed conflict. However, under international humanitarian law there is no other category. Lists of new types or typologies of armed conflicts may be used for descriptive purposes, but do not carry any legal significance.
In many contemporary conflicts, a variety of state and non-state actors are involved. Rather than treating such situations as a single international or a single non-international armed conflict, such situations are broked down into a network of separate conflicts or bilateral relationships between the belligerent parties.
Hence, international and non-international conflicts may coexist on the same territory.
For example, in 2011, there was an international armed conflict pitting a number of NATO member states against the state of Libya under the Gadhafi regime alongside a separate non-international armed conflict between the regime and armed opposition groups.
RULAC reflects fragmentation by having two separate conflict entries for international and non-international armed conflicts that coexist on the same territory.
Foreign states may intervene militarily in the territory of other states against non-state armed groups, with or without the consent of the territorial state.
In cases where there is consent, there is agreement that due to that consent, there is no international armed conflict.
However, there are different positions concerning the consequences of the lack of consent.
- First, for some consent plays no role: the determinative criterion is the identity of the parties. As long as force is directed against a non-state armed group, there is no international armed conflict.
- Second, for others, consent plays a determinative role: if force is used on the territory of another state without the latter's consent, there is an international armed conflict regardless of the purported target of the intervention.
In its 2016 Commentary to the first Geneva Convention, the International Committee adopted the position that consent is determinative: 'The presence or absence of consent is essential for delineating the applicable legal framework between the two states as it affects the determination of the international or non-international character of the armed conflict involving those States. Should the third State’s intervention be carried out without the consent of the territorial State, it would amount to an international armed conflict between the intervening State and the territorial State. Any unconsented intervention, even when purportedly directed exclusively against a non-state armed group, amounts to an international armed conflict under this view.’ T. Ferraro and L. Cameron, 'Article 2: Application of the Convention', ICRC, Commentary on the First Geneva Convention, 2016, §263.
RULAC adopts the same position.
When states use force against an armed group in another state’s territory, the use of force is directed against the armed group, not the territorial state. In many instances the territorial state does not consent and does not or is unable to respond with force against the intervening state. The territorial state may also be involved in a non-international armed conflict against the same armed group.
Such situations do not fall within the traditional understanding of use of force between states, raising the question whether the identity of the target matters. There is agreement that if a state invades another state to fight against an armed group, there is an international armed conflict. However, absent a fully-fledged ground invasion, different positions exist.
- For some, the target is determinative: if the target is the armed group, there is no international armed conflict as there is no use of force between states.
- For others, the extent of the force used matters: if there is extensive destruction caused, then there is an international armed conflict.
- Under a last approach, the purported target of the use of force is irrelevant. International humanitarian law does not require that the objects targeted belong to the government. Nor is there a requirement that the state must repond with military means. Accordingly, if force is used on the territory of another state without the consent of the territorial state, there is an international armed conflict regardless of the target of the attack.
In its 2016 Commentary to the first Geneva Convention, the International Committee of the Red Cross adopts the third approach.T. Ferraro and L. Cameron, 'Article 2: Application of the Convention', ICRC, Commentary on the First Geneva Convention, 2016, §§ 223-225 and §261. Albeit controversial, RULAC adopts the same approach: whenever a state uses force against a non-state armed group on the territory of another state without the latter's consent, there is an international armed conflict.
If the criteria for a non-international armed conflict are fulfilled, there may be a parallel non-international armed conflict against the non-state armed group on the same territory.
In addition to or instead of using its own armed forces, a State may support local armed groups. On a first glance, such conflict may look like a non-international armed conflict between the territorial state and the armed group.
Yet, in some circumstances, due to the level of control exercised by the intervening state over the armed group, the situation amounts to an international armed conflict in its entirety. This is the case when the intervening State exercises overall control over the armed group pursuant to the jurisprudence of the International Tribunal for the former Yugoslavia and the practice of the International Committee of the Red Cross. ICTY, Prosecutor v Tadić, Appeals Chamber, Judgment, IT-94-1-A, 5 July 1999, § 96; T. Ferraro and L. Cameron, 'Article 2: Application of the Convention', ICRC, Commentary on the First Geneva Convention, 2016, § 270. However, the International Court of Justice favours the stricter test of effective control for the purposes of state responsibility.
If under the overall control of the outside State, the armed group would be acting on behalf of the outside State. Such overall control exists where ‘a State has a role in organizing, coordinating, or planning the military actions of the organized armed groups and that State finances, trains, equips or provides operational support to that group.' Mere financing and equipping does not amount to overall control. ICTY, Prosecutor v Ante Gotovina, Trial Chamber, Juddgment, IT-06-90-T, 15 April 2011, § 1675.
Multinational forces, including forces that are deployed under the auspices of the United Nations or a regional organisation, may become a party to an armed conflict in two ways:
First, if the classic criteria of intensity and organization for a non-international armed conflict are fulfilled.
Second, under the support based approach of the International Committee of the Red Cross, multinational forces may become a party to a pre-existing non-international armed conflict between the host state and a non-state armed group if:
- They undertake actions in relation to the conduct of hostilities, such as military operations that cause direct harm or actions that have a close link with military operations of the supported state, such as providing aircraft for air-to-air refuelling.
- They carry out military operations in support of a party, i.e. they pursue the same objective as the party to a conflict.
- The action undertaken is based on an official decision of the state in question or the international organisation. T. Ferraro, 'The Applicability and Application of International Humanitarian Law to Multinational Armed Forces', 95 International Review of the Red Cross, 891/891(2013), p 561.