Not every situation of armed violence within a state amounts to a non-international armed conflict: when a situation of violence is merely a situation of internal strife or civil disturbance, such a situation does not reach the threshold of ‘non-international armed conflict’ and international humanitarian law does not apply.
The determination whether a situation is a non-international armed conflict depends on the prevailing facts. The characterization of the situation by states involved or the international community (e.g. Security Council) is not determinative, but is a factor to be considered.
In 1995, the International Criminal Tribunal for the former Yugoslavia expressed the essence of a non-international armed conflict when affirming that a non-international armed conflict exists when there is ‘protracted armed violence between government authorities and organized armed groups or between such groups within a State.’ ICTY, The Prosecutor v Dusko Tadić, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-AR72, 2 October 1995, §70.
Hence two core elements characterize non-international armed conflicts:
- Protracted armed violence in the sense of the intensity of the armed violence
- The actors taking part in such violence must be organized. State armed forces are presumed to meet the criterion of organization.
A range of other actors adopted the same criteria.
The two criteria are closely related. While both must be present, one may be used to draw conclusions on the other. For example, if there are frequent armed confrontations between armed groups and state forces, this may indicated that the groups are sufficiently organized as they are able to sustain hostilities over a certain period of time.
The criteria are used for the purpose of distinguishing an armed conflict from banditry, unorganized or short lived insurrections or terrorist activities, which are not subject to international humanitarian law.
The question whether the requisite levels of intensity and organization have been met can only be assessed on a case-by-case basis. In its jurisprudence, the International Criminal Tribunal for the former Yuogslavia developped a series of indicative factors to assess the intensity of armed violence and the degree of organisation of the non-state parties.The indicative factors are used to assess whether the requisite degree of intensity and organization are reached, but they are not conditions that need to exist concurrently, i.e. not all of them must be present and not a single factor is determinative. In other words, they provide an indication on the kind of data and factual elements to be taken into account for the assessment.
The indicative factors used to assess the intensity are: For a summary, see ICTY, Boškoski and Tarčulovski, Trial Chamber, Judgment, IT-04-82-T, 10 July 2008, §177.
- The number, duration, and intensity of individual confrontations. This includes occupations, besieging or blocking of towns, the closure of roads, and the existence of front lines. These events should not be isolated events.
- The type of military equipment and weapons used. However, the mere fact that insurgens are inadequately armed does not preclude the finding that the requisite degree of intensity is attained.
- The number of casualties and the extent of material destruction caused. However, a limited number of causalties does not preclude the conclusion that there is a non-international armed conflict as this may just be a reflection of hit and run tactics used by armed groups.
- The number of civilians fleeing the zone of hostilities or combat.
- The reaction of the government, i.e. whether the government is deploying military forces; claims for itself the rights of a belligerent; or whether it labels the situation as a civil war.
- The reaction and involvement of the international community, for example whether the situation is on the agenda of the Security Council; whether the international community calls for the respect of international humanitarian law; or whether attempts are made to broker cease fire agreements.
If the criterion of a minimum organization of the armed groups is not fulfilled, there is no armed conflict. The reasons for the criterion of organization are threefold:
- First, an armed conflict can only exist between parties that are sufficiently organized to confront each other with military means, i.e. it is necessary to fulfil the criteria of intensity.
- Second, organization illustrates that these are instances of collective violence, not isolated individual acts of violence.
- Third, the armed group must be sufficiently organized to be able to implement IHL.
There is no need for armed groups to be as organized as armed forces of the state. Especially at the outset of an insurgency, an armed group will usually not fulfil these criteria, unless when they are made up by dissident armed forces with military experience. Some armed groups are very hierarchically organized, but others are structured more horizontally.
The indicative factors used to assess the organization are: ICTY, Prosecutor v Haradinaj and others, Trial Chamber, Judgment, IT-04-84-T, 3 April 2008, §60.
- The presence of some kind of command structures, which includes having an identifable leader.
- The operational capacity of the group. The group must be organized enough to engage in protracted armed violenc; is able to plan, coordinate and carry out military operations; may exercise some kind of territorial control; and is able to operate within defined zones of responsibility.
- The logistical capacity of the group in the sense that a group is able to gain access to weapons; recruit new members; and has a certain number of fighters.
- The group is able to speak with one voice and to participate in the negotiations of agreements.
- The groups possesses some kind of internal disciplinary mechanism.
The purported aim or ideological motivation of an armed group is immaterial for the purposes of international humanitarian law: The parties to an armed conflict need not have a particular political agenda or purpose for resorting to armed violence.
Therefore, a 'criminal' group with purely material aims or a 'terrorist' group, may still be a party to an armed conflict.