12 Indeed, an inflexible definition of niac, or ‘armed conflict’ generally, could exclude some of the contemporary varieties of armed clashes and fighting between States and/or non-State actors. 11 According to one of the drafters of the 1949 Geneva Conventions, the omission of a definition of niac in Common Article 3 was deliberate, as it was believed that such a definition could lead to a restrictive interpretation. 10 However, for ihl this is not necessarily problematic. The expression ‘conflicts not of an international nature’, used in Common Article 3, remained similarly undefined. This was no oversight, as ‘care was taken to avoid defining armed conflict, because the legal concept of war had given way to a de facto concept of armed conflict’. 8 However, neither the 1949 Geneva Conventions nor Additional Protocol i contain an explanation of what is to be understood as any ‘other armed conflict’ or the term ‘armed conflict’ itself. 7 In 1977, Article 1 of Additional Protocol I further added situations similar to the anti-colonial struggles, which until then had been regarded as non-international, to the realm of iac. 6 According to Article 2, common to the four 1949 Geneva Conventions, the provisions relating to iac apply to ‘all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties’ and to ‘all cases of partial or total occupation’. The core instruments of ihl, the 1949 Geneva Conventions and the 1977 Additional Protocols, 4 distinguish between situations of international armed conflict ( iac) and ‘conflicts not of an international nature’, 5 or rather non-international armed conflict ( niac). An armed conflict exists when there is an international or non-international armed conflict, not the other way around. In determining whether ihl applies, one cannot first ask the question whether there is an armed conflict simpliciter, and only then consider whether that conflict is international or non-international in nature. Furthermore, since not all rules are applicable to both types of conflict, it is essential to determine what actually constitutes each of the two types of armed conflict. As the application of ihl depends on the existence of an international or non-international armed conflict, 2 knowing when such situations exist is of key importance. The typology or classification of armed conflicts is one of the contemporary (legal) challenges facing those working in international humanitarian law ( ihl), as well as related fields, such as international criminal law ( icl). The author proposes a fresh look at the icc’s legal framework to solve conflict classification problems. Incorrect conflict classification may affect ihl’s scope of application, and negatively impact on an accused’s fair trial rights under international criminal law. Non-international armed conflict is often, mistakenly, treated as a residual regime. The icc shows a tendency to classify situations as non-international armed conflicts without considering whether the situation concerned may instead (or at the same time) qualify as an international armed conflict. A comprehensive overview of the way these institutions treated the material scope of application of ihl shows that the ad hoc tribunals tended to avoid classification as either international or non-international armed conflict, and merely found that a generic ‘armed conflict’ existed at the relevant time. This article analyses how international criminal courts and tribunals have pronounced on the contextual elements of their respective war crimes provisions.
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