PUR 420

Conflict Classification Importance of conflict classification • Legal framework - Conflict classification provides a legal framework for understanding the nature of a conflict, which, in turn, determines the rules and regulations that apply. This legal clarity is essential for ensuring compliance with international humanitarian law (IHL) and other relevant legal instruments. - At state level, military commanders and lawyers must plan military operations within the correct legal framework. For instance, if they foresee that they might have to detain individuals, then the rules of detention differ between situations of international armed conflict, Common Article 3-type non-international armed conflict, and an Additional Protocol II-type non-international armed conflict • Corpus of IHL - Conflict classification is integral to the corpus of IHL, helping to define the scope and applicability of various international treaties and conventions, such as the Geneva Conventions and their Additional Protocols. • Prosecution (war crimes) - Proper classification of conflicts is essential for the prosecution of individuals for war crimes. Accurately determining the type of conflict and the specific violations that occur during it is crucial for holding perpetrators accountable. Different types of armed conflicts: • ‘Armed conflict’ - not defined in treaty law - Prosecutor v. Dusko Tadić a/k/a “Dule”(Tadic): Decision on the Defence Motion for the Interlocutory Appeal on Jurisdiction at par 70 ▪ 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.” - Case Name: Prosecutor v. Dusko Tadić - Background: ▪ Dusko Tadić, a Bosnian Serb, was a paramilitary leader and alleged perpetrator of serious international crimes committed during the conflict in the former Yugoslavia. He was arrested and charged with crimes against humanity, violations of the laws or customs of war, and grave breaches of the Geneva Conventions. ▪ Summary: • The case was pivotal in the establishment and development of international criminal law jurisprudence. It clarified several key legal principles, including the definition of "armed conflict" and the jurisdiction of international tribunals to prosecute individuals for war crime ▪ Definition of Armed Conflict • The Tadić case provided a working definition of "armed conflict," stating that it 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. ▪ Jurisdiction of International Tribunals • The case affirmed the jurisdiction of the ICTY to prosecute individuals for war crimes and crimes against humanity committed during the Yugoslav Wars. It established the principle that individuals could be held criminally responsible for violations of international law, regardless of their official status. ▪ Responsibility of Superiors • The Tadić case also addressed the concept of superior responsibility. It held that commanders and superiors could be held criminally responsible for crimes committed by subordinates if they knew or had reason to know that the crimes were being committed and failed to take necessary and reasonable measures to prevent or punish those crimes. ▪ Defences and Guilt • Tadić's defines argued that he should be absolved of guilt because he was not part of any formal military structure. The case, however, emphasized that formal military affiliation was not a requirement for criminal responsibility, as the definition of "armed conflict" encompassed conflicts involving organized armed groups. ▪ Acquittals and Conviction • Tadić was initially acquitted of some charges but later found guilty of other charges, including torture and cruel treatment of prisoners of war. He was sentenced to 20 years in prison. Subsequently, his sentence was reduced on appeal. ▪ Overall, the Prosecutor v. Dusko Tadić case played a foundational role in establishing the legal precedents for prosecuting individuals for international crimes in the context of armed conflicts, making it a landmark case in the development of international criminal law. - How is a non-international armed conflict defined according to the International Criminal Tribunal for the Former Yugoslavia (ICTY)? ▪ According to the ICTY, a non-international armed conflict exists when there is either territorial state armed forces opposing a non-state fighting unit or non-state fighting units opposing each other in the absence of state involvement. - What criteria does the Appeals Chamber use to determine the existence of an armed conflict under Common Article 3? ▪ The Appeals Chamber uses two criteria: the intensity of the conflict and the organization of the parties involved in the conflict. - What distinguishes an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities? ▪ An armed conflict is distinguished from banditry, unorganized and short-lived insurrections, or terrorist activities based on the intensity of the conflict and the organization of the parties involved. - What did the ICTY determine about the existence of a non-international armed conflict in the context of Common Article 3?

where factions confront each other without government armed forces. Since its first ruling, each ICTY judgment has used this definition as a starting point. - Doctrine ▪ Non-international armed conflicts are armed confrontations within a state's territory between the government and armed insurgent groups. These conflicts can also result from the collapse of government authority, leading to various groups fighting each other in the struggle for power. ▪ The hostilities must be conducted by force of arms and exhibit intensity, with the government employing its armed forces against the insurgents instead of just police forces. The insurgents must exhibit minimal organization, be under responsible command, and meet minimal humanitarian requirements. ▪ According to International Humanitarian Law (IHL), treaties apply only to their state parties. If conflicts opposing states and organized armed groups spreading over the territory of several states were not considered non-international armed conflicts, there would be a gap in protection, which could not be explained by states' concerns about their sovereignty. ▪ This made the law of non-international armed conflicts more rudimentary. Moreover, Articles 1 and 7 of the Statute of the International Criminal Tribunal for Rwanda extend the jurisdiction of the tribunal to neighbouring countries, confirming that even a conflict spreading across borders remains a non-international armed conflict. In conclusion, internal conflicts are distinguished from international armed conflicts by the parties involved rather than the territorial scope of the conflict. Non-International Armed Conflict (NIAC) • “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.” • IHL Treaties: 1) IHL Treaties a) common Article 3 to the Geneva Conventions of 1949; • NIAC: Threshold - 1. Notion of intensity: ▪ This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces - 2. Notion of minimum degree of organisation: ▪ This means for example that these forces have to be under a certain command structure and have the capacity to sustain military operations. - Common article 3

• AP II - What is the definition of a non-international armed conflict (NIAC) according to Additional Protocol II? ▪ According to Additional Protocol II, a NIAC is an armed conflict that takes place within the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups that exercise control over a part of the territory to carry out sustained and concerted military operations. - How does the definition of NIAC under Additional Protocol II differ from the notion under common Article 3? ▪ The definition under Additional Protocol II introduces two differences. Firstly, it requires non-governmental parties to exercise territorial control enabling them to carry out sustained and concerted military operations. Secondly, it applies only to armed conflicts between State armed forces and dissident armed forces or other organized armed groups, excluding conflicts between non-State armed groups. - Does the restrictive definition of NIAC under Additional Protocol II apply to the law of NIAC in general? ▪ No, the restrictive definition of NIAC under Additional Protocol II is only relevant for the application of Protocol II and does not extend to the law of NIAC in general. - Is there a definition of a non-international armed conflict that does not fulfil the criteria of Protocol II? ▪ Yes, the Statute of the International Criminal Court, in its article 8, para. 2 (f), confirms the existence of a definition of a non-international armed conflict that does not fulfil the criteria of Protocol II. Common Article 3 (CA3) • Common Article 3 “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions…” • NIAC: Intensity • Haradiniaj’s indicators: - number, duration and intensity of individual confrontations; ▪ The case examined the various confrontations and clashes that occurred during the Kosovo conflict, assessing their number, duration, and intensity as they related to the alleged crimes. - type of weapons and other military equipment used; ▪ Scrutinized the types of weapons and military equipment used during the conflict, particularly in connection to the commission of alleged crimes. - number and calibre of munitions fired; ▪ The case considered the quantity and caliber of munitions fired during the confrontations, shedding light on the nature and scale of the violence. - number of persons and type of forces partaking in the fighting; ▪ The involvement of various individuals and forces in the fighting was a crucial aspect of the case. It examined who participated and their roles. - number of casualties;

watched both domestically and internationally. His acquittal was seen by some as a significant development in Kosovo's history. - In summary, the Prosecutor v. Ramush Haradinaj case is noteworthy for its impact on the prosecution of non-state actors in international criminal law. It highlighted the challenges and complexities of holding individuals accountable for crimes committed during armed conflicts, especially when they were associated with non-state entities. • NIAC: Organisation • Boskoški’s indicative factors: - How does Trial Chamber II of the International Criminal Court differentiate between protracted armed violence and sustained and concerted military operations? ▪ Trial Chamber II differentiates between the two based on the higher level of organization required for sustained and concerted armed violence, as compared to protracted violence. - What does the term "sustained" imply in the context of armed violence? ▪ The term "sustained" indicates that the armed group must engage in multiple military operations and exist for a period of time. - What factors did the court consider in determining sustained and concerted military operations in the Katanga case? ▪ The court considered territorial control and a certain degree of organization as factors that enabled armed groups to plan and carry out sustained and concerted military attacks. - How does the court define sustained and concerted military operations in relation to Additional Protocol II? ▪ The court defines sustained and concerted military operations as requiring a higher level of organization of an armed group, involving multiple military operations over a period of time, as specified in Additional Protocol II. - Background: ▪ The case involves events that occurred in the Republic of North Macedonia in 2001 during the armed conflict between the security forces of North Macedonia and ethnic Albanian rebels. The case centred on alleged crimes committed by Johan Tarculovski, a police officer, and Ljube Boskoski, the then-Minister of the Interior of North Macedonia. - Charges: ▪ Johan Tarculovski was charged with crimes against humanity and violations of the laws or customs of war, including murder, cruel treatment, and destruction of villages. ▪ Ljube Boskoski, as the Minister of the Interior, was charged with aiding and abetting these crimes. - Events : ▪ The case primarily revolved around the events in the village of Ljuboten, where a police operation occurred in August 2001. It was alleged that the police carried out the operation, resulting in civilian deaths and property destruction. ▪ Individual Criminal Responsibility: ▪ The case focused on establishing individual criminal responsibility, particularly for Johan Tarculovski's actions during the operation. - Aiding and Abetting:

▪ Ljube Boskoski's role as the Minister of the Interior led to charges of aiding and abetting the alleged crimes. The case examined whether he had control over the police and whether he knew or should have known about the unlawful conduct. - Verdict : ▪ Johan Tarculovski was found guilty of several counts, including murder and wanton destruction not justified by military necessity, and was sentenced to 12 years in prison. ▪ Ljube Boskoski was acquitted of all charges and was released. - Significance: ▪ The case is significant as it highlighted the principle of individual criminal responsibility for actions taken during armed conflicts, even for individuals holding high government positions. ▪ It underscored the importance of accountability for violations of international humanitarian law, aiming to deter such crimes in future conflicts. - From slides ▪ command structure; ▪ internal disciplinary system; ▪ engaging in military tactics; ▪ achieving military objectives by carrying out military operations in an organised manner; ▪ the logistical capacity of the armed group; ▪ the ability of the armed group to speak with one voice • NIAC: Minimum degree of organisation - La Tablada ▪ Organisation must be relative ▪ To extent that it can engage in armed conflict ▪ Low threshold - Katanga ▪ Relatively low threshold of organisation ▪ To extend to execute military attack ▪ Charges: • Johan Tarculovski was charged with crimes against humanity and violations of the laws or customs of war, including murder, cruel treatment, and destruction of villages. • Ljube Boskoski, as the Minister of the Interior, was charged with aiding and abetting these crimes. ▪ Events: • The case primarily revolved around the events in the village of Ljuboten, where a police operation occurred in August 2001. It was alleged that the police carried out the operation, resulting in civilian deaths and property destruction. ▪ Individual Criminal Responsibility: • The case focused on establishing individual criminal responsibility, particularly for Johan Tarculovski's actions during the operation. ▪ Aiding and Abetting:

- Ability to implement APII - Article 1(1) of Additional Protocol II outlines the material field of application of the treaty, specifically referring to 'organised armed groups'. This article applies to warring parties within the contracting state, including armed forces and dissident armed forces. The criteria for Additional Protocol II to be applicable include being under responsible command and exercising control over the territory. This control should be exercised to the extent that these groups are deemed to be a threat to the contracting state. Territorial Requirement • Nature of Control (Akayesu, para 626) • Further, these armed forces must be able to dominate a sufficient part of the territory so as to maintain sustained and concerted military operations and to apply Additional Protocol II. • In essence, the operations must be continuous and planned. The territory in their control is usually that which has eluded the control of government forces. • What criteria did the International Criminal Tribunal for Rwanda (ICTR) use to determine if an armed group qualifies as a party to the Rwandan conflict? - The ICTR determined that an armed group, such as the Rwanda Patriotic Front (RPF), must meet the organizational criteria and have a structured leadership that is answerable to authority. • How did the RPF demonstrate its responsible command structure during the Rwandan conflict? - The RPF showed evidence of responsible command through its effective battlefield performance, systematic deployment of troops, and adherence to the provisions of Additional Protocol II and other applicable rules of the law of non-international armed conflict. • What does the judgment in the Akayesu case establish regarding responsible command? - The judgment establishes that responsible command requires an armed group to be sufficiently organized and fulfil the organizational criterion provided in Additional Protocol II. • How can Article 31(b) of the Vienna Convention on the Law of Treaties (VCLT) be used for interpretative purposes? - Article 31(b) of the VCLT allows for the consultation of a closely related treaty, such as Additional Protocol I, to aid in the interpretation of a treaty in need of clarification. Article 87 of Additional Protocol I provides guidance in interpreting Article 31(b) of the VCLT. • ICRC Commentaries - OAG claims control - Allow to launch sustained and concerted military operations - Control = functional - Size of territory? ‘Internationalized Armed Conflicts • Loses NIAC character • Tadić Appeals Chamber:“…in the case of an internal armed conflict breaking out on the territory of a State, it may become international (or, depending upon the circumstances, be international in character alongside an internal armed conflict) if - (i) another State intervenes in that conflict through its troops, or alternatively if

- (ii) some of the participants in the internal armed conflict act on behalf of that third state.’’ Applicable legal frameworks • IAC - LoAC • CA3 NIAC - CA3 - Customary LoNIAC • APII NIAC - APII - CA3 - Customary LoNIAC Examples • Conflict-Related Sexual Violence - Any act of a sexual nature committed against any person, without their consent, under circumstances which are coercive - Neutral - Types of CRSV ▪ Rape ▪ Sexual slavery ▪ Enforced prostitution ▪ Indecent assault ▪ Forced pregnancy ▪ Forced sterilization ▪ Other… • Evolution - Spoils of War - Tactic or Weapon of War • Torture - Criteria ▪ 1. Intentional pain and suffering • involves the deliberate and intentional infliction of physical or psychological pain and suffering upon a person. It is not accidental or incidental harm but is carried out purposefully to cause anguish. ▪ 2. Specific purpose • committed with a specific purpose, which might include obtaining information, punishment, intimidation, or coercion. The torment is not random but serves a distinct objective ▪ 3. Instigation or consent of authorities • Torture often occurs with the instigation or consent of authorities, whether they are state officials, military personnel, or individuals in positions of power. This involvement by authorities distinguishes it from random acts of violence. - Cases ▪ Prosecutor v Akayesu (ICTR-96-4-T, 1998)

- However, the ICTY shifted to a more precise definition in the Furundžija case, which provided additional details on the constituent elements of acts considered to be rape. - The objective elements of rape are sexual penetration, coercion, force, or threat of force against the victim or third person. - In the Kunarac case, the Trial Chamber clarified that an act of sexual penetration constitutes rape not only if accompanied by coercion but also if there are other factors that render the act "non-consensual or non-voluntary" on the part of the victim. - The ICC Elements of Crimes integrate these case-law evolutions and provide an even more refined definition of rape. - An act is considered rape if the perpetrator invaded the body of a person by conduct resulting in penetration, force, or coercion, or if the invasion was committed against a person incapable of giving genuine consent. • Prohibition - Art 44 Lieber Code (1863) ▪ Rape was explicitly prohibited and punished by death in the first modern code on the law of war, - International armed conflicts ▪ Geneva Convention 1- IV ▪ Additional Protocol I • both explicitly and implicitly through the prohibition of cruel treatment and torture, outrages upon personal dignity, indecent assault and enforced prostitution, in both international and non- international armed conflicts. ▪ These instruments explicitly and implicitly prohibit acts such as cruel treatment, torture, outrages upon personal dignity, indecent assault, and enforced prostitution, ensuring protection for individuals in both international and non-international armed conflicts - Non-international armed conflicts ▪ CA3 ▪ Additional Protocol II ▪ - Customary law • Accountability - States condemn conflict-related sexual violence - Prohibited - Criminalised - UNSC - Prosecutor v Jean-Pierre Bemba Gombo (ICC) - Prosecutor v Dominic Ongwen (ICC, 2021) ▪ Was Mr. Ongwen considered a victim or a perpetrator in the Court's decision? • The Court categorized Mr. Ongwen as a perpetrator due to his involvement in acts of violence, sexual assault, and murder. ▪ Did the Court consider Mr. Ongwen's claim of having a significantly impaired mental capacity?

• The Court dismissed Mr. Ongwen's claim of having a significantly impaired mental capacity. ▪ Was Mr. Ongwen's present mental health condition considered in the Court's decision? • The Court did not consider Mr. Ongwen's present mental health condition in the decision. ▪ Did the Court acknowledge the impact of Mr. Ongwen being recruited as a child soldier on his capacity? • The Court acknowledged that being recruited at a young age did impact Mr. Ongwen's capacity, but it did not significantly diminish his culpability. • Genocide - CSRV is genocide? ▪ Conflict-related sexual violence, such as rape and sexual violence, can be considered a component of genocide when it is committed as part of a broader genocidal campaign. In such cases, it must be established that the sexual violence was not merely a byproduct of the conflict but was used as a tool to destroy, in whole or in part, a specific group based on their identity. ▪ To determine whether conflict-related sexual violence constitutes genocide, it is essential to consider the specific intent behind the acts. If the sexual violence is committed with the clear intent to annihilate the group or to prevent its reproduction, it may meet the legal criteria for genocide. The intent to destroy a group based on their identity is a key element in proving the crime of genocide. • Crime Against Humanity - The Special Rapporteur on systematic rape, sexual slavery, and slavery-like practices during armed conflict defines sexual violence as any physical or psychological violence carried out through sexual means or by targeting sexuality. ▪ This includes physical and psychological attacks directed at a person's sexual characteristics, such as forcing them to strip naked in public, mutilating their genitals, or slicing off a woman's breasts. ▪ Additionally, situations where two victims are forced to perform sexual acts or harm each other in a sexual manner. - The second definition is that which relates to the International Criminal Court.The Rome Statute of the International Criminal Court provides that,Art 7(1)(g) Rome Statute ▪ Rape ▪ Sexual slavery ▪ Enforced prostitution ▪ Forced pregnancy ▪ Enforced sterilization ▪ Any other form of sexual violence of comparable gravity • War Crime - Art 8(2)(e)(vi) Rome Statute ▪ Rape ▪ Sexual slavery ▪ Enforced prostitution