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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