“Old Paradigms, New Conflicts: Classifying Contemporary Situations of Armed Violence under International Humanitarian Law”

BUIS, EMILIANO JERÓNIMO

Minsk

Jornada; Jornadas sobre Derecho Internacional; 2011

Instituto Internacional de Ciencias Sociales y Laborales

International Humanitarian Law (IHL) is the branch of Public International Law aiming at reducing the excessive violence during armed conflicts, by sparing those who do not (or no longer) participate in hostilities, and regulating the means and methods of warfare. As such, its rules are applicable both to international armed conflicts (IAC) and to non-international armed conflicts (NIAC), excluding explicitly those situations in which that threshold is not met, such as it happens with internal disturbances or tensions. However, the lack of a definition of "armed conflict" (AC) in IHL creates a number of significant problems and makes it very difficult to understand exactly the nature of the typology provided for in the relevant international legal instruments. Therefore it becomes useful to ask some questions: what is that threshold that allows us to identify an AC? How can a low-intensity confrontation reach the necessary level to enter the scope of application of IHL? Perhaps we have no doubts sometimes on the existence of an armed conflict −because of its high intensity and the quality and organization of the parties involved. But even some of those cases are obscure, and it might be possible to ask what happens to the (common) situations in which the traditional dichotomy between IAC and NIAC is not sufficient or proves not to be useful. We can think for instance about the existence of new (and not so new) situations of armed violence −many of them performed by non-state actors− that put at stake the traditional concepts included in the Geneva Conventions or their Additional Protocols. Transnational wars opposing armed forces (and private military contractors) to organized groups located outside the national territory, frequent cross-border clashes between law-enforcement officers that amount to intense hostilities, armed attacks aimed at combatting piracy or the so-called global 'war against terror': just a list with a few examples that require elaborating new thoughts on the historical concepts set down by conventional and customary IHL. Should we say then that IHL is a sufficient corpus iuris to deal with these (and other future) particular scenarios of armed violence, thus claiming that an enlarged interpretation of the traditional rules is enough to cover them all? Or, on the contrary, should we say that it has become necessary now to start thinking of improving and updating IHL in order to make it capable of addressing these conflicts which were not explicitly typified so far? The purpose of this paper is to raise consciousness around the need of defining and classifying these new violent phenomena in legal terms, so as to be able to identify the rules that the parties involved should comply with. By evaluating if these situations can be understood and interpreted under the traditional light of current IHL or if they rather need new legal developments in the near future, we expect to open the floor to discussion.