ABSTRACT
International humanitarian law governs the conduct of participants in an armed conflict. In order to determine whether it applies to situations of violence, it is necessary to first assess whether the situation amounts to an ‘armed conflict’. However, international humanitarian law does not recognize a unitary concept of armed conflict but, rather, recognizes two types of armed conflicts: international and non-international.
This work examines the history of the distinction between these two categories of armed conflict, the consequences of the distinction and whether it still has validity. The world has witnessed dramatic changes on many fronts: political, economic and social, but the reality and, above all, the consequences of armed conflict have, sadly, not changed. Human suffering, death, disfigurement, destruction and loss of hope for the future continue to constitute, as they always have, the immediate and longer-term effects of war on societies and the individuals who make them up. In addition to international and non-international armed conflicts, the world has recently been faced with a surge in acts of transnational terrorism, reopening certain dilemmas about the relationship between state security and the protection of the individual. This phenomenon has also led to a reexamination of the adequacy of international humanitarian law in a way not experienced since the drive to complement the Geneva Conventions with the two Additional Protocols.
International humanitarian law clearly defines international armed conflicts and non international armed conflicts. There is no provision for intermediary situations such as mixed conflicts, internationalized armed conflicts or situations were external countries intervene in a non international armed conflict. This poses a pertinent question as to what laws will apply in such intermediary situations. International Humanitarian Law does not provide for such situations where the armed conflict does not fall within the purview of an international armed conflict or a non international armed conflict.
This research argues that the distinction between international and non-international armed conflict should be removed from the war crimes provisions of the 1998 Rome Statute of the International Criminal Court. It further creates awareness on the procedural difficulties in implementing the provisions of International Humanitarian Law as a result of this legal distinction. The core contribution to knowledge of this thesis is a propositional draft of a Third Additional Protocol focusing on novel provisions addressing contemporary situations of non international armed conflicts, external state intervention and an intrinsic review on the status of non state actors. This Protocol is being proposed as a single law that would govern armed conflict.
