Posted by Dustin Lewis on March 01, 2011  |   Comment  |   Subscribe

Recent reports of the use of force against civilians in Libya raise an important question: when does a situation in which a state commits violence against its civilians amount to a non-international armed conflict? The question is significant for a variety of reasons, not least because international law provides a range of modalities through which a state or international body may address use-of-force violations, and discerning which modalities may be utilized often requires a legal characterization of the situation in which the violations were committed. 

For instance, war crimes may occur only in situations of armed conflict. (For recent assessments of the grave breaches regime of IHL, see the collection of articles in Volume 7, Issue 4 of the Journal of International Criminal Justice; it is important to note that in addition to grave breaches of IHL, under the International Criminal Court's statute other serious violations of the laws of armed conflict, whether committed in international or non-international armed conflict, may give rise to individual criminal responsibility.) According to the ICC's statute, crimes against humanity may occur in situations outside of armed conflict. These distinctions regarding situational predicates gained renewed salience when the UN Security Council referred the situation in Libya since February 15, 2011 to the ICC prosecutor. 

To determine whether a situation of violence amounts to a non-international armed conflict, certain international bodies, as recently detailed by Anthony Cullen, have employed a two-pronged test. The first prong is the intensity of hostilities, and the second prong is the organization of the armed group(s).

In its 2008 judgment in the Prosecutor v. Boškoski et al. case, Trial Chamber II of the International Criminal Tribunal for the former Yugoslavia (ICTY) identified factors that could be used to indicate each prong. As for the first prong, Trial Chamber II stated in para. 177 (footnotes omitted) that:

Various indicative factors have been taken into account by Trial Chambers to assess the “intensity” of the conflict. These include the seriousness of attacks and whether there has been an increase in armed clashes, the spread of clashes over territory and over a period of time, any increase in the number of government forces and mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations Security Council, and whether any resolutions on the matter have been passed. Trial Chambers have also taken into account in this respect the number of civilians forced to flee from the combat zones; the type of weapons used, in particular the use of heavy weapons, and other military equipment, such as tanks and other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these towns; the extent of and the number of casualties caused by shelling or fighting; the quantity of troops and units deployed; existence and change of front lines between the parties; the occupation of territory, and towns and villages; the deployment of government forces to the crisis area; the closure of roads; cease fire orders and agreements, and the attempt of representatives from international organisations to broker and enforce cease fire agreements.

As for the second prong, the trial chamber identified five broad groups of factors that may indicate whether an entity constitutes an “organized armed group” for purposes of IHL. Paraphrased, those broad groups are: (1) factors signalling the presence of a command structure; (2) factors indicating that the group could carry out organized operations; (3) factors indicating a level of logistics; (4) factors relevant to determining if the group possessed a level of discipline and the ability to implement IHL; and (5) factors indicating that the group could speak with one voice (paras. 199-203).