The Concept of Combatant

Topics: Geneva Conventions, International Committee of the Red Cross, International humanitarian law Pages: 9 (2846 words) Published: May 5, 2013
How is the Term "Armed Conflict" Defined in International Humanitarian Law? International Committee of the Red Cross (ICRC) Opinion Paper, March 2008

The States parties to the 1949 Geneva Conventions have entrusted the ICRC, through the Statutes of the International Red Cross and Red Crescent Movement, "to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof"1. It is on this basis that the ICRC takes this opportunity to present the prevailing legal opinion on the definition of "international armed conflict" and "non-international armed conflict" under International Humanitarian Law, the branch of international law which governs armed conflict. International humanitarian law distinguishes two types of armed conflicts, namely: • international armed conflicts, opposing two or more States, and • non-international armed conflicts, between governmental forces and nongovernmental armed groups, or between such groups only. IHL treaty law also establishes a distinction between non-international armed conflicts in the meaning of common Article 3 of the Geneva Conventions of 1949 and non-international armed conflicts falling within the definition provided in Art. 1 of Additional Protocol II. Legally speaking, no other type of armed conflict exists. It is nevertheless important to underline that a situation can evolve from one type of armed conflict to another, depending on the facts prevailing at a certain moment. I. International Armed Conflict (IAC) 1) IHL Treaties Common Article 2 to the Geneva Conventions of 1949 states that: "In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance". According to this provision, IACs are those which oppose "High Contracting Parties", meaning States. An IAC occurs when one or more States have recourse to armed force against another State, regardless of the reasons or the intensity of this confrontation. Relevant rules of IHL may be applicable even in the absence of open hostilities. Moreover, no formal declaration of war or recognition of the situation is required. The existence of an IAC, and as a consequence, the possibility to apply International Humanitarian Law to this situation, depends on what actually happens on the ground. It is based on factual conditions. For example, there may be an IAC, even though one of the belligerents does not recognize the government of the adverse party2. The Commentary of the Geneva Conventions of 1949 1 2

Statutes of the International Red Cross and Red Crescent Movement, art. 5, para. 2(g). "It is irrelevant to the validity of international humanitarian law whether the States and Governments involved in the conflict recognize each other as States": Joint Services Regulations (ZDv) 15/2, in: D.

ICRC Opinion paper, March 2008


confirms that "any difference arising between two States and leading to the intervention of armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place"3. Apart from regular, inter-state armed conflicts, Additional Protocol I extends the definition of IAC to include armed conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes in the exercise of their right to self-determination (wars of national liberation).4

2) Jurisprudence The International Criminal Tribunal for the former Yugoslavia (ICTY)...
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