Problems of Defining Armed Conflict In International Law

Despite popular belief, war is a highly regulated endeavor. Military operations cannot be permitted to take place in a regulatory vacuum. According to the Geneva Academy of International Humanitarian Law, there are currently 110 armed conflicts, most of which are non-international. (Today’s Armed Conflicts, 2024) The law of war exists to protect those who are involved and those who are not involved in the conflict. The first step in the regulatory process is understanding what situations trigger different types of law. Understanding conflict characterization and the law's applicability is necessary for prosecution and operations planning. Two primary documents regulate armed conflicts: the Hague Convention and the Geneva Conventions. The Hague Conventions set out rules for conducting war, and the Geneva Conventions protect the victims of war. In this paper, the Geneva Conventions (GC) will be the primary research focus as I am specifically interested in protecting victims. We apply different Geneva Convention rules based on the characterization of a given conflict. Geneva Conventions give vague regulations applicable to conflicts. The main reason for such vagueness was to make this document universal enough for many states to ratify it. However, such vagueness has political ramifications, as state leaders utilize the gray areas of international law in their interests. (International Committee of the Red Cross, 2023) One such gray area is the fact that the current international documents do not provide a precise characterization of war. The problem of this uncertainty is that there has been the need to address the legal issues on a case-by-case basis. While I acknowledge that every case should have special attention, it is also essential to bring as much universality to them as possible to make the prosecution process more accessible and make international law more just and predictable. Therefore, this paper answers the following question: How can the text of the Geneva Conventions be strengthened to prevent political biases and increase humanitarian protections? This topic has a well-developed research foundation. I am relying on some previous works in the area, including the ones written by Corn and Gal. Corn’s “Legal Classifications of Military Operations” focuses on the issue of characterizing non-international armed conflicts and their application to the conflict between the U.S. and al-Queda. Gal’s “Unexplored Outcomes of Tadić” introduces the conflict between the ICC and ICJ in dealing with Tadić precedent. I utilize these scholars’ work as the foundation of the issue I am researching, and I propose solutions to the problems presented by the scholars. This paper addresses some of the major problems in defining armed conflict in international law, particularly defining non-international armed conflict and defining conflicts between a state and a non-state actor. My two main issues discuss concern (1) establishing the existence of an armed conflict for legal purposes and (2) differentiating between two types of conflict. I look into two sides of a coin: international armed conflict (IAC) and non-international armed conflict (NIAC). The primary debate in characterizing NIAC arises from a disagreement over what constitutes mere violence and what constitutes NIAC. The discussion on IAC arises from arguments aiming at expanding the definition of IAC to the conflicts traditionally classified as NIACs. This second question is essential as the rules governing IAC provide more protection to civilians and POWs compared to the ones governing NIACs. I started by exploring how international law is applied to conflicts and discussing how different characterizations trigger other parts of the law. I later delved into defining a non-international armed conflict (NIAC), as there is no numeric threshold for what makes mere violence a NIAC. There is a need for a more specific threshold, and some challenges are associated with implementing it. I later discuss a second major issue: international conflicts that involve a state and a non-state actor. International tribunals should treat such cases as an international armed conflict rather than NIAC and present challenges to applying the law to non-state actors.