Chapter 04.

Handbook on IHL Mooting 27

The Scope and Application of

International Humanitarian Law
Jonathan Crowe*
IHL can be defined as the body of international law governing the conduct of armed conflicts. The existence
of an armed conflict is therefore a necessary prerequisite for IHL to operate. It is important to note that IHL is
concerned with regulating the conduct of armed conflicts, rather than their commencement. It is not concerned
with how a conflict started or who was to blame for it, but what forms of conduct are permissible once the war is
ongoing.
The body of international law relating to the conduct of armed conflicts is sometimes referred to using the Latin
term jus in bello (‘law in war’). This is generally viewed as synonymous with what we now call IHL. The law relating
to the commencement of armed conflicts, by contrast, is known as the jus ad bellum (‘law to war’). It is also
sometimes called the jus contra bellum (‘law against war’), since its primary aim is to stop wars from starting in
the first place.
IHL is often divided further into the Hague law and the Geneva law, named after the two main sets of
international treaties. Hague law takes its name from the 1899 and 1907 Hague Conventions and the
accompanying Hague Regulations. These documents are directly concerned with regulating the conduct of armed
exchanges, for example by restricting particular kinds of weapons or military strategies. Geneva law, by contrast,
is now contained primarily in the four Geneva Conventions of 1949 and their two Additional Protocols of 1977.
These conventions specify minimum standards of treatment for specific vulnerable classes of people in armed
conflict, such as the sick and wounded, prisoners of war and civilians.

Types of Armed Conflicts

IHL (as the jus in bello) only operates during an armed conflict. IHL has traditionally distinguished between
international and non-international armed conflicts. Prior to the Geneva Conventions of 1949, it was generally
thought that civil conflicts were outside the scope of international law.1 They were a matter for states to deal with
internally. However, the rules of IHL governing non-international conflicts have consistently expanded since then.
The vast majority of armed conflicts since the Second World War have been non-international in character.2
The Geneva Conventions themselves only apply in international armed conflicts. The exception is Common Article
3, which was the first provision to bring non-international conflicts within the reach of IHL. Additional Protocol I
to the Geneva Conventions adopted in 1977 is also restricted to international armed conflicts, while Additional
Protocol II covers non-international conflicts. It is increasingly recognised that many fundamental rules of IHL
apply in non-international as well as international armed conflicts.3 An ICRC study from 2005 found that of 161
customary principles of IHL, 148 applied in conflicts of both types.4
The distinction between international and non-international armed conflicts is not always clear cut. In some
cases, a non-international armed conflict may become international at a certain point in its history. This is often
called an ‘internationalised’ conflict. A conflict may become internationalised because of the creation of a new
state or states during the conflict (as in the former Yugoslavia).5 Alternatively, internationalisation may occur
when a third party state militarily intervenes in a non-international conflict or where one or more participants in a
non-international conflict are acting ‘on behalf of’ a third party state.6

Defining Armed Conflict

An influential definition of an armed conflict comes from the International Criminal Tribunal for the Former
Yugoslavia (ICTY) interlocutory decision in Prosecutor v Tadić.7 The Appeals Chamber in Tadić confirmed that ‘for
there to be a violation of [IHL], there must be an armed conflict’.8 The Appeals Chamber then went on to say that
‘an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence
between governmental authorities and organised armed groups or between such groups within a State’.9
Australian Red Cross Handbook on IHL Mooting 28

The definition proposed by the Appeals Chamber in Tadić recognises two distinct tests for the existence of an
armed conflict. The first test refers to ‘a resort to armed force between States’. This is the classic definition of
an international armed conflict. The second test refers to ‘protracted armed violence between governmental
authorities and organised armed groups or between such groups within a State’. This formulation recognises that
IHL may also apply to non-international armed conflicts. It covers conflicts between a state and one or more non-
state groups, as well as conflicts in which no states are directly involved.10
International Armed Conflicts
Common Article 2 of the Geneva Conventions of 1949 states that the conventions 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 recognised by one of them’. A formal declaration of war is therefore not necessary for the
existence of an international armed conflict. Common Article 2 goes on to clarify that the Geneva Conventions
also apply in cases of total or partial occupation of a state’s territory, even when the occupation is met with no
resistance.
Additional Protocol I generally applies to the same types of armed conflicts covered by Common Article 2.11
However, Article 1(4) of Additional Protocol I extends its scope to a type of conflict not covered by Common Article
2: ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against
racist regimes in exercise of their right of self-determination’. Conflicts falling into this category are commonly
called wars of national liberation. They are deemed international conflicts for the purposes of Additional Protocol
I, although they would otherwise count as non-international conflicts.
Non-International Armed Conflicts
According to the ICTY Appeals Chamber in Tadić, an armed conflict involving non-state groups arises only if the
violence is protracted and the non-state groups are organised. The ICTY Trial Chamber subsequently clarified
that ‘protracted armed violence’ contrasts with ‘banditry, unorganised and short-lived insurrections’.12 This
was reiterated by the Inter-American Commission on Human Rights (IACHR) in the case of Juan Carlos Abella v
Argentina.13
The IACHR in Abella stated that an armed conflict must be contrasted with ‘disturbances with no concerted intent’
and ‘isolated and sporadic acts of violence’.14 Among the examples given by the IACHR of situations falling short of
armed conflict were violent civilian demonstrations, students throwing stones at police, bandits holding hostages
for ransom and political assassinations.15 It may be difficult to draw the line in particular cases. However, the IACHR
observed that ‘in making such a determination, what is required in the final analysis
is a good faith and objective analysis of the facts in each particular case’.16 Soldiers from the Niger national
army receive handbooks
The ICTY Appeals Chamber in Tadić containing information on
international humanitarian
further states that an armed law. CC BY-NC-ND / ICRC /
Mouhamadou Birom Seck
conflict featuring non-state forces
must involve ‘organised armed
groups’. Again, this standard is
intended to distinguish armed
conflicts from sporadic outbreaks
of violence, such as riots and
demonstrations. Typically, an
organised armed group will have a
clear chain of command. However,
it is not necessary that each group
involved in an armed conflict be
clearly differentiated and defined.
There may be a number of
loosely related armed groups
involved, as in the conflict in the
former Yugoslavia.17 The ICTY
Trial Chamber in the case of
Prosecutor v Haradinaj viewed the
 Handbook on IHL Mooting 29

following factors as indicative of organisation: the existence of command structure and disciplinary rules; control
of a determinate territory; access to weapons, equipment and military training; and the ability to define military
strategy and use military tactics.18 No one factor is decisive. The issue must therefore ultimately be considered on
a case-by-case basis.

Scope of Armed Conflict

The existence of an armed conflict brings IHL into operation. However, an issue may arise as to whether particular
acts fall within the conflict’s geographical and temporal scope. In its jurisdictional decision in the Tadić case, the
ICTY Appeals Chamber observed that ‘the temporal and geographical scope [of the conflict] extends beyond the
exact time and place of hostilities’. At least some aspects of IHL apply within the ‘entire territory’ of the warring
parties for the duration of the conflict.19 It follows that ‘a violation of the laws or customs of war may […] occur at
a time when and in a place where no fighting is actually taking place’.20
The temporal reach of IHL, on the other hand, extends from the initiation of hostilities until ‘a general conclusion
of peace is reached’.21 Declaration of an armistice or ceasefire does not have the effect of terminating an armed
conflict unless it constitutes a peace agreement and is followed by a general cessation of hostilities. The Geneva
Conventions specifically provide for the continuing application of IHL in respect of particular vulnerable groups.
Prisoners of war, for example, gain the protection of Geneva Convention III from the time they fall into the power
of the enemy until their final release and repatriation.22
Connection to the Conflict
The ICTY has held that a charge of violating the laws and customs of war in the context of international criminal
law can only be established if the acts have an appropriate connection to the armed conflict. It is not enough
that the acts occur at the same time and place as the conflict. Rather, they must take place in the context of the
conflict.23 In the words of the ICTY Appeals Chamber:
The existence of an armed conflict must, at a minimum, have played a substantial part in
the perpetrator’s ability to commit [the crime, the] decision to commit it, the manner in
which it was committed or the purpose for which it was committed.24
This requirement is necessary to distinguish acts committed during an armed conflict that properly fall within IHL
from those that properly fall under other criminal components of domestic law. For example, an ordinary theft or
assault during wartime would be a matter for domestic criminal law, rather than IHL. On the other hand, ethnically
motivated assaults during the Yugoslavian and Rwandan conflicts have been treated as violations of IHL, since the
motivation was related to the conflict.25 A list of factors that may be considered in determining this issue can be
found in the ICTY Appeals Chamber judgment in Kunarac.26

Liberia. Monrovia, Edward Binzah Kesselly military barracks. Training

session for the Armed Forces of Liberia, set up with the help of the
ICRC, about the conduct of search operations and interventions at
checkpoints. 01.06.2015 CC BY-NC-ND/ICRC/Yamila Castro
Australian Red Cross
* For a more detailed discussion of the issues covered in this chapter, see
Jonathan Crowe and Kylie Weston-Scheuber, Principles of International
Humanitarian Law (Edward Elgar, 2013) ch 1.
1 The main exception was the doctrine of recognition of belligerency, where
organised belligerent groups controlling substantial territory could come to
be recognised by affected states as holding rights and duties under the law
of armed conflict.
2 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International
Humanitarian Law (CUP 2005) xxviii; International Committee of the Red
Cross, International Humanitarian Law and the Challenge of Contemporary
Armed Conflicts (ICRC 2011) 6.
3 Prosecutor v Tadić, International Criminal Tribunal for the Former
Yugoslavia (ICTY) Appeals Chamber Decision on Jurisdiction, 2 October 1995
[96]-[127].
4 Henckaerts and Doswald-Beck, above n 2. The figures are reported in
International Committee of the Red Cross, International Humanitarian Law
and the Challenge of Contemporary Armed Conflicts (ICRC 2011) 12.
5 Prosecutor v Tadić, ICTY Appeals Chamber Decision on Jurisdiction, above n
3, [77].
6 Ibid; Prosecutor v Tadić, ICTY Appeals Chamber Judgment, 15 July 1999
[88]-[97].
7 Prosecutor v Tadić (Jurisdiction), above n 3.
8 Ibid [67].
9 Ibid [70]. See also Prosecutor v Kunarac, ICTY Appeals Chamber Judgment,
12 June 2002 [55]-[56].
10 Slightly different thresholds for establishing the existence of a non-
international armed conflict apply under Common Article 3 and AP II.
Common Article 3 applies to any armed conflict ‘not of an international
character’ occurring in the territory of a state party, while AP II applies to
armed conflicts that take place between the forces of a state party and
other armed groups within the state’s territory: art 1(1).
Handbook on IHL Mooting 30
11 AP I, art 1(3).
12 Prosecutor v Tadić, ICTY Trial Chamber Judgment, 7 May 1997 [562].
13 Juan Carlos Abella v Argentina, Inter-American Commission on Human
Rights Case No 11.137, Report No 55/97, 18 November 1997.
14 Ibid [149].
15 Ibid [154].
16 Ibid [153].
17 Prosecutor v Tadić, ICTY Appeals Chamber Decision on Jurisdiction, above
n 3, [70].
18 Prosecutor v Haradinaj, ICTY Trial Chamber Judgment, 3 April 2008 [60].
19 Prosecutor v Tadić, ICTY Appeals Chamber Decision on Jurisdiction, above
n 3, [67]-[68].
20 Prosecutor v Kunarac, ICTY Appeals Chamber Judgment, 12 June 2002 [64].
21 Ibid [70].
22 GC III, art 5.
23 Prosecutor v Tadić, ICTY Appeals Chamber Decision on Jurisdiction, above
n 3, [69].
24 Prosecutor v Kunarac, ICTY Appeals Chamber Judgment, above n 20, [58].
25 See, for example, Prosecutor v Delalic, ICTY Trial Chamber Judgment, 16
November 1998; Prosecutor v Kvocka, ICTY Trial Chamber Judgment, 2
November 2001; Prosecutor v Jean Paul Akayesu, International Criminal
Tribunal for Rwanda Trial Chamber Judgment, 2 September 1998.
26 Prosecutor v Kunarac, ICTY Appeals Chamber Judgment, above n 20, [59].