Welcome to this video on the scope of application of international humanitarian

law with a special focus on international armed conflict and situation of belligerent
occupation.

Over the past centuries, the world has been confronted with numerous wars, also
called armed conflicts, such as the Second World War, the Rwandan genocide, and
various conflicts in the Middle East. Some of these conflicts occurred within the
boundaries of the state, whereas others involved two or more states.

The questions we are going to examine today are: How do we define armed
conflict under international humanitarian law? Does it matter for the protection of
war victims whether these conflicts are international or non-international in
character? So, how do we define an armed conflict under IHL? First of all, we
should always keep in mind that international humanitarian law was conceived as
the legal regime which limited the behavior of parties in war-like situations. In the
respective treaty laws, war-like situations are referred to as armed conflicts.

Thus, IHL limits the behavior of parties to armed conflicts. IHL only applies
to situations which have reached a special threshold of armed violence. Either
between states, between states and certain non-state actors, or even between
non-state actors.

Therefore, IHL does not apply to internal disturbances or tentions falling

below that threshold such as riots, isolated and sporadic acts of violence, or
acts of terror. In these latter situations, human rights law and domestic law
would apply.

International humanitarian law recognizes two types of armed conflict.

International armed conflicts or IACs which occur between two or more states and
non-international armed conflicts, also known as NIACs or civil wars, which
usually occur within a state.

As you might already know, both international and non-international armed

conflicts are governed by a different set of rules as a result of political history.
State officials have regulated interstate conflicts for centuries through the signing
of international agreements. They've been reluctant, however, to set up more
concrete international law rules for civil wars.
As a result, the current body of treaty law is much more extensive for international
armed conflicts than for non-international armed conflicts. In the context of
international armed conflicts, there is another important consideration.

Perhaps you've heard of the situation where one state occupies another state
normally using armed forces to achieve this result. We call this belligerent
occupation. International humanitarian law also applies to this special situation,
whereby one state establishes military control over the territory of another country.

Belligerent occupation is governed by the laws that apply to international armed

conflict.

Now have a deeper look into international armed conflicts.

Traditionally, states expressed their intention to start a war through a formal

declaration. Today however, international armed conflict is presumed to exist as
soon as a state uses armed force against another state, regardless of the reasons for
the confrontation, the intensity of the violence or the existence of a formal
declaration of war. The classic form of armed conflicts is international in character
and waged between two or more states.

The rules of IHL governing situations of international armed conflicts have

been codified primarily in the 1907 Hague Regulations, the four 1949 Geneva
Conventions, and the 1977 Additional Protocol I supplemented by Customary
International Law.

Armed conflicts derive their international character from the fact that they occur
between states.

Common Article 2 of the Geneva Conventions provides that, "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 Appeals Chamber of the International Criminal Tribunal for the former
Yugoslavia, in its 1995 Tadic decision, further specifies that an international
armed conflicts exists whenever there is resort to armed force between states.
But how do we avoid leaving it to the parties of an armed conflict to decide
whether IHL is applicable? The answer to the question of whether a state uses
force should only be derived from the facts on the ground and should be
determined in an objective manner. Once we've established that an international
armed conflict exists, we can ask ourselves the question: to which areas on land
and at sea do the laws of war apply? With regard to this so-called territorial scope
of application, IHL usually applies to those areas where actual combat takes place.

However, the rules can extend to acts beyond actual combat if there is a special
link known as a nexus to the armed conflict.

Another important question we have to ask ourselves is when does a conflict end?
A general approach is that a conflict ends when military operations cease. The end
of the conflict must be determined on the basis of factual and objective criteria. As
such, stable ceasefires and the intervention of United Nations peacekeepers could
indicate the end of an international armed conflict. However, the fact that armed
violence ends does not preclude the applicability of certain rules of IHL.

For instance, combatants deprived of their liberty for reasons related to an armed
conflict, also known as prisoners of war, remain protected by IHL until they are
repatriated. Let us now further explore the situation of belligerent occupation. As
mentioned earlier, the law governing international armed conflicts also applies to
situations where one state occupies parts or the entire territory of another state.

We know this from Common Article 2, Paragraph 2 of the Geneva

Conventions, which explains that IHL applies 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.

In essence, belligerent occupation occurs when one state invades another state and
establishes military control over parts or all of its territory. Inhabitants of occupied
territory are assumed to have fallen into the hands of the occupying power. As
such, they are protected by the 1907 Hague Regulations and the Fourth Geneva
Convention of 1949. These roles are supplemented by certain provisions of the
1977 Additional Protocol I, as well as by customary international law.
When do we speak of occupied territory? Whether a territory is occupied is a
question of fact and depends on the establishment of what is known as effective
control by the occupying states over the territory in question. Whether a state has
effective control in turn depends on the occupier's ability to ensure public security,
law and order, and other de facto governmental functions. In summary, the
occupier needs to take over the main functions of the original government.

You may be wondering for how long can an occupying power maintain control
over the occupied territory? The first important point to note is that military
occupation is not unlawful per se under IHL. However, by definition, the exercise
of military control over the occupied state is supposed to remain temporary.

Yet, despite this temporary character, there have been several examples of
prolonged occupation. For instance, the occupied Palestinian territories have now
been controlled by Israel for over 50 years. Another example is the situation in
Northern Cyprus.

The final question we must ask ourselves is: How does a situation of
belligerent occupation come to an end? This can be achieved in three ways. The
occupying state withdraws or loses its effective control; through political
settlement between the two states; or as a result of the occupied state's genuine
consent to the military presence.

To summarize, in this video, we have discussed the scope of application of IHL

and the distinction between international and non-international armed conflict.
This distinction has important consequences for the legal rules that apply in each
situation, especially as there are usually more treaty rules applicable to
international armed conflicts. Today, we also had a closer look at the definition of
international armed conflicts and the situation of belligerent occupation. We still
need to explore what a non-international armed conflict is and what happens when
a foreign state intervenes in such a conflict.
 Legal sources

In the previous lecture we already saw that two legal sources are crucial to study
when defining an international armed conflict. Let's have a more detailed look at
these sources:

1. 1949 Geneva Conventions, Common Article 2 (Application of the convention)

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.

2. 1995 Tadic Decision on Jurisdiction (ICTY), para. 70

On the basis of the foregoing, we find that an armed conflict exists whenever there
is a resort to armed force between States or protracted armed violence between
governmental authorities and organized armed groups or between such groups
within a State. International humanitarian law applies from the initiation of such
armed conflicts and extends beyond the cessation of hostilities until a general
conclusion of peace is reached; or, in the case of internal conflicts, a peaceful
settlement is achieved. Until that moment, international humanitarian law
continues to apply in the whole territory of the warring States or, in the case of
internal conflicts, the whole territory under the control of a party, whether or not
actual combat takes place there.