Note: This translation has been made for the only use of the Jean-Pictet training.

It has not been

approved by the editor of the original book Droit et pratique de l’action humanitaire, from which the
article is extracted.

Section 3

Internationalized Armed Conflicts

Julia Grignon

52. The notion of "internationalized armed conflict" does not exist under the Geneva Conventions and
their Additional Protocols. However, it covers both old and recent situations and has received a certain
amount of renewed interest due to the jurisprudential debate that arose between the International
Criminal Tribunal for the former Yugoslavia and the International Court of Justice concerning the
events involving the Bosnian Serbs supported by the Federal Republic of Yugoslavia in the Balkan
conflict in 1992.

53. In general, one speaks of internationalized armed conflict when a foreign intervention in a situation
of non-international armed conflict results in the situation developing into an international armed
conflict. By definition, the question of internationalized armed conflict is only likely to arise when the
foreign intervention in question is meant to support one or more armed groups involved in the
situation. Indeed, for an international armed conflict to exist, it is essential that at least two States
fight against each other. Thus, if a State intervenes in a situation of non-international armed conflict
for the benefit of the governmental party, i.e. alongside a State, then it is a case of two States fighting
together against one or more armed groups and not two States fighting against each other. Similarly,
a foreign intervention in an international armed conflict cannot be classified as internationalization, as
the international character of the situation already prevailed before the intervention. In the lines that
follow, only situations in which a State, or a coalition of States, intervenes directly or indirectly in a
non-international armed conflict in support of one or more armed groups will be considered. These
developments of the situation have consequences with regard to international humanitarian law
applicable and creates some challenges. In this respect, it is worth noting that the International
Committee of the Red Cross has very recently made public the decision to abandon the terminology
of "internationalized" armed conflict in favor of the expression "armed conflict with a double legal
classification" (T. FERRARO, 2016).

§ 1 - Direct intervention

54. Direct intervention is the intervention of one or more States in a situation of non-international
armed conflict, in favor of the non-governmental party. Whether by land, sea or air, as soon as a State
deploys its armed forces on the territory of another State in support of an armed group fighting against
it, the intervention is characterized and the situation becomes internationalized. The criteria applicable
to classic international armed conflict therefore apply here. An example of this is the analysis produced
by the International Criminal Court in relation to the situation in the Democratic Republic of Congo
(hereafter DRC), which allowed it to conclude that Uganda had directly intervened in the pre-existing
non-international armed conflict on the territory of the DRC (ICC, Katanga and Chui, 2008). To this end,
the judges notably noted that there was a "significant number of Ugandan soldiers" on the territory of
DRC and that they had participated in the military operations carried out by certain armed groups,
which had led in particular to the capture of the cities of Bogoro and Bunia in 2003. There was therefore
an international armed conflict between Uganda and DRC.

55. When they occur, these situations pose little or no difficulty in terms of classification; it is simply a
question of relying on the objective and factual observation that foreign troops are deployed on the
territory of a State in support of one or more armed groups against which it is fighting. The situation is
more complex, however, when foreign intervention is not physically visible, i.e. when a State provides
support to an armed group, enabling it to carry out its military operations, by means other than the
deployment of its troops. This is referred to as indirect intervention and criteria have been developed
to distinguish between support such as there are countless others, financial or material for example,
which is not intended to internationalize the situation, and support of a more substantial nature which,
because of its importance, leads to the situation being considered as falling within the scope of the
international humanitarian law of international armed conflicts.

§ 2 - Indirect intervention

56. The legal consequences of indirect armed intervention on the classification of a situation for the
purpose of identifying the applicable law have been addressed through the jurisprudential debate
between the International Court of Justice and the International Criminal Tribunal for the former
Yugoslavia (ICJ, Nicaragua v. United States of America, 1986; ICTY, Tadić, 1999; and ICJ, Bosnia and
Herzegovina v. Serbia and Montenegro, 2007). The result is that today, as regards the classification of
the situation and only in this matter, it is appropriate to apply the criterion of the overall control
exercised by a State over an armed group in order to conclude whether an apparently non-
international situation is in fact internationalized.

57. In 1986, the International Court of Justice was called upon to rule on the subject for the first time
(ICJ, Nicaragua v. United States of America, 1986). It had to decide whether the United States could be
held responsible for actions of the contras in Nicaragua. The Court first found that the acts in question
could not be as such attributed to the United States, as the contras could not be considered an organ
of that State. However, the Court asked whether the United States could not be held responsible in
another capacity, the one now defined in article 8 of the International Law Commission's Draft Articles
on Responsibility of States for Internationally Wrongful Acts, i.e., whether the conduct of the contras
could be considered an act of the United States because, in adopting that conduct, they would have
been acting on the instructions or under the direction or control of the United States. Although the
judges found not only that the United States support had taken "various forms, such as logistic support,
the supply of information on the location and movements of the Sandinista troops" and " the use of
sophisticated methods of communication", but also that "a number of military and paramilitary
operations by this force were decided and planned, if not actually by United States advisers, then at
least in close collaboration with them, and on the basis of the intelligence [...] which the United States
was able to offer, particularly the supply aircraft provided to the contras by the United States. ", the
application of an extremely restrictive criterion allowed them to exclude the responsibility of the
United States: the criterion of effective control. In this case, their factual findings that the United States
had provided for "the organization, training and equipping of the force, the planning of operations, the
choosing of targets and the operational support", as well as "the general control by the respondent
State over a force with a high degree of dependency on it", were not sufficient to convince them "that
the United States directed or enforced the perpetration of the acts contrary to human rights and
humanitarian law". This does not mean, however, that the Court considers that the United States did
not intervene in the conflict in Nicaragua, since it also finds that "[t]he conflict between the contras'
forces and those of the Government of Nicaragua is an armed conflict which is "not of an international
character"". The acts of the contras against the Government of Nicaragua fall under the law applicable
to such conflicts, while the acts of the United States in and against Nicaragua fall under the legal rules
applicable to international conflicts. It thus distinguishes two conflicts, only one of which involves the
United States.

58. Thirteen years later, in 1999, the International Criminal Tribunal for the former Yugoslavia had to
determine the nature of the conflict in former Yugoslavia according to the different phases of its
development (ICTY, Tadić, 1999). To do so, it took up the criterion identified by the International Court
of Justice, but with the view of challenging it and developing its own test. In this case, the situation
before the Tribunal was significantly different from that before the International Court of Justice in
that the Tribunal had to decide not on the indirect intervention of a State in a non-international armed
conflict, but whether, following the alleged withdrawal of the troops of one State from the territory of
another, if the conflict which nevertheless continued to take place there should still be considered as
an international armed conflict, or whether its nature had changed. This fine detail does not change
the reasoning discussed here. Indeed, it is always a question of determining whether the indirect
actions of a State may have consequences on the classification of the conflict and therefore on the
applicable international humanitarian law. In this case, the Appeals Chamber ruled that "the control
of the FRY [Federal Republic of Yugoslavia (Serbia and Montenegro)] authorities over these armed
forces required by international law for considering the armed conflict to be international was overall
control going beyond the mere financing and equipping of such forces and involving also participation
in the planning and supervision of military operations. By contrast, international rules do not require
that such control should extend to the issuance of specific orders or instructions relating to single
military actions, whether or not such actions were contrary to international humanitarian law."
Therefore, the moment from which "armed forces may be regarded as acting on behalf of a foreign
power, thereby rendering the conflict international" is changed.

59. The result of this jurisprudential construction, to which a large part of the doctrine has agreed, is
that in order to consider that a conflict that appears to be non-international is in fact international in
character, due to a process of internationalization, it must be noted that the degree of interaction
between the State and the armed group has reached a certain level. This conclusion is fortunate given
the number of States around the world that finance or equip armed groups. If this overly flexible
criterion had been used, it would have led to a multitude of international armed conflicts. It is therefore
necessary that there be a material participation of the intervening State' troops in the military
operations of the armed group, other than the sending of troops to the territory. While it is not
required that the armed forces of the State initiating the internationalization become part of the chain
of command, they must nevertheless play an ongoing operational role in the conduct of operations.
As such, the training of the troops constituting the armed group is not sufficient.

60. Thus, according to the now established formula: "where a State does not intervene directly on the
territory of another State through its own troops, the overall control test will be used to determine
whether armed forces are acting on behalf of the first State. The test will be met where the first State
has a role in organising, co-ordinating or planning the military actions of the military group, in addition
to financing, training and equipping the group or providing operational support to it."

61. If the principle is established, there is however an epilogue to this jurisprudential dispute. In the
case between Bosnia-Herzegovina and Serbia-Montenegro concerning the Convention on the
Prevention and Punishment of the Crime of Genocide, the International Court of Justice made a point
of reaffirming its criterion set out in the Nicaragua case - the criterion of effective control - while at the
same time agreeing to allow it to coexist alongside the criterion of overall control (ICJ, Bosnia-
Herzegovina vs. Serbia and Montenegro, 2007). This coexistence is made possible by the distinction
introduced by the Court between a criterion useful for the search for State responsibility in general
international law (effective control) and a criterion necessary for the classification of conflicts in
international humanitarian law (overall control). Nevertheless, no matter how satisfactory the solution
may be in terms of legal argumentation, the question remains as to the appropriateness of
internationalizing a situation. In other words, because of the challenges it presents, does not
internationalization, which aims to apply the law of international armed conflict to a seemingly non-
international situation, present a possible risk for those who should benefit from this law, i.e. those
affected by armed conflict?

§ 3 - The challenges of internationalization with regard to the

protections offered by international humanitarian law

62. When judges developed their reasoning around indirect intervention, it can be assumed that their
dilemmas were framed in the following terms: in order to be able to judge crimes committed against
protected persons in the former Yugoslavia, we must be able to characterize them as grave breaches,
as required by the statute of our Court; since grave breaches exist only in international armed conflicts,
we must then classify the situation as an international armed conflict within the meaning of
international humanitarian law; hence the theory of overall control. But once this first part of the
reasoning was achieved, they had to return to the definition of "protected persons" under
international humanitarian law. This is indeed a well-defined legal category entitled to specific
protections, different from those offered to the "civilian population" as a whole. In this case, the
definition of protected persons is found in Article 4 of the Fourth Geneva Convention. It requires that
in order for a person to be granted such status, and in this case to be considered as having been the
victim of a grave breach, he must not be a national of the Power in whose power he is hold. The ICTY
judges then faced a new difficulty: the people against whom ill-treatment had been perpetrated had
the same nationality as their torturers. Indeed, they were Bosnians in the hands of Bosnian Serbs, who
despite their designation were also Bosnian nationals. Classifying the armed conflict as international
was indeed the first step, but the articulation of the protections offered by international humanitarian
law posed a new obstacle for the Tribunal, since the artifice of classifying the armed conflict as
internationalized could not go so far as to modify the nationality of the parties involved, which in a
non-international armed conflict is the same for each of them. Due probably to the stakes that went
beyond the strict application of international humanitarian law, the judges had no choice but to
construct a new argument that would allow them to prosecute those who had been referred to their
jurisdiction - it would indeed have been inconceivable for the ICTY to decline jurisdiction over the very
crimes for which it had been created. Thus, the Tribunal decided that instead of the nationality
criterion contained in article 4 of the Fourth Geneva Convention, it was more appropriate to use the
more flexible notion of allegiance, which allowed them to find that since the captives did not pledge
allegiance to the cause defended by their torturers, they should benefit from all the protections
offered to "protected persons".

63. Beyond the arranged and cavalier nature of the reasoning, it poses in practice, i.e. when it is taken
out of the criminal trial to be applied in the heart of conflict situations, a number of problems (M.
SASSÒLI and J. GRIGNON, "Les limites du droit international pénal et de la justice pénale internationale
dans la mise en œuvre du droit international humanitaire", in A. BIAD and P. TAVERNIER (eds.), Le droit
international humanitaire face aux défis du XXIe siècle, Brussels, Bruylant, 2012, pp. 133-154).
Allegiance is a concept that offers much less security than nationality, which is much easier to identify.
Moreover, allegiance is a shifting concept, it can change in the course of the conflict, unlike (with rare
exceptions) nationality, and it would be dangerous for the protection offered to detainees to be based
on a shifting concept, since this protection would then itself become variable.

64. In addition, the term "internationalization" of armed conflicts may pose another, more general
type of problem. Indeed, when in a situation of non-international armed conflict, a State or a coalition
of States intervenes in a situation for the benefit of the non-governmental party, thus in a context of
direct intervention, the question may arise with regard to applicable international humanitarian law.
This was the case in Libya in 2011. In these scenarios, two situations are overlapping: an initial non-
international armed conflict on the one hand - between Libyan rebels and forces loyal to Gaddafi in
our example, and an international armed conflict on the other - between the intervening coalition of
States and Libyan government forces. This results in the applicability of two distinct legal regimes
depending on the interactions observed: the international humanitarian law of non-international
armed conflict - between government forces and rebels, and the international law of international
armed conflict - between government forces and the intervening coalition. This can understandably
create operational puzzles: for example, the Libyan armed forces would have to apply POW status to
a captured coalition soldier, but not to a member of the rebel armed groups, since this status does not
exist in non-international armed conflicts. This would result in people being held in the same place of
detention, but subject to different status.

65. In order to overcome this difficulty, some believe that the whole of international humanitarian law
should be considered to be applicable, i.e. the more protective and comprehensive law of international
armed conflict. There is in fact, at least from a human point of view, nothing that justifies that two
persons "interned" in the same context should be offered different protections because of the legal
classification of the situation in which they were involved. One might therefore think that this solution
is more protective. However, if it is so in the case described here, it could in fact be very
disadvantageous, as soon as it is seen not from the side of the governmental party, but through the
prism of the non-governmental party. Indeed, if the situation as a whole is "internationalized", it is so
for all protagonists, which means that the applicability of rules relating to international armed conflicts
is also required from armed groups. Yet, it is unrealistic to expect non-state entities, even if they are
organized, to comply with the full range of provisions designed to create obligations on sovereign
States. They are simply not in a position to do so, and persisting in this claim can only lead, once again,
to the conclusion that armed groups do not respect international humanitarian law, and in the end
result in a disqualifying effect for them with regard to international humanitarian law. Looking at the
status of prisoners of war, is it realistic to expect armed groups, such as the Libyan rebels of 2011, to
hold those they have captured in spaces that allow them to come and go as they please (article 21 GC
III)? Is it realistic to require that they encourage intellectual, educational and recreational activities of
their prisoners (article 38 GC III)? That they provide a whole bunch of modalities to be respected
regarding the work of prisoners (Section III CG III)? Etc. But if the legal construction, which leads to the
conclusion that the armed conflict as a whole is international in nature, requires the application of
these rules and they are not, it will be easy to stigmatize the groups concerned for failing to apply
international humanitarian law. This has a pernicious effect on the application of international
humanitarian law, in that it can only lead armed groups to disregard a body of law that does not take
their specificity into account. Not only are they not invited to the negotiating table of a law that they
are nonetheless required to respect (common Article 3 and Additional Protocol II when applicable),
but they should also implement obligations developed for States, a legal category that is moreover
denied to them, endowed with the structure that allows them to do so inherently. This result, which is
totally counterproductive and in complete contradiction with the pragmatism inherent to international
humanitarian law, must absolutely be avoided. In its recent contribution the International Committee
of the Red Cross itself underlines these aspects, coupled with others, to justify the total abandonment
of the concept of "internationalized armed conflict", replaced by the terminology "armed conflict with
a double legal classification" (T. FERRARO, 2016).