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Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict

30-06-2003 Article, International Review of the Red Cross, No. 850, by James G. Stewart

The traditional distinction between the rules of international humanitarian law applicable in international armed conflicts and non-international armed conflicts is put under the spot-light in this article. The author revives the calls for a single body of law covering all types of conflicts, relying significantly on the judgments of the international tribunals as well as the fundamental objectives and principles of humanitarian law.

   

James G. Stewart,
LLB (Hons) / BA, Dipl. Droit International Humanitaire (ICRC), Barrister and Solicitor of the High Court of New Zealand. I am greatly indebted to Neil Boister of the University of Canterbury and Gabriël Oosthuizen for their criticism of an earlier version of this paper. Errors or misconceptions are nevertheless mine alone. I am also enormously grateful to the staff at Victoria University of Wellington’s Law Library, without whose generosity this paper would not have been possible. 
   
Abstract 
The strict division of international humanitarian law into rules applicable in international armed conflict and those relevant to armed conflicts not of an international nature is almost universally criticised. Even though attempts to abandon the distinction were made at every stage of negotiation of the Geneva Conventions and their Protocols, calls for a single body of international humanitarian law have since died out. This article revives those calls by highlighting the inadequacies of the current dichotomy’s treatment of internationalized armed conflicts, namely, armed conflicts that involve internal and international elements.

It concludes that the law developed to determine this “internationalization” has created convoluted tests that in practice are near impossible to apply. Even once internationalized, it is difficult to determine the applicable law as relationships and military presences change. Moreover, the international/non-international dichotomy in international humanitarian law has proved susceptible to incredible political manipulation, often at the expense of humanitarian protection. Further considerations of substantive aspects of a single law of armed conflict will be essential in the development of greater humanitarian protection during internationalized armed conflict.

 
   
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