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2. Existence of an Armed Conflict

(i) Legal Definition

There is no convenient legal formulation of that which constitutes an "armed conflict" for the purposes of the applicability of international humanitarian law. Furthermore, the nature of modern armed conflicts is such that it is often difficult to determine when, precisely, a conflict commences. Given, however, that the basic principles of international humanitarian law seek to protect fundamental rights to humane treatment, and that the application of this body of law to a conflict is not intended to confer any legal status on the parties engaged in hostilities, it is generally accepted that the basic provisions of international humanitarian law should be applied as widely as possible.

The level of protection afforded by international humanitarian law is currently determined, in the first instance, by the nature of the particular conflict in question – international or internal. While the law is perhaps moving towards an erosion of this dichotomy, it remains the case that persons involved in or affected by a conflict between States can call upon a much wider panoply of legal provisions than those caught up in a conflict between the State and internal forces, or between two or more groups of such internal forces.

In the most recent judicial expression of that which constitutes an armed conflict, and thus triggers the application of international humanitarian law, the Appeals Chamber of the International Tribunal recognised these two different forms of conflict and described them thus:

"[A]n 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"⁸

As has been previously stated, it is not here argued that the conflict in Kosovo was or is international in nature, but rather, that it must be considered to be an armed conflict to which the provisions of international humanitarian law concerning internal armed conflicts apply. The above quotation from the Appeals Chamber recognises two factors in the determination that such a conflict exists: the occurrence of protracted armed violence, and the organisation of the groups involved. These factors are also well established in the discussion on the applicability of common article 3 of the Geneva Conventions and Additional Protocol II to the Geneva Conventions, which relate to internal armed conflicts, in the ICRC Commentaries to these instruments.

In relation to these provisions of so-called "Geneva law", the paramount concern has been

8. Tadic case, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, IT-94-1-AR72.