Jus ad Bellum, Jus in Bello and Jus post Bellum
Research Handbooks in International Law series
Edited by Nigel White and Christian Henderson
With some relatively minor exceptions international humanitarian law (hereinafter ‘IHL’) applies only when a certain threshold is met: the existence of an armed conflict or belligerent occupation. The purpose of this chapter is to explore the many difficulties surrounding the classification of armed conflicts in modern IHL. While the two main archetypes – international armed conflict (hereinafter ‘IAC’) and non-international armed conflict (hereinafter ‘NIAC’) – are reasonably clear in their basic forms, their boundaries are complex and obscure. Many recent conflicts do not fit the classical archetypes well, provoking debates on spillover, internationalized, mixed or hybrid and even transnational armed conflicts. The qualification exercise is often deliberately avoided, for several reasons. First, politically, the classification of armed conflict may have an impact on the perceptions of the legitimacy of the warring parties. Secondly, pragmatically, the qualification exercise can be so complex and indeterminate that dwelling on it overlong would threaten to bog down the implementation of basic rules of IHL and undermine the whole purpose of the regime. Thirdly, normatively, for the last two decades or so IHL has developed along the lines of a reasonably coherent project of bringing together the substantive law applicable in IACs and NIACs. Largely influenced by considerations of morality and the impact of human rights on IHL, or by the humanization of international law more generally, and spearheaded by diverse actors – academics, non-governmental organizations, international tribunals, the International Committee of the Red Cross (hereinafter ‘ICRC’) and finally even states – this project has been remarkably successful.
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