Introduction
It is estimated that by mid-2020 there were more than fifty non-international armed conflicts in at least twenty-two different countries, of which at least six arguably meet the threshold requirements needed to trigger the application of Additional Protocol II to the Geneva Conventions (AP II).Footnote 1 AP II remains significant as it is the most comprehensive treaty aimed at regulating non-international armed conflicts. It serves to supplement and develop the regime codified in common Article 3 to the Geneva Conventions.Footnote 2
This paper explores the relationship between the notion of intensity and the ability of an organized armed group to launch “sustained and concerted military operations” as necessitated by Article 1(1) of AP II. The paper aims to determine whether there is a necessary interaction between “sustained military operations” included in Article 1(1) of AP II and the minimum threshold intrinsic to the notion of intensity demanded to trigger the application of this treaty. The author of this contribution specifically questions whether the description “sustained military operations” presupposes that the notion of intensity demanded by AP II requires prolonged and protracted armed violence. If AP II necessitates a temporal requirement as intrinsic to its intensity requirement, it may be interpreted to mean that the notions of intensity under common Article 3 and AP II differ.
Two broad types of armed conflict exist: international armed conflictFootnote 3 and non-international armed conflict.Footnote 4 An international armed conflict occurs when there is fighting between the State armed forces belonging to two or more different high contracting parties,Footnote 5 or in situations detailed in Article 1(4) of Additional Protocol I to the Geneva Conventions (AP I).Footnote 6 Treaty law, however, provides for two distinct categories of non-international armed conflict.Footnote 7 The first category is non-international armed conflicts that meet the minimum threshold requirements under common Article 3.Footnote 8 The second category refers to those non-international armed conflicts that satisfy the material scope of application under AP II.Footnote 9 The application of common Article 3 is triggered once an armed conflict not of an international character comes into existence.Footnote 10 The Geneva Conventions do not define the concept “armed conflict not of an international character”, and the wording of common Article 3 does not explain which constitutive elements underpin it.Footnote 11 In the Tadić case, however, the definitional criteria that serve to determine the existence of a non-international armed conflict or a common Article 3-type armed conflict were associated with two notions: the notion of intensity, and the notion that the organized armed group fighting in the conflict must possess a certain degree of organization.Footnote 12
It should be highlighted that the Tadić threshold is also the threshold that triggers the application of the rules of customary international humanitarian law (IHL) applicable to all non-international armed conflicts.Footnote 13 The corpus of customary law includes the rules of AP II that have achieved customary international law status. The two categories of non-international armed conflict that are distinguished exist in the realm of treaty law alone.
The second category of non-international armed conflict under treaty law refers to those armed conflicts that satisfy the scope of application under AP II.Footnote 14 Articles 1(1) and 1(2) of AP II contain the material scope of application of this instrument.Footnote 15 The parties to AP II-type non-international armed conflicts differ from the first category of non-international armed conflict in that one party to the conflict must be the State armed forces of the territorial State and the other an organized armed group that satisfies the requirements listed in Article 1(1) of AP II. Article 1(1) establishes that for AP II to find application to organized armed groups, an organized armed group should be under responsible command and should exercise control over territory. Territorial control should be exercised to the extent that the organized armed group can carry out concerted military operations and is able to implement AP II.Footnote 16 Article 1(2) determines at the outset that situations of internal disturbance and tension, such as riots or isolated and sporadic acts of violence, are excluded from the material scope of application of AP II, as such situations do not constitute armed conflicts.
At this juncture it must be mentioned that the notion of “intensity” is not defined in any treaty. The notion was introduced by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Tadić case.Footnote 17 The notion of intensity serves simply to provide for a minimum level of fighting which must be present in order to satisfy the second constitutive element – the threshold of violence – of a non-international armed conflict.Footnote 18 The purpose of the minimum threshold of violence test enshrined in the notion of “intensity” under AP II is to identify two scenarios: situations that are regulated by domestic and human rights law (as depicted in Article 1(2) and excluded from the ambit of AP II) and conflicts that are regulated by AP II (arguably, the notion determined by Article 1(1) of AP II). Accordingly, Article 1(2) identifies scenarios that resemble an armed situation but where the fighting is insufficiently violent for it to elevate such situations above the law enforcement paradigm (regulated by domestic law and human rights law) and into the sphere of non-international armed conflict in general.Footnote 19
This paper argues that the additional positive criteria listed in Article 1(1) of AP II do not relate exclusively to the organizational criteria necessary to transform the non-State party to the conflict into an organized armed group.Footnote 20 At least, the requirement of the ability of an organized armed group to launch sustained and concerted military operations relates to the notion of “intensity”.Footnote 21
This paper is structured as follows. The following section of the paper explains why a better understanding of the notion of intensity under AP II is needed. The third section explores the notion of intensity under common Article 3 by examining specifically the relationship between protracted armed violence and the element of duration. As one of the research purposes of this paper is to establish whether or not AP II demands a higher or different intensity threshold than that insisted upon by common Article 3, this is a logical point of departure. The fourth section of the paper analyzes the way in which the ability of organized armed groups to carry out sustained and concerted military operations informs the notion of “intensity” necessitated to trigger the application of AP II. Therefore, this section aims to determine the content of the minimum threshold demanded by the notion of intensity under AP II and whether duration is a constitutive element of such intensity. In the fifth section, the paper compares the minimum threshold requirements associated with the notion of intensity under common Article 3 and AP II through the lens of duration and aims to determine whether Article 1(1) of AP II demands a level of fighting greater than “protracted armed violence”. At stake is an assessment of whether the inclusion of the term “sustained” in the construct “sustained military operations” in AP II demands that the armed violence is “prolonged” as well as “protracted”. Lastly, a conclusion is drawn in the final section.
As the paper seeks to determine the content of the notion of “intensity” in the context of AP II specifically, the law of treaty interpretation as set out in Articles 31–33 of the Vienna Convention on the Law of Treaties (Vienna Convention) is frequently employed to facilitate the interpretation of the relevant provisions of these instruments. This methodology, which foregrounds doctrinal law, is employed together with an assessment of case law in order to offer a deeper understanding of the benchmark test inherent in the notion of intensity.
The value of clarifying the notion of intensity
Conflict classification is important.Footnote 22 The armed forces belonging to the territorial State on whose territory a conflict is occurring may operate under the law of international armed conflict or the law of non-international armed conflict,Footnote 23 and their conduct is governed by different rules depending on which law applies. Furthermore, in the event that the law of non-international armed conflict applies, different rules pertain depending on whether common Article 3 or AP II applies.Footnote 24 The application of the regime under AP II, as part of the corpus of treaty law, for example, provides for more extensive obligations on parties to the conflict, which translate to the enhanced protection of civilians. Even though the majority of the norms codified in AP II are included in the corpus of customary IHL, and consequently apply to all non-international armed conflicts once the Tadić threshold has been met, the need for application of AP II under treaty law remains with regard to those provisions that fall outside the realm of customary IHL.
This paper specifically undertakes an inquiry into the notion of intensity under AP II, and the justification for this inquiry is threefold.
The first justification is of a legal nature and highlights an existing gap in the understanding of what the minimum threshold of intensity is that is necessary to establish an AP II-type armed conflict. A survey of the existing literature reveals that scholarly work regarding the application of AP II is limited in scope.Footnote 25 Although a select few authors clarify the meaning of the additional criteria that underpin the notions of “organized armed groups” and, to an even lesser extent, “intensity” for this instrument, questions with regard to the exact scope of some of these obligations remain unanswered.Footnote 26 There are limited sources available that examine the criteria listed in Article 1(1) of AP II as it relates to the notion of intensity.
The second justification is that the battlefield reality demands it.Footnote 27 AP II serves to supplement and develop the regime codified in common Article 3,Footnote 28 and it is the only treaty that exclusively regulates and provides for obligations and therefore offers protection to civilians in non-international armed conflicts.Footnote 29 This treaty has been in force for more than forty years, and its application remains essential. The need for AP II is evidenced by the desperate situation prevailing on the African continent as multiple complex conflicts coexist in single territories,Footnote 30 such as the ongoing conflicts in the Central African Republic,Footnote 31 the Democratic Republic of the Congo,Footnote 32 MaliFootnote 33 and South SudanFootnote 34. As mentioned earlier, the application of AP II, specifically, can offer relief as it provides for more extensive obligations and therefore better protection than that under common Article 3 alone to civilians as well as to parties to the conflict.
Lastly, clear guidance facilitating the categorization of a situation is also necessary from an operational perspective.Footnote 35 This is because military commanders and legal advisers face the task of planning operations in accordance with the applicable legal framework.Footnote 36 Therefore, it is possible that the armed forces belonging to the territorial State on whose territory a conflict is occurring may operate under the law of international armed conflict or the law of non-international armed conflict,Footnote 37 in which a distinction is made between the rules contained in common Article 3 and in AP II, depending on the enemy they engage.Footnote 38
Protracted armed violence and duration
The Appeals Chamber in Tadić understood “intensity” to require the level of violence to match that of “protracted armed violence”.Footnote 39 Subsequent case law echoes this minimum threshold test.Footnote 40 In the Tadić case, Trial Chamber I also considered the use of “protracted armed violence” as a threshold as being “used solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities which are not subject to international humanitarian law”.Footnote 41 This finding echoes the intent of the drafters of common Article 3.Footnote 42
The 2016 ICRC Commentary on Geneva Convention I (GC I) considers the understanding of the notion of intensity as construed in the Tadić case to be widely accepted.Footnote 43 The 2016 Commentary interprets the minimum threshold of the intensity of violence test included in common Article 3 to be at a point at which situations formerly regarded as instances of “sporadic violence” are reclassified as being armed conflicts not of an international character in that they come to resemble “protracted armed violence”.Footnote 44 In this regard, arguably the nature of the violence, a combination of factors associated with the notion of intensity inherent in the conflict in question, is relevant rather than the duration of the conflict alone. A contemporary understanding of the notion of “intensity” thus depends on the meaning of the term “protracted armed violence”.Footnote 45 This part of the analysis now turns to comment on the minimum threshold of violence that has to be met in order to satisfy the notion of “protracted armed violence”.
The drafting history of the Geneva Conventions indicates that at the time it was the understanding of the drafters that a very high level of violence is required for civil war to exist.Footnote 46 The drafters imposed the minimum threshold of violence test applicable to common Article 3 at the time of drafting to demand the same level of intensity as was associated with the ferocity in fighting of either civil wars or international wars.Footnote 47 However, no further clarification is provided for by the drafting history, nor is reference made to “protracted armed violence”.
Case law of international courts and tribunals promotes a better understanding of what is meant by the term “protracted”, as it suggests several indicative factors that may be employed to determine whether violence is protracted or not.Footnote 48 The indicative factors for “protracted violence” developed by the ICTY are considered an important contribution, and other international courts and tribunals have since adopted these.Footnote 49 Importantly, these indicative factors are not conditions that need to exist concurrently.Footnote 50 Duration in itself, for example, is not a decisive indicator but should be considered when making an assessment of whether or not a situation is sufficiently intense to satisfy the notion of “intensity” in terms of common Article 3.Footnote 51
The status of the requirement of “duration” as merely an indicative factor has been subjected to some scrutiny.Footnote 52 The ICRC Commentary on GC I responds to this enquiry by explicitly posing the question of whether duration is an independent indicative criterion of “protracted armed violence”,Footnote 53 and concludes that duration is but one element that should be considered in the assessment of the threshold intensity of armed confrontation.Footnote 54 It specifically offers the La Tablada case, decided by the Inter-American Commission on Human Rights (IACHR), as an example of a situation where an international commission considered a short-lived armed confrontation (lasting merely thirty hours) to be a non-international armed conflict because other indicative factors of intensity, absent duration, were present to justify this conclusion.Footnote 55
In La Tablada, the IACHR had to determine whether an armed confrontation lasting a mere thirty hours was an example of an internal disturbance “or whether this confrontation constituted an armed conflict not of an international character”.Footnote 56 In its evaluation of whether this incident satisfied the intensity requirement, the Commission considered a number of factors, including the concerted nature of the hostile acts and the nature and level of the violence attending the events in question.Footnote 57 The Commission concluded that despite its brief duration, the clash between the Argentine armed forces and militants had triggered the application of common Article 3 and satisfied the intensity requirement by meeting the threshold of protracted violence.Footnote 58
Sivakumaran comments on the relation between the factors of “intensity” and “duration” as evaluated in the La Tablada case.Footnote 59 He is of the opinion that if duration alone were to serve as an intensity threshold test, then a situation such as the incident at the La Tablada military base would not be deemed to meet the requirement of “protracted armed violence”.Footnote 60 He stresses that duration alone cannot be determinative and raises the practical consideration that if duration was indeed determinative, any assessment of the nature of a situation could be made only after a period of time had elapsed.Footnote 61 According to Lewis, jurisprudence illustrates that the duration dimension is often factored into the “broader analysis of the intensity of hostilities” as but a single criterion which is taken into account in the assessment of the existence of a non-international armed conflict.Footnote 62 Dinstein cautions that the intensity of violence is not an alternative to protracted hostilities, and emphasizes that the approach followed in the Haradinaj case is correct.Footnote 63 He argues that if duration was meant to be a compulsory indicator of “protracted armed violence”, then the Tadić formulation would have included it specifically as a third criterion.Footnote 64 Dinstein is of the view that according to Tadić there are two threshold tests only, suggesting that duration is only one indicator of the existence of protracted armed violence.Footnote 65
Kebebew and Niyo question whether an instant non-international armed conflict is possible – or, to phrase it differently, if some time needs to elapse prior to the classification of an ongoing non-international armed conflict – and whether this is the case in the ongoing situation in northern Ethiopia, where tensions heightened subsequent to an attack by the Tigray People's Liberation Front (TPLF) against the Ethiopian National Defence Force's (ENDF) Northern Command.Footnote 66 These authors employ the indicators highlighted in the Haradinaj case to assess that due to these factors at the time of publication of their blog post, protracted armed violence existed and common Article 3 applied to the situation.Footnote 67 At the time of writing their blog post, the situation in Ethiopia as assessed by Kebebew and Niyo was still evolving. They conclude that to draw a parallel between the facts of the case in northern Ethiopia and the events that transpired in La Tablada means that an instant non-international armed conflict is possible – in other words, that time need not lapse prior to classifying an ongoing non-international armed conflict.Footnote 68
In the opinion of this author, the assessment made by Kebebew and Niyo that the situation in Ethiopia constitutes a protracted armed conflict despite its brevity (at the time of their writing) is indeed credible.Footnote 69 This is because, as they point out, duration is but an element of protracted armed violence and not a deciding factor. This author therefore cautiously agrees that it is possible to make a determination of the nature of the conflict early on, and further, that it is possible that the situation in Ethiopia constitutes a non-international armed conflict.
The author of this contribution, however, cautiously questions the conclusion reached by Kebebew and Niyo that owing to the existence of an instant non-international armed conflict, the application of AP II is triggered so early on in an ongoing non-international armed conflict.Footnote 70 Kebebew and Niyo maintain that “one could plausibly argue that the requirement for a temporal factor in determining the intensity threshold of violence is overridden by the clear, short, but amplified intensity and concentration of violence in the Tigray region”.Footnote 71 The application of those rules of AP II that have attained customary status is correct in law, but an instant non-international armed conflict, or a conflict which reaches the Tadić requirements so quickly, would not necessarily trigger the application of AP II as a treaty. Whether or not AP II as a treaty finds application to a situation of so-called “instant” non-international armed conflict will depend on whether or not duration is required in addition to protracted armed violence in order to fulfil the notion of intensity under AP II. The relationship between the notion of intensity and the phrase “sustained military operations” is explored in the following section.
In summary, in the context of common Article 3 the notion of “intensity” required by common Article 3 is satisfied if the violence is of a protracted nature. Whether or not the level of violence that results from a conflict situation is sufficient to be equated to “protracted armed violence”, as contemplated in common Article 3, should be assessed on a case-by-case basis. The duration of the conflict may be a factor to be taken into consideration, but it is neither a compulsory nor a determinative element in an assessment.
The relationship between the terms “sustained military operations” and “intensity”: Understanding the term “sustained”
This section assesses what factor is operative in terms of the “sustained” nature of military operationsFootnote 72 in order to determine the minimum threshold of intensity that a situation has to fulfil in order to be categorized as an AP II-type non-international armed conflict.Footnote 73 This section does not analyze the word “concerted”, as this term closely relates to the notion of an “organized armed group”.Footnote 74 The ordinary meaning of “concerted” essentially relates to the organizational ability of the organized armed group to plan sustained operations, and this will not be discussed here in further detail.Footnote 75 The two elements of “sustained” and “concerted” are intertwined; military operations have the quality of being “sustained”, as they are planned (i.e., “concerted”).Footnote 76
The adjective “sustained”, however, determines the level of intensity that a situation has to satisfy in order to trigger the application of AP II.Footnote 77 The following analysis seeks to identify the minimum threshold of violence requirement that is suggested by the use of this word.Footnote 78
At this juncture Article 1(1) is revisited to examine the term “sustained” in order to promote a better understanding of the notion of “intensity”, specifically as it is associated with sustained military operations. At the outset it should be clarified that the common Article 3 requirements (including the notion of “intensity”) are inherent in AP II.Footnote 79
However, these common Article 3 benchmarks in themselves are not sufficient for AP II to apply. Four other requirements listed in Article 1(1) of AP II should be fulfilled in addition to the common Article 3 understanding of the Tadić benchmarks.Footnote 80 It is evident that the notion of “intensity” inherent in AP II requires “protracted armed violence”, but what is questionable is whether Article 1(1) necessitates something more than protracted armed violence alone. The fact that “protracted armed violence” is observed to be present satisfies the benchmark for the minimum degree of fighting needed to trigger common Article 3 as well as being a prerequisite under AP II, but the mere presence of protracted armed violence is insufficient, as is suggested by the use of the term “sustained”. “Sustained” is interpreted as adding a constitutive requirement to the notion of “intensity” for the application of AP II to be triggered; essentially, an additional factor by which the fighting is prolonged to the demand of a “protracted armed conflict”. The term “sustained” establishes that the demand represents a notion of “intensity” which is greater under AP II and implies that the benchmark test is to be “sustained” “protracted armed violence”.Footnote 81
Black's Law Dictionary defines the adjective “sustained” as “support[ed] or maintain[ed], especially over a long period”.Footnote 82 The word “maintain” refers to the continuation of an action.Footnote 83 A first reading of the word “sustained” seems to impose the element of duration on military operations and, consequently, the prolonging of intense violence resulting from these military operations. If Articles 1(1) and 1(2) of AP II are read in context, the fact that the literal meaning of “sustained” necessitates an element of prolongation of violence associated with military operations makes sense, as Article 1(2) clearly contrasts below-the-threshold situations, reflecting a low degree of violence for a brief period of time only, with “sustained military operations”.Footnote 84
Article 33 of the Vienna Convention addresses the issue of the interpretation of treaties that are authenticated in two or more languages.Footnote 85 At this point in the analysis, Article 33 proves helpful. Since the English-language version of AP II does not offer clarity,Footnote 86 a look at another authentic text may shed light on the issue of “sustained military operations”. Article 33 determines that texts bear equal interpretive weight in each authenticated language;Footnote 87 consequently, the terms of a treaty are presumed to have the same meaning in each authentic text.Footnote 88 AP II has been authenticated in English, Arabic, Chinese, Spanish, French and Russian.Footnote 89
AP II was negotiated in both English and French. The French authenticated version of this Protocol is consulted in accordance with Article 31 of the Vienna Convention to establish whether an interpretation of the French text promotes a better understanding of the intended ordinary meaning of the word “sustained”.Footnote 90 The French text refers to “opérations militaires continués”, which is translated into English as “sustained military operations”.Footnote 91 Le Petit Larousse dictionary defines the term “opérations” in a military context “as ensemble des combats et des manoeuvres exécutés par les forces militaires dans une région en vue d'atteindre un objectif précis”.Footnote 92 The adjective “continué” is defined as “sans interruption, dans le temps ou dans l’éspace”.Footnote 93 In light of the above definitions, the English translation of the term “opérations militaires continués” refers to fighting and military manoeuvres executed in a region in pursuit of a specific military objective which transpire without interruption in either time or in space.Footnote 94 In this context, the adjective “continué” is synonymous in meaning to the English words “continuous”, “constant” or “unremitting”, emphasizing the temporal rather than spatial dimension of this term.Footnote 95 The ICRC Commentaries confirm the literal interpretation of the English and French texts – namely, that the term “sustained” necessitates an element of the prolongation of violence resulting from the conflict, that the violence must be intense, and that such intensity must be ongoing over a period of time.Footnote 96 The ICRC considers the formulation to be an objective assessment, and that the drafters wanted to avoid the application of subjective judgement to AP II's material scope of application.Footnote 97
There is only one reference in the drafting history of AP II that provides limited insight into the relationship between the notion of “intensity” and the duration of hostilities.Footnote 98 This reference is found in Pakistan's proposed redraft of Article 1 of AP II.Footnote 99 The Pakistani draft requires that hostilities should be of “some” intensity (which admittedly is not very telling).Footnote 100 What is of particular interest is that such intensity is required to continue for a “reasonable period of time”.Footnote 101 The drafting history does not elaborate on how long a “reasonable period” of time is considered to be.Footnote 102 Scholars have commented on the significance of the fact that the meaning of neither “intensity” nor “duration” is explicit in the wording of AP II.Footnote 103 A further analysis of the word “sustained” reveals that an intensity threshold test is nonetheless included in Article 1(1), albeit not explicitly, because the “notion of intensity” itself is an integral characteristic of the term “sustained”.Footnote 104
In the Musema case, which was decided by the International Criminal Tribunal for Rwanda (ICTR), Alfred Musema was charged, inter alia, with counts of murder and torture in violation of common Article 3 and AP II and, consequently, with a violation of Articles 4(a) and 4(e) of the Statute of the ICTR.Footnote 105 In its assessment of the applicability of AP II, Trial Chamber I made an interesting observation concerning the material requirement of territorial control and the ability of an organized armed group to exercise such control over territory and engage in sustained and concerted military operations.Footnote 106 Its comment on this material requirement relates to the notion of “intensity”.Footnote 107 The Trial Chamber formulated the requirement as follows: “[T]hese dissident armed forces must be able to dominate a sufficient part of the territory as to maintain these sustained and concerted military operations and the insurgents must be in a position to implement this Protocol.”Footnote 108
The use of the term “maintain” is significant. Black's Law Dictionary defines this verb to indicate a continuation of an action: “To continue (something).”Footnote 109 As shown in this section, the literal interpretation of the adjective “sustained”, read together with the term “military operations”, confers a temporal element on those operations. The organized armed group has to be able to maintain military operations over a period of time.Footnote 110 The terms “continued” and “sustained” imply an uninterrupted motion or a level of consistency through the persistent launching of violent military operations.Footnote 111 This formulation of the intensity test in the Musema case reflects both the literal interpretation and the ICRC interpretation of “sustained armed conflict”.Footnote 112 It implies that military operations not only have to take place over a period of time but possibly that they should also be uninterrupted or continuous. This requirement sets a very high threshold of intensity that situations would have to satisfy in order to be classed as AP II-type armed conflicts.
It remains unclear how long military operations must continue in order to be considered “sustained”, thus satisfying the minimum threshold of intensity as required by Article 1(1) of AP II. Does the term “sustained” imply that no interruptions, however brief, in the fighting or launching of military operations are allowed? The Special Court for Sierra Leone (SCSL) provides some clarity in relation to this question in the Sesay case.Footnote 113
In the Sesay case, Trial Chamber I assessed whether or not operations undertaken by the Armed Forces Revolutionary Council and Revolutionary United Front (RUF) forces, which occurred between February 1998 and January 2000, were sufficiently violent to be considered “sustained” military actions within the material scope of application of Article 1(1) of AP II. The case specifically addresses the question of whether or not violence has to be uninterrupted in order to fulfil the notion of “intensity”.Footnote 114 Trial Chamber I highlighted that territory had changed hands and that territory was lost and regainedFootnote 115 during the period concerned, and consequently, that military operations were at times interruptedFootnote 116 and that the level of violence associated with these operations fluctuated.Footnote 117 Nevertheless, the RUF always had control over some territoryFootnote 118 and from time to time launched several “major” operations.Footnote 119 These operations were not uninterrupted, but were not regarded by the Chamber as sporadic.Footnote 120 In fact, the Chamber considered all these operations to be “sustained and concerted”, even though there were periods of no or low-intensity conflict,Footnote 121 and found that AP II continued to apply throughout the period concerned.Footnote 122
In terms of Trial Chamber I's assessment in the Sesay case, the requirement of the ability to launch “sustained operations” as it relates to the notion of “intensity” therefore does not demand the level of violence to be consistently high or on a permanent basis throughout the conflict. Nevertheless, sustained military operations should be conducted at least frequently or frequently enough not to be sporadic in nature.Footnote 123 The application of AP II does not cease if there are brief interludes of lower-intensity fighting or brief periods of inaction when preparations are being made for the next series of military operations.Footnote 124 It is important at this juncture to stress that once all four of the requirements listed in Article 1(1) of AP II have been met, AP II does not fade in and out in terms of applicability.Footnote 125 The jurisprudence of the ICTY confirms that IHL applies until a peace settlement is reached and that a decrease in the intensity of fighting or the degree of organization of an organized armed group fighting in the conflict cannot be viewed as bringing to an end the applicability of IHL.Footnote 126
In essence, the minimum threshold of the notion of “intensity” inherent in the word “sustained” requires that military operations are prolonged in time. Case law illustrates that intense violence resulting from military operations does not necessarily have to be uninterrupted, but that a sequence or pattern of military operations should occur on a fairly frequent basis. As discussed previously in this contribution, the “instant” nature, or rather, instant evaluation of the armed conflict at its initial stages between the TPLF and the ENDF in northern Ethiopia, assessed by Kebebew and Niyo, is possible. However, at the time that Kebebew and Niyo considered the Ethiopian classification, the conflict was too brief to satisfy the notion of intensity under Article 1(1) of AP II and, owing to the brevity of its duration, the fleeting moments of territorial control exercised by the TPLF meant that there was a failure by this organized armed group to launch sustained and concerted military attacks.Footnote 127 Of course, this ongoing situation could be reassessed after some time has passed, and indeed, such an assessment could lead to a different result. Unfortunately, the question of the length of the minimum duration of sustained military operations remains to be answered as only clear-cut cases have been decided by international courts and tribunals. A comparison between an interpretation of “protracted armed violence” and “sustained military operations” would possibly assist in refining the notion of “intensity” as it relates to “sustained armed conflicts”. This comparison is drawn below.
A comparison between “protracted armed violence” and “sustained military operations”
The comparison conducted in this part of the paper focuses on answering the question of whether the minimum levels of intensity associated with violence resulting from a situation differ in the context of “protracted armed violence” (common Article 3) and “sustained (and concerted) military operations” (AP II).Footnote 128 In other words, in the context of AP II, does the notion of “intensity” mean that violence must not only be protracted (as demanded by common Article 3) but also be prolonged (sustained)?
An interrogation of the meaning of “protracted armed violence” confirms that duration or a prolongation of fighting is not required to meet the minimum threshold of “protracted armed violence”. This realization is highlighted by the Haradinaj case, in which it was determined that in assessing the interpretation of the criterion of protracted armed violence in practice in respect of whether or not a situation is “protracted”, greater attention is given to the intensity of the armed violence than to its duration.Footnote 129 Consequently, in assessing whether a situation meets the criterion of protracted armed violence, greater weight is placed on the manner in which the fighting is conducted, as well as the consequences of the fighting, than on the duration of the fighting.Footnote 130
On the other hand, the notion of “intensity” associated with the violence resulting from “sustained military operations” (as examined above) entails that the violence should be sufficiently protracted so as also to be prolonged.Footnote 131 It is not debatable that violence must be protracted to begin with in order for any type of non-international armed conflict to exist, including that defined by AP II. Article 1(2) clearly excludes situations that fall short of being protracted from the material scope of application of AP II, and therefore, the requirement that there is protracted armed violence is not disputed.Footnote 132
At this point in the analysis, the relevant question is whether or not the notion of “intensity” associated with the word “sustained” requires more than merely being protracted. At the heart of the comparison is the question of whether or not the notion of “intensity” under Article 1(1) of AP II demands an additional element to protracted armed violence. As is determined in this section, the notion of “intensity” in the context of “sustained military operations” requires that violence resulting from military operations should be long-lasting and should fulfil a temporal requirement. The difference between the two notions of “intensity” seemingly lies in the additional requirement necessitated by the word “sustained”, that military operations should be maintained, whereas “duration” is not a requisite to fulfil the minimum threshold of violence associated with “protracted armed violence”. Therefore, it is not surprising that the ICTR and the SCSL, both of which were afforded jurisdiction over crimes resulting from the criminalization of violations of AP II, answered in the affirmative the question of whether the notion of “intensity” differs in the contexts of common Article 3 and AP II.
In the Akayesu case, Trial Chamber I of the ICTR assessed whether the non-international armed conflict before it met the material scope of application of AP II.Footnote 133 The Chamber specifically highlighted the offence as per count 15, which is charged under both common Article 3 and AP II.Footnote 134 It therefore considered that it was not sufficient to apply common Article 3 and to take it for granted that AP II automatically was applicable to the situations before it.Footnote 135 The Chamber consequently held that in the event that alleged offences are charged simultaneously under both common Article 3 and AP II, the prosecutor has to prove that not only the intensity threshold requirements under common Article 3 but also those under AP II have been met.Footnote 136
In Akayesu, Trial Chamber I determined that the relationship between common Article 3 and AP II was such that common Article 3 continues to apply once the application of AP II has been triggered.Footnote 137 When the higher threshold of intensity included in Article 1(1) of AP II is satisfied, both treaties apply simultaneously.Footnote 138 In its determination, the Chamber implied that there are situations to which common Article 3 alone applies.Footnote 139 This implied distinction refers to non-international armed conflicts in the traditional sense (armed conflicts not of an international character) where violence is protracted in nature only.Footnote 140
With reference to the SCSL, the Sesay case provides insight into the differing nature of the notion of intensity as it relates to “protracted armed violence” and “sustained military operations”.Footnote 141 In Sesay, at the outset Trial Chamber I of the SCSL stated that the RUF had been sufficiently organized in terms of the requirement of AP II.Footnote 142 In March 1991, the RUF launched its first attack in Sierra LeoneFootnote 143 with the support of the National Patriotic Front of Liberia from a training camp situated in Liberia.Footnote 144 Only at the end of 1991 was the RUF able to exercise consolidated control over the Kailahun district in the east and parts of the Pujehun district to the south of Sierra Leone.Footnote 145 The attacks by the RUF in March 1991 satisfied the minimum threshold of intensity as protracted armed violence existed from this point on in the territory of Sierra Leone,Footnote 146 and consequently, the application of common Article 3 was triggered.Footnote 147 Trial Chamber I found that the armed conflict in Sierra Leone was of a non-international character and that it existed between March 1991 and January 2002.Footnote 148 Common Article 3 applied throughout the duration of this conflict.Footnote 149
The crimes of which Mr Sesay had been accused took place later in the conflict, after the end of 1991.Footnote 150 The SCSL therefore did not have to comment on when exactly AP II became applicable to the conflict in Sierra Leone. However, for the sake of the comparison drawn in this analysis, AP II would have become applicable at the end of 1991 at the earliest, when the RUF exercised control over the Kailahun and Pujehun districts, which enabled it to launch sustained and concerted military operations.Footnote 151 From this point on, both common Article 3 and AP II applied to the conflict as the intensity threshold had been met.Footnote 152
As is the case in the determinations of the ICTR and the SCSL, most scholars agree that AP II necessitates a higher degree of intensity than does common Article 3.Footnote 153 Sivakumaran, however, questions whether it can be said with certainty that the criteria with regard to an organized armed group's ability to launch “sustained and concerted military operations” presuppose a higher level of violence than the degree of intensity of violence associated with the term “protracted armed violence”.Footnote 154 Sivakumaran highlights two approaches to this question. The first approach flows from the reasoning in Trial Chamber II of the ICTY in the Boškoski Trial Judgment, as well as the reasoning in Trial Chamber I of the ICTR in the Akayesu Trial Judgment.Footnote 155 In Boškoski, Trial Chamber II stated that the level of organization required from an armed group to be able to launch sustained and concerted military operations is greater than the degree of organization required from such an armed group to engage in protracted violence.Footnote 156 In Akayesu, Trial Chamber I suggested that operations must be continuous, which may be interpreted as imposing a temporal requirement on the notion of intensity under AP II.Footnote 157 Sivakumaran proposes that the reasoning of these courts indeed presupposes that “sustained armed violence” necessitates a level of violence higher than protracted armed violence.Footnote 158 The author of this contribution aligns herself with this interpretation. Sivakumaran, however, cautions that a second approach to the issue challenges this interpretation.Footnote 159
Sivakumaran suggests this second approach in respect of clarification of establishing whether the minimum threshold of intensity under “sustained military operations” and “protracted armed violence” is the same.Footnote 160 This approach is based on the reasoning that duration (implied by the use of the term “sustained”) is but one indicator of protracted armed conflict.Footnote 161 Consequently, this element is already included in the idea of protraction, and therefore, the minimum threshold for the notion of intensity under AP II and common Article 3 is the same.Footnote 162 According to Sivakumaran, it is possible that the degree of violence associated with the notions both of “protracted armed violence” and “sustained and concerted military operations” refers to protracted armed violence.Footnote 163 The author of this contribution disagrees with this second approach,Footnote 164 the reason being that “duration” is not an absolute requirement to be met to constitute a “protracted armed conflict”.Footnote 165 On the other hand, as is argued by this author in the previous section of this contribution, duration is necessitated by the term “sustained”. The author, therefore, interprets as correct the approach followed in Sesay and the ICTR that “sustained” military operations demand a certain degree of duration and therefore differ from “protracted armed violence”.
To sum up this section, it has been argued that the degree of violence associated with AP II-type armed conflicts is prolonged and is ongoing as a result of sustained military operations as articulated in Article 1(1) of this treaty. The case study of events in the Democratic Republic of the Congo (DRC) will now be provided as a concrete representation of the requirements in order to clarify the abstract reasoning in the argument.
The DRC is bound by common Article 3 as well as by AP II, and thus, a non-international armed conflict or an internal conflict under common Article 3 and/or an AP II-type armed conflict can exist or coexist on the territory if the notion of “intensity” is satisfied.Footnote 166 In respect of the DRC, a fleeting period of territorial control was documented when the National People's Coalition for the Sovereignty of Congo (Coalition Nationale du Peuple pour la Souveraineté du Congo, CNPSC) briefly captured a number of strategic towns in June 2017 and controlled a kilometres-wide section of territory in the city of Uvira on Lake Tanganyika.Footnote 167 This operation called for United Nations intervention and the deployment of the Armed Forces of the Democratic Republic of the Congo (Forces Armées de la République Démocratique du Congo, FARDC) to drive out the armed group.Footnote 168 The situation as documented satisfies the definition of “protracted armed violence” under common Article 3.Footnote 169 However, the brevity of the duration (approximately a month) falls short of the requirement of an armed group being able to use the territory under its control to launch “sustained and concerted military operations”.Footnote 170 Practically, the brevity and the fleeting nature of territorial control in this case did not enable the CNPSC to give effect to the other requirements under Article 1(1) of AP II. It is unlikely that an armed group would be able to give effect to those requirements within the first month of fighting.
The fighting between the Ugandan Allied Democratic Forces (ADF) and the FARDC, by way of contrast, meets the level of intensity defined by “sustained protracted armed violence”, and AP II applies.Footnote 171 The ADF controls territory in the North Kivu and Ituri provinces, which enables it to launch continuing military operations against the FARDC.Footnote 172 The ADF continually manages to recapture strongholds and to rebuild its military capacity, and attacks occur frequently and on an ongoing basis.Footnote 173 Evidence of such an attack was collected as early as 2013, and attacks are recorded as continuing until June 2020.Footnote 174 For example, between November 2019 and March 2020, 393 civilians were killed,Footnote 175 and from January 2020 until March 2020, at least 300 FARDC soldiers lost their lives and 40 ADF soldiers were killed.Footnote 176 The violence resulting from the ongoing conflict between the FARDC and the ADF in the DRC meets the threshold of “sustained protracted armed violence”. The situations described demonstrate the difference between the definitions of “protracted armed violence” under common Article 3 and “sustained protracted armed violence” under AP II in that they indicate that in addition to violence being protracted, it also must be prolonged.
There is a cautionary element in that the exact temporal requirement necessitated by the term “sustained” is unclear. Only clear-cut cases have been observed before international criminal tribunals. In the view of this author, it is not feasible that one month's worth of fighting is too short but several months are sufficient to be considered sustained military operations. Faced with the question of whether there is a practical way to measure whether military operations are sufficiently prolonged to fulfil the notion of intensity demanded by the inclusion of the term “sustained” in Article 1(1) of AP II, this author suggests a case-by-case assessment which takes into account all four requirements listed in AP II and specifically the relationship between territorial control and the existence of prolonged protracted armed violence as the benchmark for sustained military operations. It is once again highlighted that this assessment is important from a treaty law perspective only. Even if a situation is interpreted as not sufficiently prolonged to qualify as sustained military operations under Article 1(1) of AP II owing to the absence of a metric, the corpus of customary IHL, which includes the majority of rules codified in AP II, is triggered once the lower-intensity threshold of protracted armed violence is met and the sufficient degree of organization is satisfied.
The relationship between “sustained armed violence” and the notion of “intensity” under Article 1(1) of AP II links the word “sustained” to the notion of “intensity”. It is required that violence resulting from the fighting in an AP II-type armed conflict is prolonged and therefore that the military operations are ongoing for some period of time.
Conclusion
This paper examines the minimum threshold of violence that a situation must meet in order to satisfy the notion of “intensity” as demanded by AP II. It has argued that the requirement that demands that the armed group is capable of carrying out sustained and concerted military operations included in Article 1(1) informs the notion of intensity of this instrument and that it differs from mere protracted armed violence, the benchmark test for the application of common Article 3 and the corpus of the customary international law of armed conflict.
In order to determine whether the minimum threshold test inherent in the notion of intensity differs in the case of common Article 3 and AP II types of non-international armed conflict, specifically in the context of duration as a constitutive element of the notion of intensity under AP II, three central questions were asked. First, is duration a constitutive element inherent in the notion of intensity (protracted armed violence) demanded by common Article 3? This question was addressed in the second substantive part of this contribution. Next, does the inclusion of the term “sustained” in the construct “sustained and concerted armed violence”, as included in the material scope of application of AP II, inform the notion of intensity required to trigger the application of this instrument, and if so, does its inclusion consider duration as a constitutive element of this notion of intensity? This question was explored in the third substantive part of the contribution. Lastly, the question was raised of whether the relationship between duration and the notion of intensity differs under common Article 3 and AP II. This question was addressed in the final substantive part of the contribution.
An interrogation of the text of common Article 3 through treaty interpretation did not aid in reaching a better understanding of the notion of intensity inherent in this provision. The case law of the ICTY was instructive. The Tadić formulation provides that the minimum threshold for the notion of intensity under common Article 3 is equated to “protracted armed violence”. A survey of case law highlights the conclusion that several factors can aid an assessment of the fulfilment of the protracted armed violence criteria. None of these factors in itself is a constitutive element in the notion of intensity, and the list of factors is also not exhaustive. Case law emphasizes specifically that “duration” is but one factor to be considered in an assessment of whether or not an incident of fighting equates to protracted armed violence.
Next, the paper interrogated the meaning of the term “sustained”. The analysis revealed that from a treaty law perspective it is crucial for the application of AP II that there is a clear understanding of the content of the term “sustained”. In order to arrive at that understanding, the relationship between the notion of “intensity” and “sustained” military operations was examined. The results of treaty interpretation and a survey of case law demonstrate that the term “sustained” essentially requires that violence is prolonged in nature. The violence resulting from the military operations must be ongoing for a period of time as a consequence of the operations being launched in a systematic way. Therefore, a degree of duration is a constitutive factor in the notion of “intensity” in terms of AP II.
An exact metric of a minimum period of fighting that qualifies as sufficiently prolonged to be “sustained” remains elusive. Case law takes into consideration only clear-cut situations. It is proposed that an assessment of the fulfilment of the intensity requirement under Article 1(1) of AP II should be complemented by a purposive approach which promotes the greatest protection of those most vulnerable to the consequences of non-international armed conflict.
As was explained in the fourth substantive part of this paper, the temporal requirement inherent in “sustained” military operations consequently demonstrates a situation that differs from “protracted armed violence”, which serves as the benchmark for the notion of “intensity” under common Article 3. In the context of common Article 3, “duration” is not considered a constitutive factor in fulfilling this notion. Therefore, the notion of intensity demanded by AP II elevates the minimum threshold of protracted armed violence to prolonged or sustained protracted armed violence.
