Concluding Remarks on Non-International Armed Conflicts

• Author: Yoram Dinstein
• Position: Professor Emeritus, Tel Aviv University, Israel
• Pages: 399-421

XVIII

Concluding Remarks on Non-International

Armed Conflicts

Yoram Dinstein*

This Newport conference has covered alarge number of issues pertaining to

non-international armed conflicts (NIACs), as compared to international

armed conflicts (IACs). In these concluding remarks, Ishall focus on six main

themes: (i) the proper definition of aNIAC; (ii) the thresholds of armed conflicts;

(iii) the application of the jws in hello in aNIAC; (iv) the various types of recogni-

tion relevant to aNIAC; (v) intervention by aforeign country in aNIAC; and (vi)

the interaction between NIACs and IACs.

/. Definition

Auseful definition of aNIAC in international law appears in Article 1(1) of

Additional Protocol II (AP II) of 1977: aNIAC must "take place in the territory

of aHigh Contracting Party between its armed forces and dissident armed

forces or other organized armed groups." 1(The text goes on to add features that

do not configure in the nucleus of the general definition; these will be spelled

out below.) 2

There are two constitutive elements in this definition:

*Professor Emeritus, Tel Aviv University, Israel.

Concluding Remarks on Non-International Armed Conflicts

(a) ANIAC must take place within the borders of ahigh contracting party,

that is to say, asingle State; and

(b) ANIAC has to be waged between the armed forces of the State (loyal to

the central government) on the one hand, and organized armed groups

(including dissident armed forces) on the other.

A. NIAC as an Internal Armed Conflict

The first vital ingredient of NIAC relates to its internal nature, i.e., that it is waged

within aState. This characteristic is repeated in other texts, as illustrated in Article

19(1) of the 1954 Hague Convention on Cultural Property, which speaks of "an

armed conflict not of an international character, occurring within the territory of

one of the High Contracting Parties."3Virtually all commonly used definitions of a

NIAC are restrictive in that the armed conflict is circumscribed to asingle State4

(the common locution in the past was "civil war").

Admittedly, amajority of the Supreme Court of the United States, in the

Hamdan case of 2006, seems to have arrived at the conclusion that the post-9/1

1

transnational "war on terrorism" should be deemed aNIAC.5However, the idea

that aNIAC can be global in nature is oxymoronic: an armed conflict can be a

NIAC and it can be global, but it cannot be both. Cross-border action against terror-

ists, like the SEAL Team Six raid that took out Osama bin Laden in Pakistan, may be

carried out as an "extraterritorial law enforcement" operation.6Ordinary military

operations in Afghanistan, directed at Al-Qaeda terrorists, blend into an IAC waged

in that country—against the Taliban—that, in my opinion, is still ongoing. 7Re-

peated references have been made in the course of the present conference to the

American alignment in Afghanistan against "Al-Qaeda and its associates." To my

mind, the armed conflict in Afghanistan should rather be seen as conducted against

"the Taliban and their associates." And, since the central issue in the legal (and pub-

lic) debate on the subject is that of detention of captured enemy personnel, Imust

add that Ifail to grasp the rationale behind the decision to incarcerate detainees out-

side of Afghanistan. Why is Guantanamo Bay preferable to Bagram?

B. Organized Armed Groups

The second component ofthe definition of NIAC postulates the existence of aclash

of arms between the armed forces of aState (loyal to the central government) and

organized armed groups (including dissident armed forces) rebelling against the

powers that be. Several comments are called for in this context.

The phrase "organized armed group" is of pivotal significance. The rudiments

of organization are immanent in any insurgency amounting to aNIAC. Without

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