Defining Non-International Armed Conflict: A Historically Difficult Task

• Author: David E. Graham
• Position: Colonel, U.S. Army (Ret.)
• Pages: 43-55

Ill

Defining Non-International Armed Conflict:

AHistorically Difficult Task

David E. Graham*

Asthe initial speaker on the first panel of the Newport conference dealing

with non-international armed conflict (NIAC) in the twenty-first century, I

was asked to do two things. First, establish the framework for abroad and compre-

hensive discussion ofNIAC by assessing, historically, the way in which the interna-

tional community has attempted to define this particular form of conflict, to

include the issue of whether there now exist various types of NIAC. Second, speak

to the U.S. practice with respect to the manner in which the United States has de-

termined whether to designate certain hostilities as NIACs.

In undertaking that mandate, Iwas reminded of the words of Sir Hersch

Lauterpacht: "[I] finternational law is, in some ways, at the vanishing point of law,

the law ofwar is, perhaps even more conspicuously, at the vanishing point of inter-

national law." 1And, given the nuances of our current subject matter, Iwould think

it appropriate to add to this statement: "If the law ofwar is at the vanishing point of

international law, then, surely, the law related to non-international armed conflict

is at the vanishing point of the law of war."

*Colonel, U.S. Army (Ret.); Executive Director, The Judge Advocate General's Legal Center and

School, U.S. Army. The author has prepared this article in his personal capacity and does not

purport to represent the views of the Department of Defense, the Department of the Army or

The Judge Advocate General's Legal Center and School.