Note : This translation has been made for the only use of the Jean-Pictet training.

It has not been

approved by the editor of the original book Droit et pratique de l’action humanitaire, from which the
article is extracted. The original numbering of pages is indicated in square brackets.

Section 1

International Armed Conflicts

Julia Grignon 1

Bibliography : . – D. CARRON, L’acte déclencheur du conflit armé international, Genève, Schulthess,

2016, 490 p. – A. CARSWELL, « Classification des conflits : le dilemme du soldat », Revue internationale
de la Croix-Rouge, Sélection française 2009, pp. 65-85. – T. FERRARO, « The applicability and
application of international humanitarian law to multinational forces », Revue internationale de la
Croix-Rouge, 2013, vol. 95, nº 891/892, pp. 561–612. – T. FERRARO, « The ICRC’s legal position on the
notion of armed conflict involving foreign intervention and on determining the IHL applicable to this
type of conflict », Revue internationale de la Croix-Rouge, 2015, vol. 97, nº 900, pp. 1227-1252. – J.
GRIGNON, L’applicabilité temporelle du droit international humanitaire, Genève, Schulthess, 2014,
487 p. – J. GRIGNON, « Le début de l’applicabilité du droit international humanitaire. Discussion autour
de quelques défis », Revue internationale de la Croix-Rouge, Sélection française 2014/1, pp. 111-136.
– ICRC, Commentary on the First Geneva Convention, Convention (I) for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field, Cambridge, Cambridge University
Press, 2016, 1344 p. – J. PICTET (dir.), La Convention de Genève relative à la protection des personnes
civiles en temps de guerre, Commentaire, Genève, Comité international de la Croix-Rouge, 1956, 729
p. – M. SASSÒLI, A. BOUVIER, A. QUINTIN, Un droit dans la guerre ?, Genève, Comité international de
la Croix-Rouge, 2012, 3030 p. – M. SASSÒLI et J. GRIGNON, « Les limites du droit international pénal et
de la justice pénale internationale dans la mise en œuvre du droit international humanitaire », in A.
BIAD et P. TAVERNIER (dir.), Le droit international humanitaire face aux défis du XXIe siècle, Bruxelles,
Bruylant, 2012, pp. 133-154. – S. VITÉ, « Typologie des conflits armés en droit international
humanitaire : concepts juridiques et réalités », Revue internationale de la Croix-Rouge, Sélection
française 2009, pp. 37-63

21. The term "international armed conflict" appeared in the Geneva Conventions of 1949 to replace
the one of "war", which, because of its formalism, had allowed certain States to claim exemption from
their international obligations in this area. The term "international armed conflict" chosen by the 1949
drafters was intended to describe a factual situation that could not be subject to controversy. As soon
as the facts met this classification, no formal act, such as a declaration of war, was necessary to trigger
the applicability of international humanitarian law. Thus, the notion of international armed conflict
appeared in article 2 common to the four Geneva Conventions of 1949, to the effect that "[...] the
present Convention shall apply to all cases of declared war or of any other armed conflict which may
arise between two or more of the High Contracting Parties, even if the state of war is not recognized
by one of them", and which further specifies that the Conventions also apply in all cases of occupation.

1
1. The author would like to thank Manon Creusot, candidate for the Master's degree in International and
Transnational Law with essay at the Law Faculty of Laval University, for her research related to this
contribution.
This provision was supplemented in 1977 by article 1 of the first Additional Protocol to the Geneva
Conventions of 1949, including wars of national liberation, i.e. armed conflicts arising from the exercise
of the right of peoples to self-determination. In addition to these situations, there are those in which
several States are in conflict with one or more others, not each individually, but collectively in a
multinational force. The question then arises as to whether the parties to the international armed
conflict remain the States or whether the multinational force can be considered as being a party itself.
Similarly, when positions of an armed group are targeted by an external State without the consent of
the State on whose territory the armed group is operating, the question arises as to whether such
clashes fall only within the framework of the non-international armed conflict or whether the
framework of the international armed conflict is relevant.

22. Although today situations of violence classified as armed conflict more often fall under the
definition of non-international armed conflict, the study of international armed conflict remains
necessary. Indeed, first of all, a certain number of international armed conflicts exist today, we can for
example think of the situations in Ukraine and Syria. We can also expect new ones to emerge - if we
think in particular of the current contexts in the China Sea or in the Arctic. In addition, the notion of
international armed conflict contains another one - the notion of occupation, which has been the
subject of much debate over the past decade, particularly in relation to the situations in Iraq and Gaza,
and which continues to be debated in other contexts, such as Azerbaijan/Armenia and Syria/Turkey,
to name but a few. Finally, international armed conflict contains the seeds of the notions of combatant
and protected civilian, two central notions in international humanitarian law.

23. Moreover, in order to fully understand the purpose of this body of law and to fully grasp the
protections it contains, it is essential to master the notion of international armed conflict, since this is
the one that served as a model for the drafting of all the rules contained in the Geneva Conventions of
1949 and their Additional Protocols of 1977, i.e., the fundamental basis of international humanitarian
law. Likewise, more recently, it has been concluded that a number of rules originally designed only for
international armed conflict are customary not only in such situations, but also in situations of non-
international armed conflict; in order to grasp these rules in their full dimension, a look back at
international armed conflict is therefore inevitable.

24. Finally, before elaborating on the classification of international armed conflict as such, two
elements must be clarified in the first place. Firstly, there is no authority in international law that is
empowered to classify armed conflicts. Stakeholders, such as external institutions, humanitarian
agencies or doctrine, for example, may be led to give their own classification of the situation without
any of them prevailing over another. The key words in the area of classification are interpretation and
negotiation. As a result, the following developments are intended to provide the essential points
regarding this field, which will enable those who wish to make their own analysis. Secondly, when
considering the classification of international armed conflict, it is necessary to recall the need to keep
the application of the two legal bodies mobilized in this matter, jus in bello and jus ad bellum,
hermetically sealed. Indeed, the classification exercise presented here is intended to determine
whether jus in bello, i.e. international humanitarian law, is applicable. Jus ad bellum, i.e. the right of
recourse to force laid down in the Charter of the United Nations, has the purpose of determining
whether the situation is lawful or not in terms of international law. However, a situation of armed
conflict may well be unlawful in terms of jus ad bellum, which is most often the case, without this
affecting jus in bello, which is always applicable as soon as an armed conflict exists, whether lawful or
unlawful. In other words, a violation of jus ad bellum can never serve as a pretext for the non-
application of jus in bello rules, or for a differentiated application of these rules according to the
belligerent party (the one who resorts to force in a lawful manner and the one who is in a position of
illegality).

§ 1 "Classic" international armed conflict

A. The characteristic elements of international armed conflict

(Article 2 common to the four Geneva Conventions)

25. Year 1949 marked a turning point in the understanding of the notion of "international armed
conflict" by introducing it into the Geneva Conventions and making it the key notion for the
applicability of international humanitarian law. This ultimately led to this notion replacing that of
"war", which was too formal and therefore did not reflect the logic of the drafters of the time, i.e. the
wish to extend as far as possible the applicability of the rules protecting persons in armed conflicts. As
a result, it is now only factual considerations that make it possible to classify a situation as an
international armed conflict, apart from any consideration linked to the existence of a declaration of
war, whether prior or ex post. It is indeed sufficient to note that a State uses armed violence against
another State, whatever form this violence takes, for the international armed conflict to be
characterized. We therefore speak of "hostilities", a term that refers to a strictly factual reality.
Moreover, no threshold of intensity is required for the classification to be made. As a result, simple
skirmishes, border incidents or even the mere capture of enemy soldiers, for example, could be
classified as an international armed conflict triggering the applicability of international humanitarian
law.

26. The intention of the parties involved is therefore not an element that should be taken into account
when classifying a situation. Whether a State claims to be in a situation of armed conflict against
another, or on the contrary denies the existence of an international armed conflict, is of no importance
and it is not necessary to search for its intention at the time of the classification exercise. One of the
most significant examples in recent years concerns the "war on terrorism", a rhetoric that has been
used over and over again, but which should not lead to the conclusion that there is a global war on
terrorism and that international humanitarian law would apply as soon as an operation is carried out
within this framework (see below, no. 250 et seq.). On the contrary, it is necessary to analyse each
instance of hostilities and to judge whether or not it classifies as an armed conflict.

B. Occupation: a special category of international armed conflict: the articulation between

Article 42 of the Hague Regulations and Section III of Part III of the Fourth Geneva
Convention

27. Referred to in Article 2, paragraph 2 common to the four Geneva Conventions, as well as in Article
1 of Additional Protocol I, situations of occupation fall within the category of international armed
conflict. Occupation is defined in Article 42 of the Hague Regulations of 1907, which reads as follows:
"Territory is considered occupied when it is actually placed under the authority of the hostile army.
The occupation applies only to the territory where such authority is established, and in a position to
assert itself." This provision therefore seems to require a certain stabilization of the situation.
Following a phase of invasion, the State intervening on the territory of another would become an
occupying Power as soon as it would be in a position to exercise its authority over all or part of the
territory. In order to do this, it seems necessary that the confrontations take a form that allows it to
establish its authority, and it is difficult to imagine that this could be the case in the middle of hostilities.
All the more so as this provision is followed by Article 43 which provides that "[t]he authority of the
legitimate power having actually passed into the hands of the occupant, the latter shall take all steps
in his power to re-establish and insure, as far as possible, public order and safety, while respecting,
unless absolutely prevented, the laws in force in the country." However, we note, firstly, that legal
power is deemed to have passed from the hands of the occupied to those of the occupier and,
secondly, that in order to be able to take measures to guarantee public order and life in the territory,
it is necessary at the very least to be able to administer it, something that can only happen after a
certain period of time in order for the chaos of initial hostilities to subside.

28. This reasoning, nevertheless, raises the difficulty of applying Section III of Part III of the Fourth
Geneva Convention relating to occupied territories, which probably contains the most protective
provisions of all international humanitarian law with regard to persons affected by armed conflict.
However, if the conditions listed in the Hague Regulations have to be met for this Section to apply,
there would be very few cases left in which it could have any effect. Thus, [p.68] in his reasoning with
regard to Article 49, paragraph 3, on forced displacement of population, Jean Pictet developed the so-
called functional theory of occupation in his 1956 commentary. At the end of his demonstration, Jean
Pictet concludes that any soldier who enters the territory of another in the context of an international
armed conflict occupies a portion of the territory around him. As a consequence, all persons who fall
within his power are protected by Section III of Part III of the Fourth Geneva Convention. There would
therefore no longer be any distinction to be made between the invasion phase and the occupation
phase in the application of the provisions of this section, which would apply as soon as nationals of the
State on whose territory military operations are taking place are in enemy hands. This theory has been
taken up by a large number of States in their military manuals, by the case law of the International
Criminal Tribunal for the former Yugoslavia, and is now widely accepted.

29. As a result, while the definition of occupation is found in Article 42 of the Hague Regulations and
requires the exercise of an established and able to assert authority, the provisions relating to occupied
territories contained in the Fourth Geneva Convention and Additional Protocol I apply whenever a
person is in the power of a party of which he is not a national in an international armed conflict.

30. Finally, it should be emphasized that occupation is a notion that is exclusively attached to the
classification of international armed conflict. Armed groups can never be called occupying powers and
they can never "occupy" a territory. The regime of occupation is a regime that strictly falls within the
State's domain. The latter have never been willing, either during the negotiation of the relevant
treaties or subsequently, to recognize the possibility for armed groups to exercise a form of non-
consensual authority over the territory of one of them. Thus, occupation is one of the notions that
prevents a complete reconciliation between the two types of armed conflicts. Despite arguments put
forward by part of the doctrine that IHL should no longer distinguish between international and non-
international armed conflict, and that all persons affected by armed conflict should be uniformly
protected by all provisions of IHL, a total merger of the two regimes remains impossible, particularly
with regard to the notion of occupation.

31. In this regard, it is important to note that the use of the term "occupation" by the International
Criminal Court in its Al Mahdi judgment, relating to the destruction of mausoleums and the gate of a
mosque by armed groups in Mali, must be challenged (ICC, Ahmad Al Faqi Al Mahdi, 2016). While these
armed groups did control portions of Mali's territory during 2012, they did not occupy it in the sense
of international humanitarian law. The use of the term "occupation" throughout the judgment is
unfortunate for two reasons. Firstly, this statement by an international criminal court, i.e. a judicial
body whose mandate consists at least in part of the implementation of international humanitarian law,
[P.69] and given the echo of its jurisprudence, may lead to the erroneous belief that occupation could
now fall under both international and non-international armed conflict. Secondly, moving in this
direction - although we doubt that the judges themselves foresaw this consequence of their
misclassification, i.e. recognizing the ability for armed groups to occupy territory - can have deleterious
effects on the effective implementation of international humanitarian law. Indeed, if an armed group
occupies a territory, it must then apply the relevant provisions in this regard. However, among these,
there are some provisions whose implementation cannot be required from a non-state entity, or which
it would be undesirable to require from it. One can think, for example, of articles 50, paragraph 3,
(arrangements for the maintenance and education of children), 54 (status of judges and public
officials), or 56 (maintenance of hygiene and public health) of the Fourth Geneva Convention.
Requiring an armed group, even is it is sufficiently organized to be able to control territory in a stable
manner, to implement these provisions is simply unrealistic. But what happens when you demand the
implementation of measures that are impossible to achieve? At best these remain dead letters, giving
the impression that they are useless, at worst they serve as a pretext to repeatedly denounce alleged
violations committed by armed groups, discouraging them from any effort to implement international
humanitarian law, and not only international humanitarian law relating to the occupied territories, but
all of this body of law. If this body of law becomes unrealistic, armed groups will lose interest in it
altogether, with dangerous effects for the populations that it should protect.

C. - The wars of national liberation

(Article 1 § 4 of the First Additional Protocol)

32. A war of national liberation is an armed conflict in which one of the parties to the conflict can be
characterized as a national liberation Movement, i.e. an armed group fighting for its self-
determination. This situation, which is apparently non-international, qualifies as international under
Article 1(4) of the First Protocol Additional to the Geneva Conventions. It states that: "[international
armed conflicts] include armed conflicts in which peoples are fighting against colonial domination and
alien occupation and against racist régimes in the exercise of their right of self-determination, as
enshrined in the Charter of the United Nations and the Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance with the Charter of the
United Nations. » Without going into detail about the conditions that led to the introduction of this
provision in 1977, it should be noted that it is historically part of the wave of decolonization wars of
the 1960s and 1970s. Today, this classification is relevant to several situations. One can think, for
example, of Tibet (China), Western Sahara (Morocco), Palestine (Israel), Crimea (Ukraine) or [p.70]
Azawad (Mali). However, the conditions set out in Article 1(4) of Additional Protocol I are so strict that
there would in fact be no situation currently covered by this provision. Indeed, first of all, in order for
Article 1, paragraph 4 to apply, the territorial State must be a party to Additional Protocol I; secondly,
the Movement in question must have been duly recognized as such; and thirdly, it must have made a
declaration under Article 96, paragraph 3 whereby it undertakes to respect international humanitarian
law contained in the Geneva Conventions and their Additional Protocols. While some of the above-
mentioned contexts meet one of these conditions, they are cumulative, which has so far not allowed
Article 1, paragraph 4, to be implemented.

§ 2 Situations in which the existence of an international armed conflict still gives rise to debate

A. The targeting of armed group positions without the territorial State's consent

33. The situation occurring in the territories of Iraq and Syria in the fight of a coalition of States against
the armed group Islamic State in Iraq and the Levant (ISIS) raises the question of whether bombing the
territory of a State, not against its positions, but against the positions of an armed group, creates an
international armed conflict. Hence, strikes that would be directly directed at a State target, such as
the U.S. bombing of a Syrian chemical weapons factory in the spring of 2017, are excluded here, as
they are uncontroversially constitutive of an international armed conflict. What is questionable are
only those strikes directed against positions of the armed group against which the territorial State is
otherwise fighting, but which were not called for or authorized by the territorial State. This is the
example of the bombings against members of the armed group ISIS or some of its positions. These
people and objects targeted are in the territory of Syria. Therefore, even if the bombing State does not
target its strikes directly against Syria, the effects of its strikes necessarily impact the Syrian territory.
Moreover, in areas controlled by ISIS, the organization establishes its headquarters or stores its
weapons in buildings that are owned by Syria. By bombing them, are the allied States engaging in an
international armed conflict? The question remains open. While it could be argued that given the
criteria triggering international armed conflict, i.e. a use of armed force by one State against another,
any bombing on the latter's territory without its consent, whether given a priori or a posteriori,
qualifies as an international armed conflict, at least one author defends the opposite position (D.
CARRON, L'acte déclencheur du conflit armé international, Geneva, Schulthess, 2016, 490 p.). Another
example may illustrate this situation: the clashes between Israel and Hezbollah in southern Lebanon
in 2006. This situation was classified as an international armed conflict and Ghilad Shalit, an Israeli
soldier captured [p.71] on this occasion, was considered a prisoner of war. However, in this situation,
a factor was added to confirm the existence of an international armed conflict: the participation of
Hezbollah in the Lebanese government.

B. Can an armed conflict between a multinational force and one or more States classify as an
international armed conflict under international humanitarian law?

34. The fact that several States join together to engage in an armed conflict against one or more States
is a phenomenon that is, if not systematic, at least extremely widespread. For some States, it is
nowadays even impossible to engage in an armed conflict alone. They will only consider deploying
their armed forces if they are associated with other forces. These coalitions may be conducted under
the aegis of an international organization, such as the UN, NATO or the African Union (AU), for
example, or they may be led by the States involved without being attached to any organization. While
the basic texts of international humanitarian law are silent on this possibility, none of their provisions
prohibit it. Therefore, the same rules as those described above apply. As soon as a coalition of States
resorts to armed force against one or more other States, this situation can classify as an international
armed conflict.

35. In reality, it is when the question arises as to who is a party to the armed conflict resulting from
this coalition intervention that a debate may arise; when it is a question of determining which treaty
law is applicable or of assigning responsibility for the commission of certain acts. Indeed, in these cases,
it is questionable whether it is the member States of the coalition force, taken individually, that should
be designated as parties to the conflict, or whether it is the force itself that should be designated as
such. This question is not settled in doctrine. Among the solutions proposed, the degree of command
and control exercised by the multinational force and/or the States involved is a useful criterion for
making this determination, bearing in mind that it may give rise to some controversy (ICRC,
Commentary on the First Geneva Convention, 2016).