Chapter 2: The armed conflicts in the DRC
2.1 Notion of armed conflict
2.1.3 Local armed conflict
By outlawing the resort to force in international relations, the United Nations Charter inaugurated a new age in 1945. But the provisions of this important international
73As part of interstate conflict, wars of national liberation are also considered international armed conflict. M Freeman considers the latter as “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination”. For instance, the ANC in South Africa was considered as a Movement of National Liberation. See Tom Farer “Humanitarian law and armed conflicts: toward a definition of
“international armed conflict”‟ (1971) 71 (1) Columbia Law Review 37, 53. See also M Freeman
„International law and internal armed conflicts: clarifying the interplay between human rights and humanitarian protections available at for comment‟; J Dugard et al. (note 48 above; 523).
74 In the Tadic case for instance: It is indisputable that an armed conflict is international if it takes place between two or more States. In addition, in case of an internal armed conflict breaking out in the territory of a State, it may become international (or, depending upon the circumstances, be international in character alongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State. See Prosecutor v Tadic, T-94-1-A Judgement, 15 July 1999 para 84.
75 Use of Force Committee of International Law Association (note 53 above; 8-9).
convention and numerous others seem limited only to protecting the international order from the consequences of war, and seem less applicable to internal State order.
It is therefore not surprising that “the majority of armed conflicts since 1945 have in fact been internal armed conflicts, often with the intervention of outside powers”.76 For Bouchet-Saulnier a non-international armed conflict is an armed conflict whose theatre of combat is the territory of a state, and is a conflict between the state‟s armed forces and dissident armed forces or organized armed groups, which, under the guidance of a responsible command, utilize a part of the state‟s territory to carry out sustained and concerted military operations.77
Of course, these types of conflicts are all too frequent in modern times. But they are not new; they have taken place since antiquity and are regulated in national law.
Today even international humanitarian law is applicable to them. This is an evolution, for initially international humanitarian law proposed the regulation of conduct and damage caused during interstate war rather than conflict within the territory of a State.
Internal conflict was regarded as an essentially domestic matter and was not subject to international conventions. For instance, the provisions of the Hague Conventions (1899 and 1907) are exclusively applicable to international armed conflict.78
Article 8 of the Rome Statute makes reference to non-international armed conflict.
However, this concept seems not well regulated in international law. For instance the provisions related to internal armed conflict in the Geneva Conventions at their common article 3 and their Additional Protocol II of 1977 (article 1) have prompted criticism.
James, who is a brilliant defender of a single definition of armed conflict, makes the following observation about these provisions:
More intricate anomalies are myriad even in instances of overlap between the two systems. For example, while common Article 3 prevents a combatant from being
76 Ibidem 9-10.
77 F Bouchet-Saulnier Dictionnaire pratique du droit humanitaire 2 ed (2000) 92-93.
78 J G Stewart (note 71 above; 316-317).
tortured, it does not prevent him or her from being executed for treason …. The uncomfortable overlap was also reinforced by the Rome Statute of the International Criminal Court (ICC Statute), which perpetuates the cumbersome international/non- international legal dichotomy. The Statute limits the grave breaches regime to international conflicts … and, despite similarities … the serious violations provisions of common Article 3 that are applicable in „armed conflicts not of an international character‟ are both different and less comprehensive than their international counterparts.79
In fact there is seemingly no serious reason for different laws to regulate international armed conflict and internal armed conflict. For international humanitarian law to be applied, the qualification of a situation of warfare as international or non-international is strict.80 Hence this situation may lead to limitations on the applicability of certain important provisions of laws of armed conflict.
As noted above, the value of a dichotomist classification of conflict is debatable, for an internal conflict can be internationalized. There are other more complex types of conflict, which exhibit internal and external aspects.
For Pietro Verri81 three situations can lead to the internationalization of an armed conflict:
a) when the state whose territory there is an insurrection admits the belligerent status of the insurgents;
b) if the armed forces of one or several foreign states intervene, each to support respectively one of the parties in conflict; and
c) The armed forces of two foreign states intervene, each to support one party in conflict.
Therefore internalized armed conflict refers to internal armed violence, which escalates to an international level due to several internationalization factors as demonstrated above. Among the most clear cases of internationalization of an armed
79 J G Stewart (note 71 above; 321).
80 J G Stewart (note 71above; 316)
81 P Verri Dictionnaire de droit international des conflits armés (1988) 37-38. See also Tadic Case (note 63 above; 84).
conflict in the past decades, has been NATO`s involvement in the war between the Federal Republic of Yugoslavia and the Kosovo Liberation Army in 1999 and the involvement of several African82 countries in the DRC war theatre during the second war of 1998-2003.83
It is also noteworthy84 that when the UN forces take part in an armed conflict, it may be considered as international and subject to international humanitarian law. Relating to the criminal responsibility and prosecution of members of a UN force before a Criminal Court, the analysis provided by Du Plessis85and Stephen is insightful and pose a serious question: “Who guard the guards?”