The classification of armed conflicts by international criminal courts and tribunals

Abstract

This article analyses how international criminal courts and tribunals have pronounced on the contextual elements of their respective war crimes provisions. A comprehensive overview of the way these institutions treated the material scope of application of ihl shows that the ad hoc tribunals tended to avoid classification as either international or non-international armed conflict, and merely found that a generic ‘armed conflict’ existed at the relevant time. The icc shows a tendency to classify situations as non-international armed conflicts without considering whether the situation concerned may instead (or at the same time) qualify as an international armed conflict. Non-international armed conflict is often, mistakenly, treated as a residual regime. Incorrect conflict classification may affect ihl’s scope of application, and negatively impact on an accused’s fair trial rights under international criminal law. The author proposes a fresh look at the icc’s legal framework to solve conflict classification problems.