Non-international armed conflict

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Definition[edit | edit source]

Non-international armed conflict
Non-international armed conflict.svg
The law of non-international armed conflict (NIAC) applies to all armed conflicts not of an international character.[1] As set forth by the ICTY Appeals Chamber in the Tadić case, NIACs are situations of “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”.[2]

This definition rests on two factors—the intensity of the fighting and the organization of the non-State group.[3] First, the hostilities between the parties must reach a certain level of intensity, which may be indicated by, among other factors, the seriousness and frequency of attacks and military engagements, the extent of destruction, or the deployment of governmental armed forces.[4] Second, the non-State group must have some minimum level of organization, indicators of which may include the presence of a command or leadership structure, the ability to determine a unified military strategy and speak with one voice, the adherence to military discipline, as well as the capability to comply with IHL.[5]

These same criteria of intensity and organization apply in situations involving (or even limited to) cyber operations.[6] However, cyber operations alone will only rarely meet the requisite level of intensity to trigger a NIAC.[7]

National positions[edit | edit source]

France[edit | edit source]

Cyberoperations that constitute hostilities between two or more States may characterise the existence of international armed conflict (IAC). Likewise, prolonged cyberoperations by government armed forces against one or more armed groups or by several armed groups between themselves may constitute a non-international armed conflict (NIAC), where such groups show a minimum level of organisation and the effects of such operations reach a sufficient threshold of violence. They are generally military operations concurrent with conventional military operations: that is why it is not difficult to categorise an armed conflict situation. While an armed conflict consisting exclusively of digital activities cannot be ruled out in principle, it is based on the capacity of autonomous cyberoperations to reach the threshold of violence required to be categorised as such. Although virtual, cyberoperations still fall within the geographical scope of IHL, insofar as their effects must arise on the territory of the States party to the IAC and on the territory where the NIAC hostilities occur.[8]

Appendixes[edit | edit source]

See also[edit | edit source]

Notes and references[edit | edit source]

  1. Common Article 3 GCs.
  2. Prosecutor v Tadić (Decision on Jurisdiction) IT-94-1-AR72 (2 October 1995) [70].
  3. See also Prosecutor v Tadić (Trial Judgment) IT-94-1-T (7 May 1997) [562] (noting that the two criteria distinguish “an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law”).
  4. Prosecutor v Boškoski and Tarčulovski (Trial Judgment) IT-04-82-T (10 July 2008) [177].
  5. Prosecutor v Limaj, Bala and Musliu (Trial Judgment) IT-03-66-T (30 November 2005) [129]; Prosecutor v Boškoski and Tarčulovski (Trial Judgment) IT-04-82-T (10 July 2008) [199]–[203].
  6. Cf. L Cameron et al, ‘Article 3: Conflicts Not of an International Character’ in ICRC (ed), Commentary on the First Geneva Convention (CUP 2016) 158 [436] (“In order to determine the existence of a non-international armed conflict involving cyber operations, the same criteria apply as with regard to kinetic violence.”).
  7. Tallinn Manual 2.0, commentary to rule 83, para 7; Yoram Dinstein, Non-International Armed Conflicts in International Law (CUP 2014) 35. For State views affirming this position, see, eg, French Ministry of the Armies, ‘International Law Applied to Operations in Cyberspace’, 9 September 2019, 12; Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), 7.
  8. Ministry of Defense of France, International Law Applied to Operations in Cyberspace, 9 September 2019, 12.

Bibliography and further reading[edit | edit source]