Whitelaw, Ian --- "Internationalisation of Non-International Armed Confl ict" [2016] PerIntLawJl 5; (2016) 1 Perth International Law Journal 30

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INTERNATIONALISATION OF NON-INTERNATIONAL ARMED CONFLICT

IAN WHITELAW*

The distinction between international and non-international armed conflict is often confusing and unnecessary. Removing this distinction will remove the unclear test(s) for internationali- sation as espoused by international courts and ad hoc international tribunals. This article will discuss and try to comprehend the unsettled notion of international armed conflict, non-in- ternational armed conflict and how armed conflict can become internationalised. Finally, the aforementioned principles of the rules of international humanitarian law will be applied to examine foreign intervention in the recent Libyan war.

I INTRODUCTION

Foreign intervention into a non-international armed conflict (NIAC) is a contemporary issue in international humanitarian law. Once a foreign state or multinational force has intervened into a NIAC a vexing issue arises; namely, whether or not the conflict has transformed from a NIAC into an international armed conflict (IAC). When foreign intervention changes the nature of conflict it is known as ‘internationalisation’. Ascer- taining the nature of the armed conflict is crucial since international humanitarian law applies different rules of the law of war depending on whether an armed conflict is international or non-international. Different thresholds attached to each form of armed conflict further complicate the application of international humanitarian law. The dis- tinction of the laws of war is marked out by virtue of the four Geneva Conventions of 12 August 1949 (Convention) and their Additional Protocols of 8 June 1977.

II THE LAW OF INTERNATIONAL ARMED CONFLICT

Conflicts considered to be an IAC are subject to more comprehensive regulation in the sphere of international humanitarian law. Common Article 2 to the four Geneva Con- ventions of 1949 (Common Article 2) provides the definition of an IAC ‘shall apply to all cases of declared war or of any other armed conflict which may arise between two or more High Contracting Parties, even if the state of war is not recognised by one

of them’.¹ The Convention applies when specific factual conditions are met:² that is, circumstances characterised by hostilities between parties.³ The International Criminal Tribunal of the former Yugoslavia (ICTY), which was sanctioned by the United Na- tions Security Council in 1993 in light of the Balkan conflict, provides jurisprudence on the general definition stating, ‘an armed conflict exists whenever there is a resort to armed force between States’.⁴ The factual existence of an IAC allows participants of the hostilities, who are representing a sovereign state, to have combatant status, enjoy the privilege of belligerency, and prisoner of war protections.⁵ Participants may only be prosecuted for violations of international humanitarian law.

The 1977 Additional Protocol I to the Geneva Convention (API) was enacted to sup- plement the Geneva Conventions,⁶ and extend the application of the rules of IAC. The provision allows people to fight against ‘colonial dominations and alien occupation and against racist regimes in the exercise of their right of self-determination’.⁷ The appli- cation of IAC becomes blurred in the context of humanitarian law. Political and legal differences of fact can drastically change whether or not the armed group is one that constitutes a group under Article 1(4) of the API. However, the provision has not been raised in any International Criminal Court or ad hoc Tribunal, and it is therefore hard to identify its true scope. An example of its difficult application is the Israeli-Palestinian conflict, which cannot be considered an international armed conflict, as there are no two High Contracting States to the armed conflict required under Common Article 2.

* Ian Whitelaw. LL.B./Commerce Student (The University of Western Australia). Responsibility for the text lies with this author and all errors are his alone.

¹ Article 2 common to the four Geneva Conventions of 12 August 1949.

²  J. Pictet et al. (eds), Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field: Commentary, Geneva (1952) International Committee of the Red Cross 32.

³  Sylvain Vité ‘Typology of armed conflicts in international humanitarian law: legal concepts and actual situations’ (2009) 91 International Review of the Red Cross 69, 72.

⁴  Prosecutor v. Dusko Tadic (Appeal Judgment), IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, [70].

⁵  See for example Art. 44, 45 of the Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of international armed conflict (Protocol I), opened for signature 08 June 1977, 1125 UNTS 3; See also, Art. 4 of the Geneva Convention Relative to the Treatment of Prisoner of War (Third Geneva Convention), opened for signature 12 August 1949, 75 UNTS 135 for Prisoner of War Status. ⁶ Art. 1(3) of the Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the protec- tion of victims of international armed conflict (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3. ⁷  Ibid, Art. 1(4).

III THE LAW OF NON-INTERNATIONAL ARMED CONFLICT

The law of NIAC is less detailed than international armed conflict and as a consequence provides lower humanitarian rights and obligations to the parties involved. As a con- sequence, NIAC are often characterised as having high mortality among the civilian population.⁸ The provision of Common Article 3 to the Geneva Convention of 1949 (Common Article 3) is vague in its scope but will apply to cases of ‘armed conflict not of an international character’.⁹ Appropriately, Common Article 3 is applicable to State and non-state conflict, and non-state and non-state conflict.¹⁰ Common Article 3 has a threshold to meet the definition of armed conflict, which requires the level of violence to be more than mere ‘internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature.’¹¹ The rationale behind this is that State’s will use their own domestic laws to deal with internal disputes or civil unrest. In summary, situations of violence that do not amount to an ‘armed conflict’ are not governed by international humanitarian law.

To distinguish it from less serious forms of violence, such as internal disturbances and tensions, the ICTY has interpreted Common Article 3 to apply to situations where the intensity of hostilities reaches a level of ‘protracted armed violence between govern- mental authorises and organised armed groups or between such armed groups’.¹² Thus, two fundamental conditions are required: (a) the hostilities must meet a minimum level of intensity and; (b) there needs to be sufficient organisation of the non-governmental parties.¹³ In Abella v Argentina¹⁴ the Inter-American Commission on Human Rights found contrary to fulfilling the criterion of long duration, a 30-hour confrontation be-

⁸  Stev Verhoeven, ‘International and non-international armed conflicts’, in J. Wouters and S. Verhoeven (eds.), Armed Conflicts and the Law (2007) 7; See, Afghanistan Independent Human Rights Commission, ‘Civilian casualty figure; first seven months of 2010 (1st January–31st July)’ Kabul (8 August 2010) <http:// www.aihrc.org.af/> .

⁹  Common Article 3 to the Geneva Conventions of August 1949.

¹⁰  Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, 1984 ICJ REP. 392 June 27, 1986, [219].

¹¹  Art. 2 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Pro- tection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609.

¹²  ICTY, Prosecutor v. Tadic, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995), [70].

¹³  Sylvain Vité, above n, 3, 76; See, D. Schindler (1979), ‘The Different Types of Armed Conflict According to the Geneva Conventions and Protocols’, Recueil des cours, vol. 163 HR, 147.

¹⁴  Juan Carlos Abella v Argentina, Case 11.137, Inter-American Commission on Human Rights (18 Novem- ber 1997).

tween dissident forces and the Argentine military was enough to constitute a NIAC.¹⁵ It should be noted that the Commission took due consideration of the nature of the hostili- ties, such as the involvement of governmental forces and the highly organised actions by the perpetrators. The ICTY in the Limaj case stated that the level of organisation is not onerous, holding that ‘some degree of organisation by the parties will suffice’.¹⁶ Some of the factors that will be considered are the capacity to mount an attack, the organisation and structure of the armed group, and internal governance and regulation, among others. However, for the most part, there is still uncertainty over the moment an internal distur- bance develops into a NIAC. This is determined on a case-by-case basis, and is open to interpretation on the facts.¹⁷

The 1977 Additional Protocol II of the Geneva Conventions (APII) stipulates a more restrictive definition of NIAC. This is a narrow notion of NIAC as the armed conflict must be between a State’s governmental armed forces and dissident armed forces or other organised armed groups.¹⁸ Furthermore, APII is only activated when the non-gov- ernmental armed forces are: (i) under responsible command; (ii) they exercise control over a part of the State’s territory to enable them to carry out sustained and concerted military operations; and (iii) are able to implement the Protocol.¹⁹ Responsible com- mand requires that the group possesses organs and has a ‘system for allocating authority and responsibility’.²⁰ To exercise control means control that is purely functional, while sustained refers to continuous, and concerted requires it to be conducted in agreement according to a plan.²¹ This distinction does not, however, modify or alter the threshold that is applied to NIAC through Common Article 3.²²

Common Article 3, and where applicable APII, provide the minimum standards of hu-

¹⁵  Ibid, [155].

¹⁶  ICTY, Prosecutor v Limaj, Case No. IT-03-66-T, Judgment (30 November 2005) [89], [94]-[129].

¹⁷  Sylvain Vite, above n, 3, 77.

¹⁸  Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of non-international armed conflict (Protocol II), opened for signature o8 June 1977 1125 UNTS 609 Art. 1(1).

¹⁹  Ibid.

²⁰  J Pictet, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (International Committee of the Red Cross, 1987), [4463]; ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (2 September 1998), [626].

²¹  Ibid, [4469].

²²  Above n, 10 Art. 1.

manitarian law to be adhered to during the course of a NIAC, ²³ by ensuring ‘the appli- cation of the rules of humanity which are recognised as essential by civilized nations’.²⁴ This basic humanitarian protection is centred on the idea of humane treatment, which is continually changing with time. The proposition that the law of war changes over time was stated in the dictum of the Nuremberg judgment where ‘the law of war ... is not static, but by continual adaption follows the needs of a changing world’.²⁵ A further sign of this change was articulated by the ICTY, where the Tribunal held that customary international law now governs NIAC. The ICTY included: the prohibition of attacks against civilians who do not take active part in hostilities; attacks against civilian ob- jects; indiscriminate attacks; and the ‘prohibition of means of warfare proscribed in international armed conflict’.²⁶ The evolving nature of NIAC has led legal experts to suggest that customary international law has developed to a point where the differences between the two spheres of law are less obvious.²⁷

For the purposes of international humanitarian law, one drastic distinction remains; that being the legal culpability of the parties involved in the conflict. As mentioned above, the participants to the hostilities in IAC will be afforded combatant privileges and are only legally liable for violation of international humanitarian law.²⁸ On the other hand, participants to hostilities in a NIAC are not afforded combatant privileges or prisoner of war protections. Those participants are subject to the sovereign State’s domestic law. Thus, a member of the non-state armed group can simply be imprisoned by virtue of their participation in the armed conflict. The lack of continuity in the application of hu- manitarian law is something legal author James Stewart addressed in his ICRC opinion piece, ‘Towards a single definition of armed conflict in international humanitarian law: A critique of internationalised armed conflict’.²⁹

²³  The International Court of Justice (ICJ) in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (1984) 76 ILR 1, para. [448], referred to the rules in Common Article 3 as constituting ‘a minimum yardstick’ in international armed conflicts; Martic at [42].

²⁴  ICRC Commentary, at 34.

²⁵  Judgement of the Intemational Military Tribunal for the Trial of German Ma/or War Criminals, Nuremberg,

Miscellaneous no. 12 (1946), 40

²⁶  Above n, 10, [127].

²⁷  J-M. Henckaerts, “The conduct of hostilities: Target selection, proportionality and precautionary measures under international humanitarian law”, in The Netherlands Red Cross, Protecting Civilians in 21st-Century Warfare: Target Selection, Proportionality and Precautionary Measures in Law and Practice, 8 December 2000, p. 11.

²⁸  K Dormann, “The legal situation of “unlawful/unprivileged combatants”” (2003) 83 International Review of the Red Cross 45, 45

²⁹  See, J Stewart, ‘Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict (2003) 85 International Review of the Red Cross 313.

IV INTERNATIONALISED ARMED CONFLICT

The term ‘internationalised’ armed conflict is used to describe the law of IAC being applied to a NIAC. A NIAC can effectively be rendered an IAC by way of foreign inter- vention,³⁰ and can occur in several ways;³¹ however, it is often confronted with conjec- ture.³² Intervention into a NIAC can occur when: (i) foreign military forces are deployed into a NIAC; or (ii) multinational forces become involved for the purpose of peacekeep- ing operations.³³ The latter usually comes into action via a United Nations Resolution or multilateral treaty agreement, with the multinational forces often not mandated to become involved in the armed conflict directly, except for the purpose of self-defence.³⁴ It is accepted that United Nations peacekeeping missions have their own sui generis status.³⁵ An example of the former can be found in recent events when NATO forces became directly involved in the armed conflict between the Republic of Yugoslavia and the Kosovo Liberation Army in 1999.³⁶ Foreign military forces being deployed into a NIAC is the most common, a glimpse of the newspaper will have an article on foreign intervention, and is where the majority of the literature on internationalisation lies.

Internationalisation illustrates the problematic nature of the dichotomy of international and non-international armed conflicts. Internationalisation of a NIAC garnered interest following the events of the Vietnam War in the 1960’s. International law expert Mey- rowitz argued the foreign intervention into the Vietnam War turned it international in nature and therefore the whole of humanitarian law applied.³⁷ This is referred to as the ‘global view’.³⁸ Other experts have distinguished this view by stating that the Vietnam War encompassed the characteristics of both international and non-international armed conflict, depending on the level of intervention by foreign forces at the given time and/or

³⁰  Ibid, 315.

³¹  See D. Schindler, “International humanitarian law and internationalized internal armed conflicts”, Interna- tional Review of the Red Cross, No. 230, 1982, 255.

³²  There has been debate been the International Court of Justice and ICTY concerning what test for interna- tionalisation should apply. This is discussed below.

³³  Sylvain Vite, above n, 3, 85.

³⁴  Ibid, 87.

³⁵  Ibid, 88.

³⁶  See S. Alexeyevich Egorov, “The Kosovo crisis and the law of armed conflicts”, (2000) International Review of the Red Cross 837, 183.

³⁷  H. Meyrowitz, The Law of War in the Vietnamese Conflict, in R. A. Falk (ed.) The Vietnam War and Inter- national Law. Vol. 2. Princeton, 1969, 533.

³⁸  J Stewart, Above n, 29, 334.

event.³⁹ The differentiated method, or ‘mixed view’, is frequently used in contemporary armed conflicts to describe the level of foreign involvement in each ‘mini’ conflict.⁴⁰ This proposition finds weight through the ICTY’s comments that characterisation of the conflict varies ‘at different times and places as either internal or international armed conflicts, or as a mixed internal-international conflict’.⁴¹ The fragmented approach of the application of both international and non-international armed conflict causes many difficulties in international humanitarian law.

In general, accepted internationalised conflicts occur where there is: (1) foreign inter- vention for an insurgent group fighting against an established government;⁴² (2) armed conflict between two internal non-state groups both of which are backed by different states; or (3) direct hostilities between foreign states that have intervened in a non-in- ternational armed conflict in supporting opposing sides.⁴³ Extrapolating these situations, Common Article 2 will become wholly applicable if the armed forces of two States conduct hostilities against one another. A limitation should be noted where a State has the ability to send military experts and advisors to one of the parties in the non-interna- tional armed conflict as a detached private individual to the State in which the conflict is waged without responsibility being attributed for those acts.⁴⁴

A The Test for Internationalised Armed Conflict

The troublesome issue is at what level of involvement does foreign intervention have to be to internationalise a non-international armed conflict? This is hindered by a prolifer- ation of the tests for internationalisation. The International Court of Justice (ICJ) and ad hoc International Tribunal, the ICTY, have espoused different tests for internation- alisation of a NIAC. This has caused problems when trying to ascertain the true nature of a particular conflict without having it examined by a court of tribunal. The ICJ in the Military and Paramilitary Activities in and against Nicaragua case applied what it

³⁹  H-P. Gasser, “Internationalized non-international armed conflicts: Case studies of Afghanistan, Kampu- chea, and Lebanon”, American University Law Review, Vol. 33, 1983, 147.

⁴⁰  J Stewart, Above n, 29, 333.

⁴¹  Prosecutor v. Dusko Tadic Case No. IT-94-1-A, Appeal Judgment, International Criminal Tribunal for the former Yugoslavia (ICTY), (15 July 1999), [73].

⁴²  See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, 14 (Nicaragua case).

⁴³  J Stewart, Above n, 29, 315; D. Schindler, Above n, 31, 258-60.

⁴⁴  S Verhoeven, Above n, 8,16; Art. 6 of the International Law Commission’s Draft Articles on State Respon- sibility for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10).

described as an ‘effective control’ test.⁴⁵ In this case, the effective control test involved assessing the degree of participation of the contras to the United States’ Government: that is, a test of ‘dependence on the one side and control on the other’.⁴⁶ Its application and relevance to international humanitarian law was found to have many inconsistencies and was subject to much academic dispute.⁴⁷ Thus, the effective control test was sub- sequently overruled in the Tadic Appeals Judgment where the ICTY deemed the ICJ’s reasoning unconvincing as it was entirely based on the public international law of State responsibility. ⁴⁸

The three tests advocated by the ICTY essentially entail an assessment of the facts to determine if a party to the conflict should be considered a de facto organ of a State.⁴⁹ In the first test, it is necessary to consider whether or not an individual or a non-military organised group acted upon specific instructions as a de facto State organ.⁵⁰ The second test requires that a State must have control of an overall character of subordinate armed forces, militias or paramilitary units.⁵¹ The ICTY explicitly stated that ‘overall control’ means that a State has a role in organising, coordinating or planning the military actions of the military group’,⁵² not merely providing financing, training and equipping, or pro- viding operational support. The third test is whether or not an individual behaves within the structure of a State in such a way as to be assimilated into a State’s organ.⁵³ The test is limited in its scope and application.⁵⁴ Examination of the ICTY’s judgment indicates the complexity of applying an internationalised armed conflict test is still apparent. It can be argued that the ICTY provides an intuitive approach. However, to further muddy the international law on this point, in Application of the Convention on the Prevention and Punishment of the Crime of Genocide, the ICJ found it was not appropriate to apply the Tadic Judgment in the context of state responsibility and instead reiterated its effec- tive control test from the Nicaragua case.⁵⁵

⁴⁵  Nicaragua, Above n, 42, [115].

⁴⁶  Ibid.

⁴⁷  J Stewart, Above n, 29, 324.

⁴⁸  Tadic, Above n, 41, [116].

⁴⁹  J Stewart, Above n, 31, 325; Prosecutor v. Delalic ́ et al., Case No. IT-96-21-A, Appeal Judgment, ICTY (20 February 2001) [5]-[50].

⁵⁰  J Stewart, Above n, 29, 325; Tadic, Above n, 41, [137].

⁵¹  J Stewart, Above n, 29, 325; Tadic, Above n, 41, [137].

⁵²  J Stewart, Above n, 29, 325; Tadic, Above n, 41, [137].

⁵³  J Stewart, Above n, 29, 326; Tadic, Above n, 41, [141].

⁵⁴  Tadic, Above n, 41, [137], [142]-[143].

⁵⁵ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, I.C.J, Reports 2005, p. 43, [404]-[405].

The outcome of the two proposed tests demonstrates theoretical problems exist, such that there is an interrelationship between the test for ‘effective control’, which deals with attributing state responsibility, and the test for ‘overall control’, which deals with internationalising an armed conflict. ⁵⁶ Key difficulties remain for State and non-state parties to an armed conflict. For instance, a third party State involved in the NIAC might not turn its mind as to whether or not their actions would constitute internationalisation of an armed conflict, especially as the tests have proven difficult to apply even with the benefit of hindsight. Understandably, this proves to be a problem for outside parties, such as the International Committee of the Red Cross (ICRC), seeking to enforce inter- national humanitarian law during an armed conflict. Under these tests, it is considered that only the armed conflicts ‘belonging’ to a State are an international armed conflict, rather than all conflicts in the territory.⁵⁷ In the Nicaragua case the ICJ held that the conflict between the United States and Nicaragua activated the rules of international armed conflict, whereas the conflict between the contras and Nicaragua was governed by the rules of NIAC.⁵⁸ As stated above, the ICTY delivered a similar principle. This is reflective of a strict construction of the relevant Conventions, a somewhat artificial determination of the law of war, and does not appear to be pragmatic in the application of international humanitarian law.

V A CASE STUDY: THE LIBYAN WAR

This case study will attempt to analyse a contemporary armed conflicts in terms of its applicability to international humanitarian law. It should be noted that there might be evidentiary gaps as some of the information may have been either misreported or simply unreported.

A Relevant Facts and Application

1 Phase One: Non-international Armed Conflict

It is well documented that the crisis in Libya began in mid-February 2011. The conflict

⁵⁶  Katherine Del Mar ,‘The Requirement of Belonging under international Humanitarian Law’, European Journal of International Law, Vol. 21, Issue 1, p. 105, 107.

⁵⁷  J Stewart, Above n, 29, 333; Tadic, Above n, 41, para [72].

⁵⁸  Nicaragua, Above n, 42, [219].

escalated quickly and by the end of February it had risen to a level of a non-international armed conflict, activating Common Article 3.⁵⁹ During this time the crisis grew out of already violent political protests by Libyan citizens against the Gaddafi regime. Signifi- cantly, there was no foreign intervention until 17 March 2011.⁶⁰ At this point the conflict is entirely internal, thus, subject to domestic law.

On 17 February 2011, news of the death of 24 protesters escalated the violence. One day later, 84 people had been reported killed.⁶¹ Importantly, the government’s opponents were private individual citizens who showed no signs of the requisite organisation re- quired by Common Article 3. It was not until 20 February 2011, when rebel groups cap- tured Benghazi, that the nature of the situation began to change. This event highlighted both organisation and increasing intensity of the fighting on behalf of the rebels.⁶² Their capture of Benghazi involved a three-day long assault on the fortified Katiba military base. Consequently, government military increased their ammunition usage, and Gadd- afi deployed his own paramilitary forces. By 25 February 2011, several hundreds of civilians were reported to be killed,⁶³ and over 22 000 people had fled Libya to escape the fighting.⁶⁴ The fighting was 10 days old. It is at this point a strong argument for a non-international armed conflict under Common Article 3 arises. The requirement for organisation may be criticised by virtue of the evidence not revealing a great deal of obvious organisation. However, when comparing the facts of the Limaj case: mainly the Kosovo Liberation Army KLA were able to offer ‘strong and often effective resistance’, ‘enjoyed a significant level of overall military success’, and the hostilities were not ‘purely one-sided’,⁶⁵ coupled with the less stringent onerous organisation test, it would appear as if the Libya rebels have sufficient organisation.

The application of APII is higher. First, the test for responsible command should be taken as being the same as organisation under Common Article 3. It should be noted that

⁵⁹  K Johnston, Transformations in Conflict Status in Libya (2012) 17(1) Journal of Conflict and Security Law

81, 84.

⁶⁰  Ibid, 85.

⁶¹  Ibid, 90.

⁶²  ‘Battle for Libya: Key moments’ Al Jazeera English Doha (23 August 2011). <http://www.aljazeera.com/ indepth/spotlight/libya/2011/08/20118219127303432.html>

⁶³  Ibid.

⁶⁴  ‘UNHCR calls for international support for Tunisia and Egypt amid exodus from Libya’ UNHCR (25 February 2011) <http://www.unhcr.org.mt/news-and-views/north-africa-situation/267-unhcr-calls-for-inter- national-support-for-tunisia-and-egypt-amid-exodus-from-libya>

⁶⁵  Limaj, Above n, 16, [171].

if the phrase requires something more akin to ‘military command’ structure, then this occurred mid of April 2011.⁶⁶ Second, the rebel forces did exercise sufficient functional control over territory, which allowed them to carry out sustained and concerted military operations. The assault on Benghazi would provide a good argument in support of that. Third, satisfying the first two criteria allow the dissident armed group to implement this Protocol. By 25 March 2011, the National Transitional Council (NTC), a group of political representatives of the Libyan revolutionaries, sought to comply with the third Geneva Convention by way of issuing a conduct of conduct for treatment of their detainees.⁶⁷ However, it was not until August that the NTC openly commit to respecting the four Geneva Conventions and their Additional Protocols.⁶⁸

2 Phase Two: Internationalisation

On 17 March 2011, the United Nations Security Council, acting under its Chapter VII powers, passed resolution 1973, authorising Member States ‘to take all necessary mea- sures ... to protect civilians and civilian populated areas under threat of attack in Lib- ya.’⁶⁹ This is not without its hurdles; the ICTY held that a minimum threshold must be met for the conflict to become internationalised,⁷⁰ which asks whether or not, among other things, that intervention ‘had an impact on the conduct of the conflict’.⁷¹ As a consequence of the American and European air strikes, the Libya conflict became inter- nationalised – activating the comprehensive rules of international armed conflict. For- eign State intervention included deployment of fighter jets and sweeping ‘robust’ action against governmental forces over the several months following the United Nations Se- curity Council Resolution. The NATO no-fly zone also had a material ‘impact on the conduct of the conflict’. The facts quite clearly indicate that the foreign invention would meet this low threshold requirement.⁷²

Alternatively, looking through the lens of the ‘mixed view’, the whole of international

⁶⁶  K Johnston, Above n, 59, 94; ‘Libyan Rebels Get Organised’ Al Jazeera (19 April 2011). <http://m.alja- zeera.com/story/201141942947854663>

⁶⁷  K Johnston, Above n, 59, 94.

⁶⁸  Ibid.

⁶⁹  UNSC Res 1973 (17 March 2011) ‘The Situation in Libya’, [4].

⁷⁰  J Stewart, Above n, 29, 328; K Johnston, Above n, 59, 96.

⁷¹  Prosecutor v Blaskic (Trial Judgment), IT-95-14-T, International Criminal Tribunal for the former Yugosla- via (ICTY), (3 March 2000) [94].

⁷²  K Johnston, Above n, 59, 94.

humanitarian law will only be attached to the actions of the intervening foreign State and NATO forces. The Libyan rebels would maintain the inferior non-international armed protections.

VI CONCLUSION

Armed conflict transforms from internal disturbance, to a NIAC, to an IAC regularly, and usually quite quickly. To expect those involved in the conflict to consider the differ- ent legal effects of their actions is absurd. As it stands, the organisational structures and administrative ability of a non-governmental force usually will not allow for them to follow, understand, or even be aware of the legal requirements pertaining to the highest level of international armed conflict. A case can also be made for some governmental forces. If one were to assume a common standard of armed conflict, especially between NIAC and IAC, then the conflict will not suffer the confusion caused by international- isation. It will also allow for those in violation of international humanitarian law to be persecuted with much more clarity and certainty. As for now, international humanitarian law must continue to promulgate the need to show humanity even in a time of armed conflict.