The Deficiencies of International Humanitarian Law in Armed Conflicts of a 'Mixed' Character ?Towards a Single Law of Armed Conflict?

• Author: Marie-Claire Rush
• Position: BCL (Hons) (NUI), LLM (Queen's University Belfast)
• Pages: 1-12

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(2009) COLR

THE DEFICIENCIES OF INTERNATIONAL HUMANITARIAN LAW IN

ARMED CONFLICTS OF A ‘MIXED’ CHARACTER – TOWARDS A SINGLE

LAW OF ARMED CONFLICT?

Marie-Claire Rush *

A INTRODUCTION

There is scarcely a portion of our globe that has not felt, at some time, the sting of

war and conflict. It is important to regard war as a global phenomenon and everyone has

an interest, indeed a moral obligation, to defend human dignity and security wherever it is

threatened. International Humanitarian Law or the Law of Armed Conflict is, like other

forms of international law, based primarily upon treaties and customary international law.

It constitutes a broad corpus of laws designed to regulate armed conflicts agreed to and

codified among states and their representatives. A state-centred focus is thus highly

visible throughout the content of the various provisions. Key to the applicability of

international humanitarian law is the classification of the conflict as being either

international or non-international in character. Unfortunately there remain significant

divergences between the two regimes with the latter suffering from a far less

comprehensive and satisfactory system of regulation. This ‘two-box’ approach,1 as it has

become known, is no longer adequate to deal with many current features of armed

conflict which have developed over the last thirty years to such a point where this

traditional dichotomy is now commonly regarded as redundant. Armed conflicts no

longer fit neatly into categories of ‘international’ or ‘non-international’ and many

conflicts now frequently contain a mixture of elements both international and non-

international, making the task of classification alone, highly complex. While it remains

doubtful that states would be willing to concede the application of a single body of law to

their internal conflicts, the acceptance of the full body of international humanitarian law

in mixed conflicts, would be a significant achievement in itself and would pave the way

towards a fuller extension of the law to non-international armed conflicts at some future

date. This essay lends its support to the academic commentators, judicial decisions and

legal developments which have made tentative yet valuable steps towards a gradual

erosion of the barrier between the two humanitarian law regimes. At the heart of this

ideology is the acceptance of a fundamental principle of ‘humanity’ and the

acknowledgement that regardless of whether a conflict is classified as international or

internal, all victims deserve to be treated humanely and with respect for their person.

* BCL (Hons) (NUI), LLM (Queen’s University Belfast).

1 Fenrick ‘The Development of the Law of Armed Conflict Through the Jurisprudence of the International

Criminal Tribunal for the Former Yugoslavia’ (1998) 3 Journal of Armed Conflict Law 197, 198.