7c94a-9d900-2e943-bf9f9

Human Rights Review, Volume: III, Issue: 1, June 2013

THE ORGANISATIONAL REQUIREMENTS FOR THE THRESHOLD OF NON-INTERNATIONAL ARMED CONFLICT

Uluslararası Nitelikte Olmayan Silahlı Çatışmalarda Organizasyonel Gereklilik

Dr. Timur DEMİR*

ABSTRACT

There are two types of non-international armed conflicts in international humanitarian law. These are non-international armed conflicts in the meaning of Common Article 3 and non-international armed conflicts falling within the definition provided in Article 1 of Additional Protocol II. However none of them define theconditions or threshold of non international armed conflict. International tribunals, in particular the case law of the International Criminal Tribunal for the Former Yugoslavia has played an important role in the definition or conditions of these situations. Two requirements, 'protracted armed violence' and 'a certain level of organization' are needed for the existence of non-international armed conflict under international law. If the organizational requirement is not satisfied in a situation, international humanitarian law can not be applicable. Case law highlights indicative factors regarding organizational structure of an armed group. Even if none of these factors have a central role in determining the existence of the armed conflict, the ability to command and control members of the group, and carry out the group’s operations are particularly important.

Key Words: Non-international armed conflict, Common Article 3, Organizational Requirement

ÖZET

Uluslararası insancıl hukukunda iki tür uluslararası nitelikte olmayan silahlı çalışma tipi vardır. Bunlar Ortak 3. madde anlamında uluslararası nitelikte olmayan silahlı çatışmalar ve 2. Ek Protokol'ün 1. maddesi kapsamına giren uluslararası nitelikte olmayan silahlı çatışmalardır. Buna karşın, bunlardan hiçbiri uluslararası nitelikte olmayan bir silahlı çatışmanın şartlarını ve sınırlarını belirlemez. Uluslararası mahkemeler, özellikle Eski Yugoslavya Uluslararası Ceza Mahkemesi'nin kararları bu hususların tanımlanmasında ve şartlarının belirlenmesinde önemli bir rol oynamıştır. Uzun süreli silahlı çatışmalar ve belirli bir seviyedeki organizasyon, uluslararası nitelikte olmayan silahlı çatışmaların iki şartıdır. Grubun organizasyon yapısı yeterli değilse, uluslararası insancıl hukuku da uygulanabilir hale gelemez. Silahlı bir grubun organizasyonel yapısı ile ilgili olarak mahkeme kararları bazı belirleyici faktörlere vurgu yapmıştır. Bu faktörlerin hiçbirinin silahlı bir çatışmaya

* Judge, Ministry of Justice, General Directorate International Law and Foreign Relations, Human Rights Department

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The Organisational Requirements for The Threshold of Non-International Armed ConflictDr. Timur DEMİR

ilişkin merkezi bir konumu bulunmasa da; üyeleri kontrol ve yönlendirme kapasitesi, operasyonların yapılması önemli birer etkendir.

Anahtar Kelimeler: Uluslararası nitelikte Olmayan Silahlı Çatışma, Ortak 3. Madde, Organizasyonel Gereklilik.

***

INTRODUCTIONInternational law is not applicable to all kinds of conflicts between parties.However, it is not an easy issue to classify a situation as a non-international armed conflict due to the threshold of non-international armed conflict. If a conflict between two parties is classified as non-international armed conflict, all the principles of international law must be taken into account by parties. In this regard, the organizational requirement is one of the most important factors for the existence of a non-international armed conflict. If the organizational requirement is not satisfied in a situation, international humanitarian law can not be applicable. In addition, if an armed group is not sufficiently organized, the conflict between parties may be defined as internal disturbances or internal tensions. However, neither Geneva Conventions nor Additional Protocol II define the organizational requirement explicitly. Instead, international tribunals play an important role in the definition. This study examines the threshold of organizational requirements for a non-international armed conflict, and in particular its distinguishing characteristics from situations of internal disturbances. First, the classification of non-international armed conflicts and requirements, then the organizational requirements which are shaped by the case law of the international tribunals will be examined. This paper will conclude that even if none of the indicative factors have a central role in determining the existence of the armed conflict, the ability to command and control members of the group, and carry out the group’s operations are significant factors.

I. CLASSIFICATION OF NON-INTERNATIONAL ARMED CONFLICTS

A. Treaty Law

1. GeneralWhile many states are keen to sign an agreement on rules and principles which govern the conduct of states in an international armed conflicts, many of them are, however, reluctant to regulate the situations of


non-international armed conflicts. This is because such situations were seen as issues that 'belonged essentially to the domestic affairs of the national sovereign states'.1 Nevertheless, some minimum standards which are applicable in the situations of non-international armed conflict were adopted in Common Article 3 to the Geneva Conventions by the contracting states in 1949. Other conventions such as Article 19 of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague (14 May 1954) and the Second Additional Protocol to the Geneva Conventions (1977) also contains some issues with regard to non-international armed conflict.

2. Types of Non-International Armed ConflictsThere are two types of non-international armed conflicts in international humanitarian law. These are non-international armed conflicts in the meaning of Common Article 3 and non-international armed conflicts 'falling within the definition provided in Article 1 of Additional Protocol II.'2 This difference is important in terms of threshold of the armed conflict. Thus, it directly affect the organizational requirement.

While Common Article 3 sets out minimum standards for parties to the conflict, it does not define the conditions or threshold of non international armed conflict.3 Besides, it does not specify explicitly when international law will apply.4 On the other hand, the standards of Additional Protocol II is higher than the standards of Common Article 3 5 and Additional Protocol II to the Geneva Conventions provides more protections for victims of non-international armed conflicts.6 As one of the prerequisites for a situation to be classified as a non-international armed conflict is the organizational requirement and Additional Protocol II has some additional prerequisites, it can be said that there is a strong relationship

1 Tom Haeck, Armed Conflict, Internal Disturbances or Something else?, Lambert Academic Publishing, 2012, p.3.

2 How is the Term "Armed Conflict" Defined in International Humanitarian Law?, International Committee of the Red Cross (ICRC) Opinion Paper, March 2008, p.1.

3 Common Article 3 to the Geneva Conventions 4 Dapo Akande, Classification of Armed Conflicts: Relevant Legal Concepts, (Edited by) Elizabeth

Wilmshurst, International Law and the Classification of Conflicts, Oxford 2012, p.51. 5 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 197. 6 Roderic Alley, Internal Conflict and the International Community Wars Without End?, Ashgate,

2004, p.120; Final Report On The Meaning Of Armed Conflict In International Law, International Law Association The Hague Conference (2010), Use Of Force, available at: http://www.ila-hq.org/en/committees/draft-committee-reports- the-hague-2010.cfm, Last visited on 14.02.2013, p.13.

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ilişkin merkezi bir konumu bulunmasa da; üyeleri kontrol ve yönlendirme kapasitesi, operasyonların yapılması önemli birer etkendir.

Anahtar Kelimeler: Uluslararası nitelikte Olmayan Silahlı Çatışma, Ortak 3. Madde, Organizasyonel Gereklilik.

***

INTRODUCTIONInternational law is not applicable to all kinds of conflicts between parties.However, it is not an easy issue to classify a situation as a non-international armed conflict due to the threshold of non-international armed conflict. If a conflict between two parties is classified as non-international armed conflict, all the principles of international law must be taken into account by parties. In this regard, the organizational requirement is one of the most important factors for the existence of a non-international armed conflict. If the organizational requirement is not satisfied in a situation, international humanitarian law can not be applicable. In addition, if an armed group is not sufficiently organized, the conflict between parties may be defined as internal disturbances or internal tensions. However, neither Geneva Conventions nor Additional Protocol II define the organizational requirement explicitly. Instead, international tribunals play an important role in the definition. This study examines the threshold of organizational requirements for a non-international armed conflict, and in particular its distinguishing characteristics from situations of internal disturbances. First, the classification of non-international armed conflicts and requirements, then the organizational requirements which are shaped by the case law of the international tribunals will be examined. This paper will conclude that even if none of the indicative factors have a central role in determining the existence of the armed conflict, the ability to command and control members of the group, and carry out the group’s operations are significant factors.

I. CLASSIFICATION OF NON-INTERNATIONAL ARMED CONFLICTS

A. Treaty Law

1. GeneralWhile many states are keen to sign an agreement on rules and principles which govern the conduct of states in an international armed conflicts, many of them are, however, reluctant to regulate the situations of


non-international armed conflicts. This is because such situations were seen as issues that 'belonged essentially to the domestic affairs of the national sovereign states'.1 Nevertheless, some minimum standards which are applicable in the situations of non-international armed conflict were adopted in Common Article 3 to the Geneva Conventions by the contracting states in 1949. Other conventions such as Article 19 of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague (14 May 1954) and the Second Additional Protocol to the Geneva Conventions (1977) also contains some issues with regard to non-international armed conflict.

2. Types of Non-International Armed ConflictsThere are two types of non-international armed conflicts in international humanitarian law. These are non-international armed conflicts in the meaning of Common Article 3 and non-international armed conflicts 'falling within the definition provided in Article 1 of Additional Protocol II.'2 This difference is important in terms of threshold of the armed conflict. Thus, it directly affect the organizational requirement.

While Common Article 3 sets out minimum standards for parties to the conflict, it does not define the conditions or threshold of non international armed conflict.3 Besides, it does not specify explicitly when international law will apply.4 On the other hand, the standards of Additional Protocol II is higher than the standards of Common Article 3 5 and Additional Protocol II to the Geneva Conventions provides more protections for victims of non-international armed conflicts.6 As one of the prerequisites for a situation to be classified as a non-international armed conflict is the organizational requirement and Additional Protocol II has some additional prerequisites, it can be said that there is a strong relationship

1 Tom Haeck, Armed Conflict, Internal Disturbances or Something else?, Lambert Academic Publishing, 2012, p.3.

2 How is the Term "Armed Conflict" Defined in International Humanitarian Law?, International Committee of the Red Cross (ICRC) Opinion Paper, March 2008, p.1.

3 Common Article 3 to the Geneva Conventions 4 Dapo Akande, Classification of Armed Conflicts: Relevant Legal Concepts, (Edited by) Elizabeth

Wilmshurst, International Law and the Classification of Conflicts, Oxford 2012, p.51. 5 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 197. 6 Roderic Alley, Internal Conflict and the International Community Wars Without End?, Ashgate,

2004, p.120; Final Report On The Meaning Of Armed Conflict In International Law, International Law Association The Hague Conference (2010), Use Of Force, available at: http://www.ila-hq.org/en/committees/draft-committee-reports- the-hague-2010.cfm, Last visited on 14.02.2013, p.13.

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between 'the content of applicable law' and 'the organization of the armed group'.7

Additional Protocol II, as stated in Article 1, develops and supplements Article 3 Common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application.8 However, the definition of non-international armed conflict in Article 1 of Additional Protocol II is different from the one in Common Article 3 in two aspects. The first requirement is territorial control 'as to enable them to carry out sustained and concerted military operations and to implement this Protocol".9 This requirement directly affects the organizational requirement. In this sense, comparing a non-international armed conflict in the meaning of Common Article 3, 'the degree of organization required to engage in protracted violence is lower than the degree of organization required to carry out sustained and concerted military operations.' 10 Secondly, contrary to common Article 3, Additional Protocol II is not applicable to armed conflicts occurring only between non-state armed groups.11

However, neither Common Article 3 nor Additional Protocol II indicates an explicit and complete definition or conditions of non-international armed conflict12, except the negative definition13 of non international armed conflict, which exists in Article 1(2) of Additional Protocol II that states that "this Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts."14 In other words, while the article states what can not be classified as non-international armed conflict, it does not state explicitly 'what a non-international armed conflict is'.15 However, international tribunals, in particular the case law of the International Criminal Tribunal for the Former Yugoslavia (ICTY) has played an important role in the definition or conditions of these situations.

7 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Oxford University Press, 2012, p.185.

8 Additional Protocol II, Article 1(1) 9 How is the Term "Armed Conflict" Defined in International Humanitarian Law?, Supra fn2, p.4. 10 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 197. 11 How is the Term "Armed Conflict" Defined in International Humanitarian Law?, Supra fn2, p.4. 12 Tom Haeck, Armed Conflict, Internal Disturbances or Something else?, Supra fn1, p.15. 13 Anthony Cullen, The Concept of Non-International Armed Conflict in International

Humanitarian Law, Cambridge University Press, 2010, p.107. 14 Article 1(2) of the Additional Protocol II. 15 Tom Haeck, Armed Conflict, Internal Disturbances or Something else?, Supra fn1, p.15.


B. Requirements For Non-International Armed ConflictIn the Tadic Trial Judgment, the first case of the ICTY, the Chamber applied the test to determine whether the existence of an armed conflict for the purposes of Common Article 3 was established.16 As stated in the Tadic Case, "an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State."17 According to this judgment, two requirements, 'protracted armed violence' and 'a certain level of organization' are needed for the existence of a non-international armed conflict under international law. 18 As emphasized by the International Criminal Tribunal for Rwanda (ICTR), these two criteria are 'clearly related and should be considered together when assessing whether a particular situation amounts to an armed conflict'.19

The term 'protracted armed violance' is not detailed in the Tadic case. But the ICTY, in the Haradinaj judgment, accepted that the criterion of protracted armed violence must be interpreted "as referring more to the intensity of the armed violence than to its duration."20 In this sense, not only protracted conflicts such as between US and Al Qaeda or Israel and the Hezbollah21, but also some short term conflicts such as occurred in La Tablada22 which lasted approximately 30 hours, can be classified as non-international armed conflict.

Once these two conditions have been satisfied, international humanitarian law comes into force.23 In other words, if the organizational requirement is not satisfied in a situation, international humanitarian law can not be applicable to that situation. If either of these two conditions is not

16 Prosecutor v. Dusko Tadic Case, Trial Chamber, Opinion and Judgment, 7 May 1997, IT-94-1-T, para 562.

17 Prosecutor v. Dusko Tadic Case, 2 October 1995, Decision On The Defence Motion For Interlocutory Appeal On Jurisdiction, ICTY, para.70.

18 Noam Lubell, Extraterritorial Use of Forcfe Against Non-State Actors, Oxford: Oxford University Press, 2010, p. 105.

19 Prosecutor v. Akayesu, Case ICTR-94-4-4-T, 2 September 1998, Para 620; Initial Report on the Meaning of Armed Conflict in International Law, International Law Associatiton Committee on the Use of Force, Rio de Janeiro Conference(2008), p.22.

20 Prosecutor v. Haradinaj and ors, Judgment, ICTY, Case IT-04-84-T, 3 April 2008, para 49. 21 Noam Lubell, Extraterritorial Use of Forcfe Against Non-State Actors, Supra fn18, p. 105. 22 In this case the criteria of protracted armed violence had not been met in this incident. But Inter

American Commission on Human Rights concluded that the conflict between the attackers and members of the Argentine armed forces triggered application of the provisions of Common Article 3 and other rules relevant to the conduct of internal hostilities.

23 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.182.

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between 'the content of applicable law' and 'the organization of the armed group'.7

Additional Protocol II, as stated in Article 1, develops and supplements Article 3 Common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application.8 However, the definition of non-international armed conflict in Article 1 of Additional Protocol II is different from the one in Common Article 3 in two aspects. The first requirement is territorial control 'as to enable them to carry out sustained and concerted military operations and to implement this Protocol".9 This requirement directly affects the organizational requirement. In this sense, comparing a non-international armed conflict in the meaning of Common Article 3, 'the degree of organization required to engage in protracted violence is lower than the degree of organization required to carry out sustained and concerted military operations.' 10 Secondly, contrary to common Article 3, Additional Protocol II is not applicable to armed conflicts occurring only between non-state armed groups.11

However, neither Common Article 3 nor Additional Protocol II indicates an explicit and complete definition or conditions of non-international armed conflict12, except the negative definition13 of non international armed conflict, which exists in Article 1(2) of Additional Protocol II that states that "this Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts."14 In other words, while the article states what can not be classified as non-international armed conflict, it does not state explicitly 'what a non-international armed conflict is'.15 However, international tribunals, in particular the case law of the International Criminal Tribunal for the Former Yugoslavia (ICTY) has played an important role in the definition or conditions of these situations.

7 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Oxford University Press, 2012, p.185.

8 Additional Protocol II, Article 1(1) 9 How is the Term "Armed Conflict" Defined in International Humanitarian Law?, Supra fn2, p.4. 10 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 197. 11 How is the Term "Armed Conflict" Defined in International Humanitarian Law?, Supra fn2, p.4. 12 Tom Haeck, Armed Conflict, Internal Disturbances or Something else?, Supra fn1, p.15. 13 Anthony Cullen, The Concept of Non-International Armed Conflict in International

Humanitarian Law, Cambridge University Press, 2010, p.107. 14 Article 1(2) of the Additional Protocol II. 15 Tom Haeck, Armed Conflict, Internal Disturbances or Something else?, Supra fn1, p.15.


B. Requirements For Non-International Armed ConflictIn the Tadic Trial Judgment, the first case of the ICTY, the Chamber applied the test to determine whether the existence of an armed conflict for the purposes of Common Article 3 was established.16 As stated in the Tadic Case, "an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State."17 According to this judgment, two requirements, 'protracted armed violence' and 'a certain level of organization' are needed for the existence of a non-international armed conflict under international law. 18 As emphasized by the International Criminal Tribunal for Rwanda (ICTR), these two criteria are 'clearly related and should be considered together when assessing whether a particular situation amounts to an armed conflict'.19

The term 'protracted armed violance' is not detailed in the Tadic case. But the ICTY, in the Haradinaj judgment, accepted that the criterion of protracted armed violence must be interpreted "as referring more to the intensity of the armed violence than to its duration."20 In this sense, not only protracted conflicts such as between US and Al Qaeda or Israel and the Hezbollah21, but also some short term conflicts such as occurred in La Tablada22 which lasted approximately 30 hours, can be classified as non-international armed conflict.

Once these two conditions have been satisfied, international humanitarian law comes into force.23 In other words, if the organizational requirement is not satisfied in a situation, international humanitarian law can not be applicable to that situation. If either of these two conditions is not

16 Prosecutor v. Dusko Tadic Case, Trial Chamber, Opinion and Judgment, 7 May 1997, IT-94-1-T, para 562.

17 Prosecutor v. Dusko Tadic Case, 2 October 1995, Decision On The Defence Motion For Interlocutory Appeal On Jurisdiction, ICTY, para.70.

18 Noam Lubell, Extraterritorial Use of Forcfe Against Non-State Actors, Oxford: Oxford University Press, 2010, p. 105.

19 Prosecutor v. Akayesu, Case ICTR-94-4-4-T, 2 September 1998, Para 620; Initial Report on the Meaning of Armed Conflict in International Law, International Law Associatiton Committee on the Use of Force, Rio de Janeiro Conference(2008), p.22.

20 Prosecutor v. Haradinaj and ors, Judgment, ICTY, Case IT-04-84-T, 3 April 2008, para 49. 21 Noam Lubell, Extraterritorial Use of Forcfe Against Non-State Actors, Supra fn18, p. 105. 22 In this case the criteria of protracted armed violence had not been met in this incident. But Inter

American Commission on Human Rights concluded that the conflict between the attackers and members of the Argentine armed forces triggered application of the provisions of Common Article 3 and other rules relevant to the conduct of internal hostilities.

23 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.182.

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existence, the situation between two parties may be defined as 'internal disturbances or internal tensions.'24 Thus, since the definition of an armed conflict is not concrete, the question of whether a situation might be classified as an armed conflict or whether a situation meets the criteria of Common Article 3 to the Geneva Conventions must be decided on a case by case basis.25

II. Organizational Requirements

A. Treaty LawAn armed conflict between governmental armed forces and non-governmental armed groups or between such groups can falls within the meaning of Common Article 3.26 Since non-governmental armed groups can be parties to the conflict, the satisfaction of the organizational requirements in a non-international armed conflict is more complex in comparison to international armed conflicts.27

Whilst, Common Article 3 specifies fundamental principals of humanity and minimum standards that are applicable in non-international armed conflicts28, it does not define the required degree of organization for non-state armed groups party to a non-international armed conflict.29

However, according to the Seville Agreement ‘an armed conflict exists when the armed action is taking place between two or more parties and reflects a minimum of organization’.30 In this sense, armed groups must be organized 'to a greater or lesser extent' in order to be qualified as a

24 Sylvain Vite, Typology of armed conflicts in International humanitarian law: legal concepts and actual situations, Volume 91, Number 873, March 2009, ICRC, p.77

25 Final Report On The Meaning Of Armed Conflict In International Law, International Law Association The Hague Conference (2010), Use Of Force, available at: http://www.ila-hq.org/en/committees/draft-committee-reports- the-hague-2010.cfm, Last visited on 14.02.2013, p.15; Prosecutor v. Musema , Judgment and Sentence, Trial Chamber I, Case No. ICTR-96-13-A, 27 January 2000, para. 249; Situation In The Republic Of Cote d'Ivoire, (Pre-Trial Chamber III) Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, No.: ICC-02/11, Date: 3 October 2011, para 46.

26 Jelena Pejic, The Protective Scope of Common Article 3: More Than Meets The Eye, (2011) 93 (881) International Review of the Red Cross, p.3.

27 Final Report On The Meaning Of Armed Conflict In International Law, Supra fn25, p.29. 28 Common Article 3 29 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 194. 30 Article 5/2 of the Seville Agreement on The Organization of The International Activities of The

Components of The International Red Cross and Red Crescent Movement, International Review of the Red Cross, No. 322, 25-27 November 1997, Available online at: http://www.icrc.org/eng/resources/documents/misc/57jp4y.htm, Last visited: 06.02.2013.


party to a non-international armed conflict.31 This characteristic of the organization has been emphasized by the international tribunals.

B. Jurisprudence Even if Common Article 3 to the Geneva Conventions does not provide a specific criteria regarding the classification of parties to non-international armed conflict, the general consensus is that armed groups must possess 'a minimum degree of organization and discipline -enough to enable them to respect international humanitarian law- in order to be recognized as a party to the conflict'.32 It requires inherently that the armed forces of each party to the conflict 'have to be under a certain command structure and have the capacity to sustain military operations'33, and they have to be 'sufficiently organized to confront each other with military means.'34

The ICTY, in particular, through its judgments, have developed the concept of organized armed groups 35, and indicative factors on the minimal level of organization have been elaborated by international jurisprudence.36 On one hand, these factors indicate a high level of organization, on the other hand, they are also useful in distinguishing non-international armed conflict from banditry.37 Being able to decide whether or not an armed group might be 'sufficiently organised', it is necessary to take into account these indicative factors, however 'none ofwhich are, in themselves, essential to establish whether the “organization” criterion is fulfilled.'38 In other words, these findings do not indicate definite threshold of level of organization.39

31 Knut Dörmann, (with contributions by) Louise Doswald-Beck, Robert Kolb, Elements of War Crimes Under the Rome Statute of the International Criminal Court : Sources and Commentary, 2003, ICRC, p.442.

32 Armed Conflicts Linked to the Disintegration of State Structures: Preparatory Document drafted by the International Committee of the Red Cross for the First Periodical Meeting on International Humanitarian Law, Geneva, 19–23 January 1998; ICRC, 23 January 1998. Available online at: http://www.icrc.org/eng/resources/documents/misc/57jplq.htm, Last visited: 06.02.2013.

33 How is the Term "Armed Conflict" Defined in International Humanitarian Law?, Supra fn2, p.3. 34 Haradinaj Trial Judgement, para 60. 35 Tom Haeck, Armed Conflict, Internal Disturbances or Something else?, Supra fn1, p.20. 36 Jelena Pejic, The Protective Scope of Common Article 3: More Than Meets The Eye, Supra fn26,

p.4. 37 Noam Lubell, Extraterritorial Use of Forcfe Against Non-State Actors, Supra fn18, p. 109-110. 38 Haradinaj Trial Judgement, para 60. 39 Noam Lubell, Extraterritorial Use of Forcfe Against Non-State Actors, Supra fn18, p.110; Sandesh

Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.170.

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existence, the situation between two parties may be defined as 'internal disturbances or internal tensions.'24 Thus, since the definition of an armed conflict is not concrete, the question of whether a situation might be classified as an armed conflict or whether a situation meets the criteria of Common Article 3 to the Geneva Conventions must be decided on a case by case basis.25

II. Organizational Requirements

A. Treaty LawAn armed conflict between governmental armed forces and non-governmental armed groups or between such groups can falls within the meaning of Common Article 3.26 Since non-governmental armed groups can be parties to the conflict, the satisfaction of the organizational requirements in a non-international armed conflict is more complex in comparison to international armed conflicts.27

Whilst, Common Article 3 specifies fundamental principals of humanity and minimum standards that are applicable in non-international armed conflicts28, it does not define the required degree of organization for non-state armed groups party to a non-international armed conflict.29

However, according to the Seville Agreement ‘an armed conflict exists when the armed action is taking place between two or more parties and reflects a minimum of organization’.30 In this sense, armed groups must be organized 'to a greater or lesser extent' in order to be qualified as a

24 Sylvain Vite, Typology of armed conflicts in International humanitarian law: legal concepts and actual situations, Volume 91, Number 873, March 2009, ICRC, p.77

25 Final Report On The Meaning Of Armed Conflict In International Law, International Law Association The Hague Conference (2010), Use Of Force, available at: http://www.ila-hq.org/en/committees/draft-committee-reports- the-hague-2010.cfm, Last visited on 14.02.2013, p.15; Prosecutor v. Musema , Judgment and Sentence, Trial Chamber I, Case No. ICTR-96-13-A, 27 January 2000, para. 249; Situation In The Republic Of Cote d'Ivoire, (Pre-Trial Chamber III) Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, No.: ICC-02/11, Date: 3 October 2011, para 46.

26 Jelena Pejic, The Protective Scope of Common Article 3: More Than Meets The Eye, (2011) 93 (881) International Review of the Red Cross, p.3.

27 Final Report On The Meaning Of Armed Conflict In International Law, Supra fn25, p.29. 28 Common Article 3 29 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 194. 30 Article 5/2 of the Seville Agreement on The Organization of The International Activities of The

Components of The International Red Cross and Red Crescent Movement, International Review of the Red Cross, No. 322, 25-27 November 1997, Available online at: http://www.icrc.org/eng/resources/documents/misc/57jp4y.htm, Last visited: 06.02.2013.


party to a non-international armed conflict.31 This characteristic of the organization has been emphasized by the international tribunals.

B. Jurisprudence Even if Common Article 3 to the Geneva Conventions does not provide a specific criteria regarding the classification of parties to non-international armed conflict, the general consensus is that armed groups must possess 'a minimum degree of organization and discipline -enough to enable them to respect international humanitarian law- in order to be recognized as a party to the conflict'.32 It requires inherently that the armed forces of each party to the conflict 'have to be under a certain command structure and have the capacity to sustain military operations'33, and they have to be 'sufficiently organized to confront each other with military means.'34

The ICTY, in particular, through its judgments, have developed the concept of organized armed groups 35, and indicative factors on the minimal level of organization have been elaborated by international jurisprudence.36 On one hand, these factors indicate a high level of organization, on the other hand, they are also useful in distinguishing non-international armed conflict from banditry.37 Being able to decide whether or not an armed group might be 'sufficiently organised', it is necessary to take into account these indicative factors, however 'none ofwhich are, in themselves, essential to establish whether the “organization” criterion is fulfilled.'38 In other words, these findings do not indicate definite threshold of level of organization.39

31 Knut Dörmann, (with contributions by) Louise Doswald-Beck, Robert Kolb, Elements of War Crimes Under the Rome Statute of the International Criminal Court : Sources and Commentary, 2003, ICRC, p.442.

32 Armed Conflicts Linked to the Disintegration of State Structures: Preparatory Document drafted by the International Committee of the Red Cross for the First Periodical Meeting on International Humanitarian Law, Geneva, 19–23 January 1998; ICRC, 23 January 1998. Available online at: http://www.icrc.org/eng/resources/documents/misc/57jplq.htm, Last visited: 06.02.2013.

33 How is the Term "Armed Conflict" Defined in International Humanitarian Law?, Supra fn2, p.3. 34 Haradinaj Trial Judgement, para 60. 35 Tom Haeck, Armed Conflict, Internal Disturbances or Something else?, Supra fn1, p.20. 36 Jelena Pejic, The Protective Scope of Common Article 3: More Than Meets The Eye, Supra fn26,

p.4. 37 Noam Lubell, Extraterritorial Use of Forcfe Against Non-State Actors, Supra fn18, p. 109-110. 38 Haradinaj Trial Judgement, para 60. 39 Noam Lubell, Extraterritorial Use of Forcfe Against Non-State Actors, Supra fn18, p.110; Sandesh

Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.170.

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C. Indicative Factors on The Minimal Level of OrganizationSince the organization of an armed group is usually different from state's armed forces, the comparison between the organization of an armed group and state's military is misleading. 40 ICRC Commentary on Additional Protocol II states that 'some degree of organization of the insurgent armed group or dissident armed forces, but this does not necessarily mean that there is a hierarchical system of military organization similar to that of regular armed forces. It means an organization capable, on the one hand, of planning and carrying out sustained and concerted military operations, and on the other, of imposing discipline in the name of a de facto authority.'41

An armed group, at the beginning of the violence, may not meet the requisite level of organization or it can consist of some small groups which operates without sufficient coordination. 42 In this sense, 'the coordination, cohesion and structure of the group' can develop with time.43 However, armed groups which 'operate in conditions of secrecy' are underground organizations and the structure of these type of groups and may not be easily identifiable.44 Even if an armed group itself declares the purpose or obligations of the organization, which indicate the existence of the very well organized structure; in the case of inconsistency between the declaration and 'the facts on the ground', the declaration should not be regarded as determinative factor of whether the requisite level of organization is met or not.45

There are several indicative factors which indicate the existence of organizational structure of an armed group. But 'some degree of organisation by the parties' is sufficient to establish 'the existence of an armed conflict'46 and the settled case law does not require an armed group to have an organization as the armed forces of a state.47 However it should be noted that the minimum level of organization includes "the

40 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.174. 41 Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (Editors), ICRC Commentary on the

Additional Protocol II of 8 June 1977 to the Geneva Conventions of 12 August 1949, p.1352, para 4463.

42 Gzim Ostreni, (Witness Statement), Boskoski Trial, Exhibit P497, para 20. 43 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.172. 44 Ibid, p.172. 45 Ibid, p.171. 46 Limaj Trial Judgement, para 89. 47 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 197, Oric

Trial Judgement, para 254.


ability to command, and control members of the group, and the carry out the group's operations".48

1. The Existence of Responsible Command and Hierarchical Structure

While the requirement of responsible command does not exist in relevant texts, the existence of the organization of the armed group requires the existence of responsible command implicitly.49 As stated in the Tadic Case, an organised group, party to non-international armed conflict, 'has a structure, a chain of command' ... and its members 'do not act on their own but conforms to the standards prevailing in the group and is subject to the authority of the head of the group'50 It is obvious that 'whether the group is under a responsible command, or has an established hierarchy' is one of main issues in determining the sufficient organisational structure of an armed group.51 If a command structure exists in an organized armed group, 'the leaders train the members of the group, give clear orders and instructions, be informed of the actions of subordinates and react promptly to them'.52

Responsible command does not require the existence of 'hierarchical pyramidal structure with one individual at the top'.53 Instead, it requires effective control on the acts of another, especially the authority, to prevent or if necessary punish some unlawful acts of other individuals.54

This point is emphasized by Article 28 of the Rome Statute of International Criminal Court which states that 'A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be...'55

However, a de jure superior position does not directly lead to effective control or similarly effective control does not necessarily indicate a de

48 Noam Lubell, Extraterritorial Use of Forcfe Against Non-State Actors, Supra fn18, p. 109. 49 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.174. 50 Tadic Appeals Judgement, para 120 51 Situation In The Republic Of Cote d'Ivoire, (Pre-Trial Chamber III) Decision Pursuant to Article

15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, No.: ICC-02/11, Date: 3 October 2011, para 46.

52 Anne-Marie La Rosa and Carolin Wuerzner, Armed groups, sanctions and the implementation of International humanitarian law, IRRC, Volume 90 Number 870 June 2008, p.329.

53 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.175. 54 Ibid, p.175. 55 Article 28 of the Rome Statute of International Criminal Court.

135



C. Indicative Factors on The Minimal Level of OrganizationSince the organization of an armed group is usually different from state's armed forces, the comparison between the organization of an armed group and state's military is misleading. 40 ICRC Commentary on Additional Protocol II states that 'some degree of organization of the insurgent armed group or dissident armed forces, but this does not necessarily mean that there is a hierarchical system of military organization similar to that of regular armed forces. It means an organization capable, on the one hand, of planning and carrying out sustained and concerted military operations, and on the other, of imposing discipline in the name of a de facto authority.'41

An armed group, at the beginning of the violence, may not meet the requisite level of organization or it can consist of some small groups which operates without sufficient coordination. 42 In this sense, 'the coordination, cohesion and structure of the group' can develop with time.43 However, armed groups which 'operate in conditions of secrecy' are underground organizations and the structure of these type of groups and may not be easily identifiable.44 Even if an armed group itself declares the purpose or obligations of the organization, which indicate the existence of the very well organized structure; in the case of inconsistency between the declaration and 'the facts on the ground', the declaration should not be regarded as determinative factor of whether the requisite level of organization is met or not.45

There are several indicative factors which indicate the existence of organizational structure of an armed group. But 'some degree of organisation by the parties' is sufficient to establish 'the existence of an armed conflict'46 and the settled case law does not require an armed group to have an organization as the armed forces of a state.47 However it should be noted that the minimum level of organization includes "the

40 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.174. 41 Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (Editors), ICRC Commentary on the

Additional Protocol II of 8 June 1977 to the Geneva Conventions of 12 August 1949, p.1352, para 4463.

42 Gzim Ostreni, (Witness Statement), Boskoski Trial, Exhibit P497, para 20. 43 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.172. 44 Ibid, p.172. 45 Ibid, p.171. 46 Limaj Trial Judgement, para 89. 47 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 197, Oric

Trial Judgement, para 254.


ability to command, and control members of the group, and the carry out the group's operations".48

1. The Existence of Responsible Command and Hierarchical Structure

While the requirement of responsible command does not exist in relevant texts, the existence of the organization of the armed group requires the existence of responsible command implicitly.49 As stated in the Tadic Case, an organised group, party to non-international armed conflict, 'has a structure, a chain of command' ... and its members 'do not act on their own but conforms to the standards prevailing in the group and is subject to the authority of the head of the group'50 It is obvious that 'whether the group is under a responsible command, or has an established hierarchy' is one of main issues in determining the sufficient organisational structure of an armed group.51 If a command structure exists in an organized armed group, 'the leaders train the members of the group, give clear orders and instructions, be informed of the actions of subordinates and react promptly to them'.52

Responsible command does not require the existence of 'hierarchical pyramidal structure with one individual at the top'.53 Instead, it requires effective control on the acts of another, especially the authority, to prevent or if necessary punish some unlawful acts of other individuals.54

This point is emphasized by Article 28 of the Rome Statute of International Criminal Court which states that 'A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be...'55

However, a de jure superior position does not directly lead to effective control or similarly effective control does not necessarily indicate a de

48 Noam Lubell, Extraterritorial Use of Forcfe Against Non-State Actors, Supra fn18, p. 109. 49 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.174. 50 Tadic Appeals Judgement, para 120 51 Situation In The Republic Of Cote d'Ivoire, (Pre-Trial Chamber III) Decision Pursuant to Article

15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, No.: ICC-02/11, Date: 3 October 2011, para 46.

52 Anne-Marie La Rosa and Carolin Wuerzner, Armed groups, sanctions and the implementation of International humanitarian law, IRRC, Volume 90 Number 870 June 2008, p.329.

53 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.175. 54 Ibid, p.175. 55 Article 28 of the Rome Statute of International Criminal Court.

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jure superior position.56 In other words, the requirement of the existence of responsible command can be satisfied by 'horizontally structured armed groups'. 57 The important thing is whether or not there is a command having 'capable of ensuring generally the execution of its orders, including, as far as possible, respect of the laws and customs of war ...'58

There are several judgments of international tribunals pointing out this requirement. For instance, the ICTR Trial Chamber, in the Akayesu Case pointed out that 'the armed forces opposing the government must be under responsible command, which entails a degree of organization within the armed group or dissident armed forces.'59 The ICTY Trial Chamber, in the Hadzihasanovic Case stated that; 'military organization implies responsible command and that responsible command in turn implies command responsibility.'60 The ICC Pre-Trial chamber, in the Katanga Decision, accepted the existence of armed conflict between different parties and emphasized that those armed groups 'had a certain degree of organisation, insofar as such groups acted under a responsible command and had an operative internal disciplinary system'61 Similarly, as stated in the Boskoski Judgment, an armed group needs to have a 'hierarchical structure and its leadership requires the capacity to exert authority over its members' in order to be classified as organised armed group.62

According to the settled case law, there are some findings which indicate the existence of a command or hierarchical structure. In this regard, the establishment of a general staff or high command63, the functions of general staff such as the appointment of zone commanders64, acts of zone commanders in accordance with directions from the general staff65, the activeness of general staff in making appointments for the development

56 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.176. 57 Ibid, p.176. 58 Conference Of Government Experts On the Reaffirmation and Development of International

Humanitarian Law Applicable in Armed Conflicts, Part 4: Rules Applicable In Guerrilla Warfare, Geneva, 24 May-12 June 1971, Submitted by the ICRC, p.13.

59 Prosecutor v. Akayesu, Case ICTR-94-4-4-T, 2 September 1998, Para 626. 60 Prosecutor v. Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura, Case: IT-01-47-AR72, 16

July 2003, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, Paras 16-17.

61 Situation In The Democratic Republic Of The Congo In The Case Of The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on The Confirmation Of Charges, ICC-01/04-01/07, 30 September 2008, Pre-Trial Chamber, para 239.

62 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 195. 63 Limaj Trial Judgement, para 94; Haradinaj Trial Judgement, paras 60, 65-68. 64 Limaj Trial Judgement, para 96. 65 Limaj Trial Judgement, para 98.


and functioning of the organization,66 the authority of commanders over the movement of soldiers67, the position of general staff in supply of weapons68, the existence of statements issued by general staff in order to inform the public 69, the assignment of duties to individuals in the organization by the general staff 70 , the existence of obligations of operational units to inform the general staff about developments in their responsible areas 71 , the establishment and the existence of the headquarters in different locations72, the availability and distribution of the regulations among individuals in the armed units at different positions73, the existence of the regulations which establish ranks of servicemen, the existence of 'duties of the unit commanders and deputy unit commanders, as well as the duties of the company, platoon, and squad commanders'74, 'the existence of official joint command structure'75,the existence of official spokesperson who is responsible for communication with the domestic and foreign media76, the existence of communiqués in order to facilitate the communications between the armed organization and the public, and to inform the public about military actions undertaken by armed units77 are examples of indicators on the existence of this type of structure highlighted by the international tribunals. However, as explained before, these are only indicators.

2. Ability to Speak With One VoiceThe existence of the ability to speak with one voice is directly related to the hierarchical structure of the organization. This is because the 'ability to speak with one voice and with a level of persuasive authority on behalf of its members' confirms whether or not the organization achieves a level of organizational stability and effectiveness. 78 Characteristics of the organization such as the capacity and role of the organization in

66 Limaj Trial Judgement, para 99. 67 Limaj and ors, Judgment, ICTY, IT-03-66-T, 30 November 2005, para 107. 68 Limaj Trial Judgement, para 100. 69 Limaj Trial Judgement, para 46. 70 Limaj Trial Judgement, para 46. 71 Limaj Trial Judgement, para 97. 72 Haradinaj Trial Judgement, para 65, Limaj Trial Judgement, para 104. 73 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 254,

Limaj Trial Judgement, paras 98-110. 74 Limaj Trial Judgement, para 111; Haradinaj Trial Judgement, para 60. 75 Prosecutor v. Slobodan Milosevic, Trial Chamber, Decision On Motion For Judgement Of Acquittal,

16 June 2004, Case No. IT-02-54-T, para 23. 76 Limaj Trial Judgement, para 102. 77 Limaj Trial Judgement, para 103. 78 Limaj Trial Judgement, para 129.

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jure superior position.56 In other words, the requirement of the existence of responsible command can be satisfied by 'horizontally structured armed groups'. 57 The important thing is whether or not there is a command having 'capable of ensuring generally the execution of its orders, including, as far as possible, respect of the laws and customs of war ...'58

There are several judgments of international tribunals pointing out this requirement. For instance, the ICTR Trial Chamber, in the Akayesu Case pointed out that 'the armed forces opposing the government must be under responsible command, which entails a degree of organization within the armed group or dissident armed forces.'59 The ICTY Trial Chamber, in the Hadzihasanovic Case stated that; 'military organization implies responsible command and that responsible command in turn implies command responsibility.'60 The ICC Pre-Trial chamber, in the Katanga Decision, accepted the existence of armed conflict between different parties and emphasized that those armed groups 'had a certain degree of organisation, insofar as such groups acted under a responsible command and had an operative internal disciplinary system'61 Similarly, as stated in the Boskoski Judgment, an armed group needs to have a 'hierarchical structure and its leadership requires the capacity to exert authority over its members' in order to be classified as organised armed group.62

According to the settled case law, there are some findings which indicate the existence of a command or hierarchical structure. In this regard, the establishment of a general staff or high command63, the functions of general staff such as the appointment of zone commanders64, acts of zone commanders in accordance with directions from the general staff65, the activeness of general staff in making appointments for the development

56 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.176. 57 Ibid, p.176. 58 Conference Of Government Experts On the Reaffirmation and Development of International

Humanitarian Law Applicable in Armed Conflicts, Part 4: Rules Applicable In Guerrilla Warfare, Geneva, 24 May-12 June 1971, Submitted by the ICRC, p.13.

59 Prosecutor v. Akayesu, Case ICTR-94-4-4-T, 2 September 1998, Para 626. 60 Prosecutor v. Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura, Case: IT-01-47-AR72, 16

July 2003, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, Paras 16-17.

61 Situation In The Democratic Republic Of The Congo In The Case Of The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on The Confirmation Of Charges, ICC-01/04-01/07, 30 September 2008, Pre-Trial Chamber, para 239.

62 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 195. 63 Limaj Trial Judgement, para 94; Haradinaj Trial Judgement, paras 60, 65-68. 64 Limaj Trial Judgement, para 96. 65 Limaj Trial Judgement, para 98.


and functioning of the organization,66 the authority of commanders over the movement of soldiers67, the position of general staff in supply of weapons68, the existence of statements issued by general staff in order to inform the public 69, the assignment of duties to individuals in the organization by the general staff 70 , the existence of obligations of operational units to inform the general staff about developments in their responsible areas 71 , the establishment and the existence of the headquarters in different locations72, the availability and distribution of the regulations among individuals in the armed units at different positions73, the existence of the regulations which establish ranks of servicemen, the existence of 'duties of the unit commanders and deputy unit commanders, as well as the duties of the company, platoon, and squad commanders'74, 'the existence of official joint command structure'75,the existence of official spokesperson who is responsible for communication with the domestic and foreign media76, the existence of communiqués in order to facilitate the communications between the armed organization and the public, and to inform the public about military actions undertaken by armed units77 are examples of indicators on the existence of this type of structure highlighted by the international tribunals. However, as explained before, these are only indicators.

2. Ability to Speak With One VoiceThe existence of the ability to speak with one voice is directly related to the hierarchical structure of the organization. This is because the 'ability to speak with one voice and with a level of persuasive authority on behalf of its members' confirms whether or not the organization achieves a level of organizational stability and effectiveness. 78 Characteristics of the organization such as the capacity and role of the organization in

66 Limaj Trial Judgement, para 99. 67 Limaj and ors, Judgment, ICTY, IT-03-66-T, 30 November 2005, para 107. 68 Limaj Trial Judgement, para 100. 69 Limaj Trial Judgement, para 46. 70 Limaj Trial Judgement, para 46. 71 Limaj Trial Judgement, para 97. 72 Haradinaj Trial Judgement, para 65, Limaj Trial Judgement, para 104. 73 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 254,

Limaj Trial Judgement, paras 98-110. 74 Limaj Trial Judgement, para 111; Haradinaj Trial Judgement, para 60. 75 Prosecutor v. Slobodan Milosevic, Trial Chamber, Decision On Motion For Judgement Of Acquittal,

16 June 2004, Case No. IT-02-54-T, para 23. 76 Limaj Trial Judgement, para 102. 77 Limaj Trial Judgement, para 103. 78 Limaj Trial Judgement, para 129.

138



negotiations with representatives of different international organizations including European Community and foreign missions79, the recognition of the organization by international representatives80, 'to enter into and abide by an agreement with NATO to gradually disarm and disband'81,organization's involvement in political negotiations in order to resolve crisis 82 , the ability to 'negotiate and conclude agreements such as cease-fire or peace accords'83 indicate this ability.

3. Level of Discipline and The Ability to Implement The Basic Obligations of Common Article 3

The requirement of a sufficient level of organization for an armed group is essential in terms of being able to comply with the basic requirements of Common Article 3.84 As noted by the International Law Association Committee on the Use of Force, "The underlying theme is that there must be a sufficient level of organization through a command structure in order for the basic requirements of Common Article 3 to the 1949 Geneva Conventions to be implemented."85 The important thing is to have the ability of an armed group to enforce the law, rather than willingness to implement the requirements.86 In this regard, when members of an armed group frequently violates international humanitarian law, and are not punished for these violations, it indicates the lack of an 'internal disciplinary system' in the organizational structure.87 On the other hand those violations can also indicate 'a high level of planning and a coordinated command structure for their implementation.'88 However, the existence of disciplinary rules and mechanisms is clear evidence of the growing formality and effectiveness of the organizational structure of the armed group.89

Even if it has been alleged that the Tadic Formula does not stipulate armed groups to be capable of meeting international humanitarian law

79 Limaj Trial Judgement, para 125. 80 Limaj Trial Judgement, para 129. 81 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 289. 82 Limaj Trial Judgement, para 129. 83 Haradinaj Trial Judgement, para 60; Hadzihasanovic Trial Judgement, para 20. 84 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.177. 85 Final Report On The Meaning Of Armed Conflict In International Law, Supra fn25, p.29. 86 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.178. 87 A.P.V. Rogers, Combatant Status, Available online at:

http://www.crimesofwar.org/a-z-guide/combatant-status/, visited on 13.02.2013. 88 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 204. 89 Limaj Trial Judgement, para 117.


obligations90, the level of discipline and the ability to implement and enforce the basic obligations of Common Article 3 are important indicators for the organizational structure.91 The important thing which must be taken into account is to ascertain whether an armed group 'possesses the organisational ability to comply with the obligations of international humanitarian law'.92 Nevertheless, it does not mean that the armed group's internal disciplinary system, for those who break these rules must be highly developed.93 On the contrary, 'at least a semblance is required as part of its organization.'94 Therefore the determination must be made on a case-by-case basis as always.95 Examples such as the existence of 'disciplinary rules and mechanisms within the group'96; the existence of military training provided to soldiers97, the availability and effective distribution of internal regulations98 indicate such a level.

4. A Level Of Logistics

These factors are directly related to the extent and effectiveness of the organized groups.99 For and armed group to be classified organized, a certain level of logistics is needed.

Various findings of international tribunals such as an organization's ability to recruit new members100, the existence of military training to recruits101, the ability of the group to gain access to weapons and other military equipment 102 , the supply of different types of military weapons103, the capacity of organization to transport weapons across the borders104, the supply and use of uniforms in the organization105, the existence of communications equipments including radio transmitters and

90 Final Report On The Meaning Of Armed Conflict In International Law, Supra fn25, p.15. 91 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 202. 92 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 205. 93 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.179. 94 Ibid, p.179. 95 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 204. 96 Haradinaj Trial Judgement, para 60. 97 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 284,

Limaj Trial Judgement, para 119. 98 Limaj Trial Judgement, para 110. 99 Limaj Trial Judgement, para 118. 100 Haradinaj Trial Judgement, para 85, Limaj Trial Judgement, para 118, Prosecutor v. Boskoski and

Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 290. 101 Haradinaj Trial Judgement, paras 60, 86(For instance, in this case, recruits receive an average of

two weeks’ training), Limaj Trial Judgement, para 119. 102 Haradinaj Trial Judgement, para 60. 103 Limaj Trial Judgement, para 121. 104 Haradinaj Trial Judgement, para 82. 105 Limaj Trial Judgement, para 123.

139



negotiations with representatives of different international organizations including European Community and foreign missions79, the recognition of the organization by international representatives80, 'to enter into and abide by an agreement with NATO to gradually disarm and disband'81,organization's involvement in political negotiations in order to resolve crisis 82 , the ability to 'negotiate and conclude agreements such as cease-fire or peace accords'83 indicate this ability.

3. Level of Discipline and The Ability to Implement The Basic Obligations of Common Article 3

The requirement of a sufficient level of organization for an armed group is essential in terms of being able to comply with the basic requirements of Common Article 3.84 As noted by the International Law Association Committee on the Use of Force, "The underlying theme is that there must be a sufficient level of organization through a command structure in order for the basic requirements of Common Article 3 to the 1949 Geneva Conventions to be implemented."85 The important thing is to have the ability of an armed group to enforce the law, rather than willingness to implement the requirements.86 In this regard, when members of an armed group frequently violates international humanitarian law, and are not punished for these violations, it indicates the lack of an 'internal disciplinary system' in the organizational structure.87 On the other hand those violations can also indicate 'a high level of planning and a coordinated command structure for their implementation.'88 However, the existence of disciplinary rules and mechanisms is clear evidence of the growing formality and effectiveness of the organizational structure of the armed group.89

Even if it has been alleged that the Tadic Formula does not stipulate armed groups to be capable of meeting international humanitarian law

79 Limaj Trial Judgement, para 125. 80 Limaj Trial Judgement, para 129. 81 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 289. 82 Limaj Trial Judgement, para 129. 83 Haradinaj Trial Judgement, para 60; Hadzihasanovic Trial Judgement, para 20. 84 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.177. 85 Final Report On The Meaning Of Armed Conflict In International Law, Supra fn25, p.29. 86 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.178. 87 A.P.V. Rogers, Combatant Status, Available online at:

http://www.crimesofwar.org/a-z-guide/combatant-status/, visited on 13.02.2013. 88 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 204. 89 Limaj Trial Judgement, para 117.


obligations90, the level of discipline and the ability to implement and enforce the basic obligations of Common Article 3 are important indicators for the organizational structure.91 The important thing which must be taken into account is to ascertain whether an armed group 'possesses the organisational ability to comply with the obligations of international humanitarian law'.92 Nevertheless, it does not mean that the armed group's internal disciplinary system, for those who break these rules must be highly developed.93 On the contrary, 'at least a semblance is required as part of its organization.'94 Therefore the determination must be made on a case-by-case basis as always.95 Examples such as the existence of 'disciplinary rules and mechanisms within the group'96; the existence of military training provided to soldiers97, the availability and effective distribution of internal regulations98 indicate such a level.

4. A Level Of Logistics

These factors are directly related to the extent and effectiveness of the organized groups.99 For and armed group to be classified organized, a certain level of logistics is needed.

Various findings of international tribunals such as an organization's ability to recruit new members100, the existence of military training to recruits101, the ability of the group to gain access to weapons and other military equipment 102 , the supply of different types of military weapons103, the capacity of organization to transport weapons across the borders104, the supply and use of uniforms in the organization105, the existence of communications equipments including radio transmitters and

90 Final Report On The Meaning Of Armed Conflict In International Law, Supra fn25, p.15. 91 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 202. 92 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 205. 93 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.179. 94 Ibid, p.179. 95 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 204. 96 Haradinaj Trial Judgement, para 60. 97 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 284,

Limaj Trial Judgement, para 119. 98 Limaj Trial Judgement, para 110. 99 Limaj Trial Judgement, para 118. 100 Haradinaj Trial Judgement, para 85, Limaj Trial Judgement, para 118, Prosecutor v. Boskoski and

Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 290. 101 Haradinaj Trial Judgement, paras 60, 86(For instance, in this case, recruits receive an average of

two weeks’ training), Limaj Trial Judgement, para 119. 102 Haradinaj Trial Judgement, para 60. 103 Limaj Trial Judgement, para 121. 104 Haradinaj Trial Judgement, para 82. 105 Limaj Trial Judgement, para 123.

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mobile phones106 the ability to procure, transport, and distribute arms107

indicate such a level.

5. Operations In An Organized MannerThe existence of an organization indicates that violence should be carried out in a collective manner rather than individually.108 The Motives of the armed group is not determinative on whether or not an armed conflict not of an international character exists. 109 Organized groups do not necessarily have a political purpose in order to be a party to a non-international armed conflict.110

In this regard, violence committed by either an assassin or terrorist 'acting essentially alone, or the disorganized mob violence of a riot' can not be classified as an armed conflict.111 Even if members of an organized armed group are recruited from the civilian population, they must develop 'a sufficient degree of military organization to conduct hostilities on behalf of a party to the conflict', but that does not require the level of intensity or sophistication as State armed forces have.112

These factors indicate that organized groups can carry out military operations in an organized manner.113 Practices such as 'the group’s ability to coordinate military planning and activities and to determine a unified military strategy, as well as the ability to conduct military operations of a larger scale'114, the effects produced by the organized group115, the percentage of the territory where controlled by the organised groups and the group's capacity and efforts to control territory116, the requirement of members of armed group to wear uniform during operations117, the division of territory into several zones by the organized

106 Limaj Trial Judgement, para 124. 107 Prosecutor v. Slobodan Milosevic, Trial Chamber, Decision On Motion For Judgement Of Acquittal,

16 June 2004, Case No. IT-02-54-T, para 23. 108 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.177. 109 Ibid, p.182. 110 Dapo Akande, Classification of Armed Conflicts: Relevant Legal Concepts, Supra fn4, p.52. 111 Final Report On The Meaning Of Armed Conflict In International Law, Supra fn25, p.28. 112 Nils Melzer, Legal Adviser, ICRC, Interpretive Guidance on the Notion of Direct Participation in

Hostilities under International Humanitarian Law, Available online at: http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf, Last visited on: 14.02.2013, p.28.

113 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, paras 200, 255.

114 Limaj Trial Judgement, paras 105, 129; Haradinaj Trial Judgement, paras 60, 87. 115 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 290. 116 Limaj Trial Judgement, para 155; Haradinaj Trial Judgement, para 75. 117 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 285.


group and the presence of a commander in each zone where a commander is responsible for118, the existence of responsibility of zone commanders for the establishment of the brigades119, the capacity of organized armed groups to coordinate their actions120, the successful distribution of written or oral orders or decisions121, 'the level of military success' achieved by the organized armed group against government forces122, the existence of designated zones of operation123 indicate such a level.

6. Territorial Control

While Common Article 3 does not require the existence of the territorial control, Article 1 of Additional Protocol II requires armed groups to exercise territorial control 'as to enable them to carry out sustained and concerted military operations and to implement this Protocol".124 The existence of territorial control has been regarded as a prerequisite for an armed conflict not of an international character in some judgments125 due to the confusion derived from ICRC Commentaries on Common Article 3.126

However, there is not any requirement of territorial control in the non-international armed conflict, rather, the important point here, is 'to enable them to carry out sustained and concerted military operations and to implement this Protocol'.127 If an armed group implements the Protocol without any territorial control, it would mean that the requirement of the Protocol is met.128 However, if an armed group decides to detain, intern or sentence people, territorial control would be needed in order for it to be able to implement the Protocol.129

Although the existence of territorial control indicates strong evidence of requirements of non-international armed conflict 130 (intensity and

118 Limaj Trial Judgement, para 95. 119 Limaj Trial Judgement, para 106. 120 Limaj Trial Judgement, para 108. 121 Limaj Trial Judgement, para 105. 122 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 290. 123 Prosecutor v. Slobodan Milosevic, Trial Chamber, Decision On Motion For Judgement Of Acquittal,

16 June 2004, Case No. IT-02-54-T, para 23. 124 How is the Term "Armed Conflict" Defined in International Humanitarian Law?, Supra fn2, p.4. 125 For Instance: Prosecutor v. Akayesu, Case ICTR-94-4-4-T, 2 September 1998, Para 619. 126 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.180. 127 Ibid, p.186. 128 Ibid, p.186. 129 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.187. 130 Haradinaj Trial Judgement, para 60.

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mobile phones106 the ability to procure, transport, and distribute arms107

indicate such a level.

5. Operations In An Organized MannerThe existence of an organization indicates that violence should be carried out in a collective manner rather than individually.108 The Motives of the armed group is not determinative on whether or not an armed conflict not of an international character exists. 109 Organized groups do not necessarily have a political purpose in order to be a party to a non-international armed conflict.110

In this regard, violence committed by either an assassin or terrorist 'acting essentially alone, or the disorganized mob violence of a riot' can not be classified as an armed conflict.111 Even if members of an organized armed group are recruited from the civilian population, they must develop 'a sufficient degree of military organization to conduct hostilities on behalf of a party to the conflict', but that does not require the level of intensity or sophistication as State armed forces have.112

These factors indicate that organized groups can carry out military operations in an organized manner.113 Practices such as 'the group’s ability to coordinate military planning and activities and to determine a unified military strategy, as well as the ability to conduct military operations of a larger scale'114, the effects produced by the organized group115, the percentage of the territory where controlled by the organised groups and the group's capacity and efforts to control territory116, the requirement of members of armed group to wear uniform during operations117, the division of territory into several zones by the organized

106 Limaj Trial Judgement, para 124. 107 Prosecutor v. Slobodan Milosevic, Trial Chamber, Decision On Motion For Judgement Of Acquittal,

16 June 2004, Case No. IT-02-54-T, para 23. 108 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.177. 109 Ibid, p.182. 110 Dapo Akande, Classification of Armed Conflicts: Relevant Legal Concepts, Supra fn4, p.52. 111 Final Report On The Meaning Of Armed Conflict In International Law, Supra fn25, p.28. 112 Nils Melzer, Legal Adviser, ICRC, Interpretive Guidance on the Notion of Direct Participation in

Hostilities under International Humanitarian Law, Available online at: http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf, Last visited on: 14.02.2013, p.28.

113 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, paras 200, 255.

114 Limaj Trial Judgement, paras 105, 129; Haradinaj Trial Judgement, paras 60, 87. 115 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 290. 116 Limaj Trial Judgement, para 155; Haradinaj Trial Judgement, para 75. 117 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 285.


group and the presence of a commander in each zone where a commander is responsible for118, the existence of responsibility of zone commanders for the establishment of the brigades119, the capacity of organized armed groups to coordinate their actions120, the successful distribution of written or oral orders or decisions121, 'the level of military success' achieved by the organized armed group against government forces122, the existence of designated zones of operation123 indicate such a level.

6. Territorial Control

While Common Article 3 does not require the existence of the territorial control, Article 1 of Additional Protocol II requires armed groups to exercise territorial control 'as to enable them to carry out sustained and concerted military operations and to implement this Protocol".124 The existence of territorial control has been regarded as a prerequisite for an armed conflict not of an international character in some judgments125 due to the confusion derived from ICRC Commentaries on Common Article 3.126

However, there is not any requirement of territorial control in the non-international armed conflict, rather, the important point here, is 'to enable them to carry out sustained and concerted military operations and to implement this Protocol'.127 If an armed group implements the Protocol without any territorial control, it would mean that the requirement of the Protocol is met.128 However, if an armed group decides to detain, intern or sentence people, territorial control would be needed in order for it to be able to implement the Protocol.129

Although the existence of territorial control indicates strong evidence of requirements of non-international armed conflict 130 (intensity and

118 Limaj Trial Judgement, para 95. 119 Limaj Trial Judgement, para 106. 120 Limaj Trial Judgement, para 108. 121 Limaj Trial Judgement, para 105. 122 Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, 10 July 2008, para 290. 123 Prosecutor v. Slobodan Milosevic, Trial Chamber, Decision On Motion For Judgement Of Acquittal,

16 June 2004, Case No. IT-02-54-T, para 23. 124 How is the Term "Armed Conflict" Defined in International Humanitarian Law?, Supra fn2, p.4. 125 For Instance: Prosecutor v. Akayesu, Case ICTR-94-4-4-T, 2 September 1998, Para 619. 126 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.180. 127 Ibid, p.186. 128 Ibid, p.186. 129 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.187. 130 Haradinaj Trial Judgement, para 60.

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organization of the parties to the conflict), lack of territorial control does not mean that requirements of intensity and organization of the parties are not met. 131 'A means of proof must not be turned into a condition precedent'132

CONCLUSIONThe treaty law neither provides us with the definition of non-international armed conflict, nor any explicit information regarding the sufficient level of organization for being able to party to a non-international armed conflict. But the jurisprudence of international tribunals have given significant guidance in assessing the organizational structure of an armed group. While the Tadic formula is important for the characterization of non-international armed conflict and has been applied many times in the case law of the ICTY and ICTR; particularly the Boskoski Judgment highlights indicative factors regarding organizational structure of an armed group. Even if none of these factors have a central role in determining the existence of the armed conflict, the ability to command and control members of the group, and carry out the group’s operationsare significant factors.

***

BIBLIOGRAPHYAdditional Protocols I and II.

Anne-Marie La Rosa and Carolin Wuerzner, Armed groups, sanctions and the implementation of International humanitarian law, IRRC, Volume 90 Number 870 June 2008.

Anthony Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law, Cambridge University Press, 2010.

A.P.V. Rogers, Combatant Status, Available online at: http://www.crimesofwar.org/a-z-guide/combatant-status/, visited on 13.02.2013.

Armed Conflicts Linked to the Disintegration of State Structures: Preparatory Document drafted by the International Committee of the Red Cross for the First Periodical Meeting on International Humanitarian Law, Geneva, 19–23 January 1998; ICRC, 23 January 1998. Available online

131 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.181. 132 Ibid, p.181.


at: http://www.icrc.org/eng/resources/documents/misc/57jplq.htm, Last visited: 06.02.2013.

Case law of International Tribunals

Conference Of Government Experts On the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Part 4: Rules Applicable In Guerrilla Warfare, Geneva, 24 May-12 June 1971, Submitted by the ICRC.

Dapo Akande, Classification of Armed Conflicts: Relevant Legal Concepts, (Edited by) Elizabeth Wilmshurst, International Law and the Classification of Conflicts, Oxford 2012.

Final Report On The Meaning Of Armed Conflict In International Law, International Law Association The Hague Conference (2010), Use Of Force, available at: http://www.ila-hq.org/en/committees/draft-committee-reports-the-hague-2010.cfm, Last visited on 14.02.2013.

Geneva Conventions.

How is the Term "Armed Conflict" Defined in International Humanitarian Law?, International Committee of the Red Cross (ICRC) Opinion Paper, March 2008.

Initial Report on the Meaning of Armed Conflict in International Law, International Law Associatiton Committee on the Use of Force, Rio de Janeiro Conference(2008).

Jelena Pejic, The Protective Scope of Common Article 3: More Than Meets The Eye, (2011) 93 (881) International Review of the Red Cross.

Knut Dörmann, (with contributions by) Louise Doswald-Beck, Robert Kolb, Elements of War Crimes Under the Rome Statute of the International Criminal Court : Sources and Commentary, 2003, ICRC.

Nils Melzer, Legal Adviser, ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, Available online at: http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf, Last visited on: 14.02.2013.

Noam Lubell, Extraterritorial Use of Forcfe Against Non-State Actors, Oxford: Oxford University Press, 2010.

143



organization of the parties to the conflict), lack of territorial control does not mean that requirements of intensity and organization of the parties are not met. 131 'A means of proof must not be turned into a condition precedent'132

CONCLUSIONThe treaty law neither provides us with the definition of non-international armed conflict, nor any explicit information regarding the sufficient level of organization for being able to party to a non-international armed conflict. But the jurisprudence of international tribunals have given significant guidance in assessing the organizational structure of an armed group. While the Tadic formula is important for the characterization of non-international armed conflict and has been applied many times in the case law of the ICTY and ICTR; particularly the Boskoski Judgment highlights indicative factors regarding organizational structure of an armed group. Even if none of these factors have a central role in determining the existence of the armed conflict, the ability to command and control members of the group, and carry out the group’s operationsare significant factors.

***

BIBLIOGRAPHYAdditional Protocols I and II.

Anne-Marie La Rosa and Carolin Wuerzner, Armed groups, sanctions and the implementation of International humanitarian law, IRRC, Volume 90 Number 870 June 2008.

Anthony Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law, Cambridge University Press, 2010.

A.P.V. Rogers, Combatant Status, Available online at: http://www.crimesofwar.org/a-z-guide/combatant-status/, visited on 13.02.2013.

Armed Conflicts Linked to the Disintegration of State Structures: Preparatory Document drafted by the International Committee of the Red Cross for the First Periodical Meeting on International Humanitarian Law, Geneva, 19–23 January 1998; ICRC, 23 January 1998. Available online

131 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Supra fn7, p.181. 132 Ibid, p.181.


at: http://www.icrc.org/eng/resources/documents/misc/57jplq.htm, Last visited: 06.02.2013.

Case law of International Tribunals

Conference Of Government Experts On the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Part 4: Rules Applicable In Guerrilla Warfare, Geneva, 24 May-12 June 1971, Submitted by the ICRC.

Dapo Akande, Classification of Armed Conflicts: Relevant Legal Concepts, (Edited by) Elizabeth Wilmshurst, International Law and the Classification of Conflicts, Oxford 2012.

Final Report On The Meaning Of Armed Conflict In International Law, International Law Association The Hague Conference (2010), Use Of Force, available at: http://www.ila-hq.org/en/committees/draft-committee-reports-the-hague-2010.cfm, Last visited on 14.02.2013.

Geneva Conventions.

How is the Term "Armed Conflict" Defined in International Humanitarian Law?, International Committee of the Red Cross (ICRC) Opinion Paper, March 2008.

Initial Report on the Meaning of Armed Conflict in International Law, International Law Associatiton Committee on the Use of Force, Rio de Janeiro Conference(2008).

Jelena Pejic, The Protective Scope of Common Article 3: More Than Meets The Eye, (2011) 93 (881) International Review of the Red Cross.

Knut Dörmann, (with contributions by) Louise Doswald-Beck, Robert Kolb, Elements of War Crimes Under the Rome Statute of the International Criminal Court : Sources and Commentary, 2003, ICRC.

Nils Melzer, Legal Adviser, ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, Available online at: http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf, Last visited on: 14.02.2013.

Noam Lubell, Extraterritorial Use of Forcfe Against Non-State Actors, Oxford: Oxford University Press, 2010.

144



Roderic Alley, Internal Conflict and the International Community Wars Without End?, Ashgate, 2004, p.120; Final Report On The Meaning Of Armed Conflict In International Law, International Law Association The Hague Conference (2010), Use Of Force, available at: http://www.ila-hq.org/en/committees/draft-committee-reports-the-hague-2010.cfm, Last visited on 14.02.2013

Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Oxford University Press, 2012.

Sylvain Vite, Typology of armed conflicts in International humanitarian law: legal concepts and actual situations, Volume 91, Number 873, March 2009, ICRC.

Tom Haeck, Armed Conflict, Internal Disturbances or Something else?, Lambert Academic Publishing, 2012.

Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (Editors), ICRC Commentary on the Additional Protocol II of 8 June 1977 to the Geneva Conventions of 12 August 1949.

CERTAIN EVALUATIONS ON THE ADMINISTRATIVE JURISDICTION REGARDING THE EXECUTION OF

EUROPEAN COURT OF HUMAN RIGHTS DECISIONS ABOUT TURKEY*

Avrupa İnsan Hakları Mahkemesinin Türkiye Hakkında Almış Olduğu Kararların İcrası Yönünden İdari Yargıya İlişkin Bazı Değerlendirmeler

Emrah ÖZCAN*

ABSTRACT

In the light of a one-month analysis on the Execution of ECHR Decisions section within the Strengthening the Role of Supreme Judicial Institutions in terms of European Standards Project, I focused on the breech decisions against Turkey, the case files of which have not been closed yet; hence, this study has been prepared with the purpose of contributing both to our country and ECHR. As noted in thestudy, certain measures have been taken by our country in relation to the case files remained open; however, ECHR has not been well informed of these measures and neither the follow up procedures have been applied. Therefore, statistical charts display various case files remaining open against Turkey. On the other hand, it is pleasing to observe the European Council-driven improvements in our country such as the establishment of Human Rights Department under the Ministry of Justice and authorization of this institution for the prosecution of the ECHR decisions according to item (c) of Article 1 at Decree No. 650.

Keywords: European Court of Human Rights, Joint project on Enhancing the role of the supreme judicial authorities in respect of European standards, execution of decisions, Administrative judiciary.

ÖZET

Yüksek Yargı Kurumlarının Avrupa Standartları Bakımından Rollerinin Güçlendirilmesi Projesi kapsamında AİHM Kararların İcrası bölümünde bir ay süreyle yaptığımız incelemeler sonucunda, başta idari yargı olmak üzere, ülkemiz aleyhine verilen ihlal kararlarından henüz dava dosyası kapanmayan konular üzerinde durularak gerek AİHM için gerekse de ülkemiz için faydalı olacağını düşündüğümüz bu çalışma hazırlanmıştır. İncelememizde de belirttiğimiz üzere, aslında söz konusu kapanmayan dava dosyalarına ilişkin olarak ülkemizce gereken önlemlerin bir çoğu alınmış ise de, bunlardan AİHM’e yeterince bilgi verilmemiş ve

* Justice Academy of Turkey had this article translated into English * Emrah Özcan, Council of State Investigation Judge, PHD student at Ankara University, Institute

of Social Sciences, Department of Public Law

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