Classifying Non-International Armed Conflicts

The ‘Territorial Control’ Requirement Under Additional Protocol ii in an Era of Complex Conflicts

In: Journal of International Humanitarian Legal Studies
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  • 1 Palacký University, Lecturer, Department of Public Law, Faculty of Law, University of Pretoria, Pretoria, South Africa; External Expert, Centre for International Humanitarian and Operational Law, Department of International and European Law, Faculty of Law, Olomouc, Czech Republic

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Abstract

In terms of Additional Protocol ii to the Geneva Conventions ‘territorial control’ is a requirement in order to determine whether, as contemplated by the provisions of the Protocol, a non-international armed conflict exists. Complex situations in which conflict is not confined to the territorial borders of the State where the non-international armed conflict originated increasingly present a challenge to those responsible for conflict classification under the conventional law of non-international armed conflict. In situations such as these, a non-international armed conflict is no longer restricted to the territory of a single State. Multiple non-international conflicts involving numerous actors can co-exist in a single territory at the same time or lead to fighting across borders. The complex conflict situations in the Central African Republic, Mali, South Sudan and the Democratic Republic of the Congo serve as examples. Attaining legal certainty is pivotal with respect to conflict classification because the category of conflict determines the applicable rules of the conventional law of armed conflict. Even though Additional Protocol ii remains the only comprehensive treaty dedicated to the regulation of non-international armed conflict, there is a paucity of literature which analyses its scope of application, and specifically the territorial control requirement. This article offers an in-depth examination of the territorial control requirement.