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.....................................................................................
The Definition of Non-International Armed Conflict in
the Rome Statute of the International Criminal Court:
An Analysis of the Threshold of Application Contained
in Article 8(2)(f)

Anthony Cullen∗

Abstract

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This article puts forward an argument for a particular approach to the interpreta-
tion of the definition of non-international armed conflict in the Rome Statute of
the International Criminal Court. Focusing on the meaning of Article 8(2)(f), it
is contended that this provision possesses a threshold of an application equivalent
to that of Article 3 common to the four Geneva Conventions of 1949. In support-
ing this position, the first half of the article analyses the travaux preparatoires of
the Rome Statute. Here relevant clauses relating to non-international armed con-
flict are analysed in order to highlight the threshold of application intended by
their drafters. Following on from the travaux preparatoires of the Rome Statute,
the second half of the article puts forward an interpretation of the threshold con-
tained in Article 8(2)(f) as one applicable to all situations of non-international
armed conflict subject to the court’s jurisdiction. Drawing, among other things, on
the conventional usage of the term ‘armed conflict not of an international char-
acter’ and the customary status of non-international armed conflict provisions in
the Rome Statute, an argument is advanced for an understanding of the threshold
contained in Article 8(2)(f) as the one identical to that of common Article 3.

1. Introduction

The existence of armed conflict is fundamental to determining the applicability

of international humanitarian law. It is noteworthy in this regard, that each of
the four situations to be investigated initially by the ICC Prosecutor (Sudan, the
Democratic Republic of Congo, the Central African Republic and Uganda),1
involves prima facia cases of non-international armed conflict. In determining
the status of any such situation, the court’s reasoning will not only set a standard

∗
Research Fellow, BRCS/ICRC Customary International Humanitarian Law Project,
Lauterpacht Centre for International Law, University of Cambridge, Cambridge, UK.
E-mail: [email protected]. The opinions herein are those of the author alone and do not
necessarily correspond to those of the British Red Cross Society or the International
Committee of the Red Cross. The author would like to thank Dr. Shane Darcy, Dr. Paul
Downes, Professor William Schabas and Ms. Ruby Carmen for their comments on early
drafts of this paper.
1
See W. A. Schabas, ‘First Prosecutions at the International Criminal Court’, (2006) 25
Human Rights Law Journal, 25–40.
....................................................................................................
Journal of Conflict & Security Law (2008), Vol. 12 No. 3, 419–445
420 Anthony Cullen

for the interpretation of de facto armed conflict in its own jurisprudence,2 the
approach employed will also to some extent influence the understanding of the
concept by other international judicial and quasi-judicial institutions as well as
national courts and tribunals.
This article advances an argument for the interpretation of the definition of
non-international armed conflict contained in Article 8(2)(f) of the Rome Statute
as the one applicable to all such situations within the court’s jurisdiction. In doing
so, it examines the travaux preparatoires of the Rome Statute to illustrate the ori-
gins of this provision and its intended threshold of applicability. The article also
outlines the different approaches that scholars have taken to the interpretation

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of Article 8(2)(f) and sets out an understanding of the threshold of application
contained in this provision as the one equivalent to that of Article 3 common to
the four Geneva Conventions of 1949.
The article is divided into four sections. The first section explores the back-
ground to the Rome Conference and highlights the evolution that took place
in the various meetings of the Preparatory Committee on the Establishment of
the International Criminal Court. The second section analyses the debate at the
Rome Conference relating to the question of subject-matter jurisdiction over war
crimes committed in situations of non-international armed conflict. It also ex-
amines the views of the delegates relating to the threshold for the application
of provisions specific to armed conflicts not of an international character. The
third section puts forward an interpretation of the threshold contained in Article
8(2)(f) as the one applicable to all situations of non-international armed conflict
subject to the court’s jurisdiction. In doing so, the definition of non-international
armed conflict contained in this provision is held to be equivalent to that con-
tained in common Article 3. The fourth section concludes by placing emphasis
on the position of victims in the interpretation of the war crimes provisions in the
Rome Statute.

2. The Question of Subject-Matter Jurisdiction over War Crimes in

Non-International Armed Conflicts Prior to the Rome Conference

In the years preceding the Rome Conference, the reports of the Preparatory
Committee show some reluctance on the part of states to include in the Statute
crimes relating to non-international armed conflict. The original draft Statute
produced in 1994 by the International Law Commission (ILC) did not include
jurisdiction over war crimes committed in such situations.3 This was primarily

2
For an early decision of the court providing an interpretation of ‘conflict not of an
international character’, see Lubanga (ICC-01/04-01/06) Decision on the Confirmation
of Charges, 29 January 2007, paras 229–237.
3
Report of the International Law Commission on its Forty-Sixth Session, Draft Statute
for an International Criminal Court, 2 May–22 July, 1994 (GA, forty-ninth Session,
Supplement No. 10 (A/49/10) 1994).
 The Definition of Non-International Armed Conflict in the Rome Statute 421

due to the fact that at the time of its formulation, the war crimes concept was
generally only deemed relevant to situations of international armed conflict. This
area of international law nevertheless evolved swiftly. Some months after the
presentation of the ILC’s draft Statute to the UN General Assembly, the UN
Security Council adopted a resolution approving the Statute of the International
Criminal Tribunal for Rwanda.4 The report of the UN Secretary-General on the
Rwanda Tribunal notes the expansive approach taken by the Council to this area
of international humanitarian law:

[T]he Security Council has elected to take a more expansive approach to

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the choice of the applicable law than the one underlying the Statute of the
Yugoslav Tribunal, and included within the subject-matter jurisdiction of
the Rwanda Tribunal regardless of whether they were considered part of
customary international law or whether they have customarily entailed the
individual criminal responsibility of the perpetrator of the crime. Article 4
of the Statute, accordingly, includes violations of Protocol Additional II,
which, as a whole, has not yet been universally recognized as part of cus-
tomary international law, for the first time criminalizes common Article 3
of the four Geneva Conventions.5

Despite the adoption of the Statute for the International Criminal Tribunal for
Rwanda,6 and the emergence of jurisprudence from the International Criminal
Tribunal for the former Yugoslavia,7 states involved in the drafting of the Statute
remained divided on the inclusion of jurisdiction over war crimes committed in
non-international armed conflict. According to the report issued by the Ad Hoc
Committee on the Establishment of an International Criminal Court in 1995:

There were different views as to whether the laws and customs applicable
in armed conflict, including treaty crimes, should include those governing
non-international armed conflicts, notably common Article 3 of the 1949
Geneva Conventions and Additional Protocol II thereto. Those who
favoured the inclusion of such provisions drew attention to the current
reality of armed conflicts, the statute of the ad hoc Tribunal for Rwanda
and the recent decision of the ad hoc Tribunal for the former Yugoslavia
recognizing the customary-law status of common Article 3. However
other delegations expressed serious reservations concerning the possi-
bility of covering non-international armed conflicts and questioned the

4
United Nations Security Council Resolution 955 Establishing the International Tri-
bunal for Rwanda, UN doc. S/RES/955 (1994), 8 November 1994.
5
Report of the Secretary-General Pursuant to paragraph 5 of Security Council Resolu-
tion 955 (1994), UN doc. S/1995/134, 13 February 1995, para. 12.
6
United Nations Security Council Resolution 955 Establishing the International Tri-
bunal for Rwanda, SC Res. 955 (1994).
7
See Prosecutor v Tadic, Decision on the Defence Motion on Jurisdiction, 10 August
1995, ICTY Case No. IT-94-1-AR72.
422 Anthony Cullen

consistency of such an approach with the principle of complementarity.

As regards Additional Protocol II, the view was expressed that that
instrument as a whole had not achieved the status of customary law and
therefore was binding only on States party thereto. The view was also
expressed that non-international armed conflicts should not fall within
the jurisdiction of the court either with respect to common Article 3 or
Additional Protocol II.8

Subsequent to the report of the Ad Hoc Committee, the Preparatory Com-

mittee on the Establishment of the International Criminal Court was set up.9

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The first report of the Preparatory Committee, issued after the sessions held in
March–April and August of 1996, recorded a distinct lack of consensus on the
question of whether the draft Statute should include subject-matter jurisdiction
over war crimes committed in non-international armed conflicts. Under the head-
ing of ‘character of the armed conflict’, the report states:

There were different views as to whether this category of crimes should

include violations committed in international or non-international armed
conflicts. Some delegations expressed the view that it was important to in-
clude violations committed in internal armed conflicts given their increas-
ing frequency in recent years, that national criminal justice systems were
less likely to be able to adequately address such violations and that indi-
viduals could be held criminally responsible for such violations as a mat-
ter of international law, with references being made to the Statute of the
Rwanda Tribunal and the decision of the Yugoslavia Tribunal Appeals
Chamber in the Tadic case. Other delegations expressed the view that vi-
olations committed in internal armed conflicts should not be included, that
the inclusion of such violations was unrealistic and could undermine the
universal or widespread acceptance of the court, that individual criminal
responsibility for such violations was not clearly established as a matter
of existing law, with attention being drawn to the absence of criminal of-
fence or enforcement provisions in Additional Protocol II, and that cus-
tomary law had not changed in this respect since the Rwanda Tribunal
Statute. 10

Despite a divergence of views on the matter, the Preparatory Commit-

tee decided to include some provisions relating to armed conflicts not of an

8
Report of the Ad Hoc Committee on the Establishment of an International Criminal
Court; GA, fiftieth Session, Supplemnt No. 22 (A/50/22) 1995, para. 74.
9
United Nations General Resolution 50/46 Establishment of an International Criminal
Court, UN Doc. A/RES/50/46, 11 December 1995.
10
Report of the Preparatory Committee on the Establishment of an International Crim-
inal Court, vol. I (Proceedings of the Preparatory Committee During March–April and
August 1996), GA, fifty-first Session, Supplement No. 22 (A/51/22) 1996, para. 78.
 The Definition of Non-International Armed Conflict in the Rome Statute 423

international character during the session that took place in February of 1997.11
Among the offences listed in this draft were ‘serious violations of Article 3 com-
mon to the four Geneva Conventions of 1949’.12 The terms of its application
to non-international armed conflicts, however, were not defined. This was par-
tially addressed at a subsequent session of the Preparatory Committee, when the
decision was taken to include the wording of Article 1(2) of Additional Proto-
col II in a chapeau, covering the sections relating to non-international armed
conflict: ‘[s]ections C and D of this [provision] apply to armed conflicts not of
an international character and thus do not apply to situations of internal dis-
turbances and tensions, such as riots, isolated and sporadic acts of violence or

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other acts of a similar nature’.13 While this clause was retained as part of the
draft Statute that was submitted for the consideration of delegates at the Rome
Conference,14 it is noteworthy that, apart from this provision, no threshold relat-
ing to situations of non-international armed conflict was included at any stage by
the Preparatory Committee. The matter of extending subject-matter jurisdiction
to cover war crimes committed in armed conflicts not of an international char-
acter was contentious enough for the Committee without having to decide what
such situations consisted of. As a consequence, the question of defining the scope
of ‘armed conflict not of an international character’ was left to delegates at the
Rome Conference.

3. The Question of Subject-Matter Jurisdiction over War Crimes in

Non-International Armed Conflicts at the Rome Conference

Debate at the Rome Conference over the inclusion of provisions relating to situ-
ations of non-international armed conflict was no less vigorous than those which
took place at the diplomatic conferences which drafted the Geneva Conven-
tions of 1949 and Additional Protocols of 1977. The outcome, however, was dis-
tinctively different. The Statute’s applicability to situations of non-international
armed conflict is much broader in scope than that considered either in the draft-
ing of the Geneva Conventions or the Additional Protocols. This section will
examine how this occurred and why the threshold included at the Rome Con-
ference extended the concept of non-international armed conflict beyond that of
the previous instruments.

11
Decisions taken by the Preparatory Committee at its session held from 11 to 21 Febru-
ary 1997, A/AC.249/1997/L.5, 1997.
12
Decisions taken by the Preparatory Committee at its session held from 11 to 21 Febru-
ary 1997, A/AC.249/1997/L.5, 1997, p. 12.
13
Decisions taken by the Preparatory Committee at its session held from 1 to 12 Decem-
ber 1997, A/AC.249/1997/L.9/Rev. 1, 1997, p. 12.
14
Report of the Preparatory Committee on the Establishment of an International Crim-
inal Court, Draft Statute and Draft Final Act; A/Conf.183/2/Add.1, 1998, p. 25.
424 Anthony Cullen

A. Report of the Preparatory Committee on the Establishment of an

International Criminal Court

After concluding its work on the formulation of ‘a widely acceptable consolidated

text of a convention for an international criminal court’,15 the Preparatory Com-
mittee submitted a draft Statute for the consideration of delegates at the Rome
Conference in its report of 15 April 1998.16 Sections C and D of Article 5 of the
draft Statute contained provisions relating to non-international armed conflict.17
The offences listed in section C were taken from common Article 3, while those
contained in section D were mostly drawn from Additional Protocol II. Both sec-

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tions were covered by a chapeau, stipulating their applicability to ‘armed conflicts
not of an international character’ that explicitly excluded situations of internal
disturbances and tensions.18
Discussion relating to the inclusion of sections C and D was mixed with debate
on the stipulation of a general threshold covering all war crimes provisions in
the draft Statute.19 Delegates did not formally discuss the subject of a threshold
specific to situations of non-international armed conflict until requested to do
so by the Chairman of the Committee of the Whole, Philippe Kirsch, on 8 July

15
A/CONF.183/2, para. 2.
16
Report of the Preparatory Committee on the Establishment of an International Crim-
inal Court; A/CONF.183/2.
17
The parts of the draft Statute relating to non-international armed conflict were re-
ferred to as ‘sections C and D’ by delegates at the Rome Conference. This labelling
was kept throughout the negotiations until discussions relating to their inclusion were
concluded.
18
The term ‘armed conflicts not of an international character’ was originally used in
the first line of common Article 3 to indicate its field of application. The use of the
phrase in the chapeau of sections C and D appeared to signify a replication in the draft
Statute of the similar field of application for war crimes committed in situations of
non-international armed conflict. This point will be returned to later.
19
The fate of sections C and D was to be determined by five options inserted in the draft
Statute by the Preparatory Committee. The first involved the incorporation of both
C and D into the Statute, subject to some adjustments in the wording of the offences
listed. The second option proposed doing so with the inclusion of some additional of-
fences. The third option was to delete the chapeau of C and D. The fourth was to delete
section D, while the fifth was to delete both C and D. Under the heading of ‘Elsewhere
in the Statute’, another three options had been proposed by the Preparatory Commit-
tee. The text of option one was as follows:

The jurisdiction of the court shall extend to the most serious crimes of concern to the in-
ternational community as a whole. The court shall have jurisdiction in respect of the crimes
listed in article X (war crimes) only when committed as part of a plan or policy or as part of a
large-scale commission of such crimes. (A/CONF.183/2, p. 29)

The text of option two was based on that of option one, with some adjustments shifting
the emphasis from the existence of a plan or policy to the restriction of the court’s
subject-matter jurisdiction to the most serious crimes of international concern:

The jurisdiction of the court shall be limited to the most serious crimes of concern to the
international community as a whole. The court shall have jurisdiction in respect of the crimes
 The Definition of Non-International Armed Conflict in the Rome Statute 425

1998.20 At the time of this request, the sections relating to non-international

armed conflict were covered by a chapeau providing one threshold of applica-
tion for the provisions contained therein. It stated that ‘[s]ections C and D of
this article apply to armed conflicts not of an international character and thus
do not apply to situations of internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence or other acts of a similar nature’.21 This
uniform threshold of application for situations of non-international armed con-
flict was changed in a subsequent discussion paper issued by the Bureau on 10
July 1998.22 The alteration introduced by the Bureau implied two different cat-
egories of armed conflict, stipulating a new threshold covering section D of the

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draft statute. Included as a means of bridging the gap between states on the is-
sue of the court’s jurisdiction over war crimes committed in non-international
armed conflict, the Bureau proposal will be discussed later in this section. Be-
fore doing so, the divergent views expressed by the delegates on the matter will
be examined to draw attention to the intentions of states involved in the draft-
ing process and to show the context in which the Bureau’s initiative was brought
forward.

B. Views of Delegations on Inclusion of Clauses Relating to

Non-International Armed Conflict

It is noteworthy that the incorporation of provisions relating to non-international

armed conflict was strongly supported by the majority of delegates for a number
of different reasons. As nearly all contemporary armed conflicts were not inter-
national in character, it was argued that to exclude such situations would be to
leave an unacceptable gap in the protection provided by the court.23 The body of
international law relating to non-international armed conflict had also clearly de-
veloped since the drafting of the Geneva Conventions and Additional Protocols.
Speaking on behalf of the United States, Jamison S. Borek emphasised that ‘it

listed in article X (war crimes) in particular when committed as a part of a plan or policy or as
part of a large-scale commission of such crimes. (A/CONF.183/2, p. 30)

The third option proposed no provision on threshold. (A/CONF.183/2, p. 30)

20
As Chairman of the Committee of the Whole, Philippe Kirsch opened discussion on 8
July 1998 by requesting comments on a number of issues, including ‘sections C and D
on armed conflict not of an international character [ . . .] the need for those sections and,
if they were included, the threshold for those provisions’. (A/CONF.183/C.1/SR.25,
para. 2) Implicit in this remark is an assumption of one threshold for both provisions;
see Bureau discussion paper (A/CONF.183/C.1/L.53, 6 July 1998).
21
A/CONF.183/C.1/L.53, 6 July 1998.
22
A/CONF.183/C.1/L.59, 10 July 1998.
23
The Head of the New Zealand delegation, Don MacKay, made the following statement
on the matter: ‘As to whether armed conflicts not of an international character should
be covered by the Statute, failure to include such conflicts would leave a huge gap that
would be quite unacceptable to the international community.’ A/CONF.183/SR.25,
para. 19.
426 Anthony Cullen

was essential to cover internal armed conflicts, which were the most frequent and
the most cruel. That area of law had been developed and clearly established and
must be included in the Statute.’24 Addressing the Plenary of the Conference as
Head of her Delegation, the Finnish Minister for Foreign Affairs, Tarja Halonen,
stated that ‘since conflicts were often civil and internal in nature, and sometimes
no effective national systems were available, the mandate of the court must be
extended to such situations.’25
Referring to the situation in his own state, Sierra Leone’s ambassador to the
United Nations, Fode M. Dabor, also expressed a strong position in support of
provisions relating to non-international conflict. Dabor ‘strongly supported the

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inclusion of sections C and D since, as was well known, his country was undergo-
ing an internal conflict in which very serious offences had been committed over
which the court should have jurisdiction.’ 26
The strength of support for the retention of sections C and D of the draft
Statute, evidenced in the statements made by delegations before the Commit-
tee of the Whole and Conference Plenary,27 secured the place of the provisions
despite the opposition expressed by not an insignificant minority of states.28

24
A/CONF.183/SR.6, para. 100. The delegation of the United States, led by Ambas-
sador David Scheffer, strongly supported the inclusion of provisions relating to non-
international armed conflict in the draft Statute. Professor Theodor Meron, a distin-
guished advisor to the US government on matters of international humanitarian law,
had been instrumental in getting the issue onto the agenda of the US delegation prior
to the Conference. Also present at the Conference as a member of this delegation,
Meron played an important role in advancing the position of the United States on the
inclusion of provisions governing situations of internal armed conflict. Source: Inter-
view with Ambassador David Scheffer, Galway, 13 July 2003.
25
A/CONF.183/SR.6, para. 34.
26
A/CONF.183/SR.25, para. 55. Expressing a view similar to that of Sierra Leone, Joao
Soares Da Gama of Guinea-Bissau stated that he ‘attached prime importance to
the inclusion of sections C and D, since his country continued to suffer from non-
international armed conflicts.’ (A/CONF.183/C.1/SR.28, para. 77)
27
In addition to the United States, Finland, Sierra Leone and Guinea-Bissau, other
delegations voicing support for the incorporation of provisions relating to non-
international armed conflict included Albania, Andorra, Argentina, Armenia, Aus-
tralia, Bangladesh, Benin, Bosnia and Herzegovina, Botswana, Brunei Darussalam,
Bulgaria, Burkina Faso, Canada, Cape Verde, Chile, Colombia, Congo, Costa Rica,
Croatia, Cyprus, Czech Republic, Ecuador, Estonia, Ethiopia, Gabon, Georgia, Hun-
gary, Israel, Japan, Jordan, Lithuania, Malta, Mozambique, Namibia, New Zealand,
Nicaragua, Philippines, Republic of Korea, Romania, Russian Federation, San Marino,
Senegal, Slovakia, Slovenia, South Africa (speaking on behalf of the Southern African
Development Community), Switzerland, Trinidad and Tobago, Uganda, the United
Kingdom (speaking on behalf of the European Union, the Central and Eastern Eu-
ropean countries associated with the European Union, the associated country of
Cyprus and the European Free Trade Association countries of Iceland and Norway),
Venezuela and Zambia.
28
The minority of delegations opposed to the inclusion of provisions relating to non-
international armed conflict included states, such as Algeria, Burundi, China, India,
Indonesia, Iraq, Libyan Arab Jamahiriya, Nepal, Oman, Pakistan, Saudi Arabia, Syr-
ian Arab Republic, Thailand, Turkey and Vietnam.
 The Definition of Non-International Armed Conflict in the Rome Statute 427

Opposition to the inclusion of provisions relating to non-international armed

conflict was not, however, as strong or concerted as at the previous diplomatic
conferences. Views expressed on the matter were generally tempered by an un-
derstanding that compromises were needed to achieve general agreement on the
Statute as a whole.
Arguments opposing provisions relating to non-international armed conflict
were similar in many ways to those raised at the Diplomatic Conferences that
drafted the Geneva Conventions of 1949 and Additional Protocols of 1977.29
Concerns were expressed over the possibility for external interference in the in-
ternal affairs of sovereign states and the lack of clarity on how the court would

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determine the status of situations. It was furthermore argued that the inclusion of
crimes relating to non-international armed conflict in the Statute would conflict
with the principle of complementarity.30
Boualem Bouguetaia, Head of the Algerian Delegation, was concerned that
the inclusion of sections C and D ‘might lead to interference in the internal affairs
of countries. It would be difficult to draw a line between a genuine armed internal
conflict and internal disturbances.’31 Similarly, Nehir Ünel, a legal advisor for the
Turkish Ministry of Foreign Affairs, opposed the inclusion of sections C and D
stating that ‘it was not clear how the court would decide whether there was an in-
ternal conflict or not.’32 Overall, however, the views expressed were notably less
rigid than those voiced in the drafting of the Geneva Conventions and Additional
Protocols. While asserting their opposition to sections C and D, many delegates
voiced willingness to compromise if certain conditions narrowing the applicabil-
ity of these provisions were included. Among the suggestions to this effect was a
proposal for the inclusion of the threshold contained in Additional Protocol II.33

29
For the drafting history of Geneva Conventions of 1949, see Final Record of the Diplo-
matic Conference of Geneva of 1949 (vols. 1–4 Federal Political Department, Berne,
1950). For the drafting history of the Additional Protocols of 1977, see Official Records
of the Diplomatic Conference on the Reaffirmation and Development of International
Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977) (vols. 1–14
Federal Political Department Berne 1978).
30
See comments made by Mr. Perera of the Sri Lanka delegation during the thirty-fifth
meeting of the Committee of the Whole. A/CONF.183/C.1/SR.35, para. 44. See also,
Mohamed M. El Zeidy, ‘The Principle of Complementarity: A New Machinery to Im-
plement International Criminal Law’, (2002) 23 Michigan Journal of International Law
869; Mohamed M. El Zeidy, ‘The Ugandan Government Triggers the First Test of the
Complementarity Principle: An Assessment of the First State’s Party Referral to the
ICC’, (2005) 5 International Criminal Law Review 83.
31
A/CONF.183/C.1/SR.27, para. 5.
32
A/CONF.183/C.1/SR.5, para. 107.
33
Speaking on behalf of the Egyptian delegation, Sayed Kassem El Masry stated that
‘he did not favour the inclusion of sections C and D, but could consider section C if
safeguards such as non-interference in the internal affairs of States, a higher threshold
and the guarantees contained in Additional Protocol II to the Geneva Conventions of
1949 were stipulated.’ A/CONF.183/C.1/SR.5, para. 115. A similar position was voiced
by Bahrain’s Minister for Justice and Islamic Affairs, Khalid Bin AM Abdullah Al-
Khalifa:
428 Anthony Cullen

The only provision indicating a threshold for non-international armed conflict

was the chapeau of sections C and D, which stated that these provisions would
apply to ‘armed conflicts not of an international character and thus do not apply
to situations of internal disturbances and tensions, such as riots, isolated and spo-
radic acts of violence or other acts of a similar nature.’ This negative definition of
armed conflict was clearly insufficient for the purpose of distinguishing situations
of non-international armed conflict. In order to allay the fears of states opposed
to clauses concerning non-international armed conflict, a positive definition was
needed to clarify the terms of applicability.

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C. Bridging the Gap: Proposals for a Threshold for Non-International
Armed Conflict

The question of including a new threshold provision relating to situations of non-

international armed conflict arose as a means of facilitating consensus on sections
C and D. In order to balance the concerns of states opposed to non-international
armed conflict clauses with others who had expressed support for the retention
of sections C and D, the Bureau of the Committee of the Whole formulated a
proposal based on the text of Article 1(1) of Additional Protocol II.34 The new
threshold provision, included in a discussion paper circulated by the Bureau,35
received mixed reviews from delegates.

(i) The bureau proposal

As a way of accommodating views expressed by those opposed to the inclusion

of provisions relating to situations of non-international armed conflict, and in
particular to concerns voiced about the threshold of applicability, the following
text was inserted into the chapeau of section D of the draft Article 5 quater:

Section D of this article applies to armed conflicts not of an interna-

tional character and thus does not apply to situations of internal distur-
bances and tensions, such as riots, isolated and sporadic acts of violence
or other acts of a similar nature. It applies to armed conflicts that take
place in a territory of a State Party between its armed forces and dissident
armed forces or other organized armed groups which, under responsible

He found the thresholds in sections C and D difficult to accept because there was no positive
definition of non-international conflicts. An exact definition of internal conflicts would be re-
quired, along the lines of Additional Protocol II to the Geneva Conventions of 1949, and great
care must be taken not to interfere in the internal affairs of States. (A/CONF.183/C.1/SR.27,
para. 21)

34
A/CONF.183/C.1/L.59 (10 July 1998).
35
A/CONF.183/C.1/L.59 (10 July 1998).
 The Definition of Non-International Armed Conflict in the Rome Statute 429

command, exercise such control over a part of its territory as to enable

them to carry out sustained and concerted military operations.36

The second sentence of this new provision was taken from Article 1(1) of Ad-
ditional Protocol II. The text of this provision sets a particularly high threshold
of application.37 Stipulating conditions, such as the involvement of a State Party
in hostilities, insurgent control over territory and the existence of ‘sustained and
concerted military operations’, the proposal imposed considerable restrictions on
the applicability of the provisions contained in section D. As a consequence, it
was strongly resisted by delegations interested in maintaining the previously uni-

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form threshold for the application of sections C and D.
The first delegate to speak in opposition to the new threshold was Professor
Gerhard Hafner of the Austrian delegation. Speaking on behalf of the European
Union and its Member States, he stated that:

Article 5 quater, section D, was preceded by a reference to armed con-

flict between armed forces and dissident armed forces or other organized
armed groups. That reference needed also to cover conflicts in which only
organized armed groups were engaged, regardless of whether they exer-
cised control over territory.38

The representatives of Finland,39 Romania,40 Lithuania41 and Sudan42 each

took the floor to voice their support for the position expressed by the Presidency
of the European Union. Speaking as Head of the United States delegation, David
Scheffer was also critical of the new threshold introduced in the Bureau discus-
sion paper:

The United States noted the changes made to the chapeaux of sections
C and D in an endeavour to facilitate consensus. It believed, however,
that the change raising the threshold of applicability of section D to that
of Additional Protocol II to the Geneva Conventions of 1949 should be

36
A/CONF.183/C.1/L.59 (10 July 1998).
37
The field of application stipulated in Article 1(1) has been criticised by a number of
scholars for narrowing unnecessarily the scope of protection provided by Additional
Protocol II; see A. Cullen, ‘Key Developments Affecting the Scope of Internal Armed
Conflict in International Humanitarian Law’, (2005) 183 Military Law Review 65, 94–
97; C. Greenwood, ‘A Critique of the Additional Protocols to the Geneva Conventions
of 1949’, in H. Durham and T. L. H. McCormack (eds.), The Changing Face of Conflict
and the Efficacy of International Humanitarian Law (1999) 19; A. Eide, ‘The New Hu-
manitarian Law in Non-International Armed Conflict’, in A. Cassese (ed.), The New
Humanitarian Law of Armed Conflict (1979) 308.
38
A/CONF.183/C.1/SR.33, para. 14.
39
A/CONF.183/C.1/SR.35, para. 37.
40
A/CONF.183/C.1/SR.35, para. 77.
41
A/CONF.183/C.1/SR.35, para. 60.
42
A/CONF.183/C.1/SR.34, para. 94.
430 Anthony Cullen

rejected. The bulk of armed conflicts encountered in the real world were
noninternational, and that change would send the wrong message to civil-
ian victims of internal armed conflicts.43

The view expressed by Ambassador Scheffer was supported by the German

Head of Delegation, Gerd Westdickenberg, who stated that his delegation ‘con-
tinued to believe that the same standards should apply in section D as in section
C of Article 5 quater. It thus had reservations regarding the second part of the
chapeau prefacing section D.’44 The remarks of Westdickenberg draw attention
to the fact that the new threshold provision proposed by the Bureau introduced

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a distinction between sections C and D that had hitherto not existed. Previously,
one threshold had applied to both sections. While ambiguity existed concerning
the scope of this threshold, it was clear that prior to the Bureau’s proposal, both
sections shared the same field of applicability.
Given the previously uniform threshold for non-international armed con-
flict, the new heightened threshold for section D posed a problem for many
delegates.45 As the terms of this provision excluded the vast majority of situations
that would otherwise qualify as ‘armed conflict not of an international character’,
many delegates viewed it as imposing an excessively restrictive standard for the
application of the very basic humanitarian rules contained in section D.46

43
A/CONF.183/C.1/SR.33, para. 24.
44
A/CONF.183/C.1/SR.33, para. 68.
45
The head of the United Kingdom Delegation, Franklin Berman, stated that ‘it
was important to avoid setting a threshold so high as to remove from the court’s
jurisdiction the very cases that had given rise to such grave concerns of late.’
(A/CONF.183/C.1/SR.33, para. 80.) Likewise, Tuvako Manongi of the Tanzanian Del-
egation stated that the new threshold was too high ‘to allow the Court to play any
meaningful role in the situations of non-international armed conflict with which the
international community was increasingly faced.’ (A/CONF.183/C.1/SR.35, para. 49)
The Head of the New Zealand Delegation, Don McKay, expressed a similar con-
cern to those voiced by the representatives of Britain and Tanzania: ‘The fundamental
problem raised by article 5 quater was the new chapeau of section D, which would
leave very serious gaps in the Statute. It should either be deleted or tightened up.’
(A/CONF.183/C.1/SR.34, para. 22) In addition to the criticisms expressed by the rep-
resentatives of the United Kingdom, Tanzania and New Zealand, opposition to the
new threshold was furthermore voiced by the representatives of Austria, United States,
Germany, Norway, South Africa, Switzerland, Uganda, Samoa, Trinidad and Tobago,
Spain, the Russian Federation, Australia, Mexico, Sudan, Sierra Leone, Italy, Canada,
Denmark, Hungary, Estonia, Slovenia, Zimbabwe, Bosnia and Herzegovina, Finland,
Romania and Lithuania.
46
This was also the view of the ICRC. The last speaker to address the Committee of the
Whole on the matter was Louise Doswald-Beck of the ICRC:

With regard to armed conflicts not of an international character, she pointed out that, un-
der the new threshold added to section D, many conflicts, and indeed most internal armed
conflicts, would not be covered, and that many atrocities would thus not be triable under
the Statute. Furthermore, many of the acts listed in section D were recognised as crimes
 The Definition of Non-International Armed Conflict in the Rome Statute 431

In addition to the arguments concerning the restrictive nature of the threshold,

its consistency with the current state of international law was also questioned. For
Rolf Einar Fife, Head of the Norwegian Delegation, ‘the new chapeau unduly
limited the scope of well-established norms of international law.’47 Speaking on
behalf of South Africa and the Member States of the Southern African Develop-
ment Community, Professor Medard R. Rwelamira stated that he was concerned
that ‘the new chapeau of section D not only restricted the scope of application
but also, by implication, excluded conflicts between organized armed groups.’48
Given that the concept of armed conflict in international humanitarian law had
developed, albeit relatively recently, to include situations of hostilities between

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organised armed groups, the exclusion of such situations from the Statute ap-
peared unwarranted to many delegates. Furthermore, if an armed group failed
to meet the criteria, such as possessing responsible command or control over a
territory, they would also fail to meet the requirements of section D and the of-
fences listed therein would thus not be within the court’s jurisdiction.49
While the new threshold of application for section D was considerably higher
than that previously assumed by the delegates, its inclusion followed a line of
reasoning that did not depart from conventional international humanitarian law.
The incorporation of language from Article 1(1) of Additional Protocol II into
the chapeau of section D would have appeared reasonable to the Bureau, given
that all the provisions in this section had been reproduced from the Protocol.
Nevertheless, as indicated by delegates’ statements, the new threshold of appli-
cation was clearly not acceptable to the Conference. While opposition to the new
threshold was strong among states that had backed the inclusion of sections C
and D, support for the new chapeau was also lacking among those delegations
opposed to the inclusion of non-international armed conflicts clauses. Despite
the high threshold of the new chapeau, the deletion of sections C and D contin-
ued to be supported by the majority of states who had previously opposed these
provisions. States such as India,50 Turkey,51 Algeria,52 Pakistan,53 Qatar,54 Iraq,55

by customary law. It was therefore most important that section D should not be omitted.
(A/CONF.183/C.1/SR.36, para. 52)

47
A/CONF.183/C.1/SR.36, para. 2.
48
A/CONF.183/C.1/SR.34, para. 60.
49
This point was made by the Australian representative, Geoffrey James Skillen, who
was opposed to the additional language in the chapeau of section D of Article 5 quater:
‘It would not cover conflicts between two or more dissident groups or those in which
the dissident group failed to meet the criteria of responsible command or territorial
control.’ (A/CONF.183/C.1/SR.34, para. 107)
50
A/CONF.183/C.1/SR.33, para. 37.
51
A/CONF.183/C.1/SR.34, para. 48.
52
A/CONF.183/C.1/SR.35, para. 31.
53
A/CONF.183/C.1/SR.35, para. 54.
54
A/CONF.183/C.1/SR.35, para. 57.
55
A/CONF.183/C.1/SR.35, para. 64.
432 Anthony Cullen

Libyan Arab Jamahiriya56 and Oman57 took the floor during the thirty-third,
thirty-fourth, thirty-fifth and thirty-sixth meetings of the Committee of the Whole
to voice their resistance to the inclusion of clauses relating to non-international
armed conflict.
As an approach that sought to balance the concerns of states opposed to non-
international armed conflicts clauses with the position of states favouring the in-
clusion of such provisions, the Bureau proposal failed to achieve the required
consensus. Records of the discussion in the Committee of the Whole show a con-
tinued divergence of views on the matter. In an effort to break this impasse, an
amendment to the text proposed by the Bureau was submitted by the delega-

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tion of a country that was at the time itself engaged in non-international armed
conflict.58

(ii) The Sierra Leone proposal

As an alternative to the threshold introduced by the Bureau, a proposal to

broaden the scope of applicability stipulated in the chapeau was submitted during
the thirty-fifth meeting of the Committee of the Whole. Issued on 13 July 1998,
the proposal was put forward on the day the Committee was due to conclude its
discussion on the war crimes provisions of the draft Statute. Speaking on behalf
of Sierra Leone, Fode M. Dabor urged:

that sections C and D should be included in the new article 5 quater, but it
had reservations, for example, regarding the chapeau of section D, which
referred to organized armed groups that exercised ‘control over a part of
[a State Party’s] territory’. That wording was very restrictive: in his own
country, for example, the rebel forces did not occupy a territory. Thus,
as presently drafted, section D would exclude the type of internal conflict
presently taking place in Sierra Leone. His delegation therefore proposed
that the second sentence of the chapeau Should be replaced by the text:
‘It applies to armed conflicts that take place in a territory of a State when
there is protracted armed conflict between governmental authorities and
organized armed groups or between such groups.’ 59

The proposed amendment was modelled on a language taken from the

Tadic Jurisdiction Decision of 2 October 1995.60 This decision defined non-
international armed conflict as ‘protracted armed violence between governmen-
tal authorities and organised armed groups or between such groups within a

56
A/CONF.183/C.1/SR.36, para. 6.
57
A/CONF.183/C.1/SR.36, para. 20.
58
A/CONF.183/C.1/L.62 (13 May 1998).
59
A/CONF.183/C.1/SR.35, para. 8.
60
Prosecutor v Tadic, Decision on the Defence Motion for Interlocutory Appeal on Ju-
risdiction, 2 October 1995, ICTY Case No. IT-94-1-AR72.
 The Definition of Non-International Armed Conflict in the Rome Statute 433

State.’61 For the purposes of the Sierra Leone proposal, the word ‘violence’ was
replaced with ‘conflict’.62
Instead of applying to situations of armed conflict ‘that take place in a territory
of a State Party between its armed forces and dissident armed forces or other or-
ganized armed groups which, under responsible command, exercise such control
over a part of its territory as to enable them to carry out sustained and concerted
military operations’, the amendment suggested a lower threshold of ‘protracted
armed conflict governmental authorities and organized armed groups or between
such groups’. Conditions such as the existence of responsible command, control
over territory and the conduct of sustained and concerted military operations

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were not included in Sierra Leone’s amendment. The requirement of state in-
volvement in hostilities was also no longer considered necessary.
Sierra Leone was not the only state engaged in non-international armed con-
flict to have a representative voice criticism of the threshold contained in the cha-
peau of section D. Other such delegates who had expressed opposition towards
the Bureau proposal included representatives from Guinea-Bissau,63 Sudan64
and Uganda.65 Arguing that the Bureau proposal had unduly limited the scope
of the court’s jurisdiction in situations of non-international armed conflict, the
Head of the Ugandan Delegation, Bertazar Katureebe, was supportive of the
Sierra Leone amendment:

Uganda shared other delegations’ concern about the watering down of

the Court’s jurisdiction over situations of internal conflict. As currently
worded, the second sentence of the chapeau of article 5 quater, section D,
severely limited the Court’s scope in that regard. Whether or not the per-
petrators controlled territory was immaterial: they might be operating
from a neighbouring country, with or without that country’s consent, as
was currently the case in Uganda. His delegation thus supported the pro-
posal by the representative of Sierra Leone with regard to the chapeau of
section D.66

Addressing the Committee of the Whole on behalf of the Solomon Islands,

Professor Andrew Clapham also expressed support for Sierra Leone’s proposal:

61
Ibid., para. 70.
62
The significance of the change in wording for the interpretation of Article 8(2)(f) will
be discussed later.
63
During the twenty-eighth meeting of the Committee of the Whole, João Soares Da
Gama of the Guinea-Bissau delegation stated that ‘he attached prime importance to
the inclusion of sections C and D, since his country continued to suffer from non-
international armed conflicts.’ (A/CONF.183/C.1/SR.28, para. 77)
64
A/CONF.183/C.1/SR.34, para. 94.
65
A/CONF.183/C.1/SR.35, para. 23.
66
A/CONF.183/C.1/SR.35, para. 23.
434 Anthony Cullen

On the question of war crimes in internal armed conflict, his delegation

supported the inclusion of sections C and D in article 5 quater. However,
the new chapeau of section D did not take account of the sort of contem-
porary conflict that the Court was designed to address. If the chapeau was
retained, it should be amended to cover armed conflict between armed
groups, as suggested by the representative of Sierra Leone.67

In addition to these statements, delegates from Slovenia68 and Bosnia and

Herzegovina69 also took the floor to voice support for the Sierra Leone proposal.
Given the strong opposition that had been voiced towards the threshold provi-

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sion derived from Article 1(1) of Additional Protocol II, and the emphasis that
had been placed on including armed conflict taking place between the armed
groups, the proposal presented by Sierra Leone was a more favourable option
for securing support of the Conference. It was thus incorporated into the consol-
idated text of the draft Statute proposed for adoption by the Committee of the
Whole on the 17 July 1998. Formal consideration of this non-international armed
conflict threshold, included as Article 8(2)(f) of the Statute, was concluded at
10:50 pm on Monday, 13 July.70 There is no record of any further discussion of
the matter between this date and that of 17 July when the Statute as a whole was
adopted by the Conference. The lack of recorded comment on this provision was
due to the timing of Sierra Leone’s proposal and the shortage of time available to
the Committee of the Whole.71 The amendment was tabled during the thirty-fifth
meeting of the Committee, not long before it was due to conclude consideration
of the Bureau’s discussion paper.72 Given the numerous other issues that had to
be agreed upon in the final days of the Conference, the Bureau could not afford
to reopen the matter.

67
A/CONF.183/C.1/SR.35, para. 79.
68
A/CONF.183/C.1/SR.36, para. 30.
69
A/CONF.183/C.1/SR.36, para. 42.
70
A/CONF.183/C.1/SR.37, para. 53.
71
Speaking on behalf of the UN Secretary-General, Hans Corell emphasised the limited
time available to the Committee of the Whole at its thirty-fourth session:

The Secretary-General was following the negotiation process very carefully and was confident
of a positive outcome to the Conference. However, time was running short. Unless a solution
to the major outstanding substantive issues emerged very soon, it would be difficult to as-
semble and coordinate all the provisions in such a way that the Statute would be ready for
adoption later in the week . . . [The Secretary-General] urged those delegations that were still
insisting on very firm positions to make every possible effort to work with other delegations
to find common ground. The Secretary-General sincerely hoped that the necessary consensus
would emerge, and that it would be possible to adopt the Statute of the International Criminal
Court during the Conference. (A/CONF.183/C.1/SR.34, para. 1)

72
The thirty-fifth meeting of the Committee of the Whole began at 18:05 pm on Monday,
13 July 1998. The Committee concluded consideration of the Bureau’s discussion paper
at 22:50 pm the same day.
 The Definition of Non-International Armed Conflict in the Rome Statute 435

Despite the lack of substantive comments by delegates on Sierra Leone’s pro-

posal, it is clear from the travaux preparatoires of the Rome Statute that the pro-
vision would never have been included if certain views on the applicable thresh-
old were not accommodated by the Conference. This point will be returned to in
the Section that follows, which argues for the interpretation of Article 8(2)(f) as
a development of Article 8(2)(d).

4. Interpreting the Threshold Contained in Article 8(2)(f)

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The threshold contained in Article 8(2)(f) has been the subject of considerable
debate. While the provision appears to introduce a standard similar to that pro-
pounded in the Tadic Jurisdiction Decision, it is not immediately clear as to
whether the threshold is equivalent to that assumed for the application of com-
mon Article 3. There are two reasons for this. First, the phrase ‘protracted armed
conflict’ is used instead of the ‘protracted armed violence’ formulation that is
used in the Tadic Jurisdiction Decision.73 Second, there are two distinct sections
in Article 8 listing crimes relating to situations of non-international armed con-
flict and each is followed by a provision stipulating a threshold of application.
Does Article 8(2)(f) thus imply a new category of non-international armed con-
flict, one that had previously not existed in international humanitarian law, or
does it represent another codification of an existing threshold? There exist con-
tending schools of thought on the answer to this question.74
Given the lack of consensus on the meaning of Article 8(2)(f), it is important
to examine carefully the text of this provision in light of the guidance on inter-
pretation provided by the Vienna Convention on the Laws of Treaties.75 Article

73
Prosecutor v Tadic, Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, ICTY Case No. IT-94-1-AR72, para. 70.
74
Scholars who support the interpretation of one uniform threshold applicable in non-
international armed conflict include Theodor Meron, Michael Bothe and Claus Kress.
See T. Meron, ‘The Humanization of Humanitarian Law’, (2000) 94 AJIL 239, 260;
M. Bothe, ‘War Crimes’, in A. Cassese, P. Gaeta, J. R.W.D. Jones (eds.), The Rome
Statute of the International Criminal Court: A Commentary (2002) 423; and C. Kress,
‘War Crimes Committed in Non-International Armed Conflict and the Emerging Sys-
tem of International Criminal Justice’, (2001) 30 IYBHR 103, 118. Scholars who inter-
pret a new threshold of application include Marco Sassoli and Antoine Bouvier, and
Rene Provost; see M. Sassoli and A. Bouvier (eds.), How Does Law Protect in War
(vol. 1, 2nd edn., 2006) 110; R. Provost, International Human Rights and International
Humanitarian Law (2002) 268–269. Debate on the interpretation of Article 8(2)(f) will
be examined in greater detail in Section 3.2.
75
Vienna Convention on the Law of Treaties, 1155 UNTS 331, 8 ILM 679, entered into
force on 27 January 1980. On the issue of interpretation, see I. Sinclair, The Vienna
Convention on the Law of Treaties (2nd edn., 1984) 114–158. For the drafting history
of provisions from the Vienna Convention relating to the interpretation of treaties,
see S. Roseanne, The Law of Treaties: A Guide to the Legislative History of the Vi-
enna Convention (1970) 214–223; R. G. Wetzel and D. Rauschning (eds.), The Vienna
Convention on the Law of Treaties: Travaux Perparatoire (1978) 237–263.
436 Anthony Cullen

31(1) of the Convention states as a general rule of interpretation that ‘[a] treaty
shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and
purpose.’76 Guided by this rule, this section will show that there exist strong le-
gal reasons to interpret uniformity of applicability in 8(2)(d) and 8(2)(f) of the
Rome Statute. In doing so, an argument will be advanced for an understanding of
the threshold contained in Article 8(2)(f) as the one identical to that of common
Article 3.
In the light of Article 31 of the Vienna Convention, the ‘context’ of Article
8(2)(f) of the Rome Statute is discussed below in Section 3.1 where the inten-

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tion of the Statute’s drafters is considered. In Section 3.2, the ‘ordinary meaning’
given to the terms of Article 8(2)(f) is examined, exploring a plain reading of
the provision in conjunction with sections (c), (d) and (e). Finally, the customary
status of non-international armed conflict offences is highlighted in Section 3.3,
focusing in particular, on the interpretation of the threshold contained in 8(2)(f).

A. The Meaning of the Threshold Intended by the Rome Conference

The original context of a provision is particularly important for its interpretation

when the meaning of the text can be considered ambiguous. In considering ‘con-
text’, Article 32 of the Vienna Convention provides that: ‘[r]ecourse may be had
to supplementary means of interpretation, including the preparatory work of the
treaty and the circumstances of its conclusion, in order to confirm the meaning
resulting from the application of article 31, or to determine the meaning when
the interpretation according to article 31: (a) leaves the meaning ambiguous or
obscure; or (b) leads to a result which is manifestly absurd or unreasonable.’ The
divergence of scholarly opinion on the meaning of Article 8(2)(f) arguably in-
creases the significance of the travaux preparatoires of the Rome Statute as a
supplementary source of interpretation.77 However, as noted earlier, the official
record of discussion on the final text of this threshold provision is brief and con-
tains no reference as to how states understood Sierra Leone’s proposal in relation
to the existing threshold of application for common Article 3. In the absence of
such explicit clarification, it is useful to recall the views expressed by delegates
on the concept of non-international armed conflict before the Committee of the
Whole. It is clear that the majority of states would have rejected the proposal
if it merely submitted a reformulation of the threshold contained in Article 1(1)
of Additional Protocol II. It is also clear that the majority of states favoured the
inclusion of a threshold that would allow the provisions contained in section D
to apply to situations of armed conflict between organised armed groups.

76
This rule of interpretation is recognised as customary international law, see La Grand
case (Germany v United States of America) Judgment of 27 June 2001, General List
No. 104, para. 99.
77
The different schools of thought on the interpretation of Article 8(2)(f) will be returned
to below in Section 4(A).
 The Definition of Non-International Armed Conflict in the Rome Statute 437

It is furthermore worth noting that prior to the Bureau’s proposal for an addi-
tional threshold, delegates had assumed only one threshold of application for
war crimes committed in non-international armed conflict. The proposal was
shared with delegates only days before the five-week long Conference was due
to conclude. Its hasty introduction indicates that the inclusion of an additional
non-international armed conflict threshold had not been well thought through.78
Apart from the many problems associated with the text of Article 1(1) of Addi-
tional Protocol II,79 the drafting history of the Statute shows consistency in posit-
ing one threshold for all provisions relating to an armed conflict not of an interna-
tional character. Reports of the Preparatory Committee offer no differentiation

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of different thresholds of application for non-international armed conflict. It had
been assumed that all non-international armed conflict provisions possessed the
same field of applicability, i.e. armed conflict not of an international character.
The introduction of a new non-international armed conflict threshold clearly
departs from the approach previously adopted by the drafters of the Rome
Statute. Considering the context of the Bureau’s proposal, i.e. a divergence of
positions among states on non-international armed conflict clauses, and the fact
that it was raised only four days before the Conference was to close, this initia-
tive was clearly motivated by an interest in securing the general agreement of
participants as soon as possible. The fact that no delegate voiced support for the
proposal and that a significant number addressed the Committee of the Whole to
criticise it, indicates an acute lack of support for the Bureau’s idea of including
an additional non-international armed conflict threshold.
The lack of support for the Bureau’s proposal is significant. Considering how it
was received by delegates, it would appear reasonable to exclude the objective of
the proposal from the interpretation of the threshold in Article 8(2)(f). The po-
sition of the Conference is clear from the Official Records—the same threshold
had applied to all the offences relating to situations of non-international armed
conflict prior to the Bureau’s proposal.80 The idea of introducing one from Addi-
tional Protocol II for section D was unacceptable.81 As noted by Theodor Meron,
if the proposal had succeeded, it would have made this part of Article 8 ‘virtu-
ally ineffectual’.82 Sierra Leone’s amendment was incorporated as a means of
addressing this problem.
If the intention of the Statute’s drafters is to be adhered to, the interpretation
of the thresholds contained in Article 8 should not be coloured by division of
offences relating to armed conflict not of an international character into sections
2(c) and 2(e). Prior to the Bureau’s initiative, both sections had been covered by
the one chapeau. The fact that each section is now covered by a different chapeau

78
The Conference was due to close on 17 July and the Bureau’s proposal for an additional
threshold was only discussed before the Committee of the Whole on 13 July 1998.
79
See works cited, op. cit., fn. 37.
80
See above, Section 3(A)(i).
81
Ibid.
82
T. Meron, War Crimes Law Comes of Age (1998) 309.
438 Anthony Cullen

should not necessarily be taken to imply different fields of application. Indeed,

it will be argued in the section that follows that Article 8(2)(f) must be read as a
development of the threshold contained in Article 8(2)(d), implying uniformity
of applicability for both sections.

B. Textual Interpretation of Article 8(2)(f)

The structure of Article 8 reflects the fact that the Statute was formulated
through a process of negotiation. The awkward composition of this provision

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dealing with war crimes was commented on by Professor William Schabas, who
stated that ‘[n]ot only are the specific acts set out in excruciating detail, but the
actual categories impose a difficult exercise of assessment of the type of armed
conflict involved.’83 The divergent interpretations of the threshold contained
in Article 8(2)(f) reflect an ambiguity in the text. Stated in full, the provision
reads:

Paragraph 2 (e) applies to armed conflicts not of an international character

and thus does not apply to situations of internal disturbances and tensions,
such as riots, isolated and sporadic acts of violence or other acts of a sim-
ilar nature. It applies to armed conflicts that take place in the territory
of a State when there is protracted armed conflict between governmental
authorities and organized armed groups or between such groups.

The first sentence of Article 8(2)(f), reproduced from Article 1(2) of Addi-
tional Protocol II, provides an uncontroversial, negative formulation of the lower
threshold of non-international armed conflict. Referring to the exclusion of inter-
nal disturbances and tensions, the text is also included in Article 8(2)(d) of the
Rome Statute. The second sentence of Article 8(2)(f) states a positive formula-
tion of the same threshold. In doing so, it provides a source of contention for
scholars of international law. The question as to whether the sentence represents
a new threshold or the reformulation of an existing one is critically important
for determining the applicability of the provisions contained in Article 8(2)(e).
If interpreted as a new threshold, it would also imply the existence of a new cat-
egory of non-international armed conflict. In order to apply the provisions con-
tained in Article 8(2)(e), the court would have to distinguish a situation’s status
according to how it interprets the characteristics of this as yet undefined, new cat-
egory armed conflict. If interpreted as a reformulation of an existing threshold,
i.e. the threshold for the application of common Article 3, Article 8(2)(f) would
correspond to the previously existing concept of non-international armed con-
flict in international humanitarian law. According to Marco Sassoli and Antoine

83
W. A. Schabas, An Introduction to the International Criminal Court (3rd edn., 2007)
116.
 The Definition of Non-International Armed Conflict in the Rome Statute 439

Bouvier, however, the threshold contained in Article 8(2)(f) is distinct from that
of common Article 3:

The Statute of the International Criminal Court provides an intermediary

threshold of application. There is no longer a requirement for the conflict
to take place between governmental forces and rebel forces, for the latter
to control part of territory, nor for there to be a responsible command.
The conflict must however be protracted and the armed groups must be
organised.84

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Professor William Schabas also allows for the interpretation of an additional
category of non-international armed conflict in Article 8(2)(f):

As it now stands, Article 8 consists of four categories of war crimes, two

of them addressing international armed conflict and two of them non-
international armed conflict. . . Courts will be required to distinguish be-
tween international and non-international armed conflicts, and this is fur-
ther Complicated by the fact that within the subset of non-international
conflicts there are two distinct categories.85

While acknowledging the existence of diverging views on the interpretation of

the thresholds contained in Article 8(2)(f) and Article 8(2)(d), Schabas states fur-
ther that ‘the better view would seem to be that there are no material distinctions
between them.’86
Judge Theodor Meron insists that Article 8(2)(f) ‘should not be considered as
creating yet another threshold of applicability’.87 Recalling the drafting of the
Rome Statute, he states that:

The reference to protracted armed conflict was designed to give some

satisfaction to those delegations that insisted on the incorporation of the
higher threshold of applicability of Article 1(1) of Additional Protocol II.
It may be noted that this language tracks language contained in para-
graph 70 of the Tadic decision on interlocutory appeal on jurisdiction of
the ICTY (2 October 1995). Attempts to interpret protracted armed con-
flict as recognizing an additional high threshold of application should be
resisted.88

84
Sassoli and Bouvier, op. cit., fn. 74. See also Provost, op. cit., fn. 74.
85
Schabas, op. cit., fn. 83.
86
Ibid., p. 131.
87
Meron, loc. cit., fn. 74.
88
T. Meron, ‘Crimes under the Jurisdiction of the International Criminal Court’,
in H. A. M. von Hebel et al. (eds.), Reflections on the ICC (1999) 54. Accord-
ing to the Trial Chamber in the Slobodan Milošević case before the ICTY, ‘Ar-
ticle 8 is not only consistent with the Tadic test, but also incorporates part of
the Tadic Jurisdiction Appeals Decision into its own definition of “war crimes”.’
440 Anthony Cullen

Michael Bothe supports a position similar to that of Judge Meron. Describ-

ing Article 8(2)(f) as a ‘replica’ of the definition propounded in the Tadic
Jurisdiction Decision, Bothe interprets a uniform threshold of application for
situations of non-international armed conflict in the Rome Statute.89 In doing
so, he maintains that there are only two distinct thresholds of applicability in
Article 8: one relating to the distinction between international armed conflict
and non-international armed conflict, and the other relating to the distinction
between non-international armed conflict and situations of internal disturbances
and tensions, that by definition do not constitute armed conflict;90 this author
favours this position. In supporting one uniform threshold of application for situ-

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ations of non-international armed conflict, the section that follows examines the
significance of the term ‘armed conflict not of an international character’ in Arti-
cle 8(2)(c), (d), (e) and (f).

(i) Applicability of Article 8(2)(c) and Article 8(2)(e) to ‘armed conflicts not of
an international character’

If understood as a development of the threshold contained in Article 8(2)(d),

the text of Article 8(2)(f) would possess the same field of application as common
Article 3. The first line of Article 8(2)(d) states the context of its application as
‘armed conflict not of an international character’. This term is taken directly from
the first line of common Article 3. Referred to in the Commentary of the ICRC
as the field of application of this provision,91 ‘armed conflict not of an interna-
tional character’ indicates the established lower threshold for the application of
international humanitarian law in all situations of non-international armed con-
flict. The use of this phrase in the Rome Statute is significant due to the meaning
it has acquired in international humanitarian law. The exact wording has been
reproduced in a number of instruments to indicate applicability to situations of
non-international armed conflict falling within the scope of common Article 3.
Examples include the Convention for the Protection of Cultural Property in the

Prosecutor v Slobodan Milošević, Decision on Motion for Judgment of Acquit-

tal, Trial Chamber, 16 June 2004, Case No. IT-02-54-T, para. 20. Available at
<http://www.un.org/icty/milosevic/trialc/judgement/index.htm>.
89
Bothe, loc. cit., fn. 74.
90
Ibid., p. 418, states that:

The systematic order of Article 8 (crimes in connection with an international armed con-
flict/crimes in connection with non-international armed conflict) involves the need to deter-
mine two different thresholds: that between an international and non-international armed
conflict and that between an armed conflict and a situation which does not at all constitute an
armed conflict within the meaning of subparagraphs (c) or (e). The latter threshold is regu-
lated by subparagraphs (e) and (f) for subparagraphs (c) and (e), respectively.

91
ICRC Commentary on the Geneva Conventions of 1949, p. 49.
 The Definition of Non-International Armed Conflict in the Rome Statute 441

Event of Armed Conflict;92 the Protocol on Prohibitions or Restrictions on the

Use of Mines, Booby-Traps and Other Devices;93 the Convention on Prohibi-
tions or Restrictions on the Use of Certain Conventional Weapons Which may
be Deemed to be Excessively Injurious or to Have Indiscriminate Effects;94 and
the Second Protocol to the Hague Convention of 1954 for the Protection of Cul-
tural Property in the Event of Armed Conflict.95
It is significant that among the instruments of international law, there are no
exceptions to this practice. It is worth noting that the term ‘armed conflict not
of an international character’ is not used in the main text of Additional Protocol
II and that this is consistent with the meaning of the term, as the Protocol has

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a much higher threshold of application. While Additional Protocol II relates to
situations of non-international armed conflict, its application is limited to con-
flicts ‘which take place in the territory of a High Contracting Party between its
armed forces and dissident armed forces or other organized armed groups which,
under responsible command, exercise such control over a part of its territory as
to enable them to carry out sustained and concerted military operations and to
implement this Protocol.’96 The only usage of ‘armed conflict not of an inter-
national character’ in this instrument is in the preamble, where the context is a
specific reference to common Article 3.97 While there is no record of discussion
relating to the meaning of the term in the travaux préparatoires of Additional
Protocol II, there is evidence to suggest that its omission from the main text fol-
lowed as a logical consequence of how the threshold of application associated
with common Article 3 differed distinctly from that of the Protocol. According
to the Commentary of the ICRC, the approach adopted:

endeavoured to keep intact the achievements of common Article 3 by pro-

viding that the conditions of application of that article would not be mod-
ified. Keeping the conditions of application of common Article 3 as they
are, and stipulating that the proposed definition will not apply to that arti-
cle, meant that the Protocol was conceived as a self-contained instrument,

92
1954 Convention for the Protection of Cultural Property in the Event of Armed Con-
flict, Article 19(1).
93
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other
Devices as amended on 3 May 1996 (Protocol II to the 1980 Convention as amended
on 3 May 1996), Article 1(3).
94
2001 Convention on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons Which may be Deemed to be Excessively Injurious or to Have Indiscriminate
Effects, Article 1(3).
95
1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural
Property in the Event of Armed Conflict, Article 22.
96
Additional Protocol II, Article 1(1).
97
‘The High Contracting Parties, Recalling that the humanitarian principles enshrined in
Article 3 common to the Geneva Conventions of 12 August 1949, constitute the foun-
dation of respect for the human person in cases of armed conflict not of an international
character’. Additional Protocol II, preambular para. 1.
442 Anthony Cullen

additional to the four Conventions and applicable to all armed conflicts

which comply with the definition and are not covered by common Arti-
cle 2. Keeping the Protocol separate from common Article 3 was intended
to prevent undercutting the scope of Article 3 itself by laying down precise
rules. In this way common Article 3 retains an independent existence.98

To safeguard the scope of ‘armed conflict not of an international character’,

Article 1(1) of the Protocol states that it develops and supplements common Ar-
ticle 3 ‘without modifying its existing conditions or application.’ The ICRC Com-
mentary on Article 1(1) explains this reference to the distinct field of application

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for common Article 3 constituted:

one of the bases of the compromise which made the adoption of Article 1
possible. . . [C]ommon Article 3 retains an autonomous existence, i.e., its
applicability is neither limited nor affected by the material field of applica-
tion of the Protocol. This formula, though legally rather complicated, has
the advantage of furnishing a guarantee against any reduction of the level
of protection long since provided by common Article 3.99

While the title of the Additional Protocol states that it relates to ‘the protec-
tion of victims of non-international armed conflicts’, its scope is clearly limited
to internal hostilities possessing certain characteristics, e.g. the conduct of sus-
tained and concerted military operations, control of territory by insurgents, the
existence of responsible command, etc. The term ‘armed conflict not of an in-
ternational character’ relates to all situations of non-international armed conflict
irrespective of whether such conditions are met. Its omission from the Proto-
col is thus consistent with the practice of using the term to distinguish the lower
threshold for the application of international humanitarian law in situations of
non-international armed conflict.
Given the threshold of application associated with ‘armed conflict not of an in-
ternational character’, it is significant to note the common usage of the term in the
first lines of paragraphs 2(c) and 2(e). Interpreted according to its conventional
usage, the term would imply equivalent fields of application for these provisions.
In addition to its usage in paragraphs 2(c) and 2(e), ‘armed conflict not of an
international character’ is also used in paragraphs (d) and (f) in explicitly demar-
cating their scope of applicability. As conventional usage of the term indicates
the lower threshold for the existence of de facto armed conflict, it would appear
peculiar for the utilisation of ‘armed conflict not of an international character’ in
the Statute to be interpreted differently. The distinctive threshold of application
associated with ‘armed conflict not of an international character’ suggests uni-
formity of application for sections 2(c) and 2(e) of Article 8. This supposition of
uniformity is furthermore supported by a literal interpretation of the first line of
8(2)(e), which is examined in the section that follows.

98
ICRC Commentary on Additional Protocol II, p. 1350.
99
ICRC Commentary on Additional Protocol II, p. 1350.
 The Definition of Non-International Armed Conflict in the Rome Statute 443

(ii) The significance of the determiner ‘other’ in Article 8(2)(e)

The opening sentence of Article 8(2)(e) describes the provisions contained

therein as ‘other serious violations of the laws and customs applicable to armed
conflicts not of an international character’.100 The use of the word ‘other’ is sig-
nificant in this context because it situates the offences listed in the same category
of armed conflict as that of common Article 3. It follows by rule of logic in the
use of this determiner, that the ‘serious violations of article 3 common to the four
Geneva Conventions’ listed in Article 8(2)(c) form a subset of ‘serious violations
of the laws and customs applicable to armed conflicts not of an international

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character.’ If a plain reading of these clauses is adhered to, the use of ‘other’
would imply the same material field of application for Article 8(2)(e) as for
8(2)(c).
The drafting history of the Rome Statute is consistent on the use of the de-
terminer mentioned above which allows specified war crimes to be situated in
the same category of non-international armed conflict as common Article 3.101
There is no record of this usage of ‘other’ being questioned in either the reports
of the Preparatory Committee or Summary Records of the Rome Conference.
The consistency of this formulation suggests an assumption that provisions relat-
ing to non-international armed conflict would apply uniformly to the category of
situations constituting ‘armed conflict not of an international character’.
If the approach adopted in the Statute’s drafting history is adhered to, it fol-
lows that the provisions listed in Article 8(2)(c) and 8(2)(e) relate to only one cat-
egory of non-international armed conflict. The determiner ‘other’ acts as a bridge
between these two sections by explicitly situating the offences listed in one cate-
gory of war crimes, i.e. ‘serious violations of the laws and customs applicable to
armed conflicts not of an international character’. Following this interpretation,
the logical consequence is a shared threshold of application.

C. The Customary Status of Provisions Relating to Non-International Armed

Conflict and the Interpretation of the Threshold Contained in Article 8(2)(f)

The interpretation of a shared threshold of application between 2(c) and 2(e)

is supported by the customary status of the offences in these sections. It is

100
Emphasis added.
101
See Report of the Preparatory Committee on the Establishment of an International
Criminal Court, Draft Statute and Draft Final Act; A/Conf.183/2/Add.1, 1998, p. 26;
Report of the Inter-Session Meeting from 19 to 30 January 1998 in Zutphen, The
Netherlands; A/AC.249/1998/L.13, 1998, p. 28; Decisions taken by the Preparatory
Committee at its session held from 1 to 12 December 1997, A/AC.249/1997/L.9/Rev. 1,
1997, p. 12; Decisions taken by the Preparatory Committee at its session held from 11
to 21 February 1997, A/AC.249/1997/L.5, 1997, p. 12; and Report of the Preparatory
Committee on the Establishment of an International Criminal Court, vol. II (Compi-
lation of Proposals), GA, fifty-first Session, Supplement No. 22, A/51/22, 1996, p. 62.
444 Anthony Cullen

arguable that their recognition as norms of customary international law (applica-

ble in all situations of armed conflict) makes the interpretation of a new category
of non-international armed conflict in 8(2)(f) superfluous. Given that the cha-
peau of 2(e) states that all offences in this section stand ‘within the established
framework of international law’, it would seem unusual to place the interpreta-
tion of 8(2)(f) outside this framework.102 According to Phillip Kirsch, there was a
‘general agreement that the definitions of crimes in the ICC Statute were to re-
flect existing customary international law, and not to create new law’.103 While
not all provisions in Article 8 correspond to customary international law, it is
clear that the offences listed relating to non-international armed conflict do have

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customary status.
Convincing evidence of the customary status of 2(c) and 2(e) is provided by the
ICRC Study on Customary International Humanitarian Law.104 The study details
customary rules applicable to situations of international and non-international
armed conflict. The offences listed in Article 8(2)(c) and 8(2)(e) are covered in
these rules.105 Their status as customary international law is illustrated in the
study through the reproduction of the relevant state practice.106 No distinction is
made between different categories of non-international armed conflict or differ-
ent thresholds for the application of international humanitarian law to situations
of non-international armed conflict. This would suggest that no such differen-
tiation is warranted for the application of customary rules to non-international
armed conflicts, irrespective of their intensity. Given that the study does not
distinguish different thresholds of applicability for non-international armed con-
flicts, and that the prohibitions listed in 2(c) and 2(e) are covered in rules applica-
ble to both international and non-international armed conflict, it is evident that
the interpretation of an additional threshold of applicability in 8(2)(f) would re-
strict the scope of the rules contained in 2(e) contrary to customary international
law. If interpreted as a threshold distinct from that of 2(d), paragraph 2(f) would
clearly confine the applicability of the norms contained in section 2(e) to a more

102
See Prosecutor v Lubanga (Case No. ICC-01/04-01/06), Décision sur la confirmation
des charges, 29 January 2007, para. 230.
103
Cited in K. Dormann, Elements of War Crimes under the Rome Statute of the Interna-
tional Criminal Court: Sources and Commentary (2003) xiii.
104
J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law
(vols. I and II, 2005).
105
The customary status of provisions in 8(2)(c) is covered in the following rules listed in
ibid., vol. I: rules 87–90 (pp. 306–319), 96 (pp. 334–336) and 99–100 (pp. 334–370). For
the customary status of provisions in 8(2)(e), see ibid.: rules 1 (pp. 3–8), 30 (pp. 102–
104), 33 (pp. 112–114), 38–40 (pp. 127–135), 52 (pp. 182–185), 93–94 (pp. 323–330),
136–137 (pp. 482–488), 129 (pp. 459–460), 65 (pp. 221–226), 46 (pp. 161–163), 92 (pp.
320–323) and 50 (pp. 175–177).
106
See ibid., vol. II: rules 87–90 (pp. 1986–2161), 96 (pp. 2262–2285), 99–100 (pp. 2328–
2493), 1 (pp. 3–66), 30 (pp. 574–587), 33 (pp. 640–659), 38–40 (pp. 723–803), 52
(pp. 1076–1122), 93–94 (pp. 2190–2246), 136–137 (pp. 3109–3142), 129(B) (pp. 2908–
2942), 65 (pp. 1368–1457), 46 (pp. 915–929), 92 (pp. 2167–2189), and 50 (pp. 1000–
1029).
 The Definition of Non-International Armed Conflict in the Rome Statute 445

limited category of situation. In order to situate offences ‘within the established

framework of the international law’,107 it would appear rational to interpret
paragraphs 2(d) and 2(f) as stipulating the same threshold of application.108 If
not, then a departure from the existing standard of customary international law
would be clearly evident.

5. Concluding Observations

Considering the foregoing analysis of non-international armed conflict provi-

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sions, there exist clear grounds for the interpretation of one uniform concept
of non-international armed conflict in the Rome Statute. The interpretation of
an additional threshold of application creates a separate category of armed con-
flict and is not favoured here for a number of reasons. First, as illustrated earlier,
there is evidence to suggest that such an interpretation would be contrary to the
intention of the Statute’s drafters. Second, the use of the term ‘armed conflict not
of an international character’, interpreted in line with its conventional usage indi-
cates a threshold of application equivalent to that of common Article 3. Third, a
plain reading of Article 8(2)(e) itself supports an interpretation of one threshold
relating to non-international armed conflict, situating all crimes in this section in
the same category of situation as 8(2)(c). The customary status of the Statute’s
non-international armed conflict provisions also supports the supposition of a
common threshold of application.
It is also worth noting the teleological aspect of this interpretation. If one of
the cardinal functions of the court is to provide a source of redress for war crimes
committed in non-international armed conflict, it would arguably better serve
the interests of the victims to avoid the introduction of distinctions that could
unnecessarily complicate the application of the war crimes provisions. When in-
terpreting the concept of non-international armed conflict in the Rome Statute,
it is important to bear in mind its origins and also consider the object and pur-
pose of international humanitarian law, which is the protection of the victims of
armed conflicts.109 As noted by the Nuremburg Tribunal, the laws that govern
armed conflict ‘are not static, but by continual adaptation follow the needs of a
changing world.’110

107
Article 8(2)(e).
108
This would also be consistent with the Elements of Crimes, which states that the war
crimes listed in 8(2) ‘shall be interpreted within the established framework of the law
of armed conflict’.
109
According to the ICTR Trial Chamber in the Akayesu case, ‘[t]he four Geneva
Conventions—as well as the two Additional Protocols . . . were adopted primarily to
protect the victims as well as potential victims of armed conflicts’. Prosecutor v Jean
Paul Akayesu, Judgment, Appeals Chamber, 1 June 2001, Case No. ICTR-96-4, para.
630.
110
Trial of Major War Criminals before the International Military Tribunal, Nuremburg,
14 November 1945–1 October 1946, vol. I, p. 221.