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Introduction5

PART Ⅰ Origins of the non-international armed conflict concept and its development in international humanitarian law5

The application of international humanitarian norms to internal conflict prior to the Geneva Conventions of 19497

1.1 The practice of recognition and the application of humanitarian norms in traditional international law7

1.2 The non-application of the laws of war to situations of rebellion8

1.3 The concept of insurgency10

1.4 The recognition of belligerency and the application of international humanitarian norms in civil war14

1.4.1 The practice of belligerent recognition14

1.4.2 The legal personality of belligerents in civil war18

1.4.3 Conditions determining belligerent recognition19

1.4.4 Problems in the interpretation of belligerency20

1.4.5 The substitution of 'armed conflict' for 'war'21

1.4.6 The decline of belligerency as a doctrine of international law22

1.5 Concluding observations23

2 Article 3 common to the four Geneva Conventions of 1949 and the threshold of non-international armed conflict in international humanitarian law25

2.1 The drafting history of common Article 327

2.1.1 Interpretation of 'armed conflict not of an international character' at the Geneva Conference of 194929

2.1.2 Report of the Joint Committee to the Plenary Assembly of the Diplomatic Conference42

2.1.3 Plenary debate on the application of the Conventions to armed conflicts not of an international character44

2.1.4 Comments on the intended scope of common Article 349

2.2 The ICRC Commentary on common Article 351

2.3 State practice relating to the applicability of common Article 355

2.4 Concluding observations59

3 Changes in the scope of non-international armed conflict resulting from the Additional Protocols of 197762

3.1 Additional Protocol I63

3.1.1 The drafting history of Article 1(4)66

3.1.2 The customary status of wars of national liberation81

3.1.3 The applicability of Article 1(4)83

3.2 Additional Protocol II86

3.2.1 The drafting history of Additional Protocol II88

3.2.2 The threshold for the application of Additional Protocol II102

3.2.3 Applicability of Additional Protocol II109

3.3 Concluding observations113

PART Ⅱ The anatomy of non-international armed in international humanitarian law115

4 The threshold of non-international armed conflict117

4.1 Tadic: a formula for the characterisation of armed conflict117

4.1.1 Two aspects of non-international armed conflict determining the applicability of international humanitarian law: the organisation of insurgents and the intensity of hostilities122

4.1.2 Application of the Tadic formula for the characterisation of armed conflict133

4.2 The geographical scope of non-international armed conflict140

4.3 The temporal scope of non-international armed conflict142

4.4 The existence of armed conflict between non-state actors146

4.5 The question of responsible command148

4.5.1 Does the concept of non-international armed conflict presuppose the existence of responsible command?148

4.5.2 The existence of responsible command as a condition for the characterisation of armed conflict:& Prosecutor v. Hadzihasanovic150

4.5.3 Responsible command as a condition for the characterisation of non-international armed conflict in international humanitarian law155

4.6 Concluding observations157

5 The concept of non-international armed conflict in the Rome Statute of the International Criminal Court159

5.1 The question of subject-matter jurisdiction over war crimes in non-international armed conflicts prior to the Rome Conference160

5.2 The question of subject-matter jurisdiction over war crimes in non-international armed conflicts at the Rome Conference163

5.2.1 Report of the Preparatory Committee on the Establishment of an International Criminal Court163

5.2.2 Views of delegations on inclusion of clauses relating to non-international armed conflict165

5.2.3 Bridging the gap: proposals for a threshold for non-international armed conflict167

5.3 Interpreting the threshold contained in Article 8(2)(f)174

5.3.1 The meaning of the threshold intended by the Rome Conference175

5.3.2 Textual interpretation of Article 8(2)(f)177

5.3.3 The customary status of provisions relating to non-international armed conflict and the interpretation of the threshold contained in Article 8(2)(f)183

5.4 Concluding observations185

6 Conclusion186

6.1 On the interpretation of non-international armed conflict189

6.2 On the significance of the Tadic definition190

6.3 The characterisation of non-international armed conflict and its effect on the legal status of parties192

Bibliography194

Index212