[Any discussion of the law that applies in armed conflict is usually prefaced with an analysis of the distinctions that are drawn between armed conflicts and other acts of violence, and between international and non-international armed conflicts. Most international humanitarian law courses begin by analysing these distinctions and thereby drawing the boundaries within which an examination of the subject matter takes place. In the context of the decisions in Hamdan v Rumsfeld, this think piece seeks to explore the distinctions drawn by international humanitarian law in relation to these threshold issues, and the way in which they impact on our teaching of the subject. It argues that the concern with classification undermines two of the law's fundamental claims--its claim to pragmatism and its claim to humanity. It suggests alternative questions to ask when teaching the classification of armed conflicts that may open up discussion of the boundaries drawn by the law and thereby facilitate the potential for reform.]
II Highlighting the Problem with Classification: Hamdan v Rumsfeld
III Classification and Conflict
A Armed Conflicts versus Other Violence
B International versus Internal/Non-International Armed Conflicts
IV Characterisation and the Teaching of International Humanitarian Law
One of the first concepts that I was taught as a student of international humanitarian law is that the law creates a distinction between international and non-international armed conflicts. I discovered that the classification of a conflict as either international or non-international dictates the application of the major treaties in this area--the Geneva Conventions (1) and the Additional Protocols (2)--and determines whether states are under an obligation to criminalise breaches of the law in domestic legislation. I also learnt that there is a minimum threshold for deciding when an armed conflict exists (as distinct from 'sporadic acts of violence' (3)) and that the term 'war' is of little or no relevance when applying the law once hostilities have commenced. This knowledge was acquired prior to 11 September 2001 and the advent of the 'war on terror'.
Although the distinction between international and non-international armed conflicts has been heavily criticised, as a lecturer of international humanitarian law I replicate this training by ensuring that in the first two classes of the undergraduate course I discuss the definition of the term 'armed conflict' and the fundamental importance of the characterisation of a conflict with reference to the decisions of the Trial and Appeals Chambers of the International Criminal Tribunal for the Former Yugoslavia ('ICTY') in Tadic. (4) Thus, I draw boundaries which represent the lines within which a discussion of the principles of international humanitarian law will take place for the rest of the course. In the same two classes, I usually draw students' attention to an article by Chris af Jochnick and Roger Normand in the Harvard International Law Journal entitled 'The Legitimation of Violence: A Critical History of the Laws of War'. (5) In this article, the authors question the idea that 'the laws of war serve to restrain or "humanise" war'. (6) In challenging the fundamental assumptions behind this branch of international law, the authors make particular reference to the distinction between combatants and non-combatants (7) and the rules which aim to limit the range and type of weapons employed. In both areas, the rules of international humanitarian law (at least in the form of treaties) are more developed in relation to international armed conflicts than civil wars. Consequently, on the one hand I reiterate the importance of classification in international humanitarian law and on the other hand I question its application.
When teaching international humanitarian law, I tend to emphasise two of the law's principal claims--its claim to pragmatism (that it is a pragmatic response to states' willingness to resort to war despite the prohibition on armed conflict in art 2(4) of the Charter of the United Nations), and its claim to humanity (that it is designed to protect the victims of armed conflict). …