Should international humanitarian law be essentially the same for both international and non-international armed conflicts? If yes, why, and how can we (realistically) achieve this?
1.1 Background and introduction
The legislation of armed conflict is neither an independent nor a complete lawful field. In particular, the commentators explore the question of whether international humanitarian legislation should be essentially the same for both non-international and international armed conflicts. Supposing that the answer to this question is in the affirmative the question that remains answered is nevertheless why and how this could be realistically attained. As Vite argues, despite the fact that humanitarian legislation has as its goal the restriction of the consequences of armed conflict, it does not involve a complete delineation of the entirety of scenarios, which fall within its relevant area of application. Although it is clear that the applicable treaties allude to different forms of armed conflicts, those mechanisms do not put forward standard rules accurate enough to provide an indication of the legal framework of this versatile notion.
On one hand, in 1949 the notion of armed conflict was introduced within the Geneva Conventions by becoming a recognised idea being ruled by the principle of effectiveness. Nevertheless, it is not essential for the dispute to expand over time or for it to generate a particular amount of injured parties. Or put differently, as stated by the International Criminal Tribunal of Yugoslavia (ICTY) in Tadic, an international conflict occurs ‘‘whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organised armed groups or between such groups within a state.’’ On the other hand, it is worth noting that since the implementation of Additional Protocol of 1977 the legislation of armed conflict has stopped being...