Article

Between law and reality : "new wars" and internationalised armed conflict

Jed Odermatt

• Amsterdam law forum, Vol. 5, issue 3, Summer 2013, p. 19-32

English

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One of the key distinctions in the law of armed conflict is the one between so-called ‘internal’ wars and international armed conflicts. ‘New wars’ do not easily fit in such neat legal categories, however. Even conflicts that may seem internal take place in a globalised context in which international actors play an ever-increasing role. While traditional inter-state wars have diminished, there are few wars that can be described as purely ‘internal’ in nature. The purpose of this contribution is to discuss how these ‘new wars’ present a challenge to the non-international/international armed conflict dichotomy. The first part of this contribution briefly examined the international/non-international dichotomy in international law. While this dichotomy is widely criticised by academics, lawyers and in the jurisprudence of international courts and tribunals, it remains an important element in the law of armed conflict, and will not truly be eroded any time soon. The primary reason for this is the fact that states continue to see a fundamental distinction between the two types of conflicts. The second part examined how the dichotomy is extremely difficult to apply to ‘new wars’, which contain both internal and international elements. It is especially difficult in cases where the support given by outside parties will not amount to the necessary level to ‘internationalise’ the armed conflict, or where the belligerents are primarily non-state actors. As the Syrian Civil War demonstrates, there really is a ‘crisis of compliance’61 in these armed conflicts where significant atrocities are committed on both sides. How the ‘old law’ of armed conflict will adapt to these new wars remains a critical question for international law.

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