Applicability test of Additional Protocol II and common article 3 for crimes in internal armed conflict
Applying international humanitarian law in judicial and quasi-judicial bodies : international and domestic aspects
The Hague : Asser Press, 2014
Bibliographie : p. 57-60
Modern warfare raises important, often difficult questions about conflict classification and applicable legal frameworks. These challenges typically concern whether a conflict should be deemed as international or non-international and which legal regime applies in virtue of this classification. It is this issue that Noëlle Quénivet develops in this chapter. Focusing on non-international conflicts, she examines the impact of the international criminal tribunals' jurisprudence on the classification of non-international conflicts as either falling under Common Article 3 or under the Additional Protocol II. Quénivet sketches the difference between the two treaty regimes as far as application of IHL is concerned, with Common Article 3 permitting such application in cases of dissident groups fighting each other, whereas the Additional Protocol II requires the conflict to be between a government and internal belligerent forces. Proceeding to explain that the Additional Protocol II cannot be considered either lex posterior or lex generalis to Common Article 3, Quénivet illustrates this through reference to state practice, demonstrating that there exists a bifurcation as regards legal regulation for non-international armed conflicts. Consequently and based on these premises, Quénivet explores the applicability test of these two different treaties in the jurisprudence of various international criminal courts and tribunals.