This article analyses how international criminal courts and tribunals have pronounced on the contextual elements of their respective war crimes provisions. A comprehensive overview of the way these institutions treated the material scope of application of IHL shows that the ad hoc tribunals tended to avoid classification as either international or non-international armed conflict, and merely found that a generic ‘armed conflict’ existed at the relevant time. The ICC shows a tendency to classify situations as non-international armed conflicts without considering whether the situation concerned may instead (or at the same time) qualify as an international armed conflict. Non-international armed conflict is often, mistakenly, treated as a residual regime. Incorrect conflict classification may affect IHL’s scope of application, and negatively impact on an accused’s fair trial rights under international criminal law. The author proposes a fresh look at the ICC’s legal framework to solve conflict classification problems.
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