When Conflict Recurs: Classification of Conflict When Hostilities Break Out Anew
Fighting War as Crime and Crime as War: Alternative Legal Frameworks for Asymmetric Conflict , Oxford University Press, Forthcoming
26 Pages Posted: 8 Oct 2020
Date Written: August 20, 2020
Conflict classification — including identifying when conflict ends — is essential for determining the application of the law of armed conflict and the concomitant protections for persons and obligations of the parties to the conflict or potential conflict. What happens, however, when a conflict ends or appears to end but then violence and hostilities bubble up again? The complexity of conflict identification and classification and the challenges of understanding and analyzing the facts and actors in such new rounds of violence raise interesting and often difficult questions regarding the appropriate approach in assessing whether such new violence constitutes an armed conflict and when.
This chapter analyzes the appropriate analytical tools and thresholds for identifying the existence of and characterizing conflict in the face of a resurgence of hostilities. For conflicts between two states, the threshold for such international armed conflict is quite low, such that it could be hard to envision a quicker identification of armed conflict when violence recurs in the aftermath of an inter-state conflict. However, such scenarios pose challenging questions of whether actions by a proxy group or other entity could constitute an international armed conflict and, if so, whether the threshold or standard for such determination might be easier to satisfy if a recent conflict between the two states forms the backdrop for that analysis. In the context of non-international armed conflicts, one overarching question is whether the now-classical Tadić test with the factors of intensity and organization is the right approach in such situations of violence recurring after conflict, or whether some lower threshold or “accelerated analysis” could be more appropriate in these situations. Similarly, the nature of the armed group engaged in the resurgence of hostilities may be consequential, such that the thresholds or framework for hostilities recurring with the same group may not be the same as that for new or reconstituted groups, as well as the location and nature of the conflict. After a brief discussion of the basis for this inquiry and an introduction to the basic legal framework for identification and classification of armed conflict in the first section, the second section explores how the specific problem of violence recurring after the end of armed conflict poses interesting and challenging questions for the conflict classification schematic.
Keywords: law of armed conflict, international humanitarian law, classification of conflict, international armed conflict, non-international armed conflict, intensity, organization
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