The Classification of the Conflict in Libya and Syria - A critique of the organization requirement

Abstract: The purpose of this paper is to examine what constitutes a non-international armed conflict (NIAC), using the conflicts in Libya respectively Syria as examples of how different this can be interpreted. This definition is of great importance when it comes to what rules to apply and criminal accountability. NIACs are regulated in international humanitarian law (IHL) conventions such as the Geneva Conventions article 3 and in Additional Protocol II (AP II). IHL provides protection from armed conflict. There is however no definition of a NIAC in these treaties, NIAC has instead been defined in case-law from the ICTY. There are two requirements for an armed conflict to exist: a certain amount of intensity in the conflict and organization of the parties. These are the demands for article 3’s applicability, for AP II the demands are even higher requiring responsible command and a possibility to implement IHL among others. If one party does not fulfill the organization requirement than no party has to implement IHL, leaving civilians unprotected from all sides. The difference between the conflict in Libya and Syria is the organization degree of the rebels. This is a usual difficulty when it comes to classifications of armed conflicts, not only for the armed group to fulfill but also for outside observers to obtain enough information about. The rebels in Libya however not only fulfilled the threshold for article 3 in just a few weeks, but also the one for AP II. In Syria the requirements for article 3 however were not fulfilled until over a year of fighting, in spring/summer 2012. When you look at these classifications, there seem to be a difference in how the information in the two cases is valued. Also in the case of Libya the classifiers seem to be more generous regarding the fulfillment of these criteria, in Syria however the requirements almost seem to be raised. The UN decision to legitimize other states to intervene in Libya might also have affected the classification process, even though political decisions should not. The organization requirement has been criticized for being set to high. Unrealistic demands will just hurt the humanitarian values these rules are supposed to protect. This is especially true considering that a majority of the armed conflicts today are asymmetrical NIACs. Legal scholars have given different proposals regarding how to address this, however they always seem to lack something. One thing is clear though, that if IHL are going to be put to good use, these demands have to be lowered not raised, to avoid difficulties similar to those in the classification of Syria. Clearer criteria regarding the organization requirement may also help to avoid classification problems.