The prospect of international intervention legitimacy: case study of 2011 libyan armed conflict

CHAPTER TWO: HISTORICAL BACKGROUND OF HUMANITARIAN INTERVENTION UNDER INTERNATIONAL LAW

2.1. Introduction

This second chapter devoted to the literature review lays the basis for understanding the body of this study on various concepts such as humanitarian intervention and the questioning of principles of the public international law. In this respect, for this study analysis, will be developed the concepts of war and its typology, sovereignty, jus ad bellum and jus in bello and three principles interesting the topic such as the sovereignty of States , the principle of nonintervention and finally, the principle of the prohibition of the use of force.

2.2 War or Armed Conflict

Armed conflicts are as old as humanity. There have always been customary practices in war situations, but it is only in the last 150 years that States established international rules conceived to limit the effects of armed conflict for humanitarian reasons. The Geneva Conventions and the Hague Conventions are the main examples of international standards attempting to regulate the conduct of wars. These rules, usually called "international humanitarian law", are also known as the law of war or law of armed conflicts.^31(*)

Wars or armed conflicts are diversified depending upon the manner they are conducted and even belligerents. How is the term 'armed conflict' defined in international humanitarian law? International humanitarian law distinguishes two types of armed conflict: the international armed conflict between two States or more, and the non-international armed conflict between the Government forces and non-governmental armed groups, or groups between them.^32(*) International humanitarian law treaties also make a distinction between the non-international armed conflicts within the meaning of article 3 common to the Geneva Conventions of 1949, and who falls within the definition contained in article 1 of additional Protocol II.

2.2.1. International Armed Conflict (IAC)

Article 2 common to the Geneva Conventions of 1949 provides that apart from the provisions which shall enter into force from the time of peace, this Convention shall apply in the event of declared war or any other armed arising between two conflict or more of the High Contracting Parties, even if the State of war is not recognized by one of them. The Convention shall apply in all cases of occupation of all or part of the territory of a high contracting party, even if this occupation meets with no armed resistance. According to this provision, international armed conflicts are those that take place between "High Contracting Parties", i.e. between States. The relevant rules of IHL may be applicable even in the absence of hostilities. In addition, no formal war declaration or recognition of the situation is necessary. The existence of an IAC, and thereby the possibility of applying international humanitarian law to the situation, in fact depends on what happens on the field. These are facts that are decisive. For example, it is possible to have an IAC, even if one of the belligerents does not recognize the Government of the adverse part.^33(*)

The commentary to the Geneva Conventions of 1949 confirms that any dispute arising between two States and provoking the intervention of members of the armed forces is an armed conflict, the meaning of article 2, even if one of the Parties challenged the State of belligerency. The duration of the conflict or the more or less deadly nature of its effects play no role.^34(*)

Additional Protocol I covers no regular armed conflicts between States, it expands the definition of the IAC in armed conflicts in which peoples are fighting against colonial domination, foreign occupation or racist regimes by making use of their right to self-determination (wars of national liberation).^35(*)

* ³¹ Elfstrom, G., `On Dilemmas of Intervention', Ethics 93, 1983, p. 713.

* ³² Idem, p. 713.

* ³³ D. Fleck, The Handbook of Humanitarian Law in Armed Conflicts, Oxford University Press, Oxford, 1995, p. 40.

* ³⁴ Ibid.

* ³⁵ Sassoli M., "Transnational Armed Groups and International Humanitarian Law", Program on Humanitarian Policy and Conflict Research, Harvard University, Occasional Paper Series, Winter 2006, Number 6, p. 89.