II. REQUIREMENTS, LIMITATIONS AND EFFECTS OF THE CONCURRENT APPLICABILITY OF
INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW IN ARMED CONFLICT
further indicated that international humanitarian law applies from the
initiation of such armed conflicts and extends beyond the cessation of
hostilities until a peaceful settlement is achieved.39 In the Haradinaj case,
the Trial Chamber stated that the criterion of protracted armed violence is
to be interpreted as referring more to the intensity of the armed violence
than to its duration. In addition, armed groups involved must have a
minimum degree of organization. The Trial Chamber summarized the
indicative factors that the Tribunal has relied on when assessing the two
criteria. For assessing the intensity these include “the number, duration
and intensity of individual confrontations; the type of weapons and other
military equipment used; the number and calibre of munitions fired; the
number of persons and type of forces partaking in the fighting; the number
of casualties; the extent of material destruction; and the number of civilians
fleeing combat zones. The involvement of the [United Nations] Security
Council may also be a reflection of the intensity of a conflict.” On the degree
of organization an armed group must have to make hostilities between
that group and governmental forces a non-international armed conflict, the
Tribunal has stated that an “armed conflict can exist only between parties
that are sufficiently organized to confront each other with military means.
[…] [I]ndicative factors include the existence of a command structure and
disciplinary rules and mechanisms within the group; the existence of a
headquarters; the fact that the group controls a certain territory; the ability
of the group to gain access to weapons, other military equipment, recruits
and military training; its ability to plan, coordinate and carry out military
operations, including troop movements and logistics; its ability to define
a unified military strategy and use military tactics; and its ability to speak
with one voice and negotiate and conclude agreements such as ceasefire
or peace accords.”40
Similarly, ICRC proposes those two criteria of intensity of violence and
organization of non-State parties as determining the lower threshold for
Prosecutor v. Duško Tadic´, para. 70.
Prosecutor v. Ramush Haradinaj et. al., case No. IT-04-84-T, Judgement of 3 April 2008,
paras. 49 and 60.
39
40
37
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