Over the weekend a number of outlets reported that the U.N. Security Council had referred the situation in Libya to the International Criminal Court for an investigation of war crimes. In fact, the Security Council resolution merely refers the entirety of the situation in Libya since February 15, 2011 to the ICC for investigation. Characterizing the events in Libya as war crimes, however, raises the question of whether the events in Libya constitute an armed conflict—a war crime can only occur when the laws of war apply; the laws of war apply only when an armed conflict exists. If the events in Libya do now constitute an armed conflict the existence of that armed conflict then raises the question of when that armed conflict began. The Security Council’s referral to the ICC provides an opportunity for a new forum to address the question of the existence of an armed conflict and refine that question’s contours.
The most oft cited definition of an armed conflict was laid out by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v. Tadic. There, the ICTY determined that a non-international armed conflict exists where there is “protracted armed violence between governmental authorities and organized armed groups.” The ICTY further refined this definition into a two prong test that examines the organization of the parties engaged in a putative armed conflict and the intensity of the hostilities between the parties. The overarching goal of this test is to distinguish the existence of an armed conflict—to which the law of armed conflict attaches—from a riot or other internal disturbance.
In the case of an internal disturbance, the state’s use of force is limited only by its internal domestic laws and human rights norms. In the case of an internal armed conflict, the state is subject to the customary international law of non-international armed conflict as well as Common Article 3 and, potentially, Additional Protocol II. However, the existence of an armed conflict also authorizes the state to resort to force in a manner normally inconsistent with its relationship with its population.
Thus, the Libyan regime’s resort to force against its population may violate human rights norms without being war crimes because no armed conflict exists. Similarly, the use of force may not be a war crime because the use of force falls within the permissible bounds of resort to force within an armed conflict. Or the regime’s use of force may be both violative of human rights norms and violative of the limitations imposed by the law of armed conflict if one exists—and, therefore, constitute war crimes.
In the case of Libya, what began as an apparently unorganized uprising two weeks ago has become a more consolidated rebellion. The popular forces have formed governance committees, established a hierarchy of control, begun training and equipping their forces with weapons captured from the government, those forces have even donned military garb. These are all factors the ICTY looked to determine whether any particular armed band was sufficiently organized to constitute a party to an armed conflict.
At the same time, the violence between the popular forces and the government appears to be sufficiently intense to constitute an armed conflict. The government has resorted to the use of its regular armed forces and weapons such as military aircraft and artillery against the popular forces. Popular forces are similarly using artillery and anti-aircraft weapons in their fight against the government. The popular forces have fortified the towns and cities that they have taken control of, posting sentries and controlling the highways, and using these fortifications to repel assaults launched by the government.
It appears, then, that an armed conflict is now ongoing between the government of Libya and the popular forces. However, it is also apparent that the organizational facets and the use of military tactics on the part of the popular forces are of more recent vintage than the beginning of the uprising. Until the middle of last week, there was no evident hierarchy of control for the popular forces, the popular forces were only lightly armed until they liberated military bases and had military units defect to their forces.