Defining an Armed Conflict

Abstract

Recent events, including the war on terror, have sparked a debate on what constitutes an under international law. Currently there is no authoritative definition of armed and the debate focuses almost exclusively on how that term is used in the Geneva Conventions. It has become clear that when a falls outside the core situations of conflict, the Geneva Conventions cannot provide a definitive answer as to whether it is an or not. This article looks beyond the Geneva Conventions to the interaction between international humanitarian law (IHL) and international human rights law (HRL) to fashion a new approach to this question. The international community takes the view that IHL is the lex specialis, or more specific law, and takes precedence over HRL in conflict. Professor Balendra draws on this dynamic and on the canon of statutory construction that calls for exceptions to rules to be interpreted narrowly, to develop a two pronged framework. First, in situations in which the application of IHL would lead to derogation from HRL- i.e., when IHL acts as an exception to HRL- the term armed as the trigger for IHL, must be interpreted narrowly. Second, even if IHL is triggered, to the extent possible, the applicable rules must be interpreted to minimize the deviation from HRL. Professor Balendra argues that under this framework, in the context of the war against terror, the term armed conflict has to be interpreted narrowly but that a more expansive interpretation of would be permissible if the protections of IHL were modified to better fit an expanded interpretation. The article concludes by examining how the second prong of the framework is activated if an expanded definition of is adopted in the face of contemporary threats to peace and security.