Revisiting the Notion of ‘Intensity’ Inherent in Common Article 3: An Examination of the Minimum Threshold Which Satisfies the Notion of ‘Intensity’ and a Discussion of the Possibility of Applying a Method of Cumulative Assessment

Abstract

Summary The 2016 ICRC Commentaries reveal an appreciation that the intensity of violence test which is included in the Common Article 3 understanding of the notion of ‘intensity’ has arrived at a point at which situations formerly regarded as instances of ‘sporadic violence’ have become so violent as to be reclassified as armed conflict not of an international character in that the situation resembles ‘protracted armed violence’. The difficulty lies in determining whether a lower intensity situation is sufficiently violent to constitute a Common Article 3-type non-international armed conflict. The minimum threshold test in relation to the notion of ‘intensity’ in Common Article 3 pertinently is concerned with the relationship between the terms ‘duration’ and ‘intensity’. At what point has a violent situation lasted long enough to exceed our understanding of the meaning of ‘sporadic’ and, thus, has become a non-international armed conflict? Is the method of assessing the level of violence in the context of Common Article 3 limited to a bilateral approach or is an aggregate assessment framework permissible as an application in border-line low-intensity non-international armed conflicts? These questions illustrate the importance of gaining a comprehensive understanding of the phrase ‘protracted armed violence’.