The Qualification Framework of International Humanitarian Law: Too Rigid to Accommodate Contemporary Conflicts?

Abstract

This Note examines the traditional binary qualification framework in the context of contemporary conflicts marked by everchanging degrees of cross-border activity, third-state involvement, and non-state actor participation. First, this Note lays out the material scope of international and non-international armed conflicts. Next, it examines three cases in which the International Court of Justice (ICJ), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the U.S. Supreme Court addressed questions of qualification. The Note then questions whether the binary framework is incongruous with contemporary conflicts due to the difficulty in qualifying many situations. The Note concludes by suggesting that rather than develop new law to address current challenges, a broader and more flexible application of protections found in existing law, less restricted by the traditional dichotomy, may provide a constructive and practical basis from which to proceed when determining application of international or non-international armed conflict rules to specific contexts.