The definition of non-international armed conflict in the Rome Statute of the International Criminal Court: an analysis of the threshold of application contained in Article 8(2)(f)

Cullen, Anthony ORCID: https://orcid.org/0000-0001-6594-8941 (2008) The definition of non-international armed conflict in the Rome Statute of the International Criminal Court: an analysis of the threshold of application contained in Article 8(2)(f). Journal of Conflict and Security Law, 12 (3) . pp. 419-445. ISSN 1467-7954 [Article] (doi:10.1093/jcsl/krn001)

Abstract

This article puts forward an argument for a particular approach to the interpretation of the definition of non-international armed conflict in the Rome Statute of the International Criminal Court. Focusing on the meaning of Article 8(2)(f), it is contended that this provision possesses a threshold of an application equivalent to that of Article 3 common to the four Geneva Conventions of 1949. In supporting this position, the first half of the article analyses the travaux preparatoires of the Rome Statute. Here relevant clauses relating to non-international armed conflict are analysed in order to highlight the threshold of application intended by their drafters. Following on from the travaux preparatoires of the Rome Statute, the second half of the article puts forward an interpretation of the threshold contained in Article 8(2)(f) as one applicable to all situations of non-international armed conflict subject to the court's jurisdiction. Drawing, among other things, on the conventional usage of the term ‘armed conflict not of an international character’ and the customary status of non-international armed conflict provisions in the Rome Statute, an argument is advanced for an understanding of the threshold contained in Article 8(2)(f) as the one identical to that of common Article 3.

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