Qualifying the armed conflicts in Syria and the Ukraine is an important but potentially complicated exercise. Determining whether a situation encompasses an international armed conflict (including occupation), non-international armed conflict, or possibly both simultaneously, is valuable for a number of reasons. For instance, the rules related to conduct of hostilities, detention and humanitarian access vary depending on whether a situation is an international armed conflict (including occupation) or non-international armed conflict. Though the fundamental principles of IHL apply to the categories, the specific rules applicable to each vary. As a result, it is important for actors operating in a conflict setting to have a clear understanding of the qualification of the context so that they are able to engage in an informed and credible discussion with parties to the conflict, key stakeholders and other interested parties. It is a question that a variety of actors will address – states, militaries, courts and tribunals, international organizations and humanitarian NGOs. Possessing an understanding of the qualification of a situation contributes to establishing a shared basis for discussion and engagement as to the rules and principles that regulate rights and responsibilities during armed conflict.
To undertake a qualification assessment it is necessary to have a clear understanding of the factual context as well as the relevant legal framework. This session will provide a brief overview of the factual predicate for both Syria and the Ukraine, which will inform a legal analysis of each context. Syria and the Ukraine present opportunities to engage on a number of challenging elements related to qualification, including the following questions:
- When does a situation become an international or non-international armed conflict? What was the threshold for such a determination in Syria and the Ukraine?
- When does a situation become an occupation? What does it mean for such a qualification if there are ongoing, but intermittent, hostilities?
- When does a situation encompass both an international and non-international armed conflict? What are the practical consequences of such a determination?
- When a situation evolves quickly, who makes qualification determinations, and what is the utility of such an exercise?