Written by Tong Fei, edited by Ai Kihara-Hunt
In the International Committee of Red Cross’ international humanitarian law competitions, the classification of armed conflict is always the first issue that needs to be addressed.
The competition problem uses treaty articles that only applies to the situation of international armed conflict, such as Article 8(2)(b) of the Rome Statute. If the Prosecution fails to establish an international armed conflict, it cannot move on to the context of the case.
We started to research on two different approaches: one is to use overall control test upheld by the Tadic Appeals Chamber; and the other is Article1(4) of Additional Protocol I (AP1) for national movements.
1. Overall control test and the classification of armed conflict
1.1. What is overall control test?
Overall control test was upheld by the in Appeals Chamber in the Tadic case, when revising the findings of a Trial Chamber judgement. According to the distinguished judges, the test of whether the conflict was international was different from that of state responsibility. The Chamber found that, in order to apply provisions of the Geneva Conventions and general principles of international humanitarian law (IHL) to determine individual criminal responsibility for grave breaches of the Geneva Conventions, which are only relevant in international armed conflict, the required test is different from the International Court of Justice (ICJ)’s Nicaragua case.
The International Court of Justice held that the U.S. violated international law by supporting the Contras in their rebellion against the Nicaraguan government.
Nicaragua case considered whether specific operations of an armed group Contras could be attributed to the United States. In other words, the court inquired whether the US a gave orders and directions regarding specific operations. This suggests that: if there is a specific order and direction by the State, the armed group’s act in question is attributable to that State. However, why does it require a specific order and direction? The Court did not elaborate on this. It will certainly show a conclusion of the state is participating the hostilities through the armed group, or the armed group is a de facto state organ, however, it lacks supporting reason why it needs to be specific order and directions.
On the other hand, in Tadić, the Appeals Chamber found that Nicaragua test aimed to find US’ state responsibility on act of the Contras, but that the Tadić case was different. There, the relationship between the Bosnian Serb Army and the Army of the FRY needed to be analyzed for the purpose of classifying the armed conflict. For this purpose, when the conflict is between an armed group and the State, and the armed group may be controlled by another State, the test for satisfying the required extent of control by the State for the conflict to be classified as international armed conflict was unclear.
Therefore, the Appeals Chamber found that the new test for this purpose required no control over specific operations, but that it only required the controlling State to have an overall control over the armed group. More specifically, the new test only required evidences that, beyond reasonable doubt, prove the said State was “organizing, coordinating or planning the military action of the military group as well as financing, training and equipping or providing operational support to that group”. This suggest two conditions. One is the general military operational support, and the other one is general material support.
1.2. How to apply to the moot problem?
A map of the fictional city and country used in the competition.
In the 2019 IHL Moot Court problem, we needed supporting evidence from the agreed facts. Some of the facts provided could be used as direct evidence, but some of them were newspaper articles, and yet some others were supposedly leaked information, in which case, there is a problem for using them at courts. We needed to construct an argument both for the prosecutor and the defendant. This meant that we needed to prove that there was an international armed conflict at one point, but also to prove the opposite at another point: that there was only non-international armed conflict. Alternatively, we could also take the position that there was no armed conflict in the first place, which is rare in moot problems.
In this moot problem, several facts were useful to construct an argument:
a. Leaked footage: donations were made by members of the Lyrian government to field hospitals in the zone occupied by the RLF.
b. Reuters and Temerian Times: remained shell casings indicated that RLF’s weapons were the same system as the LDF (among others).
c. Direct evidence: among the weapons captured by the TAF during clashes with RLF were rifles, which were the same model as LDF’s rifles.
d. Al Jazeera and Reuters: RLF training camps were operated by the LDF in the Skellig mountains in Lyria.
e. Temerian Times: RLF was getting supplies for its operations in Velen from the headquarters based in the Skellig mountains
f. Temerian times: LDF members were embedded as advisers in the RLF.
g. Mortal remains of a former officer of Lyrian military was found after the clash.
Above points a, b, c and d supported an argument that Lyria was financing, training and equipping the RLF. Which is the second requirement to fulfill the overall control test. However points b and d are provided by newspaper articles, so it needed to be carefully used. Regarding the evidential threshold of newspaper articles, we found that, in light of Katanga case, press reports and newspaper articles might be admissible, if the article is not related to the crucial part of the case, but deals with background matters only. Both sides, if they use press reports or newspaper articles as a piece of evidence, need to additionally inform the court about the background and qualifications of the journalists or about their sources, in order to satisfy the court on the objectivity and reliability. However, sometimes moot problems don’t give too much detail on the case to enable us to do so.
We still needed to provide evidence to show that there was general operational support. We did not need to prove the existence of specific orders or directions given, but just needed to provide the evidence of general control. It was hard to see what kind of evidence would satisfy such a finding. Points e, f and g indicates that the LDF is inside RLF, but the information provided by Temerian Times has a low probative. If we further analyze Tadic case, it actually did not find any evidence of State coordination and organization of the armed group. It only indicated assistance and cooperation. The logic was: when there are ‘shared strategic objectives’ between the state and the armed group, there is no need for a chain of command - in other words, for the armed group to be an organ of the State. The prosecutor also argued that he also needed to bear in mind the existence of clear intent to hide the controlling role of the State.
In the judgement, below was also important:
Where the controlling state in question is an adjacent state with territorial ambitions on the State where the conflict is taking place, and the controlling State is attempting to achieve its territorial enlargement through the armed forces which it controls, it may be easier to establish the threshold. 
In the moot problem in question, where the conflict happened was also where two States had territorial conflicts. Therefore, we could argue that the overall control threshold was lower in this case. We could then argue, since the threshold was lower, international armed conflict existed in the case.
2. National movement and the classification of armed conflict
Article 1(4) of API provides as follows:
The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.
This may appear to be a magical article that enables all armed conflicts related to national movement to be internationalized. However, this need to be explained narrowly within the meaning of the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, which means it is only applicable in very limited situations. This article was never applied in any case outside the colonial context in the 1960s. Moreover, it is often argued that the right to external self-determination can only be invoked after internal self-determination was resorted to and was not realized.
3. Concluding remarks
Tong Fei presents her arguments as the defendant to a panel of judges.
(Image provided by Waseda University)
In proving the existence of an international armed conflict, the overall control test is a dominant argument, but it needs to be carefully used. We need to analyze how it was applied in the Tadić case. Article 1(4) of API is hard to use in moot problems, and even harder in real cases. It is nonetheless still a possibility to try creating a plausible argument.
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For the moot problem, see ICRC, Asia-Pacific Moot Court National Round 2019 Moot Problem, available at:
 According to given facts, RLF is an armed group active in the Temerian territory bordering Lyria, and was founded as a national movement. RLF members share the same ethnicity with Lyrians, and were financially supported by Lyria. TAF is the State armed forces of Temeria. LDF is the state armed forces of Lyria.
 Tadić Appeals Judgement, para.140.