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The article analyses how international criminal courts and tribunals have pronounced on the contextual elements of their respective war crimes provisions. A comprehensive overview of the way these institutions treated the material scope of application of international humanitarian law (IHL) shows that - unless called upon because of the specific crimes charged - the ad hoc tribunals tended to avoid classification as either international or non-international armed conflict, and merely found that a generic ‘armed conflict’ existed at the relevant time. The International Criminal Court's case law shows a tendency to classify situations as non-international armed conflicts without considering whether the situation concerned may instead (or at the same time) qualify as an international armed conflict. Non-international armed conflict is often, mistakenly, treated as a residual regime. Incorrect conflict classification may affect IHL’s scope of application, and negatively impact on an accused’s fair trial rights under international criminal law. A proposal is made for a fresh look at the ICC’s legal framework to solve conflict classification problems.
Rogier Bartels is currently an assistant professor of military law at the Netherlands Defence Academy. He is on special leave from his position as a legal officer in Chambers (Trial Division) at the International Criminal Court, where he has worked since 2013. Rogier is an honorary judge in the District Court of Amsterdam, and sits regularly on domestic criminal law cases and extradition cases. He was recently sworn in as an honorary justice at the Appeals Court in The Hague, to sit on international crimes and terrorism cases on an occasional basis. He previously worked, inter alia, as an associate legal officer at the ICTY and as IHL adviser at the Netherlands Red Cross. Rogier is a member of ACIL's Law of Armed Conflict and Military Operations research programme and a post-doctoral research fellow at the Federmann Cyber Security Center of the Hebrew University of Jerusalem. He is in the final stages of his PhD research (at the UvA) on the interplay between international humanitarian law and international criminal law, supervised by professor Terry Gill.