Legal-Policy Considerations and Conflict Characterisation at the Threshold Between Law Enforcement and Non-International Armed Conflict

Abstract

When characterising a conflict situation as an international armed conflict, states and other analysts traditionally consider the facts on the ground'. When determining whether a situation is one of civil disturbance and riot, or has risen to the level of a non-international armed conflict ('NIAC'), there is much greater latitudefor legal-policy considerations to influence, and indeed direct, the characterisation decision. This article explores three aspects of legal-policy concern for states dealing with conflict characterisation at this lowest law of armed conflict ('LOAC') threshold between less-than-NJAC law enforcement and NIAC: a general outline of three elements of legal-policy discretion that are clearly assumed and inherent within LOAC; legal defensibility, a discourse that is fundamentally governed by the tension between applicable law and policy objectives; and utility, a concern that focuses upon the balance to be struck between the legal argument employed to justify conflict characterisation and the capacity of the state to retain some degree of context control.