The Threshold of Non-International Armed Conflict

This chapter will provide a forensic analysis of the threshold of NIAC and is divided into five sections. The first section briefly explores the distinction and relationship between the material elements of NIAC and the threshold of NIAC. In particular, it identifies the overarching theme of NIACs threshold and proposes a three-step analytical process for determining its existence in practice. The second section explores the first step in identifying the existence of a NIAC, referred to here as the qualification of armed violence, which involves identifying the material elements of NIAC within a situation of armed violence. The third section examines how armed violence is evaluated when determining the threshold of NIAC, and in particular, how the expression ‘protracted armed violence’ has been and should be interpreted. The fourth section explores the organizational requirement of NIACs threshold, including the rationale for this requirement, the degree of organization necessary to qualify as a Party to a NIAC, and what organisation looks like in practice. The fifth section provides a typology of armed group organisation, which is examined through the lens of the ability to engage in NIAC. The sixth section concludes by examining the very fulcrum of conflict identification: the question of who or what decides when a situation of armed violence amounts to a NIAC.