As illustrated in the previous chapter, the concept of non-international armed conflict evolved in the final decade of the twentieth century to cover situations which had hitherto not been included within its scope. The jurisprudence of the International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY) was pivotal in this regard, setting new parameters for non-international armed conflict in international humanitarian law. While the concept of non-international armed conflict contained in the Rome Statute of the International Criminal Court (ICC) is partly derived from that propounded in the case law of these tribunals, its threshold of applicability is however less clear. This chapter looks at possible lines of interpretation applicable to non-international armed conflict in the Statute and in doing so sets out an argument for an understanding of the threshold contained in Article 8(2)(f) as one equivalent to that of Article 3 common to the four Geneva Conventions of 1949.

In adopting this approach, an argument will be advanced for the interpretation of the threshold contained in Article 8(2)(f) of the Rome Statute as one applicable to all situations of non-international armed conflict within the Court's jurisdiction. The scope of applicability defined by this provision is held to be distinctly broader than that of Article 1(1) of Additional Protocol II. It is also contended that there exist reasons, despite a difference in wording, to view the threshold contained in this provision as equivalent to that propounded in the Tadić Jurisdiction Decision.