Land Steiermark Fellow Martha M Bradley is Associate Professor in the Department of Public Law, Faculty of Law, University of Johannesburg. She specializes in Public International Law and International Humanitarian Law (IHL), presently focussing on the law of non-international armed conflict.
Welcome to REWI Graz, Prof. Bradley! You are joining us as a Land Steiermark Fellow this July. What sparked your interest to come to our university?
My motivation to conduct my research here at REWI Graz is based on the world class international humanitarian law collection hosted by your faculty library and the opportunity to work and discuss my research with leading international law experts at REWI Graz, specifically Prof. Erika de Wet and Prof. Gerd Oberleitner. The Institute of International Law and International relations is known as a center of excellence and I am so grateful to have this opportunity. I have previously benefitted from the expertise of Professor de Wet as she was my doctoral supervisor some years ago and I look forward to her mentorship concerning the writing up of a monograph – working with her again was a big motivation in applying for the Land Steiermark Fellowship. Furthermore, I am part of the South African Department of Higher Education’s Future Professors Program hosted by the University of Johannesburg which encourages us to conduct an overseas visit to improve our international network and to upskill. This program afforded me teaching replacement funds so that I can exclusively focus on my research at REWI Graz for which I am most grateful. I would also like to express my gratitude to my very supportive HOD Prof. Elmarie Fourie, Dean, Prof. Wesahl Domingo and Vice Chancellor Prof. Letlhokwa George Mpedi at the University of Johannesburg for supporting my visit.
Why is one war not like the other? In other words: why is the distinction between international and non-international armed conflicts so important in humanitarian law?
There are two categories of armed conflict, namely, international armed conflict and non-international armed conflict. Different rules find application depending on the type of conflict. Conflict classification is therefore important as it determines whether the law of international armed conflict or the law of non-international armed conflict applies to the parties in the conflict. The clearer and more accessible the law of conflict classification is to all involved, the better the chance that those affected will be in a position to apply international humanitarian law correctly in urgent or borderline situations. Classification is furthermore relevant to international criminal law because the existence of an armed conflict informs the two contextual elements inherent in war crimes, and the type or categorization of armed conflict determines the category of crimes under which the alleged war criminal is charged. Conflict classification does not have only a legal purpose, it can, for example, trigger the protective mandate of the International Committee of the Red Cross (ICRC) and its application might be deemed by non-state actors as a legitimating mechanism.
During your stay, you will be working on a publication seeking to clarify some very important conceptual issues of non-international armed conflict, hereby contributing to the important functions of international law that you have just outlined. What can we look forward to?
I will be conducting research towards my monograph under contract with HART titled “Non-International Armed Conflict: Classification and Controversies.” The overall research purpose of the monograph is to provide a comprehensive understanding of when a situation constitutes a non-international armed conflict and when it does not. This monograph aims to clarify the point at which the content and contours of situations present ‘non-international armed conflict’. It attends to contemporary challenges which undermine legal certainty burdening those tasked with conflict classification. These contemporary challenges include the application of the law of non-international armed conflict to organised armed groups including alliances and splinter groups, the application of the law of non-international armed conflicts in counterterrorism efforts where terrorists and rebels operate on the same territory, assessing the notion of intensity in a situation where armed groups are proliferating, determining the geographic footprint of non-international armed conflict and determining when a non-international armed conflict comes to an end. Whether cyber operations in and of themselves and in the absence of kinetic military operations trigger a non-international armed conflict remains a question both controversial and underexplored.
I find this fascinating and will work towards promoting a better understanding of these contemporary classification challenges during my research visit.
The monograph will most certainly be a fascinating read, too! Skipping a bit towards the conclusion part of your research, let me ask you: what upcoming challenges do you see for humanitarian law in non-international armed conflict?
Unfortunately, classification will remain challenging and demanding of academic attention owing to the reality that most contemporary non-international armed conflicts, especially on the African continent, involve complex conflicts. Complex conflicts range from multiple conflicts within the borders of a single state to conflicts that spill over into the territory of neighboring states or become internationalised. International and non-international armed conflicts often occur simultaneously in a single territory. A further frustration for those tasked with conflict classification is that conflict settings often resemble a mosaic of violence in which multiple parties are engaged in fighting along the same time continuum in the same territory. Such fighting is not restricted to opposing forces engaged in a non-international armed conflict, but involves non-state actors purposefully launching simultaneous attacks against civilian populations. These territories are breeding grounds for gang-related activities and organised crime, adding to the sum of violence. Case law supports a conclusion that mixed armed conflicts and multiple armed conflicts can exist in a single territory. Complex conflict settings ongoing at the time of this interview include situations in Myanmar, the Central African Republic, and the Democratic Republic of the Congo.
Another issue which remains unresolved is the enforcement of international humanitarian law (IHL). This is not exclusively a problem in non-international armed conflict, because, for example, achieving buy-in from non-state armed groups bound by IHL under treaty law remains problematic. A further legal conundrum which continues to perplex concerns humanitarian assistance – one question which remains unresolved is for example whose consent is required to provide humanitarian assistance in areas under the territorial and specifically de facto control of organized armed groups.
Thank you for these insights into your research and monograph project, please keep us updated! Thinking and writing about armed conflict surely requires some balancing, so let me ask you: what are you most looking forward to during your time in Graz?
I am very excited to visit the museums and art galleries here in Graz. I am also looking forward to enjoy the scenic architecture this city has to offer. Trying traditional Austrian cuisine is also high on my list of things to do.
EVENT! Meet and listen to Prof. Martha M Bradley in person on 27 September 2023 at the ILC Workshop on the Draft Principles enhancing environmental safeguards during times of conflict hosted by the Institute of International Law and International Relations on-site at REWI Graz (registration necessary, deadline 20 September!) or visit her Google Scholar profile.
PUBLICATION! Read Prof. Bradley's latest Blogpost on the Rules on the Treatment and Disposal of the Dead here (Lieber Institute, West Point // Articles of War).