Abstract
Against a background of traditional notions of war and peace, this chapter defines and explains each element of the modern legal spectrum of conflict, including armed conflicts between states, wars of national liberation, the two classes of non-international armed conflicts and disturbances and tensions that do not constitute armed conflict and are therefore simply ‘conflict’. Some redundancy in the current legal spectrum is identified and the prospects for some kind of rationalization are considered. The legal significance of the different elements in the legal spectrum is related. Limits to the process of convergence between the law, respectively, of international and non-international armed conflict are acknowledged. While absence of combatant immunity in intra-state warfare will limit legal convergence, the potential for amnesties to generate a middle course between the extremes of immunity and criminal prosecution is considered.
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Notes
- 1.
Wilmshurst 2012, p. 2.
- 2.
Oppenheim 1926.
- 3.
- 4.
Oppenheim 1926, p. 116. In a footnote to this part of his text, Oppenheim cites Louis XIV’s seizure in 1680 and 1681 of the then Free Town of Strasbourg and other parts of the German Empire without meeting armed resistance. “These acts of force, although doubtless illegal, were not acts of war.”
- 5.
- 6.
To be fair, Oppenheim did recognize the existence of civil wars when “two opposing parties within a State have recourse to arms for the purpose of obtaining power in the State, or when a large portion of the population of a State rises in arms against the legitimate Government”. However, having recognized such states of affairs, Oppenheim took the view that “[a]s armed conflict is a contention between States, such a civil war need not be war from the beginning, nor become war at all, in the technical sense of the term”; Oppenheim 1926, p. 124 and see Green 2008, pp. 66–67. It would, Oppenheim pointed out, become war if belligerency of the insurgents were to be recognized. Colombia’s action in accordance with the ruling of the Constitutional Court of 1995 seems to have been an example of recognition of belligerency; Mikos-Skuza 2012, p. 19.
- 7.
- 8.
Hague Convention III, 1907, Article 1. The UK Manual 2004, p. 28, note 2, observes that when Germany attacked Poland in 1939, she declared war simultaneously. Arguably, the declaration made by Great Britain in September 1939 was an example of the latter, conditional, declaration.
- 9.
Consider for example Hague Declaration IV, 2 Concerning Asphyxiating Gases, The Hague, 29 July 1899, which stipulated “[t]he present Declaration is only binding on the contracting Powers in the case of a war between two or more of them. It shall cease to be binding from the time when, in a war between the contracting Powers, one of the belligerents shall be joined by a non-contracting Power”. Note that Leslie Green puts the relationship the other way around by observing that historically, international law is concerned only with relations between states with the result that the law of armed conflict developed in relation to inter-state conflicts and was not in any way concerned with conflicts occurring within the territory of a state or between an imperial power and a colonial territory; Green 2008, p. 66. As Frits Kalshoven and Liesbeth Zegveld observe, the contracting parties to the 1949 Conventions would not necessarily have regarded the rules they were establishing or recognizing as being unsuitable to a situation such as the American Civil War. “Rather, the idea that treaty rules could be laid down for such an internal situation simply had not yet entered their minds”; Kalshoven and Zegveld 2011, p. 30.
- 10.
It is the fact that a state of armed conflict is in existence that is the vital issue since 1949; Akande 2012, p. 40 although “the qualification of a situation as an armed conflict in practice remains dependent on the parties’ perceived interests in applying their treaty obligations”; Kalshoven and Zegveld 2011, p. 31.
- 11.
- 12.
- 13.
It is now generally accepted that the final phrase in common Article 2 should be interpreted as meaning ‘even if the state of war is not recognized by one or both of them’; Greenwood 2008, p. 47.
- 14.
An international armed conflict can be initiated by a declaration of war, by the declaration of an aerial or naval blockade and the law of international armed conflict will apply in any case of belligerent occupation; Tallinn Manual, commentary accompanying Rule 22, para 17. Note Elizabeth Wilmshurst’s observation that “[t] he recognition of the National Transitional Council as the government of Libya by some member States of the coalition did not, it is submitted, alter the classification of the conflict between those States and Gaddafi’s forces. In other words it is the facts rather than a subjective act of recognition alone which determines the category of armed violence”; Wilmshurst 2012, p. 483.
- 15.
Heintschel von Heinegg 2011, pp. 5–7. Note the view of Mary Ellen O’Connell and Ania Kritvus that the available evidence tends to suggest that IHL is triggered for UN peacekeeping operations in the same situations as for states, and that the key factor is the intensity of the fighting; O’Connell and Kritvus 2012, p. 118.
- 16.
Dinstein 2005, pp. 14–15.
- 17.
Hampson 2008, pp. 553–554, citing as examples of such situations the Predator strike in Yemen if conducted without territorial state consent and Colombian army use of force against FARC personnel in Ecuador. Consider in this regard the Fisheries cases which were not treated as international armed conflicts although armed force was used; see Asada 2012, p. 51 at pp. 62–63.
- 18.
Pictet 1960, p. 23. As the AMW Manual puts it at para 1 on p. 39, what counts is that two or more States are engaged in hostilities with each other.
- 19.
See for example, Pictet 1952, p. 32, but for the competing view that greater extent, duration, or intensity of hostilities is required to establish the existence of an international armed conflict, see Tallinn Manual, commentary accompanying Rule 22, para 12. The International Law Association, Use of Force Committee, in its Final Report on the Meaning of Armed Conflict in International Law (2010), 10–18, contends that a certain intensity of hostilities is required to constitute an international armed conflict. See criticism of this view in Corn et al. 2012, pp. 75–77.
- 20.
Greenwood 2008, p. 48 citing 82 Proceedings of the American Society of International Law (1988), pp. 602–603 and 609–611.
- 21.
ICRC Report to the 31st Conference of the Red Cross and Red Crescent, International Humanitarian Law and the challenges of contemporary armed conflicts, October 2011, p. 7.
- 22.
Sandoz et al. 1987, para 62. Experienced commentators have observed that a number of conflicts between states have involved a denial by at least one state that a dispute such as would bring the conflict within Common Article 2 existed between them. The better view, however, is that ‘hostilities without dispute’ theories conflict with the plain meaning and widely understood interpretation of Common Article 2; Corn et al. 2012, pp. 83–84, discussing, inter alia, the 2006 Israeli Intervention in Lebanon and the 1989 US intervention in Panama. For other examples of incidents involving the use of armed forces in a state on state context but not treated as an armed conflict, see O’Connell et al. 2012, pp. 287 and 290. Note that the institution of a blockade constitutes a recognition of the belligerency of the blockaded party and thus internationalizes what may hitherto have been a non-international armed conflict; Scobbie 2012a, pp. 302–303. Wolff Heintschel von Heinegg draws attention to the blockade during the American Civil War as an important example, and discusses events during the Spanish Civil War, in Algeria, Sri Lanka, Gaza and Libya; Heintschel von Heinegg 2012, pp. 214–216. Yoram Dinstein points out, however, that recognition of belligerency will not change the character of the non-international armed conflict into an international one—rather, it has the effects that the law of neutrality will apply to the conflict and that captured non-State organized armed group fighters will have prisoner of war status; Dinstein 2012, pp. 408–409. As to the demise of the doctrine of belligerency as a mechanism for applying the law of war in a non-international armed conflict, see Corn et al. 2012, pp. 68–69 and Sivakumaran 2012, pp. 195–196.
- 23.
UK Manual 2004, para 3.3.1.
- 24.
For example, Mike Schmitt is clear, and he must be right, that the 2011 military action pursuant to UNSCR 1973 to enforce a no-fly zone over Libya was subject to the law of armed conflict. The military action “contemplates the use of military force by one state against another and therefore the law of armed conflict governs any military measures taken…”; Schmitt 2011, p. 50.
- 25.
Consider, however, the view of the UN Commission of Inquiry into the Conflict in Lebanon in 2006 that the fact that the Lebanese Armed Forces took no active part in the hostilities that primarily involved the Israeli Defence Force and Hezbollah did not deny the character of that conflict as “a legally cognizable international armed conflict, nor does it negate that Israel, Lebanon and Hezbollah were parties to it”; Human Rights Council 2006, paras 50–62. Iain Scobbie, however, having discussed and rejected Geoff Corn’s notion of transnational conflict as applying to Lebanon 2006, comes, after a careful analysis, to the conclusion that Lebanon 2006 should be seen as a cross-border non-international armed conflict; Scobbie 2012b, pp. 400–410. David Graham, however, sees in the ignoring in Hamdan of the traditional view that Common Article 3 conflicts are internal to a single state the birth of the, as he contends, misguided notion of transnational non-international armed conflicts; Graham 2012, p. 51. For Geoff Corn’s view that the dichotomy between international and internal armed conflicts was always under-inclusive because it failed to account for the possibility of extra-territorial armed conflicts between a State and non-State belligerents, and his view that the notion of transnational armed conflict evolved to respond to the gap, see Corn 2012, pp. 61–62. The US view seems, however, to be that it is involved in a non-international armed conflict with Al-Qaeda the transnational activities of which pre-suppose a transnational armed conflict that is internal to each country where it occurs; see for example Brennan 2011 available at www.whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our-security-adhering-our-values-an. Sandesh Sivakumaran concurs that, to the extent that it is an armed conflict at all, the US armed conflict with Al-Qaeda is of a non-international character, being fought between a state and a non-state armed group across international borders. “The cross-border element is, then, of a different degree of geographical proximity to the typical cross-border non-international armed conflict but it is not of a different type as to necessitate it being treated in an altogether different manner”; Sivakumaran 2012, p. 234. India has not used military force against Pakistan which it believes bears some responsibility for acts of terrorism, employing instead law enforcement and diplomacy. Egypt, Kenya, Tanzania, Spain, Indonesia and Germany have adopted a similar approach; O’Connell 2012, p. 7.
- 26.
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America, Merits, Judgment of 27 June 1986, in ICJ Reports (1986) p. 14 at para 115.
- 27.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) ICJ Rep 2007 (Genocide Case) at para 392. Note the different criterion of ‘overall control’ adopted by the ICTY in Prosecutor v. Dusko Tadić, Case No. IT-94-1-A, Judgment of the Appeals Chamber, 15 July 1999, referred to below, and see AMW Manual, para 4 and footnotes 69 and 70 at p. 40. If the group etc. is not characterized in domestic law as a state organ, it would be exceptional to so characterize it for the present purposes; Genocide Case, para 393.
- 28.
- 29.
Prosecutor v. Tadić, Appeal Chamber Judgment, paras 131, 145 and 162. See also the ICC case of Prosecutor v. Thomas Lubanga Dyilo, case number ICC-01/04-01/06 dated 14 March 2012, para 541.
- 30.
Tadić, Appeal Chamber Judgment, para 137.
- 31.
Tadić, Appeal Chamber Judgment, para 137.
- 32.
ICJ Genocide Case Judgment, para 404.
- 33.
See the discussion at Akande 2012, pp. 62–63.
- 34.
Tallinn Manual 2013, commentary accompanying Rule 22, para 11.
- 35.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, adopted 8 June 1977 (API).
- 36.
In addition, the customary law of international armed conflict will apply. API supplements the Conventions of 1949 and applies “in the situations referred to in Article 2 common to those Conventions”; API, Article 1(3).
- 37.
Hague Regulations 1907, Article 1 and API, Article 43(2).
- 38.
Sivakumaran 2012, p. 213.
- 39.
As Andreas Zimmermann points out, however, certain states such as Israel are persistent objectors to this provision and the question arises what effect that may have on soldiers of such states facing criminal liability for acts that only constitute offences when committed in the context of an international armed conflict. He opines that a soldier in such a circumstance would only face liability for acts that are war crimes when committed in the context of a non-international armed conflict; Zimmermann 2007, pp. 218–219.
- 40.
Sandoz et al. 1987, para 107.
- 41.
Kalshoven and Zegveld 2011, p. 85.
- 42.
UK Manual 2004, para 3.4.2b, p. 30.
- 43.
API, Article 96(3). Consider, for example, the statement made by the PKK to the United Nations on 24 January 1995 as follows: “In its conflict with the Turkish state forces, the PKK undertakes to respect the Geneva Conventions of 1949 and the First Protocol of 1977 regarding the conduct of hostilities and the protection of the victims of war and to treat those obligations as having the force of law within its own forces and the areas within its control.” Turkey was and is not party to API, www.icrc.org viewed on 22 September 2013.
- 44.
UK Manual 2004, para 3.4.2b.
- 45.
Statement (d) made by the UK on ratification of API on 28 January 1998. For an assessment of the UK position on Article 1(4), see Fleck 2013, pp. 583–584.
- 46.
Sassoli 2010, pp. 11–12. Sandesh Sivakumaran comes to similar conclusions, noting that not a single state has acknowledged, nor will they acknowledge, being involved in a war of national liberation; Sivakumaran 2012, p. 220. The combined effect of Article 96(2) and (3) of API seems to be that a state party to API will only be bound to recognise a conflict as coming within Article 1(4) if, in addition, the authority representing the people engaged in the conflict accepts and applies the provisions of the Protocol, presumably by means of an undertaking under para (3). For the view that Article 1(4) of API classifies the conflicts to which it refers by reference to motive and thus politicizes humanitarian law, see Corn et al. 2012, pp. 89–90 citing Ronald Reagan, Letter of Transmittal, The White House, 29 January 1987.
- 47.
- 48.
Consider Greenwood 1983, pp. 48–49.
- 49.
David Graham takes the view that this ‘protracted’ requirement, based on the Tadic judgment, para 70 and on Rome Statute 1998, Article 8(2)(f), does not require that the hostilities be continuous; Graham 2012, p. 48 and Prosecutor v. Tadić, Case Number IT-94-1-1, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para 70.
- 50.
For a discussion of the doctrinal aspects of these terms see Haines 2012a, pp. 21 and 22.
- 51.
Tallinn Manual, Rule 23.
- 52.
Haines 2012a, p. 13 discussing the notion of ‘war among the peoples’ in Smith 2006. Note, however, the suggestion in the UK Ministry of Defence, DCDC, Future Maritime Operational Concept 2007, 13 November 2007, at para 109 that the transition from the unipolar strategic world to a multi-polar one may result in an increase in state on state conflict.
- 53.
1977 Geneva Protocol 2 Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, (APII), Article 1(1).
- 54.
The applicability of Article 3 Common to the 1949 Geneva Conventions will be considered in the next section of this chapter.
- 55.
APII, Article 1(1). See the explanation of such conflicts at Dinstein 2012, pp. 404–405.
- 56.
In Marco Sassoli’s view, the clear wording of Article 1(1) of APII excludes non-international armed conflicts abroad, Sassoli 2011, p. 55.
- 57.
Dapo Akande points out that the Protocol does not therefore apply to hostilities between an organized group and States intervening to assist the government: Akande 2012, p. 55.
- 58.
For a discussion of the status of governmental armed forces in a non-international armed conflict, see Watts 2012, pp. 145–66.
- 59.
Sandoz et al. 1987, para 446: “The term ‘armed forces’ of the High Contracting Party should be understood in the broadest sense….. including those not included in the definition of the army in the national legislation of some countries (national guard, customs, police forces or any other similar force).”
- 60.
Schmitt 2012c, p. 35.
- 61.
Melzer 2009, p. 32.
- 62.
Schmitt 2012c, pp. 35–36.
- 63.
Sandoz 1987 at para 4463. Sandesh Sivakumaran points out that as the obligations imposed by the law increase, the degree of organization required of the armed groups increases. For a discussion of the organization and command requirements in relation to APII conflicts, see Sivakumaran 2012, pp. 184–185 and as to ‘organisation’, see Sassoli 2011, pp. 57–59.
- 64.
The focus should not be on the absolute amount of territory that is controlled, but on whether enough is controlled to enable the required sustainment of operations and the required implementation to take place; Sivakumaran 2012, pp. 185–192. Actual breaches of the rules for example as to the treatment of prisoners by the rebels are bound, however, to make it less likely that the conflict will be recognized as coming within APII. Consider in this regard, for example, Black 2012, available at www.theguardian.com/world/2012/sep/17/syrian-rebels-accused-war-crimes and in relation to apparently more recent events of the same dreadful nature, Chivers 2013, available at www.nytimes.com/2013/09/05/world/middleeast/brutality-of-syrian-rebels-pose-dilemma-in-west.html?pagewanted=all&_r=0.
- 65.
APII, Article 1(2). As Masahiko Asada points out, by so providing, Article 1(2) excludes from the scope of application of Protocol II those situations that are to be regarded as internal affairs of the state concerned; Asada 2012.
- 66.
Sivakumaran 2012, p. 168.
- 67.
Sandoz 1987, para 4477.
- 68.
Note, for example, the reluctance of states in 1977 to agree more comprehensive provision in relation to non-international armed conflict was based in part on “fear of interference with their internal affairs”; Epping 2006, p. 5.
- 69.
- 70.
Green 2008, p. 83 where it is noted that in none of the conflicts that occurred in the Soviet Union and in Yugoslavia prior to or during the dissolution of those states was there any suggestion that the situation was governed by Protocol II, whereas recognition accorded by some third states to Croatia, Slovenia and other Yugoslav republics indicated that the recognizing states considered international conflicts to be taking place. Leslie Green argues, however, that the Protocol II threshold is somewhat similar to that which prevailed during the Spanish Civil War when the Nationalist forces acquired recognition as a de facto administration with legal immunities similar to those enjoyed by the legitimate government. Guerilla or partisan movements would not therefore qualify, but would come within common Article 3; Green 2008, p. 349.
- 71.
Armed conflicts to which Common Article 3 to the Geneva Conventions applies are discussed in the next section.
- 72.
Dieter Fleck makes the point that due to its high threshold of application, “the range of applicability of APII is extremely reduced in modern armed conflicts”; Fleck 2013, p. 587.
- 73.
UK Manual 2004, para 3.6.
- 74.
Tadic Jurisdiction Judgment, para 70; AMW Manual, commentary accompanying Rule 2(a), para 5. Interpreting the reference in Article 8(2)(f) of the Rome Statute to “protracted armed conflict” and to “organized armed groups”, the ICC Trial Chamber in the case of Prosecutor v. Thomas Lubanga Dyilo commented “this focuses on the need for the armed groups in question to have the ability to plan and carry out military operations for a prolonged period of time”; Prosecutor v. Thomas Lubanga Dyilo, Case ICC-01/04-01/06, Judgment dated 29 January 2007 at para 234. Note that the Commentary to the Geneva Conventions identifies the following criteria for determining the existence of a Common Article 3 armed conflict, namely: “(1) That the Party in revolt against the de jure government possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention; (2) That the legal government is obliged to have recourse to the regular military forces against insurgents organized as military and in possession of a part of the national territory; (3) (a) That the de jure government has recognized the insurgents as belligerents; or (b) That it has claimed for itself the rights of a belligerent; or (c) That it has accorded the insurgents recognition as belligerents for the purposes only of the present Convention; or (d) That the dispute has been admitted to the agenda of the Security Council or the General Assembly of the United Nations as being a threat to international peace, a breach of the peace, or an act of aggression; (4) (a) That the insurgents have an organization purporting to have the characteristics of a State; (b) That the insurgent civil authority exercises de facto authority over the population within a determinate portion of the national territory; (c) That the armed forces act under the direction of an organized authority and are prepared to observe the ordinary laws of war; (d) That the insurgent civil authority agrees to be bound by the provisions of the Convention;” Pictet 1960, p. 36.
- 75.
Prosecutor v. Limaj, IT-03-66-T, Trial Chamber Judgment, 30 November 2005 at para 90. See also the ICTR case of Akayesu which proposes an evaluation test in which the intensity of the conflict and the organization of the parties are considered; Case of Akayesu, Case No. 96-4-A, Appeal Chamber 1 June 2001 at para 91. Louise Arimatsu applies loss of human life and the scale of injury, level of destruction to social infrastructure and disruption to normal life as exemplified by displacement of populations as evidence as to the intensity of the violence when reaching the conclusion that the violence in Eastern Zaire in 1993 and from 1994 reached the threshold for Common Article 3 to apply; Arimatsu 2012, pp. 152–153. Consider the Abella case in which the Inter-American Commission on Human Rights considered the concerted nature of the hostilities, the direct involvement of members of the armed forces and the nature and level of the violence; Commission Report on Juan Carlos Abella v. Argentina, Case Number 11.137, 1997 Inter-American Yearbook on Human Rights, p. 684, para 155; the discussion as to intensity in Fleck 2013, pp. 593–595; the factors identified by Robert Chesney in Chesney 2010, p. 31; and Dinstein 2012, pp. 403–404.
- 76.
Prosecutor v. Ramush Haradinaj, Case No. IT-04-84-T, Judgment, 3 April 2008 para 60. The armed group itself may issue a declaration setting out the way in which it is organized; consider for example the Declaration made by the National Liberation Army that fought in the Former Yugoslav Republic of Macedonia in 2001, reproduced in Sivakumaran 2012, p. 171. As Sandesh Sivakumaran points out, however, while such a declaration may evidence the view of the armed group, it must be assessed in the light of the facts on the ground and, in the event of inconsistency, it will be the facts on the ground that will prove determinative; Sivakumaran 2012. However, the context in which the armed group is operating must be taken into account when assessing its degree of organization. Where, as will frequently be the case, it is operating in conditions of secrecy as an underground organization, this may be a relevant factor when considering the various indicia that have been suggested; Sivakumaran 2012, pp. 172–177. As to the difficulties involved in applying the ‘organization’ criterion to virtual organizations of individuals engaged in cyber activities, see Schmitt 2012a, pp. 462–464. See also ICRC Report to the 31st Conference of the Red Cross and Red Crescent, International Humanitarian Law and the challenges of contemporary armed conflicts, October 2011, p. 8.
- 77.
- 78.
Prosecutor v. Tadić, (1996) 105 ILR 419, 488.
- 79.
Pejic 2012, p. 82.
- 80.
Hampson 2008, p. 555, where the valid point is made that determining whether violence is sporadic and thus not non-international armed conflict under Common Article 3 or protracted, and thus non-international armed conflict by virtue of Tadić may not be straightforward. Ken Watkin agrees that determining when violence reaches the level of an armed conflict is both factually and legally difficult. Moreover, the determination will not, according to the International Criminal Tribunal for Rwanda, be left to the State; Watkin 2007, p. 289 and see Prosecutor v. Akayesu, Case No. ICT -96-4-T, Judgment, 2 September 1998 at para 603.
- 81.
Common Article 3(1) to the Geneva Conventions, 1949.
- 82.
- 83.
Hampson 2012, pp. 263 and 264.
- 84.
Common Article 3 to the Geneva Conventions, para 3.
- 85.
Dinstein 2010, pp. 26–27.
- 86.
Decision of 2 October 1995 in Case No. IT-94-1-AR72; 35 ILM (1996) 32.
- 87.
For a discussion of the implications of the decision in the Tadić case for the notions of international and non-international armed conflict, see Greenwood 1996, pp. 265–283.
- 88.
Akande 2012, p. 72. Note however the differing expert views as to the status of hostile activities taking place outside the territory in which the armed conflict is taking place. Kelisiana Thynne argues that to be regarded as linked with the non-international armed conflict, the hostile activities must have a direct impact on the conduct of hostilities in the country where the non-international armed conflict is centred, Thynne 2009, p. 174. Robert Chesney, on the other hand, contends that the central issue is whether the engagement, wherever in the world it occurs, is between the parties to the non-international armed conflict and if it is, then the law of non-international armed conflict applies to that engagement; Chesney 2010, p. 37.
- 89.
Sassoli 2011, p. 55.
- 90.
Scobbie 2012b, pp. 417–419.
- 91.
Lubell 2012, pp. 426–429, but note the March 2010 assertion by US State Department Legal Adviser Harold Koh that “as a matter of international law, the U.S. is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law”; Speech at the Annual Meeting of the American Society of International Law, p. 7, 25 March, 2010, available at www.state.gov/s/l/releases/remarks/139119.htm. For a critical appreciation of the Obama Administration’s position on the conflict, see Targeting Operations with Drone Technology: Humanitarian Law Implications, Background Note for the American Society of International Law Annual Meeting, 25 March 2011, pp. 4–8.
- 92.
Lubell 2012, p. 433.
- 93.
Watkin 2007, pp. 272–273.
- 94.
Solis 2011, pp. 102–103.
- 95.
Solis 2011, p. 131.
- 96.
Watkin 2012, p. 8.
- 97.
Hague Regulations, 1907, Article 42. Mike Schmitt explains that, in the context of the Iraq War, 2003, rear echelon troops not having arrived in sufficient numbers and composition to place Baghdad under Coalition authority, occupation only commences in such circumstances “when it is militarily feasible for the advancing forces to actually assume their occupation responsibilities”. He goes on to observe that occupation commencement may be difficult to fix, that the occupation may be rolling, expanding or contracting as the territory controlled by the adverse army increases or diminishes; Schmitt 2012b, p. 365. As to the rights and duties of the occupying power, see Green 2008, pp. 284–296, Kalshoven and Zegveld 2011, pp. 60–61 and 62–66, and Thürer 2011, pp. 148–151. For a rather general discussion of belligerent occupation, see Kolb and Hyde 2008, pp. 229–234. For a detailed discussion of the law of occupation, see Rogers 2012, pp. 238–294.
- 98.
Common Article 2(1) to the Geneva Conventions, 1949.
- 99.
API, Article 1(3).
- 100.
- 101.
Scobbie 2012a, p. 296.
- 102.
Consider the situation that arose following Israel’s disengagement from Gaza from 2005 and the differing views of Israel, Hamas and of the international community discussed in Scobbie 2012a, pp. 290–294. For a good description of the practical application of occupation law in Iraq, see Schmitt 2012b, pp. 361–367.
- 103.
- 104.
Note that the ‘troubles’ in Northern Ireland from 1968 to 1998 were not treated as an armed conflict but that informed commentators have opined that from 1971 to 1974 the events occurring there reached the threshold of a Common Article 3 conflict; Haines 2012b, p. 143. Christine Gray notes the difficulty in getting governments to accept that a situation, rather than mere unrest, is a non-international armed conflict to which Common Article 3 or APII applies, but notes that “if the regimes for domestic unrest and internal armed conflict converge through the acceptance of fundamental humanitarian standards then the line between internal unrest and internal armed conflict will be less important”; Gray 2012, p. 95.
- 105.
United Nations Code of Conduct for Law Enforcement Officials, UN General Assembly Resolution 34/169 dated 17 December 1979, Articles 2 and 3. See also Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by 8th UN Congress on the Prevention of Crime and the Treatment of Offenders, September 1990. As to Rule of Engagement issues in a situation that falls below classification as a non-international armed conflict, see McLaughlin 2012, pp. 308–309.
- 106.
Shany 2011, pp. 17–19.
- 107.
See, respectively, Joined Cases C-402/05 and C-415/05, P Kadi and Al Barakaat International Foundation v. Council and Commission, Judgment of 3 September 2008; Hamdan v. Rumsfeld, 548 US 557 (2006) and Boumediene v. Bush, 128 S Ct 2229 (2008); R v. Secretary of State for the Home Department [2004] UKHL 56 and Secretary of State for the Home Department v. JJ [2007] UKHL 45; and Mar’ab v. Commander of IDF Forces in Judea and Samaria, HCJ 3239/02, PD57(2) 349, all discussed in Shany 2011, pp. 20–22.
- 108.
The first treaty relating to the conduct of hostilities from the air was adopted in 1899 before the potential methods for conducting warfare from the air had been fully appreciated. It was not until shortly after 1913 that the potential offered by air warfare started to emerge and to be realized.
- 109.
Paul Vennesson observes that from 1990 to 2005, for example, “four of the 57 active conflicts were fought between states, Eritrea-Ethiopia (1998-2000), India-Pakistan (1990-1992 and 1996-2003), Iraq-Kuwait (1991) and Iraq versus the United States and its allies (2003)”. One could, of course, add Afghanistan to this list. The number of civil wars rose from 2 in 1946 to 25 in 1991, then it dropped but has risen slowly since 2006; Vennesson 2011, p. 250.
- 110.
Thürer 2011, p. 247 drawing on Kellenberger and Münkler.
- 111.
Corn et al. 2012, pp. 279–280 and note 5 citing Foulkes 2009 and see Cumming-Bruce 2013, available at www.nytimes.com/2013/09/03/world/middleeast/flow-of-refugees-out-of-syria-passes-two-million.html?_r=0.
- 112.
Elizabeth Wilmshurst has drawn attention to war’s increasingly criminal element and the resulting blurring of the distinction between war and organized crime; Wilmshurst 2012, p. 1. For a discussion of the motives giving rise to what he describes as ‘criminal warfare’, see Haines 2012a, pp. 24–25. John Mueller characterizes as ‘criminal warfare’ violent conflicts dominated by criminals, bullies, hooligans, toughs, goons and thugs and in which combatants, evidently meaning the participants, are induced to wreak violence primarily for the fun and material profit they derive from the experience. He notes that such participants tend to be disobedient and mutinous and can be disinclined to fight when things become dangerous. As a result, disciplined warfare has emerged in which violence is inflicted because indoctrination and training instil a need to follow orders, “to observe a carefully contrived and tendentious code of honor, to seek glory and reputation in combat, to love, honor or fear their officers, to believe in a cause, to fear the shame, humiliation, or costs of surrender, or, in particular, to be loyal to and to deserve the loyalty of their fellow combatants”; Mueller 2012, pp. 141–143.
- 113.
Schmitt 2012d, pp. 122–123.
- 114.
Sandoz 1987, para 4663.
- 115.
Pictet 1952, pp. 44 and 49.
- 116.
Noëlle Quénivet and Shilan Shah-Davis consider that these ‘newest armed conflicts’ are low-intensity, privatized or informal conflicts which may occasion more deaths than conflicts legally acknowledged as ‘armed conflicts’. They note the violence is directly related to informal criminal economic activities such as drugs and the arms trade, undertaken “by individuals and street gangs who do not aim to replace the state, but rather, to secure control over their business and sometimes work in lieu of the state”; Quénivet and Shah-Davis 2010, pp. 7–8. Note the ICRC view as expressed in the ICRC Report to the 31st Conference of the Red Cross and Red Crescent, International Humanitarian Law and the challenges of contemporary armed conflicts, October 2011, at p. 6. Perhaps the point here is the organization requirement for an armed group to qualify as a party to a NIAC. Criminal gangs will tend to lack the command structure that seems to be an essential element in such ‘organization’; Quénivet and S Shah-Davis 2010, p. 9. For a discussion of the ‘organization’ requirement, see Schmitt 2012d, pp. 128–131.
- 117.
See the discussion of the characterization of armed groups in Sivakumaran and the related issue of implicit recognition, Sivakumaran 2012, pp. 204–209.
- 118.
William Reno notes that interrelated war and crime have become an integral element of global policy and cites the indictment of Charles Taylor, who was accused of conducting a criminal conspiracy, a common plan to gain access to the mineral wealth of Sierra Leone, in particular diamonds, to destabilize the government of Sierra Leone, to facilitate access to the mineral wealth and to install a government that would be well disposed to his interests and objectives in Liberia and in the region; Reno 2011, p. 220 citing Special Court for Sierra Leone, The Prosecutor against Charles Ghankay Taylor, Case No. SCSL-2003-01-1 (amended indictment), 16 March 2006.
- 119.
Berndal 2011, p. 109 at p. 127. Consider for example, Final Report of the UN Commission of Experts established pursuant to UN Security Council Resolution 780 (1992), May 1994, para 80, discussing the reliance of warring factions in Bosnia on looting, theft, ransoms and trafficking in contraband.
- 120.
Reno 2011, p. 235.
- 121.
Indeed, there will be circumstances in which drawing such a distinction will be difficult; consider for example the period following the second Congo War when much of the violence involved control over natural resources for financial gain. In discussing the matter, Louise Arimatsu notes the indifference of international humanitarian law as to the actor’s motivation; Arimatsu 2012, p. 197.
- 122.
Watkin 2004, p. 14. The phenomenon of failed or failing states, taken together with the proliferation of technologically sophisticated methods of delivering violence including weapons of mass destruction, generate the dangerous prospect of private actors operating outside the framework of state-based security; Watkin 2004, p. 14.
- 123.
Consider for example Schmitt 2012a, pp. 472–473.
- 124.
Examples of such treaty redundancy include the 400 gramme limit in the St Petersburg Declaration, 1868 and the provisions of Hague Declaration IV(1) of 1899 and Hague Declaration XIV of 1907 on the dropping of explosives from balloons.
- 125.
It is understood that the United States does not accept the Article 1(4) provision. The US preference would be to treat Article 1(4) conflicts as non-international armed conflicts to which APII applies; Murphy 2012, p. 26. The UK accepted Article 1(4) by virtue of its ratification of API on 28 January 1998 subject to a relevant statement of interpretation which, in relation to Article 1(4) and Article 96(3), states: “It is the understanding of the UK that the term ‘armed conflict’ of itself and in its context denotes a situation of a kind which is not constituted by the commission of ordinary crimes including acts of terrorism whether concerted or in isolation. The UK will not, in relation to any situation in which it is itself involved, consider itself bound in consequence of any declaration purporting to be made under para 3 of Article 96 unless the UK shall have expressly recognised that it has been made by a body which is genuinely an authority representing a people engaged in an armed conflict of the type to which Article 1, para 4, applies.”
- 126.
As Daniel Thürer notes, this is a favourable and reasonable development. “Human beings deserve the same protection, regardless of whether they are affected by a battle taking place within one country or across borders”; Thürer 2011, p. 52.
- 127.
Gray 2012, pp. 94–95.
- 128.
- 129.
Sassoli 2010, p. 17.
- 130.
For a detailed discussion of the law relating to targeting during non-international armed conflicts, see Sivakumaran 2012, pp. 337–386.
- 131.
API, Article 50(1).
- 132.
See for example Henckaerts and Doswald-Beck 2005, Rule 1 and pp. 5–8 of the associated Commentary.
- 133.
APII, Article 13(1) and (2), refers to the civilian population and individual civilians enjoying general protection against the dangers arising from military operations, to a prohibition on making civilians the object of attack and to a prohibition of acts or threats of violence whose primary purpose is to terrorize the civilian population. Article 13(3) states civilians enjoy the protections in the relevant part of the treaty “unless and for such time as they take a direct part in hostilities’.
- 134.
NIAC Manual 2006, para 1.1.3: “Civilians are all those who are not fighters.” The associated commentary states that “[f]or the purposes of this Manual, civilians who actively (directly) participate in hostilities are treated as fighters”; NIAC Manual 2006, p. 5. The problem with this approach is, of course, its conceptual illogicality. If civilians are those who are not fighters and persons who participate directly in the hostilities are fighters, then they cannot be civilians in the first place. Perhaps, to a degree, the problem could be resolved by providing that persons who would otherwise be civilians but who directly participate shall be fighters. Perhaps that idea is what the ‘are treated as’ language seeks to, but does not quite succeed in, conveying.
- 135.
For example the principle of distinction itself and the rule relating to direct participation by civilians; see APII, Article 13(3).
- 136.
Henckaerts and Doswald-Beck 2005, Rule 7 and the associated Commentary, pp. 26–29. As the ICRC pertinently observes, Article 3(7) of Amended Protocol II to the Conventional Weapons Convention prohibits directing mines, booby-traps or other devices against civilian objects, and the war crime set out in Article 8(2)(e)(xxii) of the Rome Statute, 1998, is capable of being interpreted as supportive of the contended for customary rule. The fact remains, however, that there is no explicit generally applicable prohibition in treaty law to match that relating to international armed conflict in Article 52(1) of API.
- 137.
Henckaerts and Doswald-Beck 2005, Rules 15 to 21. Note, however, that while the ICRC asserts the applicability of the first six rules in both international and non-international armed conflict, it considers that the seventh only arguably applies in the latter. The seventh rule states that where a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected must be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects; Rule 21.
- 138.
Henckaerts and Doswald-Beck 2005, Rules 22–24, although the last two rules are only considered ‘arguably’ to apply in non-international armed conflict. These latter Rules require that each party to the conflict must, to the extent feasible, avoid locating military objectives within or near densely populated areas and remove civilian persons and objects under its control from the vicinity of military objectives.
- 139.
APII, Article 15.
- 140.
APII, Article 16.
- 141.
APII, Article 14.
- 142.
- 143.
There is, for example, no equivalent in APII to the detailed provision in the second sentence of Article 56(1) of API and in Article 56(2).
- 144.
Hague Cultural Property Convention, 1954, Article 18(1) and (2).
- 145.
Hague Cultural Property Convention, 1954, Article 19(1). The obligation to respect cultural property is set out in Article 4. The distinct obligation to respect cultural property is reflected in Articles 2, 8 and 9 and the additional obligation to safeguard cultural property is provided for in Article 3.
- 146.
Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999.
- 147.
Sassoli 2010, pp. 13–14.
- 148.
Moreover, as Dapo Akande points out, whenever states have been presented with the opportunity to abolish the distinction between international and non-international armed conflict, they have been reluctant to do so and undeniably the rules as to status of fighters and as to detention of combatants and civilians differ; Akande 2012, p. 37.
- 149.
See, for example, Wilmshurst and Breau 2007.
- 150.
Initial Response of U.S. to ICRC Study on Customary International Humanitarian Law with Illustrative Comments, letter from US Department of State Legal Adviser and the US Department of Defense General Counsel to Dr J Kellenberger, President of the ICRC, dated 3 November 2006 available at www.state.gov/s/l/2006/98860.htm.
- 151.
States are concerned that “equating non-international and international armed conflicts would undermine State sovereignty and, in particular, national unity and security”; there are also the risks that secessionist movements would be encouraged, that the hand of the state would be restrained thereby when seeking to put down a rebellion and that acts they regard as treasonous would no longer be criminal; Akande 2012, p. 37 and Bugnion 2003, p. 168.
- 152.
See for example ICRC Report to the 31st Conference of the Red Cross and Red Crescent, International Humanitarian Law and the challenges of contemporary armed conflicts, October 2011, p. 5.
- 153.
Sivakumaran 2012, p. 184.
- 154.
Marco Sassoli argues that the higher threshold for Protocol II may be realistic. He speculates that a sliding scale may be needed, with increasing obligations for armed groups according to their degree of organization, and the intensity of the violence in which they are involved although this, he acknowledges, would involve complications and controversies. It would imply lower standards for government forces involved in lower intensity conflicts, subject to over-riding human rights standards; Sassoli 2010, p. 20.
- 155.
Sivakumaran 2012, p. 507.
- 156.
Report of the Secretary General on the Protection of Civilians in Armed Conflict, S/2009/277, 29 May 2009, para 44.
- 157.
- 158.
Sivakumaran 2012, pp. 518–520.
- 159.
Consider for example piracy which is certainly criminal in nature but the countering of which may well require the deployment of military platforms and military personnel of more than one State, particularly when undertaken on a sufficient scale.
- 160.
It has, earlier in the present chapter, been noted that the activities of rebels in a non-international armed conflict may be expected to breach applicable criminal law. That appreciation lies behind the use of the word ‘exclusively’ in the present sentence. Human rights law will of course apply to the activities that are undertaken to counter such criminal behaviour and to the handling of suspects including the conduct of any proceedings against them.
- 161.
Consider UN Charter, Article 2(4) and (7).
- 162.
DCDC, Global Trends at p. 59 and UK National Security Strategy at p. 11. Mike Schmitt summarizes the position succinctly: “there will be more terrorists, they will employ a wider array of techniques, they will be harder to identify and State sponsorship is likely to grow”; Schmitt 2012a, p. 464. Azar Gat identifies the implications of such developments in these terms: “A virulent, laboratory-cultivated strain of bacteria or virus, let alone a specially engineered ‘super-bug’ against which no immunization and medication exist, might bring the lethality of biological weapons within the range of nuclear attacks and result in anything between thousands and many millions of fatalities, while being far more easily accessible to terrorists than nuclear weapons”; Gat 2011, pp. 40–41.
- 163.
Consider for example Report of the Commission of Inquiry on Lebanon, pursuant to Human Rights Council Resolution S-2/1, UN Doc. A/HRC/3/2, 23 November 2006, paras 8–9 and 57 where the view is expressed that the Israel/Hezbollah conflict of 2006 amounted to a sui generis international armed conflict. By contrast, the United States Supreme Court in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) 66–69 regarded the armed conflict against Al-Qaeda to be covered by Common Article 3, and thus a non-international armed conflict.
- 164.
See, for example, UK Ministry of Defence, DCDC, Future Maritime Operational Concept 2007, 13 November 2007, para 109 which refers to transnational issues such as terrorism, climate change, demographic shifts, religious and ethnic tensions and increased competition for resources of all kinds as providing the potential for crisis, confrontation and conflict. The UK Ministry of Defence, DCDC, Future Land Operating Concept, JCN 2/12 dated May 2012 talks of renewed regional low-level conflicts, proxy wars, increased proliferation and resource competition; para 101.
- 165.
Public Committee against Torture in Israel et al v. Government of Israel et al, High Court of Justice, Israel, HCJ 769/02, 13 December 2006 at para 21.
- 166.
The logic favouring the latter notes that activities falling below the prescribed level would be classed as crime.
- 167.
Schmitt 2012a, p. 466 citing Hamdan v. Rumsfeld, 548 US 557, 631 (2006).
- 168.
Schmitt 2012a, pp. 465–468.
- 169.
Consider for example the hostilities between Turkey and the Partiya Karkeran Kurdistan (PKK) in Iraq; e.g. New York Times, ‘Turkey says its planes raided guerrilla bases in Iraq’, 5 March 1987; Al Jazeera, ‘Clashes between “Turkish forces and PKK”’, 20 October 2012; BBC, ‘Iraq condemns Turkish “shelling”’, 9 June 2007; CNN, ‘Iraq condemns Turkish attacks’, 18 December 2007 and consider the reports that these operations were undertaken without the consent of the territorial state, namely Iraq; Reuters, ‘Iraq tells Turkey to stop pursuing Kurdish rebels over border’, 2 October 2012; Reuters, ‘Iraq warns Turkey against violating airspace of Kurdistan’, 17 July 2012; and note, generally, Human Rights Watch, ‘Iran/Turkey: Recent Attacks on Civilians in Iraqi Kurdistan’, 20 December 2011.
- 170.
Kalshoven and Zegveld 2011, p. 221, where it is suggested that the sole exception might be a case of small scale military operations joining in the efforts of local government forces in an ongoing internal armed conflict, a situation that might, it is suggested, involve respect for locally applicable human rights norms.
- 171.
Solis 2011, pp. 162–163 where it is noted that care must be taken that only objects connected to the terrorists are targeted, but that if the terrorist group is a surrogate acting for the state harbouring it or if the host state is capable of acting against the terrorist group but refuses to do so, then the host state itself may be open to attack; Solis 2011, p. 163 citing Crawford 2002, p. 110. For an assessment of the US response to transnational terrorism, see Solis, 2011, pp. 164–167. For the view that the “distinction between terrorism and disciplined war is essentially quantitative”, see Mueller 2012, p. 143. Central to the terrorist enterprise is provoking over-reaction by the security forces; Mueller, 2012, p. 145 and pp. 149–153, and Mueller concludes that policing crime and terrorism in order to reduce their frequency and destructiveness may be sensible policy, but that seeking to eradicate them entirely is illusory; Mueller 2012, p. 158.
- 172.
Haines 2012b, pp. 130–131.
- 173.
- 174.
Dieter Fleck concludes that “[t]here is an important trend in the law towards expanding the scope of application of the rules related to the conduct of hostilities originally contained only in the law of international armed conflict to situations of non-international armed conflict, while, at the same time, respecting the distinction which continues to exist in these two types of conflicts on matters of status of the fighters”; Fleck 2013, p. 592.
- 175.
Consider for example the conflicts in Afghanistan from 2001 to 2013; see Hampson 2012, pp. 256–257.
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© 2014 T.M.C. Asser Press and the author
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Boothby, W.H. (2014). The Changing Legal Spectrum of Conflict. In: Conflict Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-002-2_2
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DOI: https://doi.org/10.1007/978-94-6265-002-2_2
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