Follow-up on the organisational requirement: ICRC statements and conflict qualification

About the author(s):

Rogier Bartels

Rogier is a researcher at the Netherlands Defence Academy (NLDA) and works at the Dutch National Prosecutor’s Office. He holds LL.M-degrees from Utrecht University and the University of Nottingham. Before taking up his current positions, he was an associate legal officer in Chambers at the International Criminal Tribunal for the Former Yugoslavia, and a legal adviser at the International Humanitarian Law Division of the Netherlands Red Cross.

Rogier is an adjunct-lecturer at the Hague University of Applied Sciences, where he teaches international humanitarian law, and he co-convenes the Hague Initiative for Law and Armed Conflict.

In response to my post earlier today on the organisational requirement applied to the Free Syrian Army, Barrie Sander asked two very relevant questions:

(1) Did the ICRC ever release a formal press statement concerning the characterisation of the Syrian conflict as a non-international armed conflict? I’ve been trying to locate one, without much success.

(2) Related to the first point:

(a) What is the standard of proof that must be met for the characterisation of the Syrian conflict as a non-international armed conflict? In particular, does the standard of proof differ when it is a court determining the characterisation of a conflict in the context of international criminal law proceedings, i.e. where individual criminal responsibility is at stake, compared with when it is the ICRC making a determination for the purposes of international humanitarian law?

(b) In the latter case, does the ICRC usually provide a detailed analysis of why/how it has reached its conclusion together with a list of the criteria/factors it has used to determine that a non-international armed conflict exists? Are the criteria the same as those used in international criminal law proceedings?

As answering them requires a fair amount of words, I have decided to write this follow-up post. In it, I will attempt to answer both questions.

Since there is no official organ that is tasked to qualify a situation as an armed conflict, the ICRC as the most specialised organisation with the highest concentration of IHL lawyers, would definitely be in a good position to do so. The question came up during the one of the conferences that lead to the drafting of the 1977 Additional Protocols whether a body should be established that could determine situations as armed conflicts. However, the ICRC stated that it did not wish to be such a body (1971 Red Cross Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, pp 41-42)

The ICRC rarely qualifies a situation as an armed conflict by means of its press releases. For the ICRC to be able to do its work, access to the affected places is vital. It thus has to stay true to its core principles and needs to be seen as a neutral organisation by the parties on the ground. As governments are often reluctant to except that the level of unrest and violence within its borders has risen to the level of a non-international armed conflict, making public statements about the legal qualification of the situation would in those cases not help the ICRC’s humanitarian cause. However, the ICRC will bi-laterally discuss the situation with the government and explain why (on the basis of IHL) the organisation is entitled “to offer its services”. For example, the ICRC has – to my knowledge – never publicly stated that the situation in Chechnya (even during the times that the level of violence was at its highest) was to be considered as a non-international armed conflict. Even though,  the organisation was present on the ground (apart from the time that it had to pull out for safety reasons after multiple delegates were killed in their sleep) and did the work that the organisation normally does during armed conflicts.

Hints to how the ICRC views a situation can nevertheless be found in many of its press releases. In the case of Syria, at the end of May, the ICRC used the following wording in a press release:

“We urge the parties to the fighting to distinguish at all times between civilians and those participating in the hostilities,” said Marianne Gasser, the head of the ICRC delegation in Syria. “Especially when fighting in populated areas, the parties must constantly take care in their choice of means and method of warfare to spare civilians the effect of the hostilities.”

The terminology used is that of IHL (as opposed to, e.g., human rights law or national criminal law) and as such it indicates that the ICRC also then considered this body of law applicable). Since IHL is applicable only in times of armed conflict (apart from a few rules that apply in peace time or continue to apply after the armed conflict has ended) this statement by the head of the delegation in Syria, indicates how the ICRC considered the situation at the time.

The explicit statement on the existence of a non-international armed conflict in Syria was made in an interview (and, interestingly, picked by Reuters as a “ruling”). However, in its first press release after that interview, the ICRC stated:

As the situation has evolved, the ICRC has continued to monitor the conflict in the country. The ICRC concludes that there is currently a non-international (internal) armed conflict occurring in Syria opposing Government Forces and a number of organised armed opposition groups operating in several parts of the country (including, but not limited to, Homs, Idlib and Hama). Thus, hostilities between these parties wherever they may occur in Syria are subject to the rules of international humanitarian law. These rules impose limits on how the fighting can be conducted, with the aim of protecting the civilian population and persons not, or no longer, directly participating in the hostilities. (emphasis added)

 The ICRC may have considered the time right to publicly release a press statement on the matter, or the answer given in the interview may have been more ‘explicit’ than intended and once the word was out, there was no reason not to also comment on the issue in an official press release. In any case, Syrian president Al-Assad on 26 June already himself acknowledged that his country was “in a state of war”.

Furthermore, prior to the aforementioned interview, the president of the ICRC, Jacob Kellenberger already on two occasions (8 May and 14 June) referred to the situation as “at times” in certain parts of Syria constituted a non-international armed conflict.

Since the 14 July interview, the ICRC has used the wording “armed conflict” in some of its press releases on Syria, e.g., in its latest one of 4 August, whilst other press releases refer only to “fighting” or “violence”. See for example here and here.

That brings me to the second question. I will first deal with the second part as court proceedings will (chronologically) only take place after a (potential) qualification by the ICRC.

The ICRC does not provide a detailed analyses of how it reached its conclusions. In academic articles and at conferences, legal advisers of the ICRC will give their view on the qualification of certain situations as international or non-international armed conflict (see for example here, here and here). Naturally, these views will always be presented as those of the authors and not necessarily reflected the view of the ICRC, but the fact that it was written/said by these particular persons, does provide obviously a good indication of how the organisation (internally) qualifies a certain situation. Politics is something else than academic debate. Be that as it may, someone is not likely to publish a view that is (completely) contrary to the view of the organisation that employs him/her.

On the Lawfare blog, the ‘ruling’ by the ICRC sparked an interesting discussion between Bobby Chesney, Kenneth Anderson and (former ICRC-er) Gabor Rona, mainly dealing with the geographical scope of non-international armed conflicts (coming week, Katharine will be posting on this issue on this blog). ICRC’s Daniel Cahen (legal advisor at ICRC Regional Delegation for the United States and Canada) posted a message in response to this discussion, in which he explains that how the criteria that the ICRC uses when qualifying a situation. These are the same (Tadic-)criteria as those used by the international tribunals and courts:

“The classification criteria used by the ICRC when assessing whether Syria or any other situation of armed violence has degenerated into a NIAC are the intensity of the violence and the level of organization of the parties involved.”

He goes on to explain that – in line with the ICTY jurisprudence – the duration (“protractedness”) of the violence is to be considered as component of the intensity criterion, rather than a separate criterion. Interestingly, Jacob Kellenberger, in the beginning of May, stated that certain fighting in Syria “met the agency’s three criteria of a non-international armed conflict – intensity, duration and the level of organization of rebels fighting government forces.” (underlining added)

Off note is further what Cahen writes next:

“In addition the political motivation of the conflicting parties—as opposed for instance to a purely criminal agenda—does not play a role in the classification.”

It seems to make sense that the political motivation in itself should not be decisive. One man’s freedom fighter is another man’s terrorist – or criminal. And when it comes to non-international armed conflicts, the government would be in its right to call members of an armed opposition group as their actions will necessarily violate national laws (e.g. as treason or murder); even if their motives are solely ‘political’. Indeed, the ICTY’s Limaj Trial Chamber considered the fact that the KLA issued political statements as one of the indicators (of the KLA being sufficiently organised for it to be a party to a non-international armed conflict with the Serbian armed forces; Limaj, para. 101), but it did not – and nor did later ICTY chambers – consider it to be a factor in itself for the existence of a non-international armed conflict. However, trial chambers at both the ICTY and the ICTR have also – in line with the statements made by State representatives during the drafting of the 1949 Geneva Conventions, and the ICRC Commentary to these conventions – considered the Tadic-criteria relevant, in order to distinguish an armed conflict from, inter alia, “banditry”. (Tadic, para. 562; and Akayesu, para. 620). Mike Schmitt recently wrote:

[T]he law of armed conflict traditionally envisioned non-international armed conflict as consisting of only those activities evidencing some sort of politically motivated challenge to State authorities in order to attain political control and authority or displace those of the government. However, the evolving nature of criminality has brought this traditional understanding into question. (Schmitt, p. 122. Footnote omitted)

Arguably, the political motivation is relevant for the qualification of a situation as an Additional Protocol II conflict as for this protocol to apply, an organised armed group has to fight against the armed forces of the government. Common Article 3 does not require that the government is involved. If the political motivation is not at all relevant, this raises interesting questions about the qualification of the drug-related violence in Mexico. Two recent journal articles have concluded that this can be qualified as a non-international armed conflict (here and here; Schmitt (pp 122-123) appears to be of a similar view). Notwithstanding, the high amount of victims resulting from the drug wars, to consider IHL applicable to such a situation. Having said that, taking control over a portion of the territory to be able to traffic drugs, is not all that different from taking control over a portion of territory because it contains diamond mines…

When it comes to court proceedings, the judge(s) might for (formal and/or material) jurisdictional reasons need to consider whether an armed conflict took place at the time of the alleged crimes. Naturally, for someone to be found guilty of having violated IHL, his/her acts need to have been conducted during a time that IHL was actually applicable, i.e. an armed conflict (and at the ICTY, a violation of Article 5 of the ICTY Statute (crimes against humanity) also requires the existence of an armed conflict).

The judge(s) will have to determine the existence of the armed conflict on the basis of the evidence before it. In the case of a non-international armed conflict, the prosecution has to bring evidence that establishes that the intensity and organisational criteria are met. Whereas the ICRC can (especially in its bi-lateral discussions with parties) refer to its own observations and general information, the information brought before the judge(s) has to fulfill the applicable rules of evidence (e.g., sworn statements, (credible) testimony under oath, dependent on the system: no hear say).

The existence of an armed conflict is a so-called “contextual element” of war crimes. Whilst the standard of proof is, of course, ‘beyond reasonable doubt’, the standard (on the international level) for the contextual elements tends to be more lenient than when it concerns the accused’s conduct or intent. Corroboration will be required for evidence that goes to the ‘acts and conduct of the accused’ and at, for example the ad hoc tribunals, such evidence cannot be admitted under Rule 92bis. Evidence about the existence or nature of the armed conflict, could be tendered pursuant to Rule 92bis, however.

Be that as it may, it is interesting (and perhaps rather strange) that the Lubanga Trial Chamber at the ICC suddenly found that:

With regard to Rwanda, although P-0055 gave evidence that the UPC/FPLC wanted to take the town of Mongbwalu because it had been directed to do so by Rwanda, this statement has not been corroborated by other evidence and it is insufficient, taken alone or together with the other evidence above, to prove that Rwanda had overall control of the UPC/FPLC and the latter acted as its agent or proxy. Thus, there is insufficient evidence to establish (even on a prima facie basis) that either Rwanda or Uganda exercised overall control over the UPC/FPLC. (Lubanga, para. 561. Footnotes omitted)

Based, in part, on the foregoing, the Trial Chamber found that the concerning armed conflict had not been international in nature. However, there is no rule before the ICC that requires that evidence on contextual elements has to be corroborated.

In the future, the ICRC interview and/or press release might well be tendered by a prosecution that – with regard to its war crime charges in relation to the fighting in Syria – needs to establish that a non-international armed conflict existed at the time. However, one thing is certain: if this will be the Office of the Prosecutor of the ICC, the ICRC delegates will not be made to testify (see Rule 73 ICC Rules of Procedure and Evidence).