About the author(s):
Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.
Last Sunday, French Defence Minister Jean-Yves Le Drian described the taking of hostages at the Algerian gas plant two weeks ago as an “act of war”. He elaborated: “What strikes me the most is that we’re saying ‘hostage-taking’ but when there are so many people concerned, I think this is an act of war.”
The French Defence Minister’s question as to whether the act of the hostages should better be described as an ‘act of war’ raises the question whether it is possible to have a spontaneous non-international armed conflict if an armed group commits an act that is especially heinous or affects a particularly large group of people. Could the situation at the gas plant at Amenas have reached the threshold of a non-international armed conflict because of (i) the number of hostages that were taken or (ii) the intensity of the hostilities over a two/three day period?
Protractedness requirement
It is often stated that as matter of law there are two requirements that must be met before a non-international armed conflict can be said to exist. The first is the requirement that there is an ‘organisation’ and the second is the requirement that the armed conflict should reach a particular ‘intensity’. But there is also a third requirement which, although often analysed together with the intensity requirement, should not be forgotten. This is the requirement that the conflict should be ‘protracted’. To reiterate the words of the Tadic Appeals Chamber in its Jurisdiction decision, a non-international armed conflict will exist when there is “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State” (para 70).
Purpose of the protractedness requirement
The purpose of the ‘protractedness’ requirement is to distinguish isolated incidents which occur in peacetime from acts which are part of a protracted campaign which entails the engagement of both parties in hostilities. Clarifying this, the Boskoski Trial Chamber cited the Kordic Appeals Chamber (para 341) which stated:
“[t]he requirement of protracted fighting is significant in excluding mere cases of civil unrest or single acts of terrorism” (Boskoski TJ, para 185).
In a sense, the ‘protractedness’ requirement mirrors the guidance set out in Article 1(2) of Additional Protocol II which states that the Protocol “shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts”. The link between the protractedess requirement and the need to distinguish situations of unrest from situations of non-international armed conflict has also been confirmed by the Milutinovic Trial Judgement. When analysing whether the violence in that case was “protracted”, the Trial Chamber concluded that it was, stating that the situation therefore reached that of “an internal armed conflict, rather than “internal disturbances, characterised by isolated or sporadic acts of violence” (Milutinovic TJ, para 820).
What does the protracted-ness requirement entail?
The existence of a requirement that the hostilities between an armed group and a State should be ‘protracted’ before a non-international armed conflict can exist, raises the question what ‘protractedness’ entails? This is hard to pinpoint, mainly because in practice the requirements of ‘intensity’ and ‘protractedness’ have been analysed together in the ICTY’s case law. But in general, Trial Chambers seem to be interested in whether a ‘pattern of violence by both sides’ has emerged over time. It is also noted that in instances where the temporal limits of the indictment is less than a year, there is a tendency for Trial Chambers to examine incidents of violence that precede the temporal limits of the indictment to determine whether the violence is “protracted (Boskoski, p84, footnote 758). At the point at which the existence of an armed conflict is affirmed, it is usually found that the violence has increased to a level where almost daily instances of violence are reported (Boskoski, para 234, Milutinovic TJ, para 803, Limaj, para 172). But the ICTY case law has also made clear that daily clashes are not required for the violence to be deemed protracted (Limaj case, para 168). In conclusion, violence does not need to be constant to be “protracted”, but a pattern of armed violence must be discerned which continues over a period of significant duration.
La Tablada: an ‘instant’ non-international armed conflict?
In the light of the case law dealing with the protractedness requirement one might conclude that there is no possibility of there being a spontaneous eruption of non-international armed conflict in instances where the act of an armed group is especially heinous shocking and the State launches a heavy counter military response. But when considering this possibility, one cannot help but remember the La Tablada case which was heard by the American Commission of Human Rights in 1997. Here, the Commission held that an attack on the barracks triggered the application of international humanitarian law, because of the high intensity of hostilities and the high degree of military organisation of the insurgents. Such a combination of factors produced what has been described as an ‘instant’ non-international armed conflict (Melzer, Targeted Killing in International Law, p325).
When the facts of the La Tablada case are revisited, one cannot help but wonder whether the application of international humanitarian law was appropriate in the circumstances. The attack on the barracks at La Tablada was conducted by 42 individuals and was approximately 30 hours in duration. The individuals were armed which what are described as “civilian weapons”, presumably no more than semi-automatic firearms. Immediately after entering the barracks, it was alleged that the individuals were surrounded by 3,500 police officers who subjected them to indiscriminate fire. By mid-morning, it was alleged that the army arrived, consisting of special forces, armoured vehicles, tanks, heavy machine guns, mortars, heavy material and air support. During the fighting, 29 of the 42 individuals were killed, along with several State agents.
While undoubtedly the fighting at the barracks was intense, its duration was extremely short and is far from the levels of ‘protractedness’ that the ICTY judgements suggest is required for the determination of an armed conflict. Moreover, there is little evidence of any proper examination by the Commission of the ‘organisation’ of the individuals beyond the comment that the attack was “carefully planned…[and] coordinated” and as such, was “a military operation, against a quintessential military objective – a military base”. Indeed, it is also notable that the Commission made no appraisal of the reasonableness of the level of hostilities employed by the State.
Measure of necessity required in hostilities employed by State
It is argued that when appraising the intensity of the hostilities one must make sure to look at the necessity of the intensity of hostilities employed by the State. A State should not be able to self-trigger international humanitarian law by ramping up its operations against an insurgent group without cause.
The risk that this might be possible highlights the need to look at the intensity of hostilities by both sides of the non-international armed conflict i.e. the State and the armed groups. It also highlights the need for consideration to be given to the question of whether the employment of force by the State was ‘necessary’ in the circumstances i.e. was the situation such that a law enforcement approach was no longer feasible? Such an approach seems to be hinted at in the wording of the Boskoski case when the Trial Chamber stated:
“the NLA managed to compel the government to commit the full weight of its substantial army including reserves, and the large police force including reserves, to the fight against the NLA. The NLA was seen by the Macedonian government as presenting a most grave threat to the very survival of the country” (Boskoski TJ, para 289).
With this in mind, I think that there is even more reason to question the approach taken in La Tablada case. Was it necessary for the army to deploy 3,500 police officers, the army, special forces, tanks, air support and heavy machine guns and mortars to overcome 42 individuals?
Conclusion
Applying this analysis to the situation of the Algerian hostage crisis, I would conclude that it is unlikely that the two days in which the Algerian army conducted military operations against the gas plant were enough to raise the threshold to that of a non-international armed conflict. I would also refute the idea that in instances where the acts of an armed group are particularly heinous, they may instantly trigger a non-international armed conflict. Although the protractedness requirement is often analysed in ICTY case law as part of the ‘intensity’ requirement, it should not be forgotten as a discrete component of the threshold of a non-international armed conflict. The reason for this is that it adds a distinct temporal aspect which is of key assistance in distinguishing isolated incidents of terrorism in peacetime from armed conflict.