About the author(s):
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.
Over the last few weeks, Intercross, a blog by the ICRC regional delegation in Washington, has hosted two interesting and related debates as part of a broader theme “IHL and the challenges of contemporary armed conflicts”: one on typology of armed conflicts and another one on IHL and terrorism. In this post, I will highlight some of the issues raised in the first of the two debates and add some links to other materials on the issues discussed and interesting materials for further reading.
The typology of armed conflicts debate was kicked off by an interview with Jelena Pejic, one of the legal advisers in the Legal Division of the ICRC. The introduction names Jelena as one of drafters of the Section II (The notion and typology of armed conflicts) of ICRC’s 2011 report in preparation of the 31st International Conference of the Red Cross and Red Crescent. This of course comes as no surprise since the concerning section is mostly a combination of the ICRC 2008 Opinion paper on the definition of armed conflict, and Jelena’s article on the protective scope of Common Article 3, published shortly before the report.
In the interview, Jelena explains the main findings of the report. Most importantly, that the ICRC considers the distinction between international and non-international armed conflicts to remain relevant and sufficient today.
As to internationals armed conflict (IAC), she stresses that although it has been suggested that an intensity threshold exists for IACs, this is not the “prevailing view”. This is so for two reasons: i) “the Geneva Conventions deliberately do not include such a threshold”, and ii) “the protection of persons who might be covered by the Geneva Conventions would be undermined if a threshold requirement of intensity of hostilities, or any intensity […], were introduced”. I fully agree with Jelena (and the ICRC) on this issue, but it is interesting to note that she thus implicitly rejects (as did the 2011 ICRC report) the findings of the ILA Use of Force committee report on the meaning of armed conflict that a lower threshold for IACs does exist.
As to non-international armed conflict (NIAC), Jelena sets out the seven types of NIAC that were identified by here in her International Review of the Red Cross article (see link above) and the report. These “sets” and “subsets” of NIACs can be listed as follows:
– Classic NIACs, involving a State fighting an armed group on its own territory;
– NIACs were armed groups only fight each other (without an effective government);
– Spill-over NIACs;
– Multinational armed conflicts were a State or a coalition of States assists a government in fighting an armed group on that States territory;
– UN or Regional Organisation Forces intervening on the side of the government;
– Cross-border NIACs, in which a State fights an armed group in another State’s territory whilst the territorial State does not essentially approve;
– Transnational armed conflicts, to which the ICRC does not subscribe to, but is seen as relevant by, e.g. the US.
Jelena explains that the ICRC categorisation is been based on the Committee’s experiences in trying to characterise conflicts since 9/11.
Geoffrey Corn, a professor at South Texas College of Law, known for his publications on the concept of transnational armed conflicts (see, e.g., here, here and here) and operational aspects of IHL (see here and here), was the first to reply. He acknowledges the importance to bring the modern types of conflicts under a heading that makes sure that they are covered by IHL and welcomes the ‘opening up’ of the concept of non-international armed conflict (NIAC) to these modern types. Geoffrey highlights the importance of the Tadic criteria (of intensity and organisation; see earlier post) for conflict qualification. In doing so, he suggests that these criteria were not meant to be applied to IACs. Firstly, because the Tadic criteria were developed as part of a case a concerning a NIAC (in Bosnia); and, secondly, because in his view, similar to that of the ICRC, the intensity criterion does not apply to such conflicts. As opposed to the ILA report, mentioned above, which found that the intensity requirement for IACs was to be found in state practice, Geoffrey considers that “state practice does not support applying an ‘intensity’ limitation to IAC assessment”.
Next, he discusses the importance to acknowledge the “probative relationship” that the two Tadic criteria have to each other: “it is important to consider whether each of these elements must be assessed as strictly independent requirements, or whether they provide a conflict assessment framework as part of a more totality of the circumstances analysis, justifying overwhelming satisfaction of one element to offset minimum satisfaction of the other?” He does not answer these questions in his reply, but has recently done so in an article (together with Laurie Blank) on the Syria conflict, which is for this (and other reasons) well worth the read!
Second to comment was by Bob Goldman, professor at American University’s Washington College of Law and former IACommHR member. He wonders why the ICRC, in discussing IACs, did not pay more attention to occupation. Indeed, the report only addresses occupation in a footnote. However, recently the ICRC published an entire expert study on occupation, a project that was already ongoing in 2011 and the outcome of which the ICRC perhaps did not want to influence at the time. Prof. Goldman further wonders why Additional Protocol II-NIAC did not form part of the ICRC’s typology for NIACs, which is a valid question. After all, whilst many States engaged in NIACs did not sign Addition Protocol II, some did and the conflicts taking place on their territories do or did fulfil the criteria losted in Article 1 of this Protocol. Colombia’s fight with the FARC and the Libyan NIAC between the NTC and Gaddafi’s regime in 2011 being notable examples.
He would be interested to know what the ICRC’s view is on the law applicable to the various parties in an “internationalized NIAC”, an issue on which, as he notes, the ICRC has not yet pronounced itself. He then turns to the ICRC’s use of the Tadic’s definition of “protracted armed confrontations”. As a member of the Inter-American Commission on Human Rights that investigated the attack on La Tablada in Argentina (that led to the famous 1997 Abella case; see here for a case comment), Goldman obviously considers that very short-lived (only about 30 hours), but intense situation can qualify as Common Article 3 conflicts.
However, although it has been questioned whether Abella set the threshold too low, and Cryer et al. hold that the level; of ‘protractedness’ applied by the IACommHR is in any case lower than the ICTY has applied and the Rome Statute require (here at p. 237), the ICRC does not actually say that protracted refers to any form of duration. The ICRC uses the phrase when referring to Tadic, but subsequently it explains that later ICTY cases dealing with the NIAC criteria elaborated on the “protracted” element and in which the respective Trial Chambers clarified that it refers more to intensity of the violence than duration (see, e.g., Celebici, para. 184). That would seem to sit nicely next to the Abella reasoning.
Third up was Nottingham’s Sandesh Sivakumaran, author of the most complete monograph on NIAC thus far. Sandesh focussed on the question who is to decide whether a situation qualifies as a NIAC, IAC or not at all as an armed conflict. He stresses the lack of an authoritative body that systematically analyses conflict (or conflict-like) situations and characterises them publically. He considers that the parties to the conflict are on the one hand best placed to charactarise a situation (as they are closed to it and have the most information available to them), but on the other hand inappropriate actors for doing so (because of the closeness to and thus often biased view on the violence). Other actors, such as third States or UN organs can characterise conflicts, but might refrain from doing so for political or practical reasons, whilst international courts and tribunals will normally only assess a situation after the conflict commenced and thus cannot influence the law (as considered) applicable to the actual fighting anymore. Whereas the ICRC characterises situations for internal purposes and sometimes, as was the case with Syria, also publicly, it will often consider it contrary to its neutrality or impeding on its effective working to make its analysis public.
Sandesh therefore asks whether “it [is] time for a new body to be created, the task of which would be to engage in conflict characterization?” In one of his recent publications, he actually answers this question affirmatively – albeit in a book that has the word “utopia” in its title.
The question whether there should be an official body qualifying situations as armed conflicts (and the type) already came up during the one of the conferences that lead to the drafting of the 1977 Additional Protocols. The drafters wondered whether a body should be established that could determine situations as armed conflicts. However, the ICRC stated clearly 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) and the question was never resolved.
ICRC’s Daniel Cahen closed the debate. He sets out how the ICRC
“[i]n its classification practice […] certainly does not consider the organization and intensity criteria in isolation. Both criteria are seen as necessary, and are assessed in real time against the backdrop of each specific context. In an extreme case, it would not be inconceivable to classify as a NIAC a situation in which little is known about the organizational structure of a “secret army” determined to remain in the shadows, provided the intensity criterion has been met. Similarly, in a scenario where weapons of mass destruction would be used at the onset of hostilities, the intensity criteria would be considered fulfilled on day one. However except for extreme cases, the ICRC will leave sporadic acts of armed violence outside of its definition of NIACs, in order to minimize the risk of over-classification (treating as armed conflicts situations that do not pass the IHL applicability threshold).” (see also here for another, more elaborate, explanation by Cahen on the ICRC’s approach to conflict qualification)
He answers prof. Goldman’s question that the ICRC’s practice “is to pay due regard to the nature of each individual belligerent relationship at stake, and classify the situation as a NIAC (where a State intervenes to support the government side), as an IAC (for instance where the rebel party is controlled by a foreign government) or as a combination of both IAC and NIAC (for instance where states intervene in support of both the government and rebel sides)”. That, of course, doesn’t fully answer the question, but Cahen suggests that internationalised NIACs “do not raise any particularly tricky classification issues”.
He ends on a very interesting note by suggesting that the in the near future the top of the list when it comes to the classification debate, “now that the US is clearly opting for a lighter footprint approach”, will likely be the “determining under which precise conditions an intervening state becomes a party to a pre-existing NIAC”. In ending this post, I ‘ll refer you for some further reading on precisely this topic to this excellent article that I recently read by Arnulf Becker Lorca in the NYU Journal of International Law and Politics (free available here).