Master thesis
“To artificially restrict the law in a way that does not reflect either the realities on the ground or the purpose of the law itself is counterproductive.”
Sasha Radin, Visiting Research Scholar at the Naval War College, 2013
“Extending the [Geneva Conventions’] rights and protections to those who intentionally flout and disobey the law of war by engaging in purposeful barbarism destroys the incentive for all future combatants to abide by the Geneva Conventions’ rules and norms and constitutes a significant step backward.”
Robert W. Ash, Senior Counsel at the American Center For Law and Justice, 2007
Bastiaan Johannes Loopstra International and European Law: Public International Law Supervisor: Dhr. Prof. Dr. T.D. (Terry) Gill Second reader: Dhr. Mr. J.C. (Jeroen) van den Boogaard Tuesday 12 July 2016
Bastiaan Loopstra Table of contents Table of contents ... 2 Abstract ... 3 List of abbreviations ... 4 Introduction ... 5
Chapter 1 The geography of IAC and NIAC under the ius in bello ... 7
Introduction ... 7
§1.1 Application of the law of international armed conflict ... 7
§1.1.1 Beginning and end of international armed conflict ... 7
§1.1.2 Geographic scope of international armed conflict ... 8
§1.2 Application of the law of non-international armed conflict ... 10
§1.2.1 Beginning of non-international armed conflict ... 10
§1.2.2 End of non-international armed conflict ... 12
§1.2.3 Geographic scope of non-international armed conflict ... 13
§1.2.3.1 Territorial or extra-territorial ... 13
§1.2.3.2 State practice ... 16
§1.2.3.3 The principle of equality of belligerency ... 18
§1.2.3.4 Case-by-case analysis ... 21
§1.2.3.5 Conclusion ... 23
§1.3 Interactions between international and non-international armed conflict ... 24
§1.3.1 A non-international armed conflict ‘internationalizes’ into an international armed conflict….. ... 24
§1.3.2 Recognition of belligerency ... 25
Conclusion to Chapter 1 ... 27
Chapter 2 Limitations on the geography of IHL imposed by the ius ad bellum ... 28
Introduction ... 28
§2.1 State sovereignty and the inviolability of territory ... 29
§2.2 Breach of neutrality law ... 30
§2.3 Authorization to use force by the UN Security Council ... 33
§2.4 State consent to the use of force on its territory ... 34
§2.5 Self-defense ... 35
§2.5.1 Application in IAC and NIAC ... 35
§2.5.2 Restrictions on the application of IHL posed by self-defense ... 37
§2.5.3 Extraterritorial NIAC: Without consent an IAC? ... 39
§2.5.4 Alternative to self-defense: A ‘plea of necessity’ ... 40
Conclusion to Chapter 2 ... 42
Conclusions ... 44
Abstract
Although general agreement exists about the geographic scope of application of international humanitarian law in both international and non-international armed conflicts (IAC and NIAC) as long as the conflicts remain within the borders of the states party (in IAC) or the territories where hostilities occur which are furthermore ‘under the control’ of a party (in NIAC), there is much controversy regarding the applicable framework once such a border is crossed. This thesis adopts a normative analytical methodology to consider some of the assumptions and disagreements that surround this issue. It seems that contemporary public international law might be open to the possibility of transnational NIACs, such as in spill-over and cross-border scenarios. Even if that concept is accepted, however, the extraterritorial application of international humanitarian law is nonetheless severely limited by the international legal framework of the ius ad bellum, often overlooked in this inquiry. This framework consists of a breach of neutrality law, the authorization by the UN Security Council to use force on the basis of Chapter VII of the UN Charter, consent from the territorial state to conduct military operations on its territory, and self-defense. This thesis first researches how the ius in bello is currently considered to apply, both territorially and extraterritorially, and then explores in which ways the ius ad bellum frameworks limit the extraterritorial applicability of international humanitarian law.
Bastiaan Loopstra
List of abbreviations − GC (I, II, III, IV) = Geneva Convention I – IV, 1949
− AP (I, II) = Additional Protocol I and II to the Geneva Conventions, 1977 − CA (1, 2, 3) = Common Article 1 – 3 of the Geneva Conventions
− HC (I – XIV) = Hague Convention I – XIV, 1907
− ARS = ILC Articles on Responsibility of States for Internationally Wrongful Acts, 2011
− UNCLOS = United Nations Convention on the Law of the Sea, 1982
− CIL = customary international law
− IHL = international humanitarian law
− IHRL = international human rights law
− IAC = international armed conflict
− NIAC = non-international armed conflict
− TAC = transnational armed conflict
− POW = prisoner of war
− CCF = continuous combat function
− DPH = directly participating in hostilities
− ICRC = International Committee of the Red Cross and the Red
Crescent
− UN = United Nations
− UNC = United Nations Charter
− ICC = International Criminal Court
− ICJ = International Court of Justice
− ICTY = International Criminal Tribunal for the former Yugoslavia
− ICTR = International Criminal Tribunal for Rwanda
Introduction
As an exchange student to New York City’s Cardozo School of Law in the Fall semester of 2014, I took a course in international humanitarian law (IHL). My professor of that course, Gabor Rona, one time remarked in class that IHL recognizes only three legal situations that apply to every swath of the earth at any given moment: international armed conflict (IAC), non-international armed conflict (NIAC), and non-conflict. To a newcomer to the subject, it seemed worrying that there were two categories of armed conflict and only one of ‘peacetime’, but it also evoked the understanding that it is of crucial importance to identify which IHL-framework applies to any given situation.
Or is it? In a recent blogpost1
, Beth van Schaack remarked that conflict classification, although it remained “an important exercise”, had lost some of its relevance recently with regard to the prosecution of war crimes. She argued that customary international law (CIL) now prohibits and penalizes many breaches of IHL, regardless of them being committed in IAC or NIAC. True as that may be, the Rome Statute of the International Criminal Court (ICC Statute) lists no less than thirty-two ‘serious violations’ of the laws and customs in IAC as ‘war crimes’2
, against only nineteen in NIAC3
. This is not the place to elaborate on the pros of codification, but it can be said in general that treaty obligations tend to have a higher compliance pull than CIL does, and that any prosecutor will find it safer to rely on the ICC Statute than on CIL (although, preferably, the prosecutor will rely on both). And anyway, the significance of conflict classification becomes obvious when one considers how different a legal framework of IHL treaty law applies in IAC as compared to NIAC, how much more precise conduct of hostilities is regulated, how much more detailed the protection of persons
hors de combat and civilians.
Furthermore, central to this thesis is the idea that to define a situation as ‘IAC’ or ‘NIAC’ has implications for the geographic scope of IHL. Exactly how and why will be set out in detail.
It was authoritatively stated that when the material conditions for its application are met, IHL applies to the entire territory of the warring states in IAC, and to the territory under the control of the respective parties in the case of NIAC.4
However, this position leaves many issues regarding the transnational application of IHL unsolved. For example, does this
1 Van Schaack 2016: https://www.justsecurity.org/29083/mapping-law-applies-war-crimes-syria/, last visited on
12-7-2016. See for a similar argument: Bartels 2009, pp. 40-41.
2 See art. 8(2)(a) and (b) ICC Statute. 3 See art. 8(2)(c) and (e) ICC Statute.
4 ICTY Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, §70
Bastiaan Loopstra
statement imply that IHL applies even in the territories of states party to a NIAC when no hostilities are occurring on their territories (supposing, for a minute, that transnational NIACs are a possible concept)? And can a state target a person who fights on the side of a non-state entity in a NIAC when that person has moved to a state that does not participate in the NIAC, nor is its territory ‘under the control’ of one of the parties? And does it matter, then, whether that state borders on the territory where the NIAC is fought? Does it matter whether the territorial state shows itself willing and able to capture the person, on the fighting state’s request? And if such a person may be targeted, on what legal ground will that be? As will be shown, the answers to these questions depend not only on what is traditionally seen as the ius
in bello, but also on a body of international law that is often overlooked in this inquiry: the ius ad bellum.
The thesis consists of two chapters. Chapter 1 will work out the first research question: how IHL applies in both IAC and NIAC under the ius in bello framework. The subquestions are how IHL applies in IAC (beginning, end, and geographic scope) and NIAC (beginning, end, and geographic scope) respectively. Then, Chapter 2 will work out the second research question: how considerations of the ius ad bellum limit the geographical application of IHL. Subquestions are how the respective ius ad bellum grounds impact individually upon IHL’s geography: a breach of neutrality law, the authorization to use force by the UN, state consent to the use of force on its territory, and self-defense. Finally, a conclusion will present the findings of this thesis in a clear manner.
The research is set up in the normative analytical methodology, based on the recognized sources of public international law. The thesis devotes some attention to state practice, but uses as a main source the writings of commentators on IHL. This deserves further justification, as these are seen in international law in general, and also in IHL, as being least valuable to a finding of positive law.5
State practice, on the other hand, is more significant, declaratory as it is of CIL. The reason for this is that the opinion of the ICRC, which is intricately researched, is considered to have ‘public functions’ on behalf of the GCs and the APs, even though it is a non-governmental organization.6 This means that its practice
might contribute to CIL. Therefore, its practice within IHL, and its interaction with commentator’s writings, is significant for the development of IHL.
5 See art. 38(1) of the 1945 ICJ Statute, which recognizes as influential sources of international law in turn
international conventions, international custom, as evidenced by state practice and opinio iuris, and judicial decisions and commentators’ teachings.
Chapter 1
The geography of IAC and NIAC under the ius in
bello
Introduction
Ever since the adoption of the four Geneva Conventions (GCs) in 1949, partially new and partially revised, IHL has known a distinction between two types of conflict: IAC and NIAC. While it is clear that IAC is the legal successor of the traditional concept of ‘war’ between two or more states and has changed little over the years, NIAC has arguably undergone a significant transformation. That is because NIAC IHL was originally intended to regulate internal conflicts, appearing within the borders of a single state, most obviously civil wars.7
Yet, as will become clear from this paragraph, current legal practice might be open to the possibility of applying the laws of NIAC to conflicts with international elements, too. Still, there are scholars who argue that ‘internal armed conflict’ better covers the content than the phrase ‘non-international’.8
Others have argued that a new type of conflict should be introduced, which is neither IAC nor NIAC but rather something like ‘Transnational Armed Conflict’ (TAC), an armed conflict between a state and a non-state entity whose geography crosses state borders and is based on “threat dynamics and strategic realities”.9
However, that is a minority perspective that presently finds no following in either treaty law or CIL.
To understand how the ius ad bellum influence the geographic application of IHL, it is first necessary to understand how IHL applies according to the ius in bello. Thus, this chapter will set out the geographic application of the laws of IAC and NIAC, with a focus on whether and how the two frameworks may apply beyond where they are generally accepted to apply. The first paragraph will deal with IAC, the second with NIAC, and the third with how the two frameworks interact. A conclusion will sum up this chapter’s findings.
§1.1 Application of the law of international armed conflict
§1.1.1 Beginning and end of international armed conflict
According to common article 2 of the GCs (CA2), the four GCs apply to “all cases of declared war or of any other armed conflict which may arise between two or more of the High
7 Pictet 1952, Commentary on GCI, pp. 37 – 48.
8 The term ‘internal conflict’ is also used in the Statute of the International Criminal Tribunal for the former
Yugoslavia (ICTY Statute), for example in art. 5, and in the ICTY jurisprudence. See e.g. ICTY Tadić, 1995.
Bastiaan Loopstra
Contracting Parties, even if the state of war is not recognized by one of them”. Application is also warranted in cases of “partial or total occupation of the territory of a High Contracting Party”. According to the authoritative Pictet commentaries to the GCs, this covers “any difference arising between two States and leading to the intervention of armed forces”.10
Furthermore, the duration of the conflict and its intensity do not play a role.11
This view adheres to the so-called ‘first-shot’ theory, which assumes that the law of IAC applies from the first moment that force is used by a state against another state.12
This view has attracted considerable criticism, for example from commentators who deem specific ‘minor’ acts of armed forces, such as “border clashes”, to be falling outside the scope of armed conflict.13
However, the ‘first-shot’ theory does prevent the risk of creating an international legal vacuum or depriving certain categories of persons from the protections that IHL provides.14
Therefore, the ‘first-shot’ theory is generally accepted to be legally correct. The only requirements that thus constitute an IAC are that there is a conflict between states and that these states employ their armed forces.
Less clarity exists on the issue when an IAC ends. The International Committee of the Red Cross (ICRC), an organization that has contributed immensely to IHL and ‘safeguards’ it, holds that IHL ceases to apply “on the general close of military operations”, save for the laws applicable to persons whose final release, repatriation or re-establishment has by then not yet occurred.15
The authoritative ICTY holding in the Tadić interlocutory appeal case holds that IHL applies “beyond the cessation of hostilities until a general conclusion of the peace is reached”.16
It is not always easy or possible to determine, however, when a general close of military operations has taken place.
§1.1.2 Geographic scope of international armed conflict
With regard to the geographic reach of IHL application in IAC, it is clear that IHL applies to the whole territory of all warring states17
, and also to states’ exclusive economic zones (including those of neutral states18
), the high seas and the international airspace above
10 Pictet 1952, Commentary on GC I, p. 32.
11 See C. Pilloud et al, 1987, Commentary on AP I, p. 40, §62. 12 Kleffner 2013, p. 44.
13 International Law Association 2010, p. 28. 14 Kleffner 2013, p. 45.
15 ICRC Report 2015, pp. 8 – 9. 16 ICTY Tadić 1995, §70. 17 ICTY Tadić 1995, §70.
that to the extent operations are conducted there19
. A state’s territory includes its rivers, territorial sea and the airspace above its territory. This territory corresponds with what is traditionally seen as the ‘region of war’, which is the area in which hostilities ‘might take place’.20
That is opposed to the ‘theatre of war’, which is the area in which hostilities ‘actually occur’. This distinction is still relevant, as not all of IHL applies to the ‘region of war’ at the same time. More specifically, the geographic reach of rules that are “clearly bound up with the hostilities” should be limited accordingly, held again the ICTY Appeals Chamber.21
For example, the obligation to respect medical personnel engaged in the search for wounded or sick is clearly supposed to apply in a scenario of hostilities.22
On the other hand, rules on the protection of civilians and prisoners of war will apply to any captured person eligible for such protection, regardless of whether they are located inside or out of the ‘theatre of war’.23
CA2 and art. 1(3) of Additional Protocol I to the Geneva Conventions (AP I) both define how an IAC is constituted in the same manner, and both lack a statement on the geographic limits of IAC. Still, it is clear that in principle IAC hostilities are not to be extended to the territories of third states that are neutral under the law of neutrality.24
Yet, it is easy to imagine how parties to an IAC might nonetheless be tempted to cross a border into another state. Hostilities could for example be waged in a border area, or a significant group of combatants could move to a neutral state that fails to capture or remove them in accordance with its obligations under art. 11 of Hague Convention V (HC V). A warring party will then in some cases have an incentive to cross the border to deal with the situation itself, rather than relying on the law enforcement framework of the neutral state. Under the law of IHL, there is nothing that prevents a state from attacking the hypothetical combatants in such a scenario. Still, IHL’s extraterritorial applicability is severely limited by the principles of necessity and proportionality under the ius ad bellum, with the result that only serious breaches of the law of neutrality may result in extraterritorial action, and only in certain circumstances. Exactly how a breach of neutrality law legitimizes the conduct of hostilities on a neutral state’s territory will be assessed in §§2.2 and 2.5.
19 Kleffner 2013, pp. 56 – 57. See also: ICRC Report 2015, p. 13. 20 Greenwood 1989, pp. 276 – 277.
21 ICTY Tadić 1995, §68. 22 See art. 24 GC I. 23 ICTY Tadić 1995, §68.
Bastiaan Loopstra
§1.2 Application of the law of non-international armed conflict
§1.2.1 Beginning of non-international armed conflict
Nowhere in the treaty law of the GCs that applies to NIAC – which is comprised of CA3 and AP II – is defined what a NIAC is. A study of the two provisions that deal with application to NIAC, moreover – CA3 and art. 1 of AP II, respectively – establishes that the two provisions apply to different types of NIACs. The provisions in CA3 are generally agreed to apply when an armed conflict is taking place between governmental armed forces and the armed forces of one or more non-state actors, or between such groups, as this would constitute what the article calls “armed conflict not of an international character” [emphasis added]. AP II, on the other hand, has a more limited material field of application in three ways. Firstly, it requires that the non-state entities participating in the NIAC must be “dissident armed forces or other organized armed groups” that, “under responsible command, exercise such control over a part of [the territorial state’s] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”. Secondly, its NIACs must involve a state (CA3 NIACs can take place between non-state entities only) and thirdly, these NIACs must take place on the territory of this state.
However, the two provisions are similar in that they contain two requirements:
organization and intensity.25
These conditions refer to the level of organization of the non-state armed group and the threshold of intensity that the armed confrontation must reach. The organization requirement is supposed to be implied in CA3’s vocabulary of ‘Party’, and is expressly stated in art. 1(1) AP II, as quoted above. AP II’s requirement that the organized armed group holds control over territory serves furthermore to specify how intense the conflict must be. Thus, AP II has both a stricter organizational and a stricter intensity requirement. Furthermore, its application only to the territory of the state participating in the NIAC is a geographic limitation that is not found in either CA3 or in CIL.
The requirements of organization and intensity flow from the ICTY Tadić interlocutory appeals case, which is regarded authoritative on this issue. It was held that a NIAC exists in any situation of “protracted armed violence between governmental authorities and organized armed groups [AP II and CA3] or between such groups within a state [only CA3]” (emphasis added).26
It is clear that the ICTY with this formula sought to distinguish
25 ICRC Report 2015, p. 8. See also, for example, Schmitt 2013 (II), rule 23, pp. 84 – 91. 26 ICTY Tadić 1995, §70.
NIACs from mere internal disturbances that do not rise to the level of armed conflict.27
AP II also makes specific reference to this distinction in art. 1(2). The meaning of ‘protracted’, however, has attracted some controversy in legal literature. Although textually interpreted it may seem that the word refers merely to an element of time, establishing that the conflict must have lasted for a certain period to become a NIAC, thus being a synonym for ‘sustained’, many commentators agree that ‘protracted’ refers primarily to the intensity-requirement.28
Thus, violence in NIAC must reach thresholds both with regard to intensity and with regard to duration.
In art. 8(f) of the ICC Statute, reference is made to NIACs that require “protracted armed conflict” rather than “protracted armed violence”. Although it has been suggested that this difference phrasing sought to introduce a new standard of NIAC – a third category next to CA3 NIACs and AP II NIACs – commentators now agree that the drafters of the ICC Statue wished to reference the Tadić judgment, and not to introduce any new standard.29
The difference in wording has been referred to as “an example of careless drafting”.30
A large set of factors influence whether or not a conflict’s intensity lives up to the armed conflict-standard, including the number, duration and intensity of individual confrontations, the type of weapons and other military equipment used, the number of casualties, the extent of material destruction and the number of civilians fleeing the combat zone.31
The determination of whether and when a conflict has reached this level of intensity is usually done by individual parties to the conflict, although the ICRC tends to release authoritative statements, too.
The conditions of organization and intensity continue to pose numerous issues in contemporary NIACs, especially when they have an international aspect. For example, when numerous armed groups organized in network structures wage hostilities in disparate states, one can ask whether their level of ‘organization’ is sufficient to constitute a single NIAC.32
Similarly, can violence conducted by various armed groups that are linked to each other but are waging hostilities in disparate locations be conglomerated to satisfy the intensity requirement?33 Conversely, when numerous conflicts are taking place in close proximity – in
27 See ICTY Tadić Trial Decision 7 May 1997, §562 (hereinafter: ICTY Tadić 1997); Radin 2013, p. 710; Arts.
8(f) and 8(e) ICC Statute.
28 Fleck 2013, p. 588; Akande 2012, p. 52.
29 Pejic 2011, pp. 192-193; Akande 2012, §6.3, p. 56. 30 Fleck 2013, p. 588.
31 ICTY Boškoski Trial Chamber II, 10 July 2008, §177 (hereinafter: ICTY Boškoski 2008). See also: Kleffner
2013, pp. 49 – 50.
32 Radin 2013, p. 722. 33 Radin 2013, p. 721.
Bastiaan Loopstra
the current conflict in Syria, for example, where multiple armed groups are currently fighting each other34
– it seems clear from state practice that the violence exhibited by each of these groups can be aggregated to satisfy NIAC’s ‘intensity’-requirement, while the intensity on any individual conflict’s level may not be able to do so.35
A separate role exists for CIL. Between 1995 and 2005, a commission of experts from the ICRC performed a research into customary IHL.36
On the basis of that research, it published a list of 161 customary rules in armed conflicts, many of which apply in NIAC.37
Although the validity of the ICRC’s research method has been a point of debate38
, it must be remembered that the ICRC’s input is generally authoritative. If these rules truly constitute CIL, they will apply to any NIAC, regardless of whether it qualifies as an AP II or a CA3 NIAC. The relevant question for their application is thus whether or not a situation can be qualified as a NIAC.
§1.2.2 End of non-international armed conflict
It is unclear whether the law of NIAC ceases to apply as soon as the conditions required for its application, described above, are no longer present. In the Tadić interlocutory appeals case, it was held that IHL applies until “a peaceful settlement is achieved”.39
The ICRC has interpreted this to mean that a complete cessation of hostilities must have taken place, without real risk of resumption.40
Other authors have argued that it makes more sense for the “bookends” to be identical, and thus for either of a NIAC’s conditions to cease to apply.41
This would prevent a NIAC from ‘dragging on’ after one of the conditions for its existence has disappeared. Thus, IHL would sooner be displaced by the greater protections concerning killing and detention offered by domestic law combined with human rights law.
34 See: http://www.rulac.org/countries/syria, last visited on 12-7-2016. 35 See for example: Radin 2013, p. 724.
36 ICRC study on customary IHL, Henckaerts 2005, pp. 176 – 177.
37 Annex to ICRC study on customary IHL, Henckaerts 2005, pp. 189 – 212. 38 Akande 2011, p. 36. See also, for example, Graham 2006, p. 332.
39 ICTY Tadić 1995, §70. 40 ICRC Report 2015, p. 10.
41 Rona 2015, See: https://www.justsecurity.org/27543/start-end-territorial-scope-armed-conflict/, last visited on
§1.2.3 Geographic scope of non-international armed conflict
§1.2.3.1 Territorial or extra-territorial
Before diving into the extremely controversial and plainly unsolvable issue of whether the IHL of NIAC can be applied to transnational conflict situations, which is one of the most interesting issues in this thesis, I must state that I will not find the definitive solution to that issue here. Parts of the view I describe are shared by many, but are discarded with equal conviction by others. I will argue the view that NIAC IHL applies broadly but is limited by evidence of state practice. I hold this position because I think that both practically and structurally it best matches the realities on the ground while providing essential safeguards in current situations that do not fit neatly into the classical IAC – NIAC dichotomy. Legal arguments can be made to back the position up, of course, but so can arguments that support a contrary conclusion. Most illuminating would be a new codification or clear state practice development, of which the latter is probably the likeliest. The obvious truth is that both IAC and NIAC were not created to regulate transnational conflicts with non-state actors. What I am saying is that as long as this nonetheless remains the applicable framework, the view I describe (but over which I do not claim ownership) serves best the realities, necessities and agreements of armed conflict.
As it is in practice hardly possible to expect from non-state actors to apply the extensive framework of IAC, and also because some principles that are fundamental to IAC are missing or differently applied in NIAC, such as the principle of equality of belligerency, it has been found more sensible to apply, as a minimum requirement, the limited protections laid down in the rules applicable in CA3 NIAC.42
Despite practical issues that arise when international borders are crossed, it seems most coherent to require from organized armed groups what was in CA3 agreed to apply to non-state entities in civil wars. It seems most coherent, in other words, to classify an armed conflict by identification of the parties to it.
In the Tadić interlocutory appeals case, the ICTY held that NIAC IHL applies, from its initiation until its end, to “the whole territory under the control of a party, whether or not actual combat takes place there”.43
It came to its conclusion through a purposive reading of both CA3 and AP II.44
Thus, the ICTY concluded that crimes would be regulated by IHL even
42 To apply CA3 as a ‘minimum yardstick’ to all situations of armed conflicts that are not international in
character has even been argued to have become the norm. See Bartels 2009, pp. 66 – 67. See also below note 63, the U.S. Supreme Court case of Hamdan, 2006.
43 ICTY Tadić 1995, §70. 44 ICTY Tadić 1995, §69.
Bastiaan Loopstra
when they were committed while “substantial clashes were not occurring in the [relevant] region at [that] time and place” as long as they were “closely related to the hostilities in other parts of the territories controlled by the parties”.45
Whereas art. 1(1) AP II explicitly provides for a territorial scope to its application as AP II NIACs can only occur “in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups” (emphasis added), and is thus limited to the territory of the warring state, CA3 contains no such provision. It is clear, however, that the drafters of the GCs had intended CA3 to apply only within the confines of a single state’s territory, as the article was aimed to regulate ‘civil wars’.46
This is reflected in the text of CA3, which contains the phrase “occurring in the territory of one of the high contracting parties”, thus limiting its scope of application to the territory of a single state. This interpretation is furthermore upheld in modern opinio iuris, for example in the 2006 San
Remo Manual on the Law of Non-International Armed Conflict, which was drafted in order to
provide “an authoritative restatement of the law”.47
It holds: “Non-international armed conflicts are armed confrontations occurring within the territory of a single State and in which the armed forces of no other State are engaged against the central government.”48
Furthermore, there are distinguished commentators who hold on to the position that the IHL of NIAC can only apply within the territory of a single state.49
However, this view is not very nuanced. Especially with regard to so-called ‘spill-over’ NIACs, the argument that NIAC IHL may apply extraterritorially is very convincing. A spill-over NIAC is an armed conflict between governmental forces and one or more organized armed groups that originates in the territory of a single state and then ‘spills over’ into (part of) a neighboring, non-belligerent state.50
Despite the principle of inviolability of territory, which will be dealt with extensively in Chapter 2, the ICRC holds that the conduct of hostilities between parties must in such a case be regulated by IHL.51
The argument for that is that otherwise, simply for crossing an international border, a legal vacuum would come about in which the IHL protections of both civilians affected by the fighting and of persons falling in enemy hands would cease to apply.
45 ICTY Tadić 1995, §70.
46 Pictet 1958, Commentary to GC IV, p. 36. See also: Bartels 2009, p. 59. 47 Schmitt, Garraway & Dinstein 2006, p. ii.
48 Schmitt, Garraway & Dinstein 2006, p. 2.
49 See for example Dinstein 2012, p. 400: “[T]he idea that a NIAC can be global in nature is oxymoronic: an
armed conflict can be a NIAC and it can be global, but it cannot be both.”
50 Pejic 2011, pp. 193 – 196; Pejic 2012, pp. 81 – 82; Radin 2013, pp. 700 – 701; ICRC Report 2011, pp. 9 – 10;
ICRC Report 2015, p. 15, footnote 13.
Similar claims can be made with regard to so-called ‘cross-border’ NIACs. These NIACs involve governmental forces fighting an organized armed group located in an uninvolved, second state.52
Once again the principle of inviolability of territory is an issue, as will be discussed in Chapter 2, but convincing arguments can be made to apply NIAC IHL in such transnational scenarios. Firstly, despite the fact that the armed conflict is taking place across a state border, it does not involve two governmental forces pitted against each other, as is required for IACs. The conflict conversely resembles an internal NIAC, with the main difference that it is the government of another state, rather than the government of the territorial state, that is fighting the non-state entity. An example of such a conflict is the 2006 conflict between Israel and Hezbollah.53
To make this argument, however, is to engage in the debate on how ‘conflict classification’ is to be done in the first place. The ICRC seems convinced that it is party status (are state or rather non-state armed forces involved?) that determines whether the law of IAC or that of NIAC applies in a situation of armed conflict.54
Furthermore, the described application of CA3 to situations where organized armed groups operate across state borders is supported by practice of the ICTY and the International Criminal Tribunal of Rwanda (ICTR).55
That view is also reflected in arts. 1 and 7 of the 1994 ICTR Statute, which extend the application of IHL also to states “neighboring” on Rwanda.
It is important to emphasize, however, that to accept party status rather than territorial scope as the relevant inquiry for conflict classification is to accept that CA3 may apply beyond state borders, should organized armed groups operate across such borders. This would constitute an evolutive interpretation of CA356
, because it is clear that the drafters of CA3 had foreseen for its application only in conflicts occurring within the territory of a single state.57
Still, as stated above, the present author concurs to that interpretation. Apart from the reasons mentioned earlier, it is generally argued that since the GCs are universally ratified, the phrase “occurring in the territory of one of the High Contracting Parties” has lost its meaning.58
Also,
52 Pejic 2011, pp. 193 – 196; Pejic 2012, pp. 81 – 82; Radin 2013, pp. 700 – 701; ICRC Report 2011, pp. 9 – 10;
ICRC Report 2015, p. 15, footnote 13.
53 See: Bartels 2009, p. 36. Although neither Israel nor Lebanon took the position that a NIAC was going on,
significant legal debate arose in which the application of IAC, NIAC and both simultaneously was argued.
54 ICRC Report 2011, pp. 9 – 11. See also: Zegveld 2002, p. 136; Radin 2013, p. 718; Pejic 2011, p. 202. 55 Zegveld 2002, p. 136.
56 Pejic 2011, p. 199.
57 Pictet 1958, Commentary to GC IV, p. 36. 58 Radin 2013, p. 716.
Bastiaan Loopstra
it is said that the word “one” may simply mean “a”, signifying imprecise use of language.59
Another factor is the GCs’ object and purpose60
, which would be undermined by a gap of protection for the vulnerable, and the GC’s drafters’ intentions61
, as they wanted CA3 to be applied “as widely as possible”. Finally, the concept of CA3 applying beyond the confines of the borders of a single state is supported in international jurisprudence, most notably in the ICJ Nicaragua case62
and the United States Supreme Court case of Hamdan63
. These considerations warrant the conclusion that it is indeed the status of the parties to the conflict, rather than its territorial scope, that define whether or not an armed conflict is ‘international’ or ‘non-international’.
Thus, it can be concluded that AP II applies only in specific types of NIACs and only within the borders of a single state. On the other hand, CA3 and the NIAC provisions of customary IHL can arguably apply beyond country borders under certain circumstances. However, that conclusion still leaves many issues unresolved. Regarding the Tadić holding, one can ask whether NIAC IHL also applies in territories over which neither party enjoys control, for example in disputed areas.64
Note, however, that a broad application of CA3 is not incompatible with the ICTY Tadić holding. Considering the ICTY’s presumption of a nexus between hostilities and a crime for the application of NIAC IHL, in combination with its broad approach to geographical scope, it could be inferred that the ICTY considers NIAC IHL to extend at least throughout the state’s entire territory, and possibly further.65
§1.2.3.2 State practice
There remains one implication in the ICTY Tadić holding that is hard to square with state practice, which is that NIAC IHL would apply also in the peaceful territories of any state intervening on the side of the government because such territory is “under the control” of the
59 Zegveld 2002, p. 136. This position has even been referred to as “[t]he present prevailing position”, Bartels
2009, p. 60.
60 Radin 2013, p. 717.
61 Schmitt 2014, p. 12; Pictet 1952, Commentary to GC I, p. 50.
62 ICJ Nicaragua, 1986, §218. The ICJ states that CA3 reflects “elementary considerations of humanity”,
applicable as a minimum in both IAC and NIAC. As the Court thus accepted that CA3 could be applied to conflicts of an international character, it implied that the application of CA3 was not to be restricted to the territory of a single state.
63 U.S. Supreme Court Hamdan, 2006. The Court holds that CA3 applies to a conflict even when it is not waged
between signatories to the GCs, p. 66. Furthermore, the difference between IAC and NIAC is that the former involves a clash between two states, and the latter does not, p. 67. Thus, a conflict’s nature depends on the parties, and not its geographical nature. Thus, the Court implied, CA3 may apply to clashes between states and non-state actors, even when these operated across state borders.
64 See: Schmitt 2014, p. 10. 65 Schmitt 2014, p. 10.
state becoming a party to the conflict (intervening on the side of the armed organization would transform the conflict into an IAC, see §1.3.1). If true, this would mean that all states participating in the current coalition force against ISIS in Iraq and Syria, including the Netherlands, would currently suffer the application of NIAC IHL on their respective territories (as a cross-border NIAC is ongoing against the organized armed group that is ISIS’s armed wing). This cannot be said to be the case.66
Similarly, when ISIS operatives attacked Paris on 13 November 2015, leaving 130 citizens dead and many more wounded, the French response was to deploy law enforcement officers, trained in applying domestic law and IHRL standards rather than IHL, even though president Hollande afterwards referred to the attacks as “an act of war” by ISIS.67
An even clearer exampled is presented by the recent bombing of Baghdad on 3 July 2016 that left 281 citizens dead and many more injured.68 The Iraqi army is currently engaged
in a NIAC against ISIS that is fought mainly on its own territory, with hostilities currently, or up until very recently taking place in and around the Iraqi city of Fallujah. The bombing in Baghdad thus had a significant ‘nexus to the conflict’ (despite the fact that the bombing was not directed at a legitimate military target and that it was not immediately clear that the attack had emanated from ISIS). Still, when Iraqi authorities took action they sent out their police force, rather than their military to take care of the situation. Of course, it might be said that it is a challenge to apply the ius in bello to a (suicide) bombing incident with very few (living) fighters, but that would arguably be nothing more than to perform a test into the requirements for a NIAC, more specifically the requirement of ‘intensity’, and concluding that the conflict is not sufficiently ‘protracted’. Such reasoning would feed into the ‘case-by-case analysis’-framework that the ICRC has adopted with regard to the application of IHL.69
That framework will be assessed at the end of this paragraph.
In any case, the fact that states do not consider NIAC IHL to be applicable in their peaceful territories constitutes opinio iuris to the contrary. The fact that these states
66 See: Letter from the Dutch Ministry of Foreign Affairs to the President of the Dutch parliament, 29 January
2016, p. 22, at heading ‘Invloed op de Nederlandse samenleving’. The Dutch secretary of state considers the influence of the Dutch participation in the fight against ISIS in Syria on Dutch society. He mentions citizens’ concerns about the fate of the Syrian population, radicalization and debating terrorism with youths at schools. He does not, however, mention something as potentially devastating to society as application of the laws of war. See: https://www.rijksoverheid.nl/documenten/kamerstukken/2016/01/29/kamerbrief-aanvullende-artikel-100-brief-nederlandse-bijdrage-aan-de-strijd-tegen-isis, last visited on 12-7-2016.
67 See BBC News, 14 November 2015: http://www.bbc.com/news/world-europe-34820016. Last visited on
12-7-2016.
68 See NRC Handelsblad, 7 July 2016:
http://www.nrc.nl/nieuws/2016/07/07/dodental-aanslagen-bagdad-opgelopen-tot-281. Last visited on 12-7-2016.
Bastiaan Loopstra
furthermore do not show any hesitancy to join the NIAC on the ground that IHL might become applicable in their territory adds state practice to that belief.
§1.2.3.3 The principle of equality of belligerency
Yet, to deny IHL applicability to certain (otherwise peaceful) territories ‘under the control’ of state parties to a NIAC creates an incongruity that stretches beyond merely contradicting whatever authority the Tadić holding has. It also seriously upends the principle of equality of belligerency which is fundamental to IHL.70
Once again, it must be stressed that notable commentators have declared their conviction that IHL applies to the territory of state parties to a NIAC even when no hostilities are occurring there (and even when no hostilities are occurring anywhere in that state’s territory). In fact, it has been stated that “any argument suggesting that [IHL] cannot apply in the domestic environment simply misunderstands the nature – and law – of war.”71
The principle of equality of belligerency holds that IHL (ius in bello) applies equally to all parties to an armed conflict, irrespective of whether one party started the conflict for a ‘just cause’ (ius ad bellum), signifying a separation between the two concepts. In other words, despite the fact that one state may have breached general international law at the start of the conflict (for example by procuring an act of aggression) while the other party acted in conformity with it (for example by undertaking action in self-defense), IHL applies equally to both parties. The idea is to avoid as much as possible that one party enjoys more or less extensive protections than the other party to the conflict. This concept is opposed to the so-called ‘just war’-theory, which would grant additional ius in bello rights to whoever started the conflict on a more ‘just’ ius ad bellum ground.72
The separation of ius ad bellum and ius in
bello is thus fundamental to the principle of equality of belligerency. Still, the two
frameworks interact in various ways, one of which will be extensively covered in Chapter 2.
70 For treaty law that reflects this fundament, see CA1 (the GCs are to be respected “in all circumstances”) and
CA2 (IAC IHL shall apply regardless of whether war has been declared, and even when the state of war is not recognized by one of the parties). Also, AP I refers to it in the fifth paragraph of its Preamble. Furthermore, AP II, with in art. 1(3) its seeming justification of armed conflicts against colonial domination, alien occupation and racist régimes in the exercise of the right to self-determination contains no provision that would lead to an inequality of application of IHL. That is confirmed by art. 96(3)(c) AP II, which states that the GCs and the APs are “equally binding upon all Parties to the conflict”.
71 Jackson 2016, https://www.justsecurity.org/28745/isis-united-states-legal-regime-applies/, last visited on
12-7-2016.
The term ‘belligerency’ already denotes that the concept of equality of belligerency finds its roots in the law of IAC, since ‘belligerency’ is an IAC concept.73
It is based on the horizontal relationship between states, which are sovereign and equal under international law. No such horizontal relationship exists between the parties in a NIAC, which are generally the state on the one side versus insurgent criminals on the other. For that reason, to apply the principle of equality of belligerency in NIAC is said to “strike at the central tenet of the state”, which is “its authority over its constituents”.74
One rule of customary IHL in NIAC, for example, is that parties to the NIAC only pass sentences on individuals after previous judgment pronounced by a regularly constituted court recognizing certain judicial guarantees, as held in CA3(1)(d). The fact that it is hardly fathomable that a non-state actor to a NIAC would engage in such activity (indeed, it is hard to see how a non-state actor could set up a ‘regularly constituted court’ in the first place) demonstrates already how the concept of ‘equality’ is more limited in NIAC than in IAC.
Another example of how the essence of the principle of equality is lost in NIAC is the mere fact that non-state actors are considered bound by NIAC IHL in the first place. How can it be ‘equal’ to apply rules to entities that have not been given the opportunity to participate in those rules’ formation? The argument that CA3 applies on the basis of CIL runs into a similar issue, as it is far from established that non-state actors’ action, often referred to as ‘rebel practice’, influences the development of CIL.75
It must thus be concluded that if the principle of equality of belligerency exists in NIAC at all, it refers to a party’s right to act according to the law, rather than to influence it.
How does all this relate to the application of NIAC IHL on peaceful territories of states participating in a NIAC? It does in the sense that it is only equal when a state party is allowed to attack a non-state actor anywhere in the territory that is under the non-state actor’s control, that the non-state actor should be allowed to target military objectives on the state’s territory as well. One could even imagine a ius ad bellum-test, as will be covered in Chapter 2, being procured on such an attack.
However, to accept partial application of the principle of equality of belligerency in NIAC gives rise to another anomaly. Considering that fighters for a non-state party to a NIAC generally do not have the privilege of belligerency and can thus be tried under the domestic
73 Roberts 2008, p. 932; Somer 2007, p. 659. 74 Somer 2007, p. 656.
Bastiaan Loopstra
criminal law of states, as is confirmed in the fourth paragraph of CA3(2)76
, a NIAC fighter may partake in activity that is simultaneously legal under international law – more specifically IHL – and illegal under domestic criminal law. Thus, if a state usually applies domestic law in situations of violence procured by non-state actors on its peaceful territory, as evidenced above in §1.2.3.2, and refers to it as ‘terrorism’77
, then the fact that such action may nonetheless be legal under international law holds little sway.
As a response to this issue, the ICRC has argued that states should no longer label acts that are not prohibited by IHL as ‘terrorist’.78
These would include attacks on the peaceful territory of a state party to a NIAC against legitimate military objectives as defined in art. 52(2) AP I. Although subject to criminalization on the domestic level, these acts should be regarded lawful on the international level, the ICRC argues. To do otherwise, it is said, would create ‘conflicting obligations’ of states at the respective national and international levels. Furthermore, this would discourage IHL compliance by non-state actors and might prove an obstacle to peace negotiations and reconciliation efforts.79
However, even if this national-international distinction that the ICRC proposes is adopted by states, it does not solve the fact that the principle of equality of belligerency is severely limited in NIAC through criminalization of non-state actor’s conduct. What could help, however, is if states would grant ‘the broadest possible amnesty’ to participants in non-state actor’s actions, as is in fact required by art. 6(5) AP II. This would release these individuals from criminal responsibility. It is unclear to this author to what extent such conduct reflects current state practice.
Thus, it is clear that the principle of equality of belligerency cannot apply as strictly as it does in IAC. This only makes sense, however, when one realizes the vertical rather than horizontal relationship that exists between opposing parties to a conflict in a NIAC. The suggestions that at least acts deemed legal under IHL will no longer be referred to as ‘terrorist’ by states and that amnesty is sought to be granted to NIAC participants that have not breached IHL would in any case serve the principle of equality of belligerency.
76 A similar thing is held in art. 3(1) AP II: “Nothing in this Protocol shall be invoked for the purpose of
affecting the sovereignty of a State […].”
77 See: ICRC Report 2015, p. 17: “There appears to be a growing tendency among States to consider any act of
violence carried out by a non-State armed group in armed conflict as being “terrorist” by definition, even when such acts are in fact lawful under IHL.”
78 ICRC Report 2015, p. 18. 79 Id.
§1.2.3.4 Case-by-case analysis
With regard to the application of NIAC IHL in the territory of non-belligerent states (as opposed to the peaceful territories of states participating in the NIAC, as described in the two subparagraphs above), the ICRC finds it most sensible to adopt a case-by-case analysis.80
This means that rather than considering the possibility that the geography of a NIAC flow into non-belligerent territory, it procures a separate test of the organization and intensity requirement on each state’s territory to determine whether a NIAC is ongoing on that side of an international border.81
Furthermore, the ICRC rejects the possibility of a ‘global armed conflict’, which would consider that non-state entity fighters, who are really citizens in a ‘continuous combat function’ (CCF) or temporarily directly participating in hostilities (DPH)82
, are targetable even in non-belligerent states.83
The ICRC argues that such a position is rejected by general state practice and opinio iuris.84
Rather, a non-belligerent state’s domestic law should govern the situation, as this would, in combination with IHRL, provide more adequate protections of citizens. An exception is made for the earlier mentioned ‘spill-over’ scenario in which IHL is applied to avoid a legal vacuum.85
This position is sensible as it applies IHL only when armed conflict is actually ongoing. If the requirements for NIAC are not met, IHL does not apply. Such application of IHL to the benefit of domestic law and IHRL protects civilians better than the ius in bello does, which accepts civilian casualties as ‘collateral damage’ under its proportionality requirement when a specific military objective is targeted.
Like most positions taken with regard to this topic, this one is not shared by all commentators. One anomaly identified is that while IHL applies to a state’s whole territory in the case of an internal NIAC, even its peaceful regions, it does not apply across state borders into other states’ peaceful regions when NIAC fighters are situated there.86
If it would, that would be an example of a ‘global’ armed conflict scenario. Against this argument, it can be stated that the contrast is less sharp than it seems. A trend may be identified in NIACs that a
80 See supra note 69: ICRC Report 2015, pp. 16 and 18 – 19. 81 ICRC Report 2015, p. 16.
82 This, at least, is the definition that the ICRC adopted in its 2009 Interpretative Guidance on the Notion of
Direct Participation in Hostilities under International Humanitarian Law to describe targetable fighters in organized armed groups. Some commentators have exerted criticism to this position, stating for example that all members of an organized armed group should be targetable at all times (except for religious and medical personnel), just like the members of state armed forces, reflecting the notion of equality under IHL. See, for example, Schmitt 2013 (I), pp. 103 – 104.
83 ICRC Report 2015, pp. 14 – 16. 84 ICRC Report 2015, p. 15.
85 See supra note 52: ICRC Report 2011, pp. 9 – 10. 86 Schmitt 2014, pp. 15 – 16.
Bastiaan Loopstra
division between what is traditionally called ‘Geneva law’ and ‘Hague law’ is materializing.87
On that rationale only protective provisions, rather than rules on targeting, would be extended throughout the whole territory of a state party. In the second place, this ‘anomaly’ might be better digestible when one considers the values of state sovereignty and the inviolability of territory, which will be considered more closely in Chapter 2.
Also, the question has come up in literature whether it is sensible to apply domestic law when NIAC fighters operate on a territory where no effective law enforcement apparatus is present.88
If a state soldier to a NIAC runs into a non-state actor fighter to that NIAC during a stroll in the Sahara desert, with no sign of civilization around for hours and hours (hypothetical though this scenario may be), is it sensible to rely on the domestic law enforcement apparatus anyway? Some commentators would argue against such a position, but it is far from a settled matter and it is unclear why the territorial inviolability of Algeria should suddenly be allowed to be offended in this case by applying IHL and thus allowing such NIAC participants to target each other.
The ‘case-by-case analysis’ framework that the ICRC favors implies that the Hague law of NIAC would become applicable in a non-belligerent state whose governmental forces are not interfering (because that would make the territorial state’s domestic law the go-to framework) and when the NIAC requirements of organization and intensity are fulfilled. As stated before in §1.2.1, satisfying these criteria in international scenarios is a tricky enterprise. When a substantial amount of NIAC fighters moves from the territory that sprouted the NIAC into a neighboring, non-belligerent state, for example, can the violence on both sides be conglomerated to satisfy the intensity requirement? And must the command structure of just these fleeing fighters satisfy the organization requirement or can potential physical support or intelligence from the other side of the border also be taken into account? The ICRC seems to answer ‘no’ to both these questions.89
This author would note that it might in some cases be artificial and impractical to draw a line between operations on both sides of a border, especially when the supply of utilities such as weapons and intelligence is continued across a
87 See e.g. ICTY Tadić 1995, §68.
88 Rona 2015, https://www.justsecurity.org/27543/start-end-territorial-scope-armed-conflict/, last visited on
12-7-2016.
89 ICRC Report 2015, p. 16: “[I]f persons located in a non-belligerent State acquire the requisite level of
organization to constitute a non-State armed group as required by IHL, and if the violence between such a group and a third State may be deemed to reach the requisite level of intensity, that situation could be classified as a NIAC.”
state border.90
In the case of truly separated conflict situations, however, separate analyses of the NIAC requirements are only logical.
§1.2.3.5 Conclusion
In conclusion, the comfortable position can be taken that nothing is certain in the extraterritorial application of NIAC IHL. Although some doctrinal agreement and state practice exists that the law of NIAC can be applied in armed conflicts with a transnational aspect, much becomes contradictory from there. The 1995 Tadić holding that the law of NIAC applies throughout all territories ‘under the control’ of the parties, and some commentators’ conclusion that it is thus applicable on the territories of all states party to a NIAC, runs counter of state practice. The idea that non-state entities are allowed to attack military targets on a state’s peaceful territory might make sense under international law, but that has limited value when territorial states apply their domestic laws in such scenarios. Some may be gained for non-state fighters if states were to aim for a granting of amnesty to non-state entity fighters, which is an obligation contained in art. 6(5) AP II. It can be imagined that acts that are lawful under the IHL of NIAC, although illegal under domestic law, would be considered viable to an amnesty grant.
The reluctance of states to consider the law of NIAC applicable on their territory only makes sense, however, when one considers that the principle of equality of belligerency has always been half-heartedly applied in NIAC situations. Yet, there are few fundamental arguments that can be made against the position that a ‘cross-border’ NIAC, in which a foreign government rather than the territorial government fights a non-state entity, is a legal possibility. The same can be said of the ‘spill-over’ scenario, although the rationale in that case is to prevent a legal vacuum to occur.
Nonetheless, the idea of a ‘global armed conflict’ in which NIAC fighters can ‘carry’ the NIAC wherever they go in the world does not seem to have gotten traction in international practice. In line with states’ reluctance to apply IHL in their peaceful territories when they are fighting an extraterritorial NIAC, states consider domestic law to be primarily applicable when a NIAC fighter shows up in their territory. This makes sense when one considers the principles of state sovereignty and inviolability of territory.
Still, there remain some situations in which an international border may legally be crossed in conducting hostilities. These are ius ad bellum principles, which do not merely
Bastiaan Loopstra
extend the possible geography of IHL, but at the same time limit it severely. These principles will be assessed in Chapter 2.
§1.3 Interactions between international and non-international armed
conflict
Although identifying a conflict as ‘IAC’ or ‘NIAC’ is problematic as it is, the situation becomes even more complex when the two frameworks start interacting. NIACs can ‘internationalize’ into IACs, and in theory the opposite is a possibility, too. One government may be a party to different NIACs, or to NIACs and IACs taking place at the same territory at the same time. The Yugoslavian conflict of the 1990’s provides an example of this.91
For the geography of IHL, these latter type situations mainly raise the issue of how to apply the ‘organization’ and ‘intensity’ requirements in NIAC. The former situation, in which a NIAC ‘internationalizes’ into an IAC, furthermore has some significant implications for the armed conflict’s geography. Also, attention must be given to the situation that a government in a NIAC agrees with its opponent to apply the law of IAC.
§1.3.1 A non-international armed conflict ‘internationalizes’ into an international armed conflict
Whether one accepts that party status, rather than territorial scope, defines the nature of an armed conflict informs his conclusion as to what happens when a non-belligerent state joins the armed forces of a government in NIAC. If the position is taken that party status is indeed determinative, then governmental intervention on the side of the government would not change the nature of the conflict. It remains so that a non-state entity is pitted against governmental forces, albeit governmental forces that are aided by another government’s forces.
The opposite would be the case, however, when a non-belligerent government’s armed forces join the conflict on the side of the insurgents. In that case, the armed forces of two governments would be opposing each other, giving rise to the law of IAC.92
A scenario in which governmental forces would interfere in such a manner is easy to imagine. What usually happens in practice is that a government decides to back the insurgents in a NIAC in another
91 See: ICTY Tadić 1995, §§72 – 73. 92 Dinstein 2001, p. 6.
state (with money, weapons, intelligence, training, supplies), which amounts to such a degree of ‘control’ that it becomes two states that are opposing each other. Significant legal controversy exists regarding the question what level of ‘control’ is required to constitute an IAC in this manner.93
When a state joins a NIAC on the side of the government, not much happens with regard to the geography of IHL. As stated above in §1.2.3, state practice warrants against application throughout the whole (peaceful) territory of the participating state. When a state joins on the side of the non-state entity, however, the NIAC IHL that was formerly applicable to whatever territory involved (it depends on the type of NIAC – territorial, cross-border or spill-over?) ceases to apply. Now, in stead, the IHL of IAC will apply to the whole territory of the partaking states. Thus, suddenly, IHL applies to the whole territory of another state (the one joining the conflict on the side of the non-state entity) and all extraterritorial matters are regulated in the first place by the law of neutrality (see §2.2).
§1.3.2 Recognition of belligerency
The second paragraph of CA3 inflicts on state parties to a NIAC an obligation to seek to conclude a ‘special agreement’ with their opponents that brings into force “all or part of the other provisions” of the four GCs. Such an agreement was concluded between several parties in the Yugoslavian conflict.94
The most extreme concept that could be agreed is a ‘recognition of belligerency’, meaning that the government will endow the fighters of the non-state entity with the privilege of belligerency. This will make all the IHL of IAC applicable to the NIAC.95
This situation resembles that of ‘internationalization’ because it will also make neutrality law applicable to relationships with third parties.96 On the ground of that body of
law, these states also lose their possibility to forcibly intervene in the conflict on the side of
93 The ICJ in its 1986 Nicaragua holding, §115, adopts a standard of “effective control” over military or
paramilitary actions for a state to be held legally responsible for certain acts carried out by a non-state armed group. The US had partaken inter alia in organizing and training of the contras, which was not enough to surpass the threshold. The ICTY, in its Tadić final Appeals Chamber judgment of 15 July 1999 (hereinafter: ICTY Tadić, 1999) holds in §§137 and 145 that the different standard of “overall control” applies, which does not require the issuance of specific orders by the State. Fleck 2013 has argued, pp. 582-583, that the two outcomes are in fact not incompatible, as they apply to different situations. The ICJ, he argues, had to decide on international responsibility, while the ICTY had to establish whether an individual was guilty of grave breaches of the GCs.
94 See ICTY Tadić 1995, §73. 95 See Dinstein 2012, p. 408. 96 See Dinstein 2012, p. 409.
Bastiaan Loopstra
the government. The belligerents of course could not be joined without violating the principle of territorial inviolability (unless a ius ad bellum ground allowed for it, see Chapter 2).
Explicit recognition of belligerency has gotten in disuse today, but recognition can also be implied from the government’s conduct.97
