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Post No.: 0652conflicts


Furrywisepuppy says:


War crimes can only be committed in situations of armed conflict. And the list of applicable war crimes varies according to whether it’s an international armed conflict (IAC) or a non-international armed conflict (NIAC).


The traditional view is that States want a restrictive application of International Humanitarian Law (IHL) so that they can suppress NIAC rebellions on their own territories with a broad degree of sovereign autonomy. This is why States, historically at least, wanted different rules for IACs and NIACs – if a conflict only concerns their own citizens on their own patches, they want to be able to deal with them in their own way, with fewer internationally-imposed laws.


It however gets trickier trying to qualify whether a terrorist attack conducted on the territory of one State by a group based in, trained or funded by another State makes an IAC or NIAC? This is an important question because IACs and NIACs are subject to different rules. IACs involve the armed forces of two or more sovereign States/international organisations fighting each other. NIACs describe hostilities of a certain intensity between the armed forces of a State/international organisation and an independent organised armed group, or between two or more independent organised armed groups.


‘High-intensity’ and ‘low-intensity’ NIACs differ. In the former, an organised armed group will be in control of a part of the territory of the State where the conflict is situated, and these conflicts must be between the armed forces of a State and an independent organised armed group. Conflicts between multiple armed groups are therefore always classed as ‘low-intensity’, regardless of whether they control any territory. ‘Intensity’ here therefore doesn’t pertain to how bloody a conflict is.


Different treaties and thus rules potentially apply to different classifications of conflict. NIACs present far fewer codified obligations for States to obey regarding the conduct of hostilities compared to IACs. Members of State armed forces are combatants who have the right to participate directly in hostilities and are entitled to POW status if captured in IACs – but there’s no combatant immunity or POW status in NIACs because States would like to prosecute and detain any rebellion soldiers who take up arms against the State as they see fit under their own domestic criminal laws. However, due to customary international law, the distinction between different conflicts is less relevant today; and States, in practice, have tended to always conform to the most onerous rules, which apply to IACs, even in NIACs – although which exact customary laws are binding remain debated. (Post No.: 0623 primed us on treaties and customary law.)


Any rebel, insurrectional or dissident armed groups tend to be regarded as terrorists, hence if a State tries to negotiate a legal regime by which they give rights and guarantees to members of non-state armed groups, this’ll be portrayed as giving terrorists rights. The Geneva Conventions classify protected persons according to two main categories – combatants and POWs on the one paw, and civilians on another. State armed forces are clearly marked on the ground whereas it’s much harder to distinguish between civilians and rebel fighters thus the notion of ‘protected persons’ might be difficult to apply in practice in NIACs. And, with the exception of failed or fragile States, States have established judicial (court) systems to implement the detailed IHL rules that most non-state groups cannot be expected to. So if they cannot conform to the IHL obligations then why grant them the IHL rights? These points further explain why there are different statuses of the parties to conflicts in IACs and NIACs. Yet armed groups can still arguably be bound to IHL without them being recognised as possessing international legal personalities.


There’s actually no precise definition of an IAC. The duration and intensity of the hostilities and the number of victims are irrelevant. But if something is the result of a pure error and there was no intention to harm another State (e.g. a stray artillery round crosses a border), this won’t result in an IAC.


NIACs can turn into IACs if another State/international organisation intervenes, depending on whether that third-State/organisation is fighting against the government of a State (thus creating an IAC) or against a rebel group on its territory with the consent of the government of that State (thus it’ll arguably remain as a NIAC), and depending on how much control over the military activities of the rebel group that third-State holds. Many modern conflicts are of these natures nowadays (e.g. Afghanistan, Libya and Syria). This means that, despite the name, NIACs can often span across several countries!


‘Transnational’, ‘exported’ or ‘delocalised’ armed conflicts involve State armed forces fighting armed groups located within the territory of a third State, whether chased into there or some other reason (e.g. US and coalitional allies against the Daesh/ISIL in the territories of Iraq and Syria).


Internal riots or acts of banditry don’t count as NIACs hence there’s a minimum threshold of violence (e.g. whether the government must utilise military instead of police force to repel them), and a minimum nature of the organisation of the armed groups (e.g. a command structure), before IHL applies. Conflicts involving purely criminal organisations, mafia groups or gangs (e.g. drug cartels) might cross these thresholds, particularly if they’ve acquired some sort of territorial control. Armed groups are considered to be full ‘parties to armed conflicts’ with their own obligations under international law, irrespective of any formal recognition by the opposing State.


IHL, or the law of war, is no longer triggered by a formal declaration of war by the belligerents involved but solely upon the material outbreak of an armed conflict. The motive is an irrelevant factor.


The termination of the application of IHL likewise doesn’t usually depend upon the declaration of a ceasefire, armistice or peace agreement between the belligerent States but when the objective fighting itself ends with a sufficient degree of permanence or when a situation of foreign occupation ends. Similarly, the territory where IHL applies is no longer dependent upon any formal State declaration but upon the material location of the hostilities or link to them.


Certain IHL rules will continue to apply even after the cessation of armed conflict though, including the obligation to search for and prosecute war criminals, and protect detained persons until they’re released (and, if an IAC, repatriated to their country of origin or re-established elsewhere if they’re not safe to return there). A difficulty is that POWs won’t be released until the sides feel that the other side won’t recommence hostilities – yet until POWs are released, the sides won’t feel like the hostilities have ended! This explains why some POWs remain captive for ages after the end of fighting.


Many modern conflicts against terrorism involve NIACs that extend beyond the territory of one State or involve States located very far away from the hostilities, hence the question of how far IHL geographically applies is complex. The distance, territory of the States or the nexus, the relation between the act, person(s) and the conflict, are all relevant factors, yet IHL doesn’t actually currently contain any general rule providing for its geographical scope. The most widely held view is that it applies to the geographical entirely of the warring States – but generally only to acts that have a nexus (link) to the armed conflict; otherwise they’d be regulated by domestic law or International Human Rights Law (IHRL). In internal conflicts, it’s the entire territory under the control of a party.


Temporally, such a conflict starts when the hostilities reach ‘a certain intensity’, but if we accept that a conflict ends when the hostilities fall below that intensity again, there’s the risk of a ‘revolving door effect’ where the hostilities constantly stop and start. Terrorist attacks, in particular, aren’t normally prolonged events but short, shocking events where one cannot easily answer ‘was that this group’s last ever attack?’ We need some degree of stable peace to indicate that the hostilities aren’t going to flare up again.


Will IHL apply to fighters who appear thousands of kilometres away from the main theatre of war, or when a conflict spills over into a neighbouring country (a cross-border conflict)? Some scholars take the view that it will as long as it’s still the same parties ultimately involved. But a difficulty is establishing if terrorist groups who are given the same name are really always the same parties, rather than separate groups who are merely being inspired by other terrorist groups they see?


No problem arises if the ‘host’ State consents to a foreign military intervening on its territory when an armed group has spilled over onto its territory. Here, there’ll be a second NIAC; or whatever the case – IHL will apply in this State too because it’d be hard to imagine that a member of an armed group can claim immunity from attack simply for crossing into a neighbouring country! Yet should IHL apply to the entire territory of this neighbouring State or not?


Should IHL also apply to the territory of a State that’s intervening against armed groups abroad? Western States, such as Belgium and France, that have helped Iraq to fight against the Daesh/ISIL in Iraq, have been the object of terrorist attacks claimed to have been carried out on behalf of ISIL on Belgian and French soil. So should such incidents that are linked to the conflict against ISIL fall under IHL too? Pertinently, can lethal force be used against such terrorists on Belgian or French soil (in this case) as if against soldiers on a battlefield? Or must a genuine attempt at arresting them like ordinary domestic criminals be made? (Under IHL, lethal force can be used against legitimate targets based on their status, whilst IHRL would require arresting targets instead of killing them if possible.) And can such States detain members of such armed groups without any reason other than to take them out of action until the conflict is over?


Some contend the terrorists became legitimate targets in Belgium or France (in this example). However, sometimes the more restrictive IHRL paradigm will arguably displace the IHL paradigm (e.g. when a State is acting within a region of its own territory that it firmly controls and no active hostilities are taking place there, they wouldn’t necessarily be entitled to use lethal force against a legitimate target instead of first attempting to arrest and capture them). Additionally in turn, terrorist groups won’t have the right to target the military forces of the States on these territories as privileged combatants. Armed groups don’t have a right to take part in a NIAC full-stop, but in the event they do – IHL imposes a series of limits on their conduct i.e. they could still be prosecuted for their participation in hostilities under the State’s domestic laws.


Regarding IACs, IHL obligations will still apply even if a captured person is transferred to the territory of a non-belligerent State. And even if the operational command centre or other military objectives belonging to a belligerent are located on the territory of a non-belligerent State, they won’t become legally immune from being attacked there.


Combat drones, for example, might cross far more than over the borders of neighbouring States to a conflict – so should IHL apply in these non-belligerent States too? Some, like the US in pursuit of its ‘global war on terror’ after 9/11, went further and suggested that the whole globe was/is a battlefield, and there was/is one single conflict between the US on one side, and al-Qaeda and its affiliates on the other – which meant a NIAC (because conflicts that involve non-state armed groups cannot, arguably by definition, be IACs) but one that was/is territorially unlimited in scope (which is as international as something can get!) This approach by the US has been heavily criticised by IHL scholars.


Woof. As you can see, there are many discussions and disagreements in these areas of international law.


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