IHL and multinational forces IV: crucial questions

In our fourth installment on IHL and peacekeeping operations (part of our broader IHL and contemporary challenges series), Guest Blogger and Professor Frédéric Mégret of McGill University provides an academic point-of-view on the role of multinational forces in international and non-international armed conflicts . Frédéric Mégret is an Associate Professor of Law, and the Canada Research Chair on the Law of Human Rights and Legal Pluralism. Before joining the University of McGill, Professor Mégret was an Assistant Professor at the Faculty of Law of the University of Toronto, a Boulton fellow at McGill University, and a research associate at the European University Institute in Florence. Professor Mégret is the author of “Le Tribunal pénal international pour le Rwanda” (Pedone, 2002). He is currently co-editing the second edition of “The United Nations and Human Rights: A Critical Appraisal” (Oxford University Press, 2014) with Professor Philip Alston. The views expressed here do not necessarily represent those of the ICRC.

“International Law and The Challenges of Contemporary Armed Conflicts” is an open and dynamic report that raises many crucial questions. The idea that international humanitarian law is applicable to multinational operations is one that has gained increasing currency over the years, particularly with the United Nations. Some of the original arguments of why it should not apply – for example because international organizations could not be parties to humanitarian treaties – were never very convincing in the first place, notably in view of the pragmatism and flexibility of the laws of war.

However there may also be some simplification in the standard « objectivist » view that if and when an armed conflict actually exists involving a multinational operation, then the laws of war will and should apply regardless of the position of the parties to it.

Whether an armed conflict exists may not simply be a matter of observing that armed violence of a certain level is occurring between parties, but also a question of understanding who these parties are and what the fundamental normative nature of the situation is. In this context, the UN has historically had a point (less so for various other international organizations) when it sought to present its actions under a system of collective security as fundamentally a form of peace making – closer to a vertical police action than a horizontal struggle between equals.

Whether this involves conflating the jus ad bellum and the jus in bello, as the report suggests, is open to question; the position of the UNvis-à-vis States is intrinsically different, regardless of the legitimacy of its cause (one could also question whether a degree of conflation between the jus ad bellum and jus in bello is always a cardinal sin and whether it is not already quite common in the current laws of war). There is a case that the UN is ideal: typically engaged in operations that are very distinct from what historically counted as war.[1]

Note that the traditional fear is that the non-applicability of IHL will lead to nothing, to a sort of normative black hole. That is not the case, however, if one sees the applicable regime being that of international human rights, and international organizations involved in peace enforcement or robust peace keeping as bound by even higher standards than those of the laws of war. Without questioning the fact that it is by now accepted positive international law that as a minimum, the UN should respect the laws of war, I would contend that it may be useful in some cases to think of peacekeepers in situations where they resort to violence as bound by even more onerous obligations than those contained in the Geneva Conventions. Surely nothing is lost for the sort of values that the laws of war seek to protect if international organizations, for example, choose to adopt the stricter standards of human rights law in terms of collateral casualties, or seek to arrest combatants rather than systematically destroy them. In that respect, I would caution against the urge to apply the laws of war too broadly as not always, paradoxically, necessarily the most humane route. Beyond the standard line that international humanitarian law and international human rights apply side by side, there is room for the idea that international humanitarian law often displaces the range of human rights obligations that ought normally to be applied, and that this is a factor worth taking into account.

If we accept that the Law of Armed Conflict is the framework applicable, then the question arises as to whether one is dealing with an international or non-international armed conflict. Here the report seems to depart from its own professed “objectivist” standard by arguing, at least in part, that whether a conflict is international or not depends not only on the objective situation but on the subjective “reluctance of States to grant PoW status to captured members of organized non-State armed groups”. (Surely, the one aspect where NIAC and IAC still differ fundamentally). Of course, one could say that this subjective reluctance is merely a reflection of the objective assessment that such conflicts remain non-international notwithstanding the presence of an international force, but then why not simply say so rather than defer to state reluctance?

The idea that a non-international conflict in which an international organization intervenes can continue to be non-international (between the State and armed group(s)) or become international (between the State and the international organization) stands to reason. However, perhaps the more interesting question is how to qualify the conflict between a multinational force and a non-State actor in what is a priori a non-international armed conflict. One case is that in which the multinational force is intervening with the assent of the state. Is the conflict non-international to the extent that it is tagging along the State’s own conflict with that armed group, or should it be considered international as between the multinational force and the non-State group? If a third State is involved the classic answer is that the conflict is not internationalized. However, one may wonder whether it should not make a difference that it is not a State but an international organization that is the intervener.

Several factors might militate for internationalization. It is worth noting that many of the reasons that explain States’ historical reluctance to recognize a privilege of belligerency to non-State groups do not apply to multinational forces (there is no sovereignty or public order at stake), which may thus be more tempted to consider non-State forces as combatants. Moreover, some of the objective traits of the conflict may lead to a strong inference that it is indeed international: although the situation will initially have been defined as non-international, a great variety of foreign troops will be effectively battling a non-State actor in another country.[2] After a while, the confrontation between the non-State actor and the multinational force may even take center stage and the State recedes from view, leading the conflict further towards internationalization.

Another case is that in which the multinational force intervenes alongside the non-State actor against the State. In that situation, it is clear that there is an international armed conflict between the multinational force and said State, not affected by the fact that the force may coordinate with the non-State actor. So, for example, the conflict in Libya between the multinational force and the Libyan government was international – notwithstanding the existence of a non-international armed conflict between Libyan rebels and their government.

The difficult question, though, is whether these conflicts become international overall, or only international as between the multinational force and the State or the non-State actor. The ICJ in Nicaragua v. US and the ICTY appeals Chamber are authorities for the proposition that a conflict may have both international and non-international dimensions, involving different parties under different legal regimes. This can potentially create situations of dizzying and seemingly arbitrary complexity, but it may be the best way of sticking to States’ wishes and the peculiarity of each intervention in a conflict. Having said that, in some situations the entanglement of various armed conflicts may lead to the conclusion that one dimension – most evidently the international – has overtaken or ought to be seen as dominating the others.

Assuming that a conflict has become internationalized between the multinational force and either a non-State actor or the State, the question is whether these determinations then affect the relations between the non-State actor and the State so that the two become effectively part of a broader international conflict, absorbed as it were by the dynamics created by international intervention. It is difficult to bring a general answer to that question, but it does seem that conflicts can sometimes be compartementalized in this way. For example, it is quite clear that the conflict in Libya between rebels and the government remained a non-international armed conflict, regardless of the fact that the rebels received strong international support. The conflict was not primarily one between the international community and the Libyan State in which the rebels would simply have acted under the UN’s control. Similarly, even if one sees the relationship of UN forces to the Congolese rebels that they fought as part of a “robust peace keeping” mandate as falling under an international armed conflict framework, the relation between the rebels and the Congolese government can safely be said to have stayed within the bounds of a non-international armed conflict.

It bears emphasizing, however, that apart from a range of factual elements and practices, whether a conflict is international or national is also linked to a certain normative ambition. One may want to further humanize certain armed conflicts by considering them international, and it has already been shown, albeit contentiously, that a pure act of normative will can achieve this (think of national liberation movements in Protocol I). As the Copenhagen principles show, the exercise of ascertaining the regime applicable to detention by multinational forces involves a complex assessment of what ought to be the characterization of the relevant conflicts in a context where it is not absolutely clear on the face of it whether a certain type of conflict is international or non-international. For example, it may simply be that the international armed conflict blueprint is the most useful, in a context of convergence with non-international armed conflicts, because at least it has detailed rules on detention that can serve as a pragmatic starting point, in a situation where there is a political desire to have such detailed rules available. A multinational force may think that taking on the obligations of international armed conflicts better suits its purpose. Given that these obligations are more onerous, nothing is lost from a humanitarian point of view, even in cases were the conflict is arguably technically non-international.

Finally, when it comes to the question of who is a party to an armed conflict, the possibility that “only troop-contributing countries are a party to the conflict for the purposes of IHL” seems to be at odds with the evolving international law of responsibility of international organizations. In most cases, if there is indeed an armed conflict, there will be something artificial about pretending that the international organization can be read out of the equation, given that States derive their mandates from and operate under its control (at least in peace missions). The better view is that the international organization is at least as much a party to an armed conflict as troop-contributing States. This entails obligations to ensure that the laws of war are respected. However, it is troubling that international organization responsibility has, notably in the European Convention of Human Rights context, been considered to be exclusive of State responsibility. Concurrence of responsibility is the notion that seems most likely to promote humanitarian outcomes, especially in a context where immunities may represent significant obstacles to engaging the responsibility of international organizations. States should not be able to hide behind the idea that they are merely “contributors” when they at the very least have a role both in training troops in IHL and disciplinary and penal powers to enforce respect for it. The focus on “effective control” too often obscures that, in practice, responsibility for the implementation of the laws of war falls on many shoulders.

 

[1] In that respect the swipe taken at the Convention on UN Peacekeepers as challenging the equality of belligerents seems excessive. It is not clear that the equality of belligerents is necessarily always conducive to the enhancement of the laws of war. Is something really lost from a humanitarian point of view by the fact that killing blue helmets is considered a crime in international law? Does one simply assume that members of a non-State group think that they are being treated unfairly by this asymmetry and will, for example, take revenge on non-combatants?

[2] One interesting side consideration – a perverse effect of sorts - is whether States might not hesitate to invite multinational operations into their non-international armed conflicts if they thought this would lead to the internationalization of the conflict.