Who said the ICRC shied away from controversy? Today, second response to our position on the typology of conflicts and fourth instalment of the IHL Challenges series.
Where Professor Bob Goldman, Louis C. James Scholar and Professor of Law at American University's Washington College of Law, shares his views on Protocol II armed conflicts, "internationalized non-international armed conflicts" and the role played by duration in the classification of hostilities.
"I believe that the ICRC’s typology accurately describes most kinds of contemporary armed conflicts. That said, I would have included situations of occupation in the text under international armed conflicts (IAC) rather than in a footnote. Such situations, after all, expressly come within Common Article 2’s threshold and are governed by IAC rules.
Similarly, I would have included Protocol II armed conflicts within the typology of non-international armed conflicts (NIAC). This is because a Protocol II conflict is also, by definition, a Common Article 3 armed conflict. Additionally, even though Protocol II conflicts to date have indeed been rare given that instrument’s high threshold, there is general agreement that the core of the Protocol’s basic rules apply as customary international law in all Common Article 3 NIACs. Moreover, an actual Protocol II armed conflict, such as that in El Salvador in the 1980s and in Colombia since the 1990s, could well exhibit many of the same characteristics noted in most of the NIAC scenarios depicted in the study. The principal exception would be the second scenario, entailing hostilities exclusively between or among two or more armed non-state actors, which are excluded from the Protocol’s ambit .
There is one kind of armed conflict that the ICRC’s typology ignores - the so-called “internationalized non-international armed conflicts,” such as the hostilities in Angola in the 1980s and the armed conflicts in Bosnia and Sierra Leone in the 1990s. An “internationalized NIAC” generally entails high intensity fighting between governmental armed forces and one or more organized armed groups within the territory of a single state with the direct intervention of the armed forces of other states on the side of the opposing domestic parties to the NIAC.
The delegates to the diplomatic conference that elaborated the 1977 Protocols to the Geneva Conventions were undoubtedly aware of these conflicts and the complex legal problems they posed. And, it was perhaps for that reason that they chose not to address them. The present state of IHL thus continues to be unclear regarding such conflicts. This is largely because these internationalized NIACs do not fall within the existing IHL dichotomy, which classifies all armed conflicts as either international or non-international with their respective legal regimes. These conflicts are a kind of hybrid without being governed entirely by either body of law.
The solution followed by many commentators and the ICTY in various cases involving Bosnia has been to break down the armed conflict into its international and domestic components and, based on this differentiation, to identify the IHL rules governing relations between the various warring parties. Under this approach, NIAC rules would apply between governmental armed forces and its armed domestic adversaries, while IAC rules would govern relations among the opposing armed forces of the various states involved in the conflict. It would be interesting to know whether the ICRC endorses this approach or has other views on the subject.
One issue which I believe merits scrutiny is the ICRC’s official position that in order to classify a situation of violence as a Common Article 3 NIAC the armed confrontations must be “protracted.” My colleagues and I on the Inter-American Commission on Human Rights had to face this issue squarely when we decided in 1997 the Abella case. That case involved an attack by 42 heavily armed civilians against the la Tablada military base in the province of Buenos Aires, Argentina. What followed was a violent confrontation between the attackers and Argentine military personnel which lasted only about 30 hours and resulted in the deaths of 29 of the attackers and several soldiers.
Based on the facts, the Commission found that the armed confrontation at the military base could not properly be characterized as a situation of internal tensions – a kind of domestic violence not qualifying as armed conflict. It noted that what differentiated the events at the military base from such situations was the concerted nature of the hostile acts undertaken by the attackers, the attacker’s target - a military base, the direct involvement of governmental armed forces, and the nature and level of the violence attending the event. The Commission concluded that, despite its brief duration, the violent clash between the attackers and the Argentine military triggered application of Common Article 3, as well as other relevant NIAC rules. As a result, the Commission found that the killing of the attackers by the Argentine military during the actual fighting were legitimately combat related and thus did not violate the American Convention on Human Rights.
Had the Commission instead found that the situation was not a NIAC simply because the fighting was not “prolonged”, it would have applied law enforcement rules to judge the legality of the military’s use of lethal force against the attackers with the result that many of the attackers’ deaths would likely have violated the right to life, entailing the duty of the State to identify and punish the military personnel who killed them. Such an outcome, apart from being legally unsound, would never have commanded the respect of the Argentine public, much less any professional military in the hemisphere.
Another scenario relevant to this discussion is a short lived rebellion, such as a military coup. These situations often involve very intense fighting between dissident members of the armed forces and forces remaining loyal to the regime in power. In the ensuing combat which may last only a day or two, far more soldiers and civilians might be killed or wounded than would be the case in a 3 year long rural insurgency. Yet, while the insurgency would qualify as a NIAC under the ICRC’s position, the rebellion would not. This result is utterly at odds with the underlying purposes of IHL.
While it is perfectly reasonable to consider the duration of violence as one of several factors to determine the existence of a NIAC, it is another thing to make it an inflexible requirement in all cases. It is perhaps time for the ICRC to re-evaluate its position on this issue".