Earlier this week, ICRC Legal Advisor Jelena Pejic explained why the ICRC is of the opinion that the existing classification of armed conflicts under the Geneva Conventions remains relevant to address contemporary armed conflicts. Today, Professor Geoffrey Corn, of South Texas College of Law, answers Ms. Pejic and provides his perspective on the issue of typology as framed by the ICRC. Professor Corn, whose bio and list of publications speak for themselves, is the first non-ICRC contributor to the series. It is an honor and a privilege to have him respond on Intercross.
Let me begin by applauding the ICRC’s willingness to address the complex issue of conflict identification and classification. As all experts in this field understand, resolution of these two issues provides the essential predicate for all derivative LOAC/IHL analysis. Accordingly, ignoring the impact of the threat dynamics that drive states to resort to armed force to protect and/or advance their perceived vital national security interests and clinging to an overly formalistic conception of these issues produces a troubling delta between state practice and the asserted law states purport to apply.
To this end, I also applaud the pragmatic and significantly expanded view of situations qualifying as armed conflicts reflected in the Report. The Report concludes that the existing categories of international and non-international armed conflict are sufficient to address the evolving nature of armed hostilities and that therefore no new category or categories of armed conflict are necessary. However, acknowledging that non-international armed conflict includes many situations falling outside the category of a purely internal armed conflict between a state and a non-state organized opposition group facilitates this conclusion, and arguably does suggest new categories of armed conflict, perhaps in substance rather than name.
No matter how characterized, this aspect of the Report is unquestionably positive. My experience as a LL.M. student and faculty member at the U.S. Army Judge Advocate General’s School from 1996-2000 provides the perspective that motivates my reaction to the Report. During that time period, I believe legal advisors struggled to address the legal status of military operations that failed to fit within an extremely narrow conception of armed conflict derived from the text of Common Articles 2 and 3. At that time, our curriculum reflected what I believe was the common understanding of the limited situations that triggered LOAC application: inter-state armed hostilities falling within the definition of Common Article 2, or purely intra-state hostilities falling within the definition of Common Article 3. Of course, declared wars and situations of belligerent occupation also sufficed to trigger the LOAC, but these were considered unlikely to occur with any meaningful frequency in the future.
What was absent from this analytical continuum were military actions that seemed to straddle the line between these ‘classic’ law triggering events and situations failing to qualify as armed conflicts. Several paradigmatic examples of this uncertainty were commonly discussed during our instruction, including the nature of the situation in Somalia in 1992-1993 when U.S. and other U.N. forces routinely engaged in hostilities with local warring militias; 1989 U.S. invasion of Panama (how the request for intervention by a democratically elected President installed into power with assistance of the United States immediately prior to the invasion and against the will of the de facto military leader of the country impacted the classification of the conflict); U.S. cross-border incursions into Cambodia during the armed conflict in Vietnam; the shoot down and capture by Syrian forces of a U.S. naval pilot over the Bekka Valley in Syria in 1983; and the 1999 short duration engagement and capture of U.S. soldiers by Serbian armed forces on the Serb/Macedonian border.
Of course, unlike faculty members who preceded us, we had the benefit of the ICTY’s first opinion, which specifically analyzed application of the armed conflict law triggering criteria. The “two-prong” Tadic analysis began from the date the opinion was published to influence conflict identification and classification analysis. The influence of this two-prong “intensity and organization” test is unsurprisingly reflected in the Report, as its influence on these assessments has grown exponentially since inception (for a more detailed discussion of this two-prong test and its impact on conflict identification, see Laurie Blank and Geoffrey Corn, Losing the Forest for the Trees: Syria, Law and the Imperatives of Conflict Recognition, forthcoming in the Vanderbilt Journal of Transnational Law). In my opinion, the Report properly rejects applying the “intensity” prong of this test to IAC analysis. First, this test did not originate with an IAC analysis, but instead the ICTY’s analysis of whether the situation related to Tadic’s alleged misconduct took place in the context of a NIAC. Second, state practice does not support applying an “intensity” limitation to IAC assessment. Indeed, several of the incidents referenced above involved very short duration hostilities between U.S. armed forces and the armed forces of a capturing state. Nonetheless, the U.S. asserted these captives qualified as POWs, rejecting the notion that the limited duration or intensity of fighting or the overt recognition of armed hostilities between the states in any way impacted this status. Finally, and perhaps most importantly, injecting an intensity qualification into IAC assessment would, as the Report suggests, permit states to leverage this “element” to justify denial of humanitarian protections to individuals negatively impacted by even short duration or low level hostilities, an outcome antithetical to Common Article 2.
IAC assessment has not, however, been the dominant source of uncertainty in recent years. Instead, as the Report acknowledges, assessing the existence and scope of NIAC is the contemporary focal point of conflict analysis debate. As the Report notes, a common manifestation of this debate is to question whether the existing IAC/NIAC dichotomy is sufficient to address the realities of contemporary uses of force. To this end, the Report properly emphasizes the two-prong “elements” test derived from the Tadic decision. Few would dispute the relevance of what the Report characterizes as the two “indispensible” elements for the existence of NIAC: “organization” and “intensity”. It is, however, unfortunate that the Report did not address the probative relationship of each of these elements to each other. As the article referenced above points out, it is important to consider whether each of these elements must be assessed as strictly independent requirements, or whether they provide a conflict assessment framework as part of a more totality of the circumstances analysis, justifying overwhelming satisfaction of one element to offset minimum satisfaction of the other?
In contrast, the Report’s candid and comprehensive treatment of the many variations of potential NIACs is a major contribution to clarifying much of the uncertainty associated with armed conflict analysis referenced above. No longer is NIAC understood to by strictly synonymous with “internal” armed conflicts, and the Report’s acknowledgment of this reality is an extremely positive contribution to the ongoing effort to reconcile operational realities with legal classification of conflict. The discussion of six NIAC variations adds important clarity to this process, and reflects the type of pragmatism that must animate NIAC analysis.
The Report emphasizes that the ICRC does not endorse the concept of “transnational” armed conflict – a variant of NIAC involving hostilities between state armed forces and a non-state group operating transnationally. This is unsurprising, as this theory of NIAC has indeed been the conflict classification lightening rod of the past decade. However, the mere fat that the Report acknowledges that there are states and experts who assert this NIAC variant is an important indication of the relevance of this theory in the development of the law of NIAC. The Report’s recognition that situations of violence associated with armed and organized criminal groups must be considered in this continuum of NIAC variants is equally significant. Indeed, these situations are in many ways the newest NIAC assessment “front.” While I tend to agree with the methodology proposed by the Report for addressing such situations, I also believe that like transnational armed conflict, attempting to reach a definitive conclusion on how to address these situations is somewhat compromised by the uncertainty of state practice.
Ultimately, I believe the Report is an extremely credible and positive contribution to the conflict assessment and classification discourse, and applaud the authors for this important contribution.
Previous posts in the IHL And The Challenges Of Contemporary Armed Conflicts series:
- Introduction by Knut Doermann, Head of the ICRC Legal Division.
- Typology of conflicts Part I, by Jelena Pejic, ICRC Legal Advisor.
- International Law And The Challenges Of Contemporary Armed Conflicts, an ICRC Report presented at the 31st International Conference of the Red Cross And Red Crescent, Geneva, 2011.