IHL Challenges series - Typology of conflicts, Part IV - Who decides?

For the fifth instalment of our IHL Challenges series, where we are honored to have University of Nottingham Professor Sandesh Sivakumaran respond to our position on typology and question which actors should characterize armed conflicts.

Next we will wrap up of our exchange on typology with a note by Daniel Cahen, Legal Advisor here at ICRC Washington. 

I am in general agreement with the substance of the typology section of the ICRC report. One question that it raises, but leaves unaddressed, is who makes the assessment as to the characterization of the situation. Who decides if the situation in question is one of internal tensions and disturbances or if it amounts to a non-international armed conflict (NIAC)? Who determines whether what seems to be a NIAC is actually an international armed conflict (IAC)? 

Recent events illustrate the difficulties in making these determinations. When did the situation in Syria, for example, morph into a NIAC? The element of intensity seemed to be satisfied shortly after the outbreak of violence. But at what point were the armed groups organized enough for the purposes of the law of armed conflict? Or take Afghanistan. Precisely when did the IAC in Afghanistan change into a NIAC? These are foundational questions because the applicable law differs between times of peace and times of armed conflict; and between IACs and NIACs.

Despite the broad acceptance of the legal tests for an IAC and a NIAC, it remains difficult to identify them in practice. One of the reasons why we still face this difficulty is the lack of an authoritative body that systematically analyzes situations and characterizes them publically. Some entities engage in conflict characterization, but only on an ad hoc basis; others do so, but primarily for internal purposes.

On one level, the parties to the violence are best placed to make the determination given that they are on the ground and closer to the facts. It is also through their characterization that their conduct will change to conform to the applicable law. This closeness to the facts, however, also makes them inappropriate to characterize the situation. In situations of internal violence in particular, states may seek to deny that a conflict exists whereas the armed group may seek to exaggerate the level of violence. That being said, contrary to a commonly held view, it is not at all the case that states invariably deny the existence of a NIAC on their territory; numerous examples exist to the contrary (see eg pages).

Aside from the parties, a range of other actors could conceivably characterize situations. Outside states could do so, but may not wish to characterize each and every situation given the diplomatic sensitivities that may result. UN entities can and do characterize situations. However, they, too, do not do so on a systematic basis due to the sensitivities involved. International criminal courts will necessarily have to characterize the situation in order to establish whether or not war crimes have been committed. However, this usually takes place months and years after the conflict commenced and thus too late to modify the applicable law.  

The ICRC engages in conflict characterization, but this tends to be done for internal purposes. The ICRC does make its conflict characterization public from time to time, as it did recently in respect of Syria. Such a characterization is invariably influential given the status of the ICRC. However, the ICRC works with both sides and (quite correctly) may be wary of characterizing a situation as a conflict, contrary to the view of the state, as this may result in cooperation being withdrawn. Likewise, it may be wary of characterizing a situation as internal tensions, contrary to the view of the armed group, as this may also result in cooperation being withdrawn. Accordingly, it may decide to keep its characterization confidential within the organization. 

Given the dearth of mechanisms that systematically analyzes situations and characterizes them publically, the question arises - is it time for a new body to be created, the task of which would be to engage in conflict characterization? 

Previous posts in the IHL And The Challenges Of Contemporary Armed Conflicts series: