ICRC Washington Legal Advisor Daniel Cahen wraps up the first part of our IHL Challenges series on the typology of armed conflicts with a synthesis of the positions already published.
We will be focusing on IHL and terrorism next and as is now customary, feature contributions from leading non-ICRC experts. Spread the word if you like what you read.
First of all, I am very grateful to Prof. Geoff Corn, Bob Goldman and Sandesh Sivakumaran for their insightful contributions regarding the ICRC’s typology of armed conflicts found in the ICRC Report on International Humanitarian Law and the Challenges of Contemporary Armed Conflicts. As explained by my colleague Jelena Pejicin her interview, our aim was to bring more clarity to an area of the law which is both complex and of significant humanitarian relevance. Few legal topics have such serious implications, the existence of an armed conflict being the trigger for the implementation of the far reaching prerogatives that IHL confers upon belligerents, notably in the field of detention operations and the conduct of hostilities.
It therefore matters that all three contributors are generally in agreement with the views of the ICRC, as reaching a broad consensus among concerned lawyers on this topic is not just desirable but in my view absolutely necessary. Their posts raise interesting observations that I am happy to discuss here, starting with comments by Prof. Geoff Corn and Bob Goldman about the two-pronged test used to define non-international armed conflicts (NIACs). This test is based on a combination of two elements pertaining to the level of organization of the parties involved in a situation of armed violence on the one hand, and the intensity of the hostilities between those parties on the other hand. Prof. Geoff Corn considers it “unfortunate that the Report did not address the probative relationship of each of these elements to each other”. Prof. Bob Goldman regrets that the ICRC places too much emphasis on the “protracted” nature of the confrontation and calls on the ICRC to re-evaluate its position on this issue, in light of the possibility of short-lived NIACs such as the one discussed in the Abella decision of the Inter-American Commission on Human Rights (1997).
In its classification practice - which could not be discussed in any length in the Report - the ICRC certainly does not consider the organization and intensity criteria in isolation. Both criteria are seen as necessary, and are assessed in real time against the backdrop of each specific context. In an extreme case, it would not be inconceivable to classify as a NIAC a situation in which little is known about the organizational structure of a “secret army” determined to remain in the shadows, provided the intensity criterion has been met. Similarly, in a scenario where weapons of mass destruction would be used at the onset of hostilities, the intensity criteria would be considered fulfilled on day one. However except for extreme cases, the ICRC will leave sporadic acts of armed violence outside of its definition of NIACs, in order to minimize the risk of over-classification (treating as armed conflicts situations that do not pass the IHL applicability threshold).
In his post Prof. Geoff Corn views as significant the fact that the Report discusses the notion of transnational armed conflict, even though the ICRC never concluded that such a transnational armed conflict taking place across multiple states exists between the US andAl Qaeda/associated forces. Based on its long held view since 9/11, the ICRC has indeed taken a case by case approach to the fight against terrorism and classified some contexts involving the US as armed conflicts (international or non-international) and others as situations of violence to which IHL does not apply. However, in my view this does not mean that the concept of NIACs with some transnational elements is invalid as a whole. One might consider in this respect a situation involving a single organized armed group acting under a unified chain of command, with fighting units engaging in hostilities on the respective territories of several states – for instance, a group like the LRA if it were fighting simultaneously in Uganda, the DRC, the CAR and South Sudan.
The Report does not - as noted by Prof. Bob Goldman - address situations of “internationalized NIACs” (in which states, state coalitions or international organizations intervene in a NIAC situation). Of note, the ICRC no longer uses the expression “internationalized NIACs” as it seemed to create unnecessary confusion about the applicable law. The Report thus deals with those scenarios, but under different terms. In response to Prof. Bob Goldman's question about the classification theory used in such situations, the practice of the ICRC is to pay due regard to the nature of each individual belligerent relationship at stake, and classify the situation as a NIAC (where a State intervenes to support the government side), as an IAC (for instance where the rebel party is controlled by a foreign government) or as a combination of both IAC and NIAC (for instance where states intervene in support of both the government and rebel sides). While far from being the easiest to entangle from a factual point of view, these conflicts do not raise any particularly tricky classification issues.
Finally, Prof. Sandesh Sivakumaran’s post takes the debate away from classification criteria as such and reflects about who has (or who should have) the authority to pronounce on the existence of armed conflict for the purposes of the application of IHL. He notes that “despite the broad acceptance of the legal test for an IAC and a NIAC, it remains difficult to identify them in practice”, blaming in part the lack of an authoritative body that would “systematically analyse situations” and “characterize them publicly”. Based on a Resolution adopted at the last quadrennial Conference of the Red Cross and Red Crescent Movement in 2011, the Swiss government and the ICRC are currently leading a process of consultation with states aiming at taking a hard look at IHL compliance mechanisms and reflecting upon possible improvements. As noted by Prof. Sandesh Sivakumaran and given the political sensitivity surrounding conflict classification, the establishment of an international mechanism which would objectively characterize conflict situations could serve a useful purpose. Yet a system of collective responsibility is already in place. It falls primarily upon belligerents to acknowledge the applicability of IHL, as a necessary prelude to the discharge of their obligations. And all states parties to the Geneva Conventions must decide whether IHL applies to any new situation of armed violence in order to decide how best to abide by their obligation under Common Article 1 to ensure respect for IHL (for instance through the application of diplomatic pressure, the suspension of weapons transfers, etc…).
For its part, the ICRC also engages in conflict classification on a continuous basis. Its mandate to act for the faithful application of IHL requires that it determines whether a new situation of armed conflict has arisen, before sharing its views with the belligerents and engaging on a humanitarian dialogue. Before moving to my current position in Washington DC, I had the privilege of working at our Geneva Headquarters in the Unit in charge of, inter alia, conflict classification, and can testify first hand to the degree of attention paid to carefully weighing facts and law before calling a new situation of armed conflict. Contrary to a commonly held belief, the views of the ICRC in this matter are not confidential as such, and are often accessible in press releases and our Annual Report.
Finally, if I had to guess where the debate surrounding classification of armed conflict will move in the coming months or years, now that the US is clearly opting for a lighter footprint approach, I would bet that at the top of the list will be determining under which precise conditions an intervening state becomes a party to a pre-existing NIAC.
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.
- Typology of conflicts Part II, response by Geoff Corn, Professor of Law, South Texas College Of Law.
- Typology of conflicts Part III, response by Bob Goldman, Professor of Law at American University, Washington College of Law.
- Typology of conflicts Part IV, response by Sandesh Sivakumaran, Professor of Law, University of Nottingham.
- 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.