2014 Joint series: Harmonizing standards in armed conflict

Sarah points to Afghanistan as a situation where the applicable rules changed overnight (when it went from an IAC to a NIAC) even though the character of the conflict did not change. Photo courtesy of Reuters.

Sarah points to Afghanistan as a situation where the applicable rules changed overnight (when it went from an IAC to a NIAC) even though the character of the conflict did not change. Photo courtesy of Reuters.

This is the fourth post in a joint series with Lawfare and EJIL:Talk! (the blog of the European Journal of International Law) looking at issues related to international law and armed conflict. These articles are the fruit of a transatlantic workshop that took place in Oxford over the summer. Today, Columbia Law School's Sarah Cleveland examines the extent to which the international armed conflict (IAC) treaty regime can be practically applied, as a matter of law, in non-international armed conflicts (NIACs).

Sarah is the Louis Henkin Professor of Human and Constitutional Rights and Faculty Co-Director of the Human Rights Institute at Columbia Law School. She teaches and writes in the areas of human rights, international law, foreign affairs and the US Constitution, with a recent focus on national security, counterterrorism, and human rights. She is a Member-elect of the UN Human Rights Committee and the US Member on the European Commission for Democracy Through Law (Venice Commission). She previously served as Counselor on International Law to the Legal Adviser at the State Department.

You can read her full post on the EJIL:Talk! website.

Here's a taste:

While international armed conflicts are subject to hundreds of detailed treaty provisions under, inter alia, the four Geneva Conventions of 1949 (GCs) and Additional Protocol I (AP I), IHL treaty obligations in non-international armed conflicts are limited to Common Article 3 of the GCs and the 18 substantive articles of Additional Protocol II (AP II).  For non-parties to AP II such as the United States, IHL treaty obligations in NIAC are limited to Common Article 3.

This bifurcation of legal regimes results in significantly lower IHL treaty protections for individuals in NIACs, confusion over the applicable body of law for states engaged in NIACs and for actors evaluating those operations, and difficulties in coordination among states participating in multilateral NIACs. The recent conflict in Afghanistan helps illustrate the challenges.  Immediately after the September 11 attacks, the military action against the Taliban government by the United States and others constituted an international armed conflict, governed by that detailed treaty regime.  Yet in early 2002, western states recognized the nascent Hamid Karzai regime, and he invited the allied states to conduct hostilities in Afghan territory. These political events legally transformed the conflict into a non-international armed conflict between allied states and the Taliban insurgency. 

Thus, overnight the applicable IHL treaty regime shifted from the elaborate treaty rules of IAC to the much more limited treaty law governing NIAC, despite the fact that the character of the conflict had not changed, and at its peak involved an international coalition of nearly 150,000 foreign military personnel from 50 foreign states.  The international law regime governing the conflict thus became a variable geometry in which different states  looked to entirely distinct treaty rules, other bodies of law, and policy directives to determine the specific rules governing their forces, and thus attempted to coordinate their efforts and fight a complicated insurgency in a context of legal uncertainty.

Other posts in this series:

Lawfare's Bobby Chesney on when IHL ceases to apply

Canadian expert, Ken Watkin, on the overlap of IHL and IHRL