Law of Armed Conflict Week 3: Classification and Triggers

Law of Armed Conflict

Week 3: Classification and Triggers

Classification & Triggers – IAC

• Common Article 2 = IAC Trigger– The entire body of the law of war is triggered based

not on labels but on whether the instrumentality of armed force is used

– Armed conflict = de facto standard– Decline of reciprocity; “Principles respected for

their own sake”

Review

Classification & Triggers – IAC

• Common Article 2 = IAC Trigger– The entire body of the law of war is triggered based not on labels but

on whether the instrumentality of armed force is used – Armed conflict = de facto standard– Decline of reciprocity; “Principles respected for their own sake”

• Additional Protocol I– Represents a controversial expansion of the LOW to cover wars of

national liberation in pursuit of the right of self-determination (CARs)– But… CARs provision never used– Codifies customary int’l law– Ratified by most of the world (169 parties)– Probably unlikely that the U.S. will ever ratify

Review

LOAC

G I-IV, GP I

LOAC

Art.3

DDHHIHRL

Nationallaw

internal international

PEACE CONFLICT

Art.3

GP II

NIAC IAC

Classification & Triggers – NIAC

Classification & Triggers – NIAC Review

Opponent Classification Applicable Law

State military IAC Entire Body of LOW

Non-state armed group fighting war of national liberation

IAC* Entire Body of LOW (per AP I)

Non-state armed group that controls territory engaging in armed conflict

NIAC AP II and CA 3

Non-state armed group that doesn’t control territory engaging in armed conflict

NIAC CA 3

Criminal group engaged in riots, internal disturbances, banditry

Domestic incident Domestic Law

Pictet Factors

Page 155

• Overall control test• Sending by or on behalf of test

Terrorist Attacks + Cross-Border Attacks

• Pg. 157

Osirak

Osirak

Mumbai

Hamdan

Tadic

• Pg 175

Common Article 3

“Convention in Miniature”


• “Convention in miniature”

• It has the merit of being simple and clear. It at least ensures the application of the rules of humanity which are recognized as essential by civilized nations . . . The text in question has the additional advantage of being applicable automatically, without any condition of reciprocity.” ~ Commentary

Common Article 3

• “What is meant by "armed conflict not of an international character“?

• That was the burning question which arose again and again at the Diplomatic Conference. The expression was so general, so vague, that many of the delegations feared that it might be taken to cover any act committed by force of arms -- any form of anarchy, rebellion, or even plain banditry.”

~ Commentary

Classification & Triggers – NIAC “Armed Conflict not of an International Character”


• “Pictet Factors” = guidance, not criteria

– Organized military force– Act under organized authority– Act within determinate territory– Respect / comply with the LOW– Government responds with regular forces– Recognized as belligerents

• Goal: maximize protection!

Pictet Factors


(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

Common Article 3

• “The value of the provision is not limited to the field dealt with in Article 3. Representing, as it does, the minimum which must be applied in the least determinate of conflicts, its terms must a fortiori be respected in the case of international conflicts proper when all the provisions of the Convention are applicable. For "the greater obligation includes the lesser", as one might say.”

~ Commentary (1949)

Classification & Triggers – NIAC Scope of Substantive Protection

• “Article 3 … defines certain rules to be applied in [NIAC]. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to IAC; and they are rules which in the Court’s opinion, reflect … ‘elementary considerations of humanity.’”

~ ICJ in Nicaragua Case (1986)


• “CA3’s text provides substantial reason to think that it refers specifically to a condition of civil war, or a large-scale conflict between a State and an armed movement within its own territory. . . . It does not sweep in all armed conflicts, nor does it address a gap left by CA2 for IACs that involve non-state entities (such as [al-Qaeda]) as parties to the conflict.”

~ Bybee Memo (OLC) (2002)


• “The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being “‘international in scope,’” does not qualify as a “‘conflict not of an international character.’” That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations.” ~ Hamdan (2006)



• It is DOD Policy that: • 4.2. All persons subject to this Directive shall

observe the requirements of the law of war, and shall apply, without regard to a detainee’s legal status, at a minimum the standards articulated in Common Article 3 to the Geneva Conventions of 1949 . . .

DODD 2310.01E, 5 Sep 06


The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Common Article 3

Additional Protocol II

Controversial “Shrinkage”


• Recalling that the humanitarian principles enshrined in Article 3 common to the Geneva Conventions of 12 August 1949, constitute the foundation of respect for the human person in cases of armed conflict not of an international character,

• Recalling furthermore that international instruments relating to human rights offer a basic protection to the human person . . .

• Recalling that, in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates or the public conscience . . .

Additional Protocol II, Preamble


1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions or application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

Additional Protocol II, Article 1


2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.



Non-Intervention

1. Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.



• Substantive Provisions– Part II – Humane Treatment

• Articles 4-6

– Part III – Wounded, Sick, and Shipwrecked• Articles 7-12

– Part IV – Civilian Population• Articles 13-18

Additional Protocol II

LOAC

G I-IV, GP I

LOAC

Art.3

DDHHIHRL

Nationallaw

internal international

PEACE CONFLICT

Art.3

GP II

NIAC IAC


Classification & Triggers – NIAC Review

Opponent Classification Applicable Law





NIAC AP II and CA 3


NIAC CA 3



NOT FOR CLASS – For Student Review at a later

date if they choose


• Final Thoughts: – Tensions

• Human rights vs. sovereignty• Concerns about legitimacy • Lack of reciprocity• “Who decides?”

– Substance• “Necessity of analogy” / CIL “catch-all”• No combatant status

– Enforcement / Accountability • Weak, but seems to be getting stronger (see Tadic and

Rome Statute)

Common Article 3

• “In fact, during the entire period 1997–2006 only three conflicts were fought between states: Eritrea–Ethiopia (1998–2000); India–Pakistan (1997–2003); and Iraq versus the USA and its allies (2003). The remaining 31 major armed conflicts recorded for this period were fought within states and concerned either governmental power (21) or territory (10).”

• ~ Patterns of major armed conflicts, 1997–2006, SIPRI.org

Classification & Triggers – NIAC State of Conflict Today

IACs

(Intl. armed conflicts)

• 5-10% of all ”massive organized violence” 1990-2008

• Entire body of IHL treaty law and IHL customary law applicable

• ”…declared war or…any other armed conflict which may arise between two or more of the High Contracting Parties”

GC Common art. 2

IACs

(Intl. armed conflicts)

• 5-10% of all ”massive organized violence” 1990-2008

• Entire body of IHL treaty law and IHL customary law applicable

• ”…declared war or…any other armed conflict which may arise between two or more of the High Contracting Parties”

GC Common art. 2

NIACs (non-Int. armed conflicts)

• 90-95 % of all ”massive organized violence” 1990-2008

• only a limited part of IHL treaty law and IHL customary law applicable

• ”..armed conflict not of an international character occurring in the territory of one of the High Contracting Parties” GC Common art. 3

(lowest threshold)

NIACs (non-Int. armed conflicts)

• 90-95 % of all ”massive organized violence” 1990-2008

• only a limited part of IHL treaty law and IHL customary law applicable

• ”..armed conflict not of an international character occurring in the territory of one of the High Contracting Parties” GC Common art. 3

(lowest threshold)

IAC versus NIAC

IAC : 1) State parties at ’both

sides’

2) State party on one side, the non-state party consisting of (peoples) ”…fighting against colonial domination and alien occupation and against racist regimes”API art 1(4)

IAC : 1) State parties at ’both

sides’

2) State party on one side, the non-state party consisting of (peoples) ”…fighting against colonial domination and alien occupation and against racist regimes”API art 1(4)

NIAC1) State party(ies) at

only one side

2) No state party at any side

NIAC1) State party(ies) at

only one side

2) No state party at any side

Ad bellum / in bello

• IAC :

• Jus ad bellum : why youfight does not affect your rights and duties in fighing ( jus in bello)

• IAC :

• Jus ad bellum : why youfight does not affect your rights and duties in fighing ( jus in bello)

• NIAC

• Why you fight, can influence which rules are applicable. API art 1(4) ”fighting against colonial domination and alien occupation and against racist

regimes…”

’converts’ NIAC to IAC

• NIAC

• Why you fight, can influence which rules are applicable. API art 1(4) ”fighting against colonial domination and alien occupation and against racist

regimes…”

’converts’ NIAC to IAC

Structure , default regime

IAC• Reciprocity• Equality of

belligerents• Absence of IHL :

very little protectionIHL gives more

protection than default regime (’no rules’)

IAC• Reciprocity• Equality of

belligerents• Absence of IHL :

very little protectionIHL gives more

protection than default regime (’no rules’)

NIAC• Asymmetry• No equality of

belligerents• Absence of IHL : IHRL

is default regime

IHL provides ’less protection’ than default regime (human rights regime)

NIAC• Asymmetry• No equality of

belligerents• Absence of IHL : IHRL

is default regime

IHL provides ’less protection’ than default regime (human rights regime)

The making of treaty law in NIAC ( cont.)CONVENTIONAL LAW OF NIACs

• Geneva Conventions Common art. 3 (1949)– Humane treatment– Care for sick and wounded

• Cultural Property Convention art. 19 (1954)– Respect for cultural property

• Additional Protocol II to the Geneva Conventions(1977)– 28 articles – approx. 10 of which

have substantive content (protection)

Treaties expanded to NIACs

• Blinding Weapons Protocol (1995)

• Mines Protocol (1996)• Protocol 2. to the Cultural

Property Convention (1999)• Weapons Convention (2001)

Treaties applicable to NIACs from first entry

• Chemical Weapons Convention ( 1993)

• Landmine Convention (1997)• ICC art 8 (2) (1998) • Clusterbomb Convention

(2008)


• Common Article 3• Additional Protocol II• Contemporary NIAC Regulation• Conflict Classification / Exercise

Agenda


In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

Common Article 3

Classification & Triggers – NIAC Common Article 3

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

Contemporary NIAC Regulation

Tadic and the Rome Statute


• Tadic Case– Procedural Jurisdiction– Subject-Matter Jurisdiction

Tadic Case (1995)

Dusko Tadic


Para 97: “international legal rules have increasingly emerged or have been agreed upon to regulate internal armed conflict.”

… A state sovereignty-oriented approach has been gradually supplanted by a human being-oriented approach … it follows that in the area of armed conflict the distinction between interstate wars and civil wars is losing its value as far as human beings are concerned.”

Tadic Case (1995)


• “to maintain a legal distinction between the two legal regimes and their criminal consequences in respect of similarly egregious acts because of the differences in the nature of conflicts would ignore the very purpose of the Geneva Conventions…”

~Delalić,, para. 172.

Celebici Case (2001)


• Rome Statute– Article 8(e)

• Non-inclusive list of 12 “war crimes” based on “laws and customs applicable in NIAC”

Rome Statute (1998)

Conflict Classification Wrapup & Exercise

Classification & TriggersOpponent Classification Applicable Law





NIAC AP II and CA 3


NIAC CA 3




• Issues– “Transformers”– “Internationalized Non-International Armed

Conflict”– Dual Status conflicts

• State Support – how much state support of a non-state armed group turns a NIAC into an IAC?

Conflict Classification Wrap-up

Classification & TriggersOpponent Classification Applicable Law





NIAC AP II and CA 3


NIAC CA 3



Q: What is the appropriate classification / body of applicable law? • Iraq v. AQI• Afghanistan (or Pakistan) v. Taliban• Yemen v. Houthi rebels• Somalia v. Al-Shahaab


• Common Article 3– “Convention in miniature” for NIAC represented a significant step forward for protecting

humanity in armed conflict– CA 3 seldom acknowledged by states as applicable de jure due to legitimacy concerns (but

may be followed de facto) – Humane treatment baseline seen as the minimum floor of protections applicable in all

armed conflict

• Additional Protocol II– Provides more robust protections in NIAC to include regulation of means and methods – Effectively neutered by its implementing arrangement (requiring territorial control etc.) =

controversial shrinkage

• Contemporary NIAC Regulation– Tadic case (and Celebici) demonstrated tendency to blur lines between law regulating IAC

and NIAC based on customary international law • “State-sovereignty-oriented approach supplanted by human being-oriented approach”

– Rome statute criminalizes war crimes in NIAC based on same logic

• Conflict Classification Wrap-up– Armed conflicts may be transformed from NIAC to IAC or vice versa or be both at once– Need to look at who the parties are (states?) and to what degree non-state armed groups

are supported by states (effective control standard?)

Concluding Observations

Documents

Law of Armed Conflict Week 3: Classification and Triggers