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Classifying the conflict: a soldier's dilemma

Published online by Cambridge University Press:  10 September 2009

Andrew J. Carswell
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Abstract

Modern armed forces are employed in a wide array of operations that range from peacetime riot control to outright international armed conflict. Classifying these various scenarios to determine the applicable international law is rendered difficult by both the lack of clarity inherent in the law and the political factors that tend to enter the decision-making process. The author describes the major challenges of legal classification facing the military leadership, and proposes a solution to ensure that the intended beneficiaries of the law – from soldiers to civilians – do indeed receive its protection.

Type
Typology of armed conflicts
Information
International Review of the Red Cross , Volume 91 , Issue 873: Typology of armed conflicts , March 2009 , pp. 143 - 161
Copyright
Copyright © International Committee of the Red Cross 2009

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References

1 International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v. Dusko Tadić, IT-94-1-AR72, Merits (Appeals Chamber), 2 October 1995.

2 Oren Harari, The Leadership Secrets of Colin Powell, McGraw-Hill Professional, New York, 2003, p. 260.

3 This statement of rules is an excerpt from the South African National Defence Force's Code of Conduct for Uniformed Members of the South African Defence Force, adopted 15 February 2000, available at www.dcc.mil.za/Code_of_Conduct/Files/English.htm (visited 6 May 2009).

4 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Geneva, 8 June 1977, entered into force 7 December 1978 (hereinafter ‘Additional Protocol I’).

5 For an overview of the International Committee of the Red Cross's approach to IHL integration in the military context, see Integrating the Law, ICRC, Geneva, May 2007, available at www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/p0900/$File/ICRC_002_0900.PDF (visited 5 May 2009).

6 As well as after the end of the armed conflict.

7 IHRL evidently binds the state within its national territory, but also applies in cases where its military exerts its power or effective control over individuals abroad: see for example International Court of Justice (ICJ), Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, para. 216. See also Cordula Droege, ‘Elective affinities? Human rights and humanitarian law’, International Review of the Red Cross, No. 871 (2008), pp. 509–20; Françoise Hampson, ‘The relationship between international humanitarian law and human rights law from the perspective of a human rights treaty body’, International Review of the Red Cross, No. 871 (2008), pp. 566–72.

8 For example, the Rome Statute of the International Criminal Court, 17 July 1998, entered into force 1 July 2002 (applicable to states parties in the context of repression of the most serious international crimes); the United Nations Convention on the Law of the Sea, 10 December 1982, entered into force 16 November 1994 (applicable to states parties in the context of the suppression of piracy on the high seas); and the International Convention for the Suppression of Terrorist Bombings, 15 December 1997, entered into force 23 May 2001 (applicable to states parties in the context of domestic anti-terror operations).

9 See ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para. 106.

10 See Droege, above note 7, and Marco Sassòli and Laura M. Olson, ‘The relationship between international humanitarian and human rights law where it matters: admissible killings and internment of fighters in non-international armed conflicts’, International Review of the Red Cross, No. 871 (2008), pp. 599–627.

11 Art. 51(5)(b), Additional Protocol I.

12 See, for example, Art. 6(1), International Covenant on Civil and Political Rights (ICCPR), 16 December 1966, entered into force 23 March 1976; Guerrero v. Colombia (R.11/45), ICCPR, A/37/40 (31 March 1982) 137, para. 13.2–13.3.

13 Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August–7 September 1990 (hereinafter BPUFF).

14 Adopted by General Assembly Resolution 34/169 of 17 December 1979.

15 Art. 4, ICCPR. For a regional example see Art. 15, European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950, entered into force 21 September 1970).

16 Ibid.; Art. 9, BPUFF.

17 Indeed, the Geneva Convention of 1864 – the first IHL treaty – was the result of a diplomatic effort following Henry Dunant's horrific experience at the Battle of Solferino in 1859, where the military medical services of the battling French and Austrian troops were totally insufficient to deal with the scale of casualties in the field.

18 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 (hereinafter GC I); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 (hereinafter GC II); Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949 (hereinafter GC III); Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (hereinafter GC IV); all of which entered into force 21 October 1950. Every state has ratified these Conventions.

19 Where the Additional Protocols are not applicable qua treaty, most of their substantive provisions are applicable in the form of customary international law. See Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, ICRC/Cambridge University Press, Cambridge, 2005.

20 Some provisions of these treaties have also taken on the status of customary international law.

21 As supplemented by Additional Protocol I. IHRL does, however, continue to play a role, with IHL remaining the lex specialis.

22 GCs I–IV, Arts. 49–50, 50–1, 129–30 and 146–7 respectively; Additional Protocol I, Art. 85.

23 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8 June 1977, entered into force 7 December 1978 (hereinafter Additional Protocol II).

24 Rome Statute, above note 8.

25 See, for example, Elizabeth Wilmshurst and Susan Breau (eds.), Perspectives on the ICRC Study on Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2007.

26 See Art. 2 common to the four Geneva Conventions, and Jean Pictet, Commentary on the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952, p. 32. See also Art. 1, Additional Protocol I.

27 As discussed above, states parties are bound by the four Geneva Conventions, Additional Protocol I, and a long list of treaties governing various limitations upon means and methods of warfare. Non-parties are bound by applicable customary IHL.

28 ICJ, Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), Merits, ICJ Reports 1986, para. 218.

29 The territorial component has lost its practical significance since currently every state in the world is party to the four Geneva Conventions of 1949.

30 ICTY, Prosecutor v. Dusko Tadić, Appeals Chamber, decision of 2 October 1995, para. 70 (emphasis added). This test is reflected in Art. 8(2)(f) of the Rome Statute, above note 8.

31 Marco Sassòli, Transnational Armed Groups and International Humanitarian Law, Harvard University Program on Humanitarian Policy and Conflict Research, Occasional Paper Series, Winter 2006, No. 6, pp. 6–7, available at www.hpcr.org/pdfs/OccasionalPaper6.pdf (visited 6 May 2009).

32 Inter-American Commission on Human Rights, Report No. 55/97, Case No. 11.137: Argentina, OEA/Ser/L/V/II.98, Doc. 38, 6 December 1997.

33 See Part IV, Additional Protocol II.

34 Assistance can be derived from Sylvie-Stoyanka Junod, ‘Article 1 – Material Field of Application’, in Y. Sandoz, C. Swinarski and B. Zimmerman (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff Publishers, Geneva/The Hague, 1987, pp. 1347–56.

35 Charter of the United Nations, 26 June 1945, entered into force 24 October 1945.

36 For a more detailed analysis see Bugnion, François, ‘Jus ad bellum, jus in bello and non-international armed conflicts’, Yearbook of International Humanitarian Law, Vol. 6 (2003), pp. 167–198.CrossRefGoogle Scholar

37 International Criminal Tribunal for Rwanda (ICTR), Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgement (Trial Chamber I), 2 September 1998, para. 603.

38 As a neutral and independent humanitarian body, the ICRC is competent to classify conflicts to ensure that it maintains a legally consistent approach and protects the actual and potential victims of conflict. However, in order to preserve its neutrality, it will not generally publicize its findings in circumstances where it might be perceived as taking a controversial position regarding the jus ad bellum.

39 For a discussion of this principle, which is not without controversy, see Sassoli, above note 31, pp. 8–9.

40 See Somer, Jonathan, ‘Acts of non-state groups and the law governing armed conflict’, American Society of International Law Insights, Vol. 10, No. 21 (2006).Google Scholar

41 Case Concerning Military and Paramilitary Activities In and Against Nicaragua, above note 28, para. 115 (regarding the alleged control of Nicaragua's Contras by the US).

42 Prosecutor v. Dusko Tadic, above note 1, para. 131 (regarding the alleged control of Bosnian Serbs by the Federal Republic of Yugolsavia).

43 On 27 November 1991, representatives of various parties to the conflict including the Federal Republic of Yugoslavia and the Republic of Croatia agreed in a Memorandum of Understanding to implement the full range of Geneva Conventions and their Protocols, but the agreement explicitly stated that it would ‘not affect the legal status of the parties to the conflict’. See Michele Mercier, Without Punishment: Humanitarian Action in the Former Yugoslavia, East Haven, London, 1995, Appendix: Document IV, pp. 195–8.

44 The latest discussions occurred at the 2008 Sanremo Round Table, the proceedings of which are reproduced in Gian Luca Beruto (ed.), International Humanitarian Law, Human Rights and Peace Operations: 31st Round Table on Current Issues of International Humanitarian Law, International Institute of Humanitarian Law, Sanremo, September 2008. See also A. Faite and J. L. Grenier (eds.), Expert Meeting on Multinational Peace Operations, ICRC, Geneva, 11–12 December 2003.

45 The rare exception being robust Chapter VII peace enforcement missions where troops are mandated by the UN Security Council actively to engage a particular armed group, or to secure a territory in support of a government engaged in a conflict against rebel forces (e.g. International Security Assistance Force/NATO in Afghanistan).

46 Jakob Kellenberger, keynote address at the Sanremo Round Table, 4 September 2008, reproduced in Beruto (ed.), above note 45, p. 32.

47 9 December 1994, entered into force 15 January 1999.

48 United Nations Secretariat, UN Doc. ST/SGB/1999/13, 6 August 1999.

49 As has been graphically illustrated by recent armed conflicts between MONUC troops and armed factions in the eastern Democratic Republic of Congo.

50 Both the Coalition states and Afghanistan were parties to the four Geneva Conventions, but neither Afghanistan nor the United States is party to Additional Protocol I.

51 Art. 4(A)(1) of GC III defines ‘members of the armed forces of a Party to the conflict’ as a category of individuals entitled to prisoner of war protection (i.e. combatants) without the requirement of fulfilling the four ‘militia’ prerequisites in 4(A)(2). To qualify as armed forces, they must have been under a command responsible to the Party and subject to an internal disciplinary structure per Art. 43(1) of Additional Protocol I. If we accept that the Taliban was the de facto government of Afghanistan at the time (they controlled 90 per cent of its territory), it is strongly arguable that their armed forces met all of these requirements and thus would have qualified as combatants.

52 For example, making the civilian population the object of an attack during an international armed conflict is a war crime to which universal jurisdiction applies. Henckaerts and Doswald-Beck, above note 19, Rules 156 and 157.

53 See Arts. 13, 99–108, GC III.

54 Henckaerts and Doswald-Beck, above note 19, Rule 6.

55 Arts. 4 and 78, GC IV.

56 Arts. 64–78, GC IV.

57 Arts. 27–34, GC IV.

58 Lauterpacht, Hersch, ‘The problem of the revision of the law of war’, British Yearbook of International Law, Vol. 29 (1952–3), pp. 381–2.Google Scholar

59 With such modifications as are required. See Henckaerts and Doswald-Beck, above note 19, Vol. II.

60 UN Secretary-General's Bulletin, above note 49.

61 Which is not a matter devoid of controversy: see Faite and Grenier, above note 45.

62 And, potentially, as a matter of opinio juris.

63 See Integrating the Law, above note 5.

64 Even if it chooses not to exercise that right in the name of peace: see Art. 6(5) of Additional Protocol II.

65 For example, IHL accepts that civilians can knowingly be killed as collateral damage as long as that damage is outweighed by the concrete and direct military advantage achieved in an attack (see Art. 51(5)(b) of Additional Protocol I). In the absence of a definite legal qualification, it is difficult to reconcile this provision of IHL with the right to life, as interpreted in peacetime, protected by IHRL.