THE DISTINCTION BETWEEN INTERNATIONAL AND NON-INTERNATIONAL ARMED CONFLICTS: CHALLENGES FOR IHL?

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1 XXXVIII ROUND TABLE ON CURRENT ISSUES OF INTERNATIONAL HUMANITARIAN LAW THE DISTINCTION BETWEEN INTERNATIONAL AND NON-INTERNATIONAL ARMED CONFLICTS: CHALLENGES FOR IHL? SANREMO, 3 rd 5 th SEPTEMBER, 2015 Typology and Categorization of Armed Conflicts under IHL Brigadier General Karl EDLINGER, Legal Adviser, Austrian Armed Forces; Member, IIHL I would like to thank the organizers of the Round Table for the opportunity to speak at this conference which is attended by such a distinguished group of participants. It is more than 15 years ago that I first have been to Sanremo as a participant of the Military Course on LOAC. After that I have been at the International Institute of Humanitarian Law several times every year as lecturer or course director. Applicability of LOAC and the classification of armed conflicts always have been the most challenging and complex topic for young lawyers and legal advisers. Also Round Tables in previous years dealt with this issue, either directly or indirectly. The recent developments on battlefields all over the world, the engagement of armed forces in multinational operations and especially against globally acting non-state actors have made this question even more challenging. I was asked to speak about the typology and categorization of armed conflicts under IHL and by doing so to lay the basis for the further presentations and discussions of the Round Table. Consequently I will try not to talk about issues covered later by other speakers such as the temporal and geographical scope of application and about the challenges of categorization, which arise from new forms of violence. I will mention the consequences of the classification of armed conflicts very generally. I would like to describe the development of the categorization of armed conflicts in a historical context and to give an overview, how International Law is categorizing situations of violence today.

2 INTRODUCTION AND HISTORICAL BACKGROUND Wars always have been governed by the law: they started most often with a declaration of war, the conduct of hostilities was determined by specific rules and customs and the war ended with an agreement on the subsequent relationship between the parties to the conflict. However it should not be ignored that belligerents always distinguished between different types of war. This distinction had an impact on the applicable rules in the conflict and especially on the legal status of persons involved in the conflict. For example many of the rules of ancient Greek practice of war (such as the interruption of hostilities during the Olympic Games or the release of prisoners for ransom) applied only in wars between Greek city-states and were not applicable in wars with non-greek states. Christianity also distinguished between external and internal wars. External wars were conflicts, where Christians fought against infidels, whereas internal wars have been fights between Christians themselves. One idea behind the classification was to ensure that heretics and heathens do not benefit the same treatment, which Christians are entitled to. Islamic scholars also distinguish between wars against unbelievers on the one hand and against fellow Muslims on the other hand. And even wars against Muslims were in turn divided into wars against apostates (ahl al ridda), and wars against rebels (ahl al baghi) and furthermore wars against those who had renounced the authority of the spiritual leader (al muharabin). Each type of war was supposed to be waged by different methods and carried a different set of obligations towards the enemy. For a long time religious ideas mainly influenced the classification of wars and the rules applicable in the respective types. After the Peace of Westphalia 1648 the influence of religious ideas declined and the newly incepted sovereign nation-states determined largely the relation between entities, including the conflicts between them. The most famous writers after Westphalia, such as Samuel von Pufendorf, Hugo Grotius and Emmerich de Vattel made a distinction between wars fought between nations and those fought against private citizens. Only States as sovereign powers were proper enemies and if a conflict between these powers was accompanied with certain formalities, such as a declaration of war, it was a real war. Only real wars were regulated by International Law, simply because of the fact that International Law as a whole was only concerned with relations between States. Conflicts between armed groups or civil wars were not considered to be real wars in the strict sense of the term in International Law. However, there have been internal armed conflicts, which have been treated like international armed conflicts. The de facto ability of insurgents to wage war made it necessary for States to define their relation to this armed groups. According to Oppenheim insurgents may be recognized as a belligerent power, if the following criteria are met: 2

3 1. The insurgents have taken possession of part of the territory of the legitimate government; 2. The insurgents have established a government of their own; and 3. The insurgents fight in accordance with the law. In the American Civil War ( ), an armed conflict that was fundamentally noninternational in nature, the army of the Confederate States was implied recognized as belligerents. As a consequence of the recognition of belligerency both parties were bound to respect the laws of war and captured soldiers were entitled to POW-status. However it is important to emphasize that International Law still only governed wars between States and just made applicable this body of law also to civil wars under specific circumstances. GENEVA CONVENTIONS (1949) The situation changed decisively after the Second World War. The adoption of the 1949 Geneva Conventions brought two fundamental changes. Firstly the term war was replaced by the term armed conflict, which was according to the Commentary - deliberate. The formal declaration of war was not considered constitutional any more. By introducing the concept of armed conflict the applicability of International Humanitarian Law should be unrelated to the will of the governments. IHL applies to any armed conflict which may arise on the ground, even if one of the Parties denies the existence of the state of war. However the documents do not contain a definition of the expression armed conflict. Pictet in his Commentary explains that any difference arising between States and leading to the intervention of members of the armed forces is an armed conflict. Additionally the Commentary states that it makes no difference how long the conflict lasts and how much slaughter takes place. Consequently at least in 1949 the intensity of the hostilities between High Contracting Parties was not a requirement for the existence of an armed conflict. The second development of International Humanitarian Law after the Second World War was the extension of this body of law to internal armed conflicts. However, the idea of the ICRC, recommended in a report in 1948, to extend the Conventions in their entirety to internal armed conflicts was rejected by most States. But it was agreed instead to incorporate a single provision into the four Geneva Conventions, which would be applicable in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties. This Article 3, common to the four Geneva Conventions did not create a new type of conflict as international and noninternational armed conflicts already existed long before But for the first time, international law codified minimal guarantees to be respected during non-international armed conflicts. 3

4 Unfortunately, Article 3 does not specify precisely its scope of application. The International Criminal Tribunal for the former Yugoslavia (ICTY) established in its Tadić decision that protracted armed violence between governmental authorities and organized armed groups or between such groups within a State is to be considered an armed conflict. Consequently the existence of an armed conflict not of an international character requires - contrary to international armed conflicts - fighting of a certain degree of intensity. There is wide consensus that the threshold of violence that is required for the application of IHL in non-international armed conflicts is higher than in international armed conflicts. However the meaning of protracted and the question whether this term relates to the duration or intensity of the fighting is not so clear-cut. This topic, which is important for the planning and conduct of military operations, will be covered by Session III, dealing with the beginning and end of armed conflicts for the purpose of the application of IHL. ADDITIONAL PROTOCOLS TO GENEVA CONVENTIONS (1977) From 1974 to 1977 the Swiss Federal Council convened a Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts. This conference drew up two additional Protocols to the Geneva Conventions of 1949, which had great influence on the scope of applicability of International Humanitarian Law. Additional Protocol I applies to all situations of declared war and to armed conflicts between High Contracting Parties. Furthermore the protocol determines that it also shall apply in armed conflicts which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. This provision expanded the field of application of the law of international armed conflicts. Consequently armed conflicts, which are de facto non-international armed conflicts taking place in the territory of one Party to the Protocol are under specific circumstances to be treated like international armed conflicts. What the ICRC did not achieve in 1949, namely to extend the body of law applicable in international armed conflicts in its entirety to non-international armed conflicts, was now accepted with regard to national liberation movements. The most significant consequence of extending the body of law applicable to international armed conflicts to wars of national liberation is, that liberation fighters gain combatant status and therefore cannot be prosecuted for mere participation in hostilities. However, as many states faced with struggles against liberation movements have not ratified Additional Protocol I the protection offered by the instrument renders useless for many liberation movements. In the end this provision, establishing the so-called National Liberation Conflicts has never been applied in any of these situations. 4

5 The Additional Protocol II from 1977, which supplements and further develops common Article 3 of the Geneva Conventions also amended the scope of application by introducing a new threshold for non-international armed conflicts. Whereas common Article 3 applies in all situations of armed conflicts not of an international character, Additional Protocol II only applies to armed conflicts between regular armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of the territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. Parties to the Additional Protocol II accepted restrictions to be respected in non-international armed conflicts but at the same time limited the application of these rules by implementing criteria, which are quite challenging to achieve for organized armed groups. The effect of the different thresholds for the application of IHL is that there are different types of non-international armed conflicts with different responsibilities for the Parties. And again, the borderlines between the types of armed conflicts are not clear-cut. In many cases, the actual type of conflict can only be determined in retrospect of the military operation, whereas commanders have to know the applicable rules already when planning the operation. LEGAL FRAMEWORK OF THE DIFFERENT TYPES OF ARMED CONFLICT I would like to delineate in a nutshell, the consequences of the categorization of armed conflicts. Already the assessment, that an armed conflict exists, authorizes armed forces to target military objectives including enemy combatants and persons directly participating in hostilities. In an armed conflict persons imposing a threat may be detained and attacks only have to be cancelled or suspended if it may be expected to cause incidental loss of civilian life [ ], which would be excessive in relation to the concrete and direct military advantage anticipated. Due to Customary International Humanitarian Law many provisions applicable in international armed conflicts are also applicable in non-international armed conflicts. What is still different is the legal status of the fighters: Combatant status and consequently POW-status do not exist in non-international armed conflicts. To what extent the legal status of the fighters and other remaining distinctions matter for armed forces will be covered by the next speaker Brigadier General Gross. CONCLUSIONS In the end, International Humanitarian Law is only applicable in armed conflicts. Situations, which do not amount to an armed conflict, such as situations of internal disturbances and tensions, [ ] riots, isolated and sporadic acts of violence and other acts of a similar nature, are not considered to be armed conflicts and are therefore governed by domestic law. International Humanitarian Law does not establish a unitary concept of armed conflict but recognizes two types of armed conflicts: international and non-international armed conflicts. With respect to non-international armed conflicts, we must distinguish between those conflicts, 5

6 covered by Common Article 3 and non-international armed conflicts covered by Additional Protocol II. Furthermore de facto non-international armed conflicts, where peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, also called National Liberation Conflicts are ruled by Additional Protocol I like international armed conflicts. Finally if an international armed conflict results in a situation of occupation and the invading armed forces are exercising effective control over the territory of another State, the law of belligerent occupation is applicable. The concept of different types of armed conflict established by International Humanitarian Law seems not complex at all. But the challenges occur due to blurring borderlines between the respective types, due to the question, when the application of IHL starts and when it ends, and finally due to the question what happens if different types of conflict happen at the same time in the same area. When dealing with these contemporary challenges it is necessary and helpful to recollect this overview as basis for further reflections and elaborations. 6