#17203 - International Humanitarian Law Classifcation And Scope Of Armed Conflicts - International Humanitarian Law / Law of Armed Conflict

Classification and Scope of Armed Conflicts 2

International Armed Conflicts (IACs) 2

Geneva Convention, Common Art. 2 2

Additional Protocol I, Art. 1 2

Material Scope 2

Personal Scope 3

Geographic Scope 3

Temporal Scope 4

Non-International Armed Conflicts (NIACs) 5

Geneva Conventions, Common Art. 3 5

Additional Protocol II, Art. 1 5

Material Scope 5

Personal Scope 6

Geographic Scope 6

Temporal Scope 7

Note on citations:

For treaties, I have used an abbreviation, followed by a period and the article number. Thus Geneva Convention IV, Article 42 becomes “GC4.42.” Article 2 Common to the Geneva Conventions becomes GC.CA2. The Hague Regulations are HR, and the Protocols Additional to the Geneva Conventions are AP1 & AP2.

Citations in the form “HB000” refer to section numbers in Fleck, The Handbook of International Humanitarian Law (3rd ed.).

I’ve also cited certain academic articles, commentaries and government documents:

ILA-Sydney refers to the International Law Association’s 2018 Sydney Conference Report on the Use of Force.

Sassòli refers to Marco Sassòli’s 2015 article “Combatants” in the Max Planck Encyclopedia of Public International Law.

DoD refers to the US Department of Defense Law of War Manual (Dec. 2016 Update).

ICRC guidance on civilians directly participating in hostilities refers to Nils Melzer (ICRC) Interpretive Guidance (2009).

Lubell refers to Noam Lubell, “Fragmented Wars: Multi-Territorial Military Operations Against Armed Groups” 93 International Legal Studies 215 (2017).

• Most provisions of IHL activate in situations of armed conflict. (Others apply in peacetime as well.)

• Under GC.CA2, we take a fact-based approach to determine the existence of an armed conflict.

  • Must be between two or more GC High Contracting Parties. GCs are universally ratified.

  • IHL automatically applies when an AC exists, regardless of whether or not states characterize it as such.

  • Declaration of war is not required, nor is a party’s recognition of another party’s statehood required.

    • On the other hand, a declaration war may be sufficient to activate IAC.

  • Language of GC.CA2 appears to depend on fact states are fighting each other, rather than existence of fighting on the territory of another state.

    • States usually interpret GC.CA2 to say there’s no IAC (e.g., basically everyone in the coalition against ISIS will say there’s no IAC).

• What counts? “An IAC exists if one state uses armed force against another state” [HB202].

  • First-shot theory: IAC exists from first moment force is used by one state against another, without regard to intensity or duration.

    • Dominant theory. Low threshold, below that of UNC Art. 2(4).

    • At the extreme low end of intensity, some rules will not become operable. Doctrinally, IHL may apply, but in practice it is less clear. According to HB, this is a factual matter rather than a legal one (e.g., no PoWs have been taken, so irrelevant). Most legal experts will say the full range of IHL applies throughout a territory as soon as the IAC begins.

  • Alternative theory: requires parties be engaged in fighting of some intensity.

    • Minority theory. Higher threshold, so border clashes don’t count, nor would singular abduction and detention of member of opposing armed forced. This risks creating legal vacuum.

  • Self-determination: AP I Art. 1(4) adds ACs with peoples fighting against colonial domination.

    • Tricky: it would look like a NIAC/insurrection, but would actually be an IAC immediately.

  • Occupation: partial or total occupation of territory of HCP, even if occupation meets no armed resistance. Applies as soon as the conditions for belligerent occupation are fulfilled.

  • Levée en masse: inhabitants of non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having time to form themselves into regular armed units.

    • GC III Art. 4(A)(6) grants PoW status to participants in levée en masse, provided they carry arms openly and respect laws of war.

  • Internationalized NIAC: When State A is in a NIAC against an OAG on its territory, and State B joins the conflict on the side of the OAG and exercises overall control of the OAG, then the NIAC becomes an IAC [HB1201; Tadič; Bosnia].

    • If State B does not exercise overall control over the OAG, then there are two types of conflicts occurring: a NIAC between State A and OAG, and an IAC between State A and State B.

    • Not to be confused with AP1.4 self-determination.

• What doesn’t count?

  • Spy entering another state.

  • A few soldiers entering another state outside of military command.

  • Major threats of force between states.

  • Border clashes/skirmishes, or abduction and detention of a single member of armed forces (contested).

• US GWoT innovation: classification based on target

  • The US has been shifting classification to be more clearly based on the targets in the conflict, rather than on geography. If the target is a state, then it’s an IAC; if the target is a non-state, then it’s a NIAC.

  • This view is now fairly widespread. But one problem is that it seems to make classification depend in part on consent: if a territorial state consents and the enemy is a NSAG, then it’s a NIAC; but if the state doesn’t consent, then it may be an IAC.

• IHL is binding on all parties and individuals in armed conflict.

  • Applies directly to NSAGs, both as a group and as individuals.

  • International Organizations (e.g., UN) can become party to a conflict by taking direct part in hostilities (personal self-defense is not sufficient). IOs cannot be party to treaties and so are bound by CIL.

• Parliamentaries: sent to communicate with enemy. Allowed to convey information to their side, but cannot covertly spy or else they lose protection [HB225]. They’re basically never used.

• Protecting powers: parties not involved in conflict, serving some functions for civilians and hors de combat, and mediating between parties. They’re basically never used. Usually the ICRC does these functions instead of states.

• In an IAC, IHL applies to the entire territories of the parties to a conflict as defined by national borders, as well as high seas, airspace, and exclusive economic zones [HB213].

  • States have no felt the need to justify expanding the conflict to other parts of a party’s territory, i.e. no need to make a new self-defense argument. But they do need to justify expanding an IAC to new territories. (Cf. NIAC, which also applies to whole territory under Tadič, but according to US arguments NIACs follow the fighter, so IHL applies across entire territory of wherever a fighter goes.)

  • Some rules have special geographic scopes.

• Law of belligerent occupation applies in territory actually under the authority of hostile armed forces.

• Subject to agreement by the parties, it is prohibited to expand military operations to:

  • Demilitarized zones [AP1.60], particularly hospital and safety zones [GC1.23;GC4.14], and neutralized zones [GC4.15].

  • Non-defended localities may not be attacked [HagueR.25; AP1.59].

• Neutral states: territory, airspace, persons of states not participating in the conflict are inviolable [HB1110s].

  • Neutrals are bound to repel any violation of its neutrality, if necessary by force.

  • If neutral allows a belligerent to conduct military operations on its territory, the rival belligerent has a right to take measures in that territory to terminate those operations.

  • Neutrals must not assist any party to a conflict. Humanitarian assistance doesn’t count, even if it is for the benefit of only one party.

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