Guest Post: Bartels–Temporal Scope of Application of IHL: When do Non-International Armed Conflicts End? Part 1

by Rogier Bartels

[Rogier Bartels is a Legal Officer (Chambers) at the International Criminal Court and a research-fellow at the Netherlands Defence Academy. The below post discusses an argument made at a conference organised by the Grotius Centre for International Legal Studies in June 2012, that is expanded on in a chapter in the forthcoming book Jus Post Bellum (edited by Carsten Stahn et al.). The views below are the author’s alone.]

Over the past weeks, several ceasefire and peace agreements were concluded in a number of non-international armed conflict (NIAC) situations: in South-Sudan, the Philippines and Myanmar. The Syrian negotiations in Geneva have only yielded minor success, but those between the Colombian government and its longstanding enemy, the FARC, appear to have been more constructive. Nonetheless, all too often when there are peace talks or even peace agreements in a country, the fighting between the opposing sides does not (immediately) cease (see, e.g., here and here). In this post, I will address the end of temporal scope of the law applicable to the fighting in NIAC, i.e. international humanitarian law (IHL) and when such NIACs can be considered as ended.

Although certain provision of international humanitarian law (IHL), or laws of armed conflict, apply in peace time (e.g., Arts 47 and 53 of GC I) or continue to apply for a certain period after the end of the armed conflict (like Art. 5 of AP II), the application of the vast majority of IHL rules is dependent on the existence of an (international or non-international) armed conflict. Whilst the scope of application included in Common Articles 2 and 3 of the Geneva Conventions of 1949 initially, of course, pertained only to these treaties, it has become accepted over time that said scope governs the application of the whole body of IHL; thus also for the rules contained in, e.g., the weapon treaties and customary IHL. Yet, one of the glaring gaps in IHL concerns its very foundation, namely the question of the definition of ‘armed conflict’. IHL does not provide a clear definition for either type of armed conflict: international armed conflict (IAC) or NIAC. A definition for NIACs was purposely left out of the 1949 Conventions and their Protocols, and it is true that a single definition may not be able to encompass all varieties of contemporary armed conflict. However, without a clear definition, determining when conflicts start is problematic; and it is similarly problematic to determine when they end.

Ever since IHL became applicable to conflicts that are “not of an international character” (i.e. with the inclusion of Common Article 3 in the 1949 Geneva Conventions), there has been much debate on what is to be considered a NIAC, and when the threshold of violence has surpassed a situation of mere internal disturbances, civil unrest or riots. The existence of an armed conflict allows States to take more forceful action, such as the use of lethal force against ‘fighters’ and/or against those directly participating in hostilities. In addition, when called upon to determine whether (war) crimes were committed, courts and tribunals must assess whether in the situations before them, an armed conflict existed – either to satisfy their jurisdictional requirements or to identify the applicable body of law. It is therefore of no surprise there has been extensive legal and academic debate, as well as voluminous case law on what qualifies as a NIAC, and on when the so-called lower threshold for NIAC has been crossed. The debate has almost solely focused on the start of these armed conflicts. In contrast, very little has been written on the temporal application of IHL, or indeed, on the end of these armed conflicts.

Common Article 3 does not refer to an end of its application. Similarly, Additional Protocol II refers to the “end of the armed conflict” (Articles 2(2) and 25 AP II), but does not clarify when this may be. The first, and almost only, authoritative statement hereon was made by the Appeals Chamber of the ICTY in its seminal decision on jurisdiction in Tadić:

that an armed conflict exists whenever there is […] protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities […], in the case of internal conflicts, [until] a peaceful settlement is achieved. (Tadić Jurisdiction Decision, para. 70)

So what is a peaceful settlement? The term is not very specific but suggests that IHL will cease to apply when the parties reach a peace agreement with each other. It is my view that the existence of a peace agreement is too rigid a standard to judge whether a NIAC can be considered to have ended. Moreover, it is submitted here that this approach and is not supported by the IHL.

For both IACs and NIACs, the test whether there is an armed conflict depends on the factual situation, and not on political statements. Political refusal to recognise the existence of a conflict is especially prevalent in cases of NIACs. It is argued therefore that political acts should be equally non-determinative in the test of whether peace has been achieved. As a result, the political act (statement) of agreeing to a peace deal should not be the determinative factor in whether a conflict has ceased. In Sierra Leone, for example, two “Lomé Peace Accords” were signed before the RUF was finally defeated and dissolved a few years later. Consider also the conflict between the Singhalese government of Sri Lanka and the LTTE: a peace agreement was signed between the warring parties in 2002, but the fighting did not cease. It was not until the full-scale military defeat in May 2009 of the LTTE by the government forces, that the armed conflict actually ended. Such a non-international version of debellatio is rare, however. On occasion, NIACs just taper out until they have withered away and no warring parties exist anymore. Often, however, as was the case with the Shining Path in Peru, armed groups continue to exist, but on a smaller scale with less fighting power, thereby forming less of a threat. On the other hand, it is also possible that only part of an armed group becomes a party to the agreement, as was the case with the Interahamwe in Rwanda.

Furthermore, the need for an “effective and final cessation of hostilities” for IACs comports with the fact that such a conflict starts with the first hostile act (involving two States), which initiates the protection given by IHL, namely – as Pictet put it – when the first (protected) person is affected by an attack. However, the threshold for the existence of a NIAC is significantly higher and not all violence reaches this threshold. Equally, at the end of a NIAC, certain violence should be considered to be below the armed conflict level. If a NIAC only starts when organised groups are engaged in fighting of certain intensity, then logically, the armed conflict ends when these two criteria are no longer both present. This would also make clear that the United States’ so-called NIAC against Al-Qaeda cannot be a “perpetual war”.

http://opiniojuris.org/2014/02/18/guest-post-bartels-temporal-scope-application-ihl-non-international-armed-conflicts-end-part-1/

11 Responses

  1. Above, I mentioned that academic literature has hardly addressed the end of the temporal application of IHL, but I should add that Marko Milanovic will deal with the “End of IHL Application” in an excellent piece in a forthcoming issue of the International Review of the Red Cross (on scope of application of IHL). Having seen a draft of his article, I can assure you that it will be a good read and contribute to filling the gap (identified above) in academic writing.

  2. For several reasons, the armed conflict in Syria is an armed conflict of an international character – see http://ssrn.com/abstract=2272291 and http://ssrn.com/abstract=1991432
    especially re: recognition of the rebels as belligerents and the lawful reps of the Syrian people.

  3. Rogier, great post and I look forward to reading your article. Is there a significant legal difference between:
    1.  having one ongoing armed conflict that did not end on the signing of a peace agreement; and
    2. two separate armed conflicts between the same parties, with the second armed conflict starting once the violence threshold is once again reached (after the signing of the peace agreement)?

  4. re: last sentence of Roger’s post — and the U.S. cannot be involved in an armed conflict with al Qaeda in any event — http://ssrn.com/abstract=2165278
    but that does not inhibit self-defense targetings under the law of self-defense.

  5. Dear Jordan and Ian, thanks for your comments.
    Jordan, I agree that certain parts of the fighting in Syria are IACs (like the Turkish air strikes against Syrian government forces, following the ‘accidental’ shelling of Turkish villages; I believe you mention that also in one of your articles you refer to) and that there are many trans-border aspects (such as the involvement of Hezbollah). However, in my view the limited recognition of (only part) of the opposition as the representatives of the Syrian people does not internationalise the NIAC. Political recognition, such as the recognition of the NTC in Libya (which was of a much larger scale than the very limited recognition of the Syrian National Council), is not the same as recognition of belligerency. Even if the doctrine of recognition of belligerency would be considered to still be in place [which is doubtful after the adoption of the 1949 Geneva Convention, which extended (part of) the laws of war to fighting between a State and an armed opposition group - as did recognition of belligerency do prior to that time, although such recognition obviously served more purposes], and be considered applicable for Syria, it would only apply to the part of the Syrian opposition that has in fact been recognised (SNC). However, in the diffuse Syrian conflict there are many other opposition groups, so the fighting between those groups and the government would remain NIAC(s); as would the fighting between the various opposition groups amongst themselves (e.g., between the FSA and ISIS).
    Ian, in your second scenario, there would be a gap in the application of IHL between the signing of the peace agreement and the moment that the lower threshold (for the intensity criterion) has again been passed. This may be an insignificant amount of time, but depending on the specific situation, it may also be that certain acts that would otherwise be governed by IHL would then not be covered. The legal difference need not be “significant” if another legal regime sufficiently ‘fills the gap’. Also, for the application of IHL it obviously doesn’t matter whether a situation is considered as one (long) armed conflict or a series of separate armed conflicts that immediately follow each other; so long as it is a continuous armed conflict situation. However, bearing in mind that IHL has a permissive as well as protective function, even a brief gap in the application of IHL could well be significant for those using force and/or those in need of protection.

  6. Did the violence in Iraq after the US withdrawal (and before the escalation of the past few months) reach the level of an NIAC given that it was largely a series of terrorist attacks? 

  7. To place my above question in the context of this blog post, I’m wondering if armed conflict in Iraq can be said to have ended at any time. 

  8. Rogier: thanks for your views.  Our Army Field Manual 27-10 (lst published after the ’49 GCs) states “[t]he customary law of war becomes applicable to civil war upon recognition of the rebels as belligerents.”  It then has a separate sub-para. for common art. 3, which most of us consider to be applicable as treaty law during an insurgency as opposed to a belligerency (and which, of course, because what it reflects is CIL today and is considered to be a customary minimum during any armed conflict, reflects law that applies during an IAC).  The U.S. applied the customary laws of war during our Civil War, when the CSA was recognized by the UK and others as a belligerent (and not a state or nation).  The technical status of an “insurgent” or insurgency was not recognized at the time and basically began with common art. 3.  The distinguishing criterion between an insurgency (NIAC) and belligerency to which all of the customary laws of war apply is outside recognition of the insurgent as a belligerent.  Many of us consider the word “Power” in common art. 2 to relate to a belligerent.  In any event, it would be rather silly to have the customary laws of war reflected in most all of the Geneva Conventions of 1949 to apply to a belligerency but not as treaty law because of some meaning of the word “Power” that did not reflect relevant customary international law (e.g., that relating to the status of a belligerency and the applicability of all of the customary laws of war).
    Many do not consider the Tadic articulation, which was later somewhat re-defined or added to, to reflect the proper test.  see, e.g., http://ssrn.com/abstract=2165278
    It does not even comport with the criteria set forth in Geneva Protocol II, art. 1(1) re: a NIAC or insurgency.

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