The NIAC Threshold

by Deborah Pearlstein

At least three things trouble me about Adil Haque’s recent post over at Just Security about how to determine when armed violence crosses the threshold from ordinary criminality or the like to non-international armed conflict (NIAC), such that the law of armed conflict applies. As Adil rightly notes, much rides on the question. On one hand, recognition of a NIAC imposes on all parties to the conflict an obligation to comply with, at a minimum, the humanitarian provisions of Common Article 3 to the Geneva Conventions (prohibiting torture, cruelty, and much else). On the other hand, under the law of armed conflict (LOAC), a state party can use force anytime and against any member of an opposing force. In armed conflict, and in no other circumstance, killing is lawful as a first resort. For this reason, among others, Adil’s suggestion that we should lower the threshold for recognizing the existence of a NIAC, i.e. apply the law of armed conflict even for nominal levels of violence involving non-state actors, merits careful attention. So here are some initial concerns…

First, I am not convinced by Adil’s description of the existing definition of NIAC as requiring a “bilateral trigger,” meaning, I take it, that both (or all) parties to the conflict must be actively engaged in the use of armed force, and that the LOAC of NIAC is not triggered until forces under attack “respond by military means.” (Adil relies on the brief discussion of the definition of NIAC in the new GCI commentary (here, para. 423 et seq), as well as a 2008 ICRC opinion paper, and the relevant rulings of the ICTY/ICTR. I accordingly review the same sources.) It is certainly true that existing definitions of NIAC require that there be at least one party on each side of a NIAC organized enough to be identifiable as a specific “party,” a party at least capable of wielding armed force itself and functioning through some sort of unified command. Existing NIAC definitions also require that armed violence between the parties reach a certain degree of prolonged “intensity.” But the requirements that there be at least two organized parties, and that there be intense and sustained violence, are both conceptually distinct from a requirement that says, as Adil suggests, both parties must be engaged in armed violence. Imagine, for example, a state launching a military attack against an internal opposition group – a group though boasting a command structure and plenty of arms, finds itself so overmatched and otherwise incapacitated by the state’s sustained bombardment over a period of weeks (bombardment using heavy equipment that destroys entire tracts of property and drives thousands of civilians from their homes), the non-state group is incapable of deploying its arms to any effect (or indeed at all). There is no question both parties have the requisite degree of organization. More, although the violence in this scenario is carried out entirely by one side, I find it hard to imagine the Tadic court would dispute characterizing these events as a NIAC. It is true existing definitions of NIACs are summarized as requiring intense violence and at least two organized parties, but the tests as applied invariably look to an array of factors and circumstances to help assess both intensity and organization, and expressly resist claims that the presence or absence of any one criterion is dispositive.

Second, now consider the scenario that troubles Adil, in which ISIL “fighters pour over the Syria-Iraq border, killing Iraqi civilians, capturing Iraqi territory and taking over Iraqi government institutions. Iraqi forces flee, offering no resistance.” As I have described the existing threshold, such an incursion might well amount to a NIAC, depending on (among other things), how many are killed, how much territory captured, etc. But let’s assume I’m wrong in my description above. What follows? Adil is concerned about the inability to charge ISIL forces with war crimes; and it is of course true, no war, no war crimes. But how much this matters depends I think on a number of factors other than NIAC classification per se, first and foremost on the availability of other channels for criminal prosecution if and when accountability becomes possible. As it stands, several states might plausibly accuse ISIL forces of violating a range of domestic criminal laws depending on which particular heinous act is at issue; UNHCR has suggested ISIL may have committed crimes against humanity; and universal jurisdiction prosecutions are also at least conceivable. But the ISIL v. Iraq conflict (assuming the parties in the scenario alone) is at best a NIAC, not an IAC; while the obligation to prosecute-or-extradite is clear in the latter circumstance, it (among other things) is far from settled in the former. All this to say – there are downsides to expanding the definition of what counts as a NIAC (more on this below). It is at least worth asking in detail how much of an accountability upside is there really in adding more substantive offenses to the list of manifest wrongs ISIL has already committed.

Third, Adil argues that instead of requiring a prolonged and intense level of violence before recognizing a NIAC, we should accept the same “nominal intensity threshold” for NIACs as is currently required for conflicts between states (international armed conflicts or IACs). Here again, Adil’s primary concern seems to be (in addition to preserving the possibility of subsequent war crimes prosecution) to expand the circumstances in which Common Article 3 protections attach. The ICRC has over the years expressed similar sensible concerns. Yet as even the ICRC has noted in the post-9/11 age, because LOAC “rules governing the use of force and detention for security reasons are less restrictive than the rules applicable outside of armed conflicts governed by other bodies of law,” it is “inappropriate and unnecessary to apply” LOAC to circumstances not amounting to armed conflict. To reduce the argument to its core, this is because – contrary to what I take Adil and maybe a few others to suggest – it is not possible as a matter of law to reconcile the basic human rights law prohibition on killing with the basic LOAC acceptance of the power to kill as a first resort. It may well be that other human rights law obligations are complimentarily defined by LOAC, such as the prohibition against arbitrary detention. It may well be that a given military in a given conflict concludes that it is inconsistent with military necessity to kill when capture is possible. But this judgment is not compelled by the law of armed conflict. It is only compelled by the law of human rights. The lower the threshold for recognizing a NIAC, the fewer the circumstances in which that compulsion applies.

http://opiniojuris.org/2016/10/04/the-niac-threshold/

9 Responses

  1. Hi Deborah,

    Thanks for your thoughtful response. Here are a few reactions.

    First, I tried to be careful not to say that the ICRC definitively endorses a bilateral trigger for NIAC. Instead, I wrote that the ICRC’s position is “not so clear” and that its language of “protracted armed confrontations” and quotation of the ICTY’s language of “armed clashes,” “combat zones,” and “fighting” “seems to suggest” a bilateral trigger. My aim is not to prove the ICRC or ICTY wrong, but simply to say what I think is right. If the ICRC and ICTY in fact accept a unilateral trigger, despite some language suggesting otherwise, then that is all to the good.

    Second, war crimes are not only a matter of accountability mechanisms but also a matter of expressive condemnation. War crimes are, after all, among “the most serious crimes of concern to the international community as a whole.” In my view, there is intrinsic value in condemning Daesh’s conduct as war crimes and not merely as violations of domestic criminal law.

    Finally, I reject the view that the LOAC confers a “power to kill as a first resort” that displaces, overrides, or determines the content of the human right to life. The LOAC does not permit but instead prohibits, does not authorize but instead limits, does not enable but instead constrains. These prohibitions, limitations, and constraints partially overlap with those contained in human rights law. In armed conflict, often the LOAC will prove sufficient to prohibit arbitrary deprivations of life. But when the LOAC fails to prohibit arbitrary deprivations of life, then human rights law will still do so.

    Thanks again,

    Adil

  2. Thanks Adil. I think I’ll let my post stand as responses on items one and two, but I do want to be clear on item 3. I don’t think LOAC confers power on any state. But it certainly lifts a prohibition under which all states otherwise operate. It provides legal justification for conduct that is otherwise illegal. As for the proposition that “when the LOAC fails to prohibit arbitrary deprivations of life, then human rights law will still do so,” I’m just not sure I understand where that comes from, or indeed, what effect such a principle might have in practice. Are you really suggesting that it would prohibit status-based targeting in NIACs when all other relevant principles (proportionality, distinction, etc.) are observed?

  3. As to the first scenario, on the State overwhelming a non-state actor, one issue I think is also worth pondering about is whether a unilateral trigger places too much power at the hands of the government. Suppose for sake of argument that this group is an armed militia in the United States like the one that occupied a national wildlife refuge in Oregon last year. They have a command structure, an anti-government ideology, they recruit new members, and they punish those who don’t fulfill their duties. They however have zero intention of actually launching any attacks on the government. What happens if the government decides to launch a military operation on their HQ, they immediately fight back and 30 minutes later all militiamen die. If NIACs have a nominal unilateral threshold, wouldn’t it be very tempting for the government to force a trigger and claim the militiamen were directly participating in a 30 min long “armed conflict”? Would this not be an incentive for escalation? Now imagine if the government actually just invents that the group is armed…

    I know this is a very specific example and we can actually interpret our way out of it, but it is still at least worth considering the scenario. Especially when something like this already happened at the Inter-American Commission of Human Rights in the late 90s in the “La Tablada” case, where the Commission held that Argentina was engaged in a 30 hours long armed conflict with a group of organized civilians who took over a military base. The Commission ended up declaring that these people were valid military objectives (!!) because they were directly participating in hostilities (see ¶178 here: https://www.cidh.oas.org/annualrep/97eng/Argentina11137.htm). This case is perhaps not a perfect example because I think the Commission applied the Tadic requirements wrong, but that may change next time. In these situations, the intensity requirement could serve as a check on any potential abuse of the law by them.

  4. Hi Deborah,

    In my view, the LOAC does not “lift[] a prohibition under which all states otherwise operate.” The UK is conceding as much by derogating from the ECHR. The applicability of the LOAC, by itself, does not change the UK’s obligations under the ECHR. Only derogation, according to the rules of the ECHR, can do that.

    Moreover, it will be for the courts to determine whether measures derogating from the ECHR exceed “the extent strictly required by the exigencies of the situation.” For example, the courts may very well find that, although the law of NIAC applies throughout the territory of another state (Iraq, Afghanistan, etc), measures derogating from Article 2 are strictly required only in certain areas. In other areas, Article 2 may very well apply with full force.

    In my view, the law of NIAC does not “provide[] legal justification for conduct that is otherwise illegal.” There is no combatant immunity in NIAC and, in any event, immunity from domestic prosecution is quite different from an affirmative justification.

    If the law of NIAC provided state armed forces with legal justification then, by the equal application principle, it would have to provide armed groups with equivalent legal justification. Personally, I would preserve the equal application principle and deny both armed groups and state armed forces legal justification. If state armed forces want to avoid prosecution, then they should work that out with their own state and with the state in which they operate.

    Indeed, the prohibition on arbitrary deprivation of life may “prohibit status-based targeting in NIACs when all other relevant principles (proportionality, distinction, etc.) are observed.” In this regard, I agree with the ACHPR’s Comment that

    “Where military necessity does not require parties to an armed conflict to use lethal force in achieving a legitimate military objective against otherwise lawful targets, but allows the target for example to be captured rather than killed, the respect for the right to life can be best ensured by pursuing this option.”

    While we may certainly look to IHL to inform our interpretation of which deprivations of life are “arbitrary” in armed conflict, there is no reason to assume that IHL is so perfect that it effectively prohibits all arbitrary deprivation of life in armed conflict. In the end, whether a particular deprivation of life is arbitrary remains a question of human rights law, not of IHL. Our best interpretation of human rights law, informed but not determined by looking to IHL, should prevail.

    Hope all is well,

    Adil

  5. Hi Alonso,

    As I’m sure you’ve gathered from my last comment, I think that the government’s attack may both trigger a NIAC and violate human rights law. Under the ECHR, it is hard to see how derogating from Article 2 would be strictly required by the exigencies of the situation, which you describe as stable prior to the government attack. Under the ICCPR, ACHR, and ACHPR the initial attack seems like an arbitrary deprivation of life.

    On a related note, I would recommend Eliav Lieblich, Internal Jus Ad Bellum https://ssrn.com/abstract=2663954

    Very best,

    Adil

  6. Adil, can you clarify this sentence?: “But when the LOAC fails to prohibit arbitrary deprivations of life, then human rights law will still do so.” It seems to suggest that the LOAC prohibition on arbitrary deprivations is irrelevant, since it is always the case that the human rights obligation “will still do so.” So what work is the LOAC prohibition doing?

  7. Hi Jens,

    My view is that, when both bodies of law apply, all killings that violate the LOAC are arbitrary deprivations of life under IHRL. However, some killings that do not violate the LOAC may nevertheless constitute arbitrary deprivations of life under IHRL.

    So, you rightly ask, what work is the LOAC doing? Why not just apply IHRL directly to the specific factual circumstances surrounding each deprivation of life? Here are a few thoughts:

    First, the LOAC may apply where IHRL does not. As you know, there is a move to apply IHRL to all extraterritorial killings by state agents, but if that move fails then the LOAC may be the only applicable law in many cases.

    Second, where both apply, the LOAC provides a floor of protection, a minimal content to “arbitrary” in the context of armed conflict. Less strongly, the LOAC contains “relevant rules of international law” that inform the interpretation of IHRL in armed conflict.

    Third, the specific rules of the LOAC provide more detailed guidance to combatants than the general IHRL prohibition of arbitrary killing, even though killing that violates no specific rule may still be arbitrary. By way of comparison, the specific rules of driving (speed limits, turn signals, etc) provide more detailed guidance to drivers than the general prohibition of reckless driving, even though driving that violates no specific rule may still be reckless.

    Finally, the LOAC triggers different accountability mechanisms, including potential criminal prosecution for grave breaches and other war crimes. Conversely, IHRL accountability mechanisms may be available even when those criminally liable are unavailable for prosecution.

    Hope all is well,

    Adil

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