14 Jan Symposium: Internationalized Armed Conflicts–The Wars of Our Age
[Dr. Kubo Mačák is a Senior Lecturer in Law at the University of Exeter in the United Kingdom.]
Donald Trump’s recent decision to withdraw all US troops from Syria, announced characteristically through a Twitter post, has once again brought the ongoing hostilities in the Middle Eastern country into international spotlight. More than seven years into the conflict, its origins in a series of peaceful protests during the so-called Arab Spring of 2011 seem now part of a distant past. Since then, the situation in Syria has undergone a number of dramatic transformations, marked by the emergence of hundreds of domestic armed groups and militias, the involvement of several foreign powers (including the US, Russia, Turkey, Iran, and others), and an unprecedented wave of refugees that has sparked a worldwide migration crisis. Although frequently referred to as the “Syrian Civil War”, there is little doubt that the tremors of the conflict continue to be felt well beyond the borders of that state.
These developments illustrate well what had been the starting point of the research project that has since culminated in the publication of my new book Internationalized Armed Conflicts in International Law (Oxford University Press 2018). I had begun with an observation that the evolution of many modern conflicts follows a similar factual pattern. In the post-Cold War era, most armed confrontations begin in the territory of a single state, typically between the ruling government and an organized armed group challenging its authority. However, such an internal conflict then often develops and changes, acquiring various international elements over time. As I was beginning my research, I had on my mind mainly the situations in ex-Yugoslavia, Afghanistan, and the DRC; by the time I was completing it, I had shifted my focus to Libya, Ukraine, and indeed Syria. But the pattern seemed to hold, albeit to a differing degree and in various manifestations, to all of these conflicts and beyond.
The book that is the subject of this symposium is, then, not a book about any of those conflicts individually, and yet it is, in a way, a book about all of them. It explores the internationalization of armed conflicts as a concept, as a process, and as an outcome. Some readers may wonder whether this is truly a proper concern for the discipline of international law—should we not instead leave the questions of conflict transformation to military theorists, political scientists, and international-relations specialists? My response is that the key reason why internationalization is important as a matter of law is that the legal regime that applies to a particular armed confrontation depends first and foremost on the legal qualification of the situation in question.
This is because the modern international law of armed conflict (also referred to as international humanitarian law or IHL) is based on a persisting bifurcation between international armed conflicts (IACs) and non-international armed conflicts (NIACs). Each of these categories is governed by a different legal regime, while traditionally the regulation of the former has been much more comprehensive than that of the latter. It should be noted that over the last few decades, there has been a gradual trend of confluence between these two categories. However, for the foreseeable future, the IAC/NIAC distinction is here to stay. That is why it is essential to understand the threshold at which a NIAC transforms into an IAC and what consequences that transformation brings from the legal point of view.
Accordingly, the book aims to identify the tipping points that may convert NIACs into IACs. Conflicts that fit this description, in other words, those that undergo such a conversion, are defined as “internationalized armed conflicts”. Importantly, the possibility of such a transformation poses a significant difficulty from the perspective of IHL. Legally speaking, conflicts internationalized in this sense are subject to the law of IAC. However, their intra-state origin makes them an uneasy match for a body of law that has historically developed as a regulatory framework for inter-state wars. The principal legal questions lie with the regulation of combatant status and the law of belligerent occupation, both of which appear to be inextricably linked with “classic” IACs that are characterized by a duality of states, their territories, and populations—quite unlike the eponymous internationalized armed conflicts.
I have structured the exploration of these issues into eleven chapters, with the core of the book’s argument being presented in three parts, each consisting of three substantive chapters. (The remaining two chapters contain respectively the introduction and the conclusion to the book.) The first part examines the process of conflict transformation in international law. It argues that the modalities of internationalization that have emerged thus far include outside intervention, state dissolution, wars of national liberation, and recognition of belligerency. In the same part, the book also specifically considers the legal qualification of complex situations that feature three or more conflict parties—a frequent occurrence in the conflicts under scrutiny, as exemplified also by the war in Syria. Finally, Part I contrasts the mechanism of internationalization of armed conflicts with the reverse process of de-internationalization.
The latter two parts of the book then turn from the question of process to the effects that are produced by conflict internationalization in IHL. Part II focusses on the issue of combatant status. Since internationalized conflicts necessarily start as confrontations involving at least one non-state party, it is questionable whether persons belonging to such entities may ever qualify for combatancy. This part examines the historical development and normative underpinnings of the relevant rules to argue that, as long as a conflict has undergone internationalization as a matter of law, fighters belonging to such formations are generally eligible for combatancy. It closes by testing the practical feasibility of this finding vis-à-vis the specific modalities of internationalization and the applicable legal frameworks.
Part III is concerned with belligerent occupation. As noted, an internationalized armed conflict breaks out in the territory of a single state. This poses a number of difficulties for the law of occupation, which is premised on the existence of two independent belligerent states. Accordingly, this part addresses those obstacles from historical, theoretical, and practical perspectives. On that basis, it argues that the law of belligerent occupation should be understood as in principle applicable to modern internationalized armed conflicts, with the actual extent of applicability depending on the specific circumstances of each particular situation. To assist with this determination, this part also outlines the criteria (temporal, territorial, and personal) that have developed in the relevant international jurisprudence and state practice.
It is impossible to provide a detailed digest of the argument of an entire book in a single post, and different people will likely place emphasis on different aspects of the book’s contribution. That is why I look forward to the discussions in the days ahead, both with the distinguished scholars who have kindly agreed to participate in the symposium and with the learned readers of Opinio Juris. Nonetheless, if I were to strip the central argument to its bare bones, I would say the book argues in favour of extensive application of IHL to internationalized armed conflicts. As always, the devil is in the details, which are given a much more thorough consideration in the book itself and I am sure we will return to a number of them over the next week or two. I am grateful to the editors of Opinio Juris for providing a platform for the exploration of conflict internationalization in international law and I look forward to continuing the debate on this blog.