Symposium: The Interplay Between IAC and NIAC–Questions and Consequences

[Laurie R. Blank is a Clinical Professor of Law, Director of the Center for International and Comparative Law, and Director of the International Humanitarian Law Clinic at Emory University School of Law.]

The classification of international armed conflict (IAC) and non-international armed conflict (NIAC) is the essential building block of any law of armed conflict analysis. Kubo Maçak’s new book, Internationalized Armed Conflicts in International Law, offers a nuanced examination of how non-international armed conflicts “internationalize” and, more importantly, why it matters and how the law addresses such evolutions and transformations. I want to congratulate Kubo on this outstanding volume and I am grateful to the organizers of this symposium for the opportunity to participate and share some thoughts sparked by Kubo’s insightful analysis.

As Kubo’s discussion of the internationalization of NIACs aptly demonstrates, the interplay between IAC and NIAC produces a range of interesting questions and consequences. I’d like to highlight and explore two in particular here: first, the effect of an ongoing IAC on the analysis of intensity and organization for identifying the threshold for a burgeoning NIAC in the same country; and second, the potentially curious possibility that a spillover NIAC creates an IAC but not a NIAC in the neighboring country.

The first question is, in some ways, a reverse option to Kubo’s central inquiry — rather than examining how a NIAC may become an IAC and the resultant consequences, this question explores if and how an IAC may affect a NIAC emerging in the same country. Consider an IAC between State A and State B occurring primarily on the territory of State B. If non-state actors in State B begin to engage in violence against either State A’s forces or State B’s forces, or perhaps even against other non-state actors, the immediate issue is how to characterize that violence for purposes of applying the law of armed conflict (if, when and how, in essence). Kubo’s analysis of the global and mixed approaches (pp. 99-105) and proposal for a hybrid spectrum model offers a useful means for addressing the IAC v. NIAC aspect of this question: “the degree of armed violence and the extent to which it affects the other conflict pairs . . . determines whether the conflict pairs should be considered separately (mixed approach) or together (global approach).” Given that he focuses on an existing NIAC becoming an IAC, Kubo’s framing rightly centers on the second aspect, the relationship between the various actors and how the violence affects those relationships. Under this approach, the degree of operational autonomy between the state and non-state forces fighting against the same enemy is the key factor in differentiating between two separate conflicts (an IAC between the two states and a NIAC between the non-state group and one of the states) or one “global” conflict characterized as an IAC.

This analysis only arises, however, if the violence in which the non-state group is engaged is of a degree or level so as to bring the law of armed conflict and the classification of conflict into play. Thus, in addition to the nature of the relationship between the non-state group and the State, there is an antecedent question: when does the armed violence by the non-state group or between the non-state group and the state, or among two non-state groups, in the context of an existing IAC, constitute an armed conflict such that we need to explore these questions? The threshold for NIAC depends on the intensity of the violence and the organization of the non-state armed group — but the fact of the already existing IAC adds another wrinkle to the analysis, particularly with regard to the intensity factor. In essence, the key question is whether the existing IAC provides an “intensity boost” of some form to nascent violence by a non-state armed group.

An “intensity boost” could occur in two ways. First, the existing IAC could mean that any violence between the non-state armed group and one or the other states involved in the IAC, or between two non-state groups, simply is viewed as being of a greater intensity because there is already a conflict ongoing in the same area, so violence that might otherwise be considered merely internal disturbances looks more like armed conflict. Second, the existing IAC could mean that unilateral acts by a non-state group against one of the states involved in the IAC would be sufficient to trigger a NIAC between that state and the non-state group, even though NIAC ordinarily requires protracted armed violence between the two parties and does not arise solely on the basis of one party’s actions. Once the state is involved in an armed conflict, the existing IAC, it will likely view any violence against its forces through the lens of armed conflict. Either option relaxes the threshold for NIAC in some manner, one potential consequence of the interplay between IAC and NIAC.

A second question arises in the context of a spillover NIAC — that is, when a NIAC between a state and a non-state armed group spills over into a neighboring state. Although not directly addressed in Kubo’s book, spillover NIACs are in some way another reverse form of Kubo’s analysis regarding internationalization by intervention and thus offer another opportunity to examine the interplay between IAC and NIAC. In particular, the spillover NIAC introduces the possibility of a fascinating contradictory result based on traditional conflict classification analysis.

Consider a NIAC in State A, in which the state is in a conflict with a non-state armed group. At some point, the non-state armed group is present in neighboring State B. When State A uses force against the non-state group inside the territory of State B, two questions arise: whether there is an IAC between State A and State B as a result of State A’s use of force against the non-state armed group in State B; and whether there is a NIAC in State B between State A and the non-state armed group.

If one takes the view that State A’s use of force in State B, even if against only the non-state armed group and not State B, triggers an IAC between the two States (see Kubo’s book p. 38; 2016 ICRC Commentary, para 477), then the scenario posed above results in an IAC between State A and State B regardless of the lack of fighting between their forces. At the same time, if one takes the view that the violence between State A and the non-state group within the territory of State B must meet the threshold of intensity and organization independently of the original NIAC in State A (2016 ICRC Commentary, para 474), then the scenario posed above will, at least at first, not constitute a NIAC in State B until the violence between the two parties reaches a sufficient level of intensity.

The result: a curious situation in which we have an IAC between two parties who are not fighting (State A and State B), but no NIAC between two parties who are fighting with each other (State A and the non-state group in the territory of State B). Like the examples Kubo relies on to drive his analysis, this scenario demonstrates one example in which interpretive methods of applying the law do not track or account for operational realities on the ground, which could produce a legal regime that is “an uneasy match for conflicts that break out in the territory of a single state and gradually acquire international dimensions.” (p. 241). At a minimum, this disconnect weighs strongly in favor of treating the violence between State A and the non-state group as a NIAC in each area in which they engage in hostilities, without requiring a fresh intensity-and-organization analysis in each new territorial space. Much like Kubo’s hybrid spectrum model for internationalization seeks to find an operationally viable approach to internationalization, doing so avoids the operationally unrealistic result of different legal classifications of the relationship and violence between the same two parties solely based on the geographic location of such engagements.