Symposium: Further Thoughts on an IAC with Three Parties and the Capacity of Armed Groups to Adhere to International Norms

[Katharine Fortin is an Assistant Professor at the University of Utrecht’s Netherlands Institute of Human Rights.]

Kubo Mačák’s book starts with the observation that many conflicts today start as internal affairs in which a State confronts a domestic armed group, but often end up getting internationalized. Mačák sets out to unpack and analyse this phenomenon, by identifying at what point a NIAC transforms into an IAC, and what consequences that transformation brings from a legal point of view.

In his analysis, Mačák identifies four different ways in which a conflict can be transformed from a non-international armed conflict to an international armed conflict.

• First, it can be internationalized by the involvement of an external actor such as a third State or international organization by way of military intervention.
• Second, it can be internationalized due to the territorial state dissolving during the civil war into two or more successor States.
• Thirdly, it can be internationalized due to the working of Article 1(4) of Additional Protocol I, whereby conflicts between States and self-determination movements are said to be international in character.
• Fourthly, it can be internationalized by means of acts of either the parent State, third States or the armed group itself, as a result of recognition of belligerency, special agreements set out in Common Article 3 and unilateral declarations.

By exploring these different scenarios, Mačák creates a rich multilayered analysis that gives attention to historical perspectives. One of the great merits of the book is its thorough consideration of existing secondary literature. Mačák carefully maps existing analyses – holding each one up to the light – identifying value and difficulties with various threads of argumentation. There are two issues on which I would like to hear Mačák’s further thought.

Single IAC – three parties: the territorial State, the outside State and the armed group?

The first is an issue on which I think Mačák takes an unusual view. He concludes that when a third State intervenes in a non-international armed conflict in a manner that means that the operational authority of the armed group is relinquished, the result will be ‘a single IAC with three parties: the territorial state on the one side, and the outside state and the armed group it is assisting on the other’ (p99, 104). Mačák does not acknowledge that this view is controversial but I would say it is – on at least three levels.

First, it runs against the more orthodox position under which the legal personality of the armed group is considered to be extinguished, when the overall control test is met. According to the ICRC, an armed group fighting the government is ‘absorbed’ into the intervening State in these circumstances. The intervening power substitutes the non-State party, becoming the ‘single party’ engaged in an international armed conflict against the government forces of the territory in which the military operations are taking place (Ferraro, 2015, p. 1250) i.e. the result will be a single IAC with two parties. Structurally this is a significantly different outcome than a single IAC with three parties, one of which is the armed group. Under the ICRC position, the legal personality of the armed group is extinguished. Under Mačák’s approach the legal personality of the armed group is amplified.

Indeed, the second reason why Mačák’s position is controversial is that it involves a significant increase of legal personality for the armed group. The armed group transforms from being an entity bound by the rules of non-international armed conflict to becoming a legal entity bound in its own right – as a party – to the rules of international armed conflict. The corollary of this position is that the fighters of the armed group would benefit in their own right from the privilege of prisoner of war status that this international framework brings i.e. as armed group members. This is different to the situation where an armed group is absorbed into the legal personality of the intervening State. Here, the same result may be achieved but on the basis of an entirely different conceptual basis. Here, the members of the armed group may also be eligible for prisoner of war status but only as a result of their connection to the intervening State’s armed force (presumably only if they fulfill the conditions in Article 4A of Geneva Convention III of ‘belonging to’).

Thirdly, the idea that an armed group in these circumstances becomes a party to an IAC is intriguing as a matter of law. It introduces a scenario where the acts of an external third party (i.e., the intervening State) can – against the will of the parent State – amplify the legal personality of the armed group, in a manner that requires the parent State to grant its fighters combatant immunity. In the other comparable situations) where an armed group’s legal personality is amplified so that its members are bound by and benefit from norms that usually apply in an IAC (e.g. belligerency, Article 1(4) of API – the consent of the parent State is clearly discernible and arguably pivotal to facilitating and creating the changed legal relationship between the parent State and the armed group. State consent in these scenarios manifests itself in the form of a declaration of belligerency, a special agreement or a prior ratification of Additional Protocol I (see Morocco’s accession to API in June 2011 as a case in point p. 69). Against this background, I need a bit more persuading that an armed group can be made a party to an IAC in these circumstances, against the will of the parent State.

In studying Mačák’s reasoning on this point p. 99-104 of the book, I would have found it helpful if he had more explicitly acknowledged that his conclusion on this point is unusual, explaining why he dismisses the orthodox position – sometimes or always – and identified legal authority for his position. I would have also found it helpful if he had tied his reasoning relating to operational autonomy at (p. 101-102) more tightly to his earlier discussion of the overall control test. It is not clear whether the fact that he does not mention the test at all in these pages is deliberate or an omission.

Capacity of armed groups to adhere to international norms

The second point where I would have liked more reasoning relates to another of my own interests -the capacity of armed groups to adhere to international norms. In the part of his book in which Mačák appraises the legal consequences of internationalization, he shortly addresses the idea that armed groups may not have the capacity to grant members of government forces the full rights and privileges of POWs (p. 159). He dismisses this argument quickly, stating that if members of armed groups are granted combatant status as a consequence of internationalization, this will only affect the States against which they are fighting. According to Mačák, ‘no new duties would be imposed on the non-state party in question’. But can the capacity argument be dismissed so easily? Surely, giving due respect to the principle of equality, the non State actor would be bound by the same IAC rules as the State if a conflict is internationalized, making the capacity of the group to adhere to GCIII obligations a consideration that cannot so easily be batted away? I would be interested to hear Mačák’s thinking here.

Conclusion

The best books are those which start conversations and debates, and I welcome the opportunity to be able to solicit Mačák’s thoughts on these issues – which are only two small points in a rich sea of analysis. From one Pictet-ist to another, I would like to congratulate him as his book is certainly a great addition to the literature.