24 Jan Taking Territory of a Third State Seriously: Beginning of IAC and the Strike Against Major General Soleimani (Part II)
In the first part of this post, we explained that there is a missing yet important element for characterizing the strike against Major General Soleimani i.e. the strike took place in the territory of Iraq not Iran or the US. The prerequisite of territory for the application of the Geneva Conventions is presumed by drafters and commentators in a way that reference to the territory of belligerent parties is mentioned in many articles of the Geneva Conventions for their application. In this regard, the ICRC Opinion Paper in 2008 is of importance in which, in defining the term of armed conflict, it quotes Gasser that “any use of armed force by one State against the territory of another, triggers the applicability of the Geneva Conventions between the two States. […]”. [emphasis added] In the same line, relying on Netherlands Advisory Committee Report (p.3) which declares that “in situations of international armed conflict between States, the applicability of international humanitarian law is limited to the territory of the warring States”, Pejic argues that “there are valid legal and policy reasons for this reading. When it comes to IAC, a close examination of the Geneva Conventions may lead to the conclusion that the vast majority of their provisions were in fact drafted for and intended to apply only to the territory of the States involved in such a conflict.” (p.32) Similarly, the ICRC 2016 commentary on Common Article 2 provides that: “Any unconsented-to military operations by one State in the territory of another State should be interpreted as an armed interference in the latter’s sphere of sovereignty and thus may be an international armed conflict under Article 2(1) [emphasis added] (para. 237).
Of course, if fighting occurs in a third State by way of a territorial spillover of an ongoing IAC, as discussed by Schöberl, the Conventions’ protection would apply (p. 75). But, as we discuss below and in line with the humanitarian object and purpose of both the IHL and IHRL treaties, the first strike that happens in the territory of a third State, will not by itself trigger the application of these Conventions. As noted by Geiss, “a sweeping and global application of IHL without any territorial confines whatsoever is not maintainable owing to the unjustifiable worldwide derogations from human rights law this would bring about, and in light of the very object and purpose of IHL, i.e. to provide relatively basic but feasible standards in areas where the reality of armed conflict simply forestalls the application of more protective (human rights) standards.” (p. 138).
In light of this, it can be well argued that the phrase “resort to armed force” which in principle triggers an IAC, is limited to IACs that begin in the territory of one of the belligerent States. When the first strike takes place in a territory of a third State, like the one in hand, based on foregoing, we argue that another criterion is needed in order not to defeat the object and purpose of IHL: only after explicit declaration of war by the targeted State or when the latter resort to armed force as a reaction, an IAC begins to exist. In other words, when there is no declaration of war by the other State or until there is no military reaction from its side, no international armed conflict exists at all, rather, in addition to the rules of jus ad bellum, relevant rules of international law in peacetime will be applied for assessing the legitimacy of such a strike.
In our view, such an interpretation is compatible with the object and purpose of the Geneva Conventions. The very purpose of the first IHL principle i.e. the principle of humanity is to decrease the negative impacts of the armed conflicts on civilians, those hors de combat and civilian objects. The principle of distinction, in line with the principle of humanity, allows targeting combatants and military objectives during an armed conflict. These basic and fundamental rules are for the purpose of humanizing the armed conflicts, but in no way, the legitimacy of targeting combatants under IHL can be interpreted as permitting “unlawful killing” in situations outside of an armed conflict, meaning when there is no combatant status per se.
This would mean that a killing that occurs as a result of such a strike should accord with the requirements of IHRL, i.e. rarely justified if it happens in the strict context of a law enforcement operation by the national Police or the security forces, otherwise, as in our case, will be amounted to an illegal and extra judicial killing (see: Callamard and General Comment 36, para. 12).
Does it mean that if a person in uniform was arrested as a result of a first strike in a third State, the person will not enjoy the protection of the Third Geneva Convention i.e. the status of PoW? Indeed! But this does not mean less protection. The most important advantage of being considered as a PoW is that the person will not be punished for the mere act of taking part in hostilities. In our scenario, however, there is no room for the application of such a privilege because for the person captured there was no hostility to take part in! Even if that person kills or injures the attacker, this will be amounted to an act of self-defense recognized under all criminal legal system leading to his/her acquittal. This is because, as mentioned by Clapham, “even from a humanitarian point of view, it may be preferable to be protected by the law of human rights rather than by the law of armed conflict. This is particularly so when the law of armed conflict is said to permit killings and forms of detention without trial. It is suggested here that one cannot square this circle with a ‘one size fits all’ definition of armed conflict.” (p. 25) Lastly, even though IHL triggers when there is a resort to armed force in or against one State territory, when the first resort to force is taking place in the territory of a third State, two major points should be recalled. As a point of fact, the application of IHL to this kind of targeted killing may justify a dangerous practice by States to carry out assassination of other State officials wherever they find them. As a point of law, when intentional law, as lex lata, does not permit targeted killing of the members of non-State actors in a third State territory, it is self evident that States cannot use it for “assassination-laundry”.