Symposium: A Commentary on Complex Conflict Situations

[Susan Breau is a Professor of Law and the Dean of the Law Faculty at the University of Victoria.]

Kubo Mačák’s book Internationalized Armed Conflicts in International Law represents an important contribution to international law scholarship. The comprehensive discussion of the conditions in which a non-international armed conflict (hereafter NIAC) may evolve into an international armed conflict (hereafter IAC) is particularly pertinent with the emergence in the late 20th and early 21st century of so many complex conflict situations such as Bosnia, the Great Lakes conflict, Afghanistan, Iraq and Syria. These conflicts have resulted in large numbers of civilian casualties and major movements in peoples that continues to this day; particularly seen in the European migrant crisis. However, as an activist international lawyer who has worked on such situations including the legal issues surrounding drone strikes, the Kurdish conflict in Turkey, and the obligations towards civilian casualties (particularly those who are deceased), it would be much more satisfactory to see all of international humanitarian law including the rules of combatancy and belligerent occupation would apply no matter what type of conflict exists. Yet regrettably that is a distant dream, certainly not lex lata, and I accept Mačák’s argument that the distinction between the two is here to stay. It is comforting however that Mačák referenced the ICRC Customary Law study and the fact that 90% of its rules apply in both types of conflict.

However, I do believe that a more nuanced view of armed conflict is present throughout this book and one has to agree that most conflicts do not fall easily as a choice between IAC versus NIAC. Chapter 3 particularly supports this view by arguing that there can be a hybrid view between a purely global or mixed approach with regard to current complex conflict situations. I am also relieved to see however, that Mačák is not attempting to argue the development of a third category of armed conflict but rather internationalization as a dynamic process. This means that there can be conflicts such as those mentioned above that might contain regions of NIAC and regions of IAC.

In terms of my own current research focus, in those conflicts that have converted from a NIAC to an IAC, it is very important to recognise combatancy rather than criminality as this means that those persons who die in an internationalized armed conflict can be classified as either civilians or combatants and such derisive terms as ‘militant or terrorist” may no longer be as extensively utilised. I have often stated that it is impossible to equate a militant to a combatant and these terms are not helpful in analysing an armed conflict. It is useful here to examine the implications of this research in my three areas of interest.

Firstly, in the area of drone attacks, in an international armed conflict one of the issues has to be that the target of the drone attack has to fall into a category of combatant as to kill a civilian in that fashion could constitute a war crime. Yet extensive research by Dr Brookman-Byrne has revealed that many of these attacks do not occur in a zone of armed conflict and Mačák’s careful approach accepts that even in a country that has an internationalized armed conflict there may be areas where the conflict does not exist. I will leave it to Brookman-Byrne to continue this analysis as it involves several of the armed conflicts discussed by Mačák. Sadly, drones seems to be a popular method of combatting terrorism more generally and they are being used without the geographical analysis needed to ensure the attack is taking place within an armed conflict. Within the criminal context in a zone that does not fall into Mačák’s typology the person attacked of a drone is convicted and executed without proper legal process.

Secondly, a careful analysis will have to be conducted as to how these categories impact on the long-standing Turkish conflict with the Kurds. Yildiz and I argued in our book, The Kurdish Conflict, that this conflict which began in southeast Turkey in 1984 was an IAC. The Turkish government has always argued that when they attacked outside of their sovereign territory they were acting in pursuit of terrorists who were participants in their internal armed conflict. However, with the emergence of ISIS in Iraq and Syria (including the genocide of the Yezidi people) and the armed interventions by the US, Russian and Turkish military, the nature of the conflict I would argue, has internationalized. The current tension with some Turkish attacks in the Kurdish areas of Iraq and Syria should surely be argued to be internationalised with the active participation of the US and Russian forces and various Syrian militant groups including ISIS. However, as Mačák has pointed out various parts of this conflict may be a NIAC and others an IAC and the particular attacks by the Turkish army could be argued to still be part of the war in Southeast Turkey. The PKK has often argued for prisoner of war status that has yet to be grated to them. This analysis needs careful study and Mačák’s methodology will be of great assistance. A further complication is the US announcement of withdrawal from Syria and the fact that in that light the Kurdish people of Syria are approaching the Assad regime for assistance in defending their claimed territory from Turkish attack. Surely is the Syrian military becomes involved this will then become an international armed conflict. As is often the case with the Kurdish situation it is very complex and multi-layered.

Finally, one of the principle difficulties in arguing for dignity in death for all casualties is that the treaties that regulate internal armed conflict contain minimal requirements for respect for the dead. How the dead are to be treated is not even mentioned in Common Article 3 save for the prohibition against outrages upon personal dignity and in the case of Additional Protocol II, Article 8 mandates for search of the dead and to prevent their bodies being despoiled. The tradition of respect for military casualties largely evolved in international armed conflict and it within that paradigm that I argue that civilian casualties should be treated with similar respect.  My hope is that at some point there will be a similar organisation such as the Commonwealth Graves Commission to ensure that civilians are honoured and remembered as part of the armed conflict. Given that neither combatant nor civilian casualties are even acknowledged in an IAC and are often categorised as either the criminal or terrorist dead or the criminal victims it is an area again fraught with complication and constant debates over the type of conflict existing in the various areas of civilian casualties. Recently I was involved in preparing a statement regarding the European migrant crisis in a project convened at LSE named the Last Rights Project (see here for the statement). The various protections argued for the drowned migrants were based on international humanitarian law which is as it should be given that those migrants often are fleeing armed conflict. It would be interested to hear Mačák’s reaction to the argument that the IHL guarantees for civilian protection follow those fleeing from conflict and dying in other territories. It is probably too large a stretch and in a recent contribution with Marie Aronsson-Storrier to a conference on migration in Oslo, we limited our analysis to human rights provisions. Once again I would love to embark on an analysis of the conflict areas using Mačák’s typology.

In conclusion, as with all important international law monographs, this one is sure to provoke much discussion the coming years. Any scholar who has to engage with the debate on types of conflict and how a decision as to how to categories the situation might impact on the rules that govern the conduct of hostilities will find this book a useful first step.