16 Jan Symposium: Reflections on Conflict Classification
[Anne Quintin is the Head of the Advisory Service for the International Committee of the Red Cross. Her contribution is written in her personal capacity and the views contained hierin do not necessarily reflect those of the ICRC.]
Let me first thank Opinio Juris for the invitation and congratulate Kubo for his excellent, rigorous and well-researched book. The latter brings a number of clarifications to the often wrongly-used and confusing phrase of internationalized armed conflict, deconstructing the various possible scenarios where a pre-existing NIAC either is accompanied with or turns entirely into an IAC. It also tackles some difficult questions linked to the implementation of IHL following a full “internationalization”, i.e. a situation in which the law of IAC becomes applicable to all parties to the conflict, including the initial non-State party. This question is one of the most interesting aspects of Kubo’s book, which has been under-researched by IHL scholars so far. Numerous doctrinal works address theoretical questions on the classification of situations of violence, including that of the so-called internationalization of a pre-existing NIAC, but few deal with the concrete application of IHL once the original non-State armed group party to the armed conflict becomes bound by the law of IAC.
No such thing as internationalized armed conflict
In spite of what its title may suggest, the first part of the book demonstrates that there is no such thing as a legal category of “internationalized armed conflict” corresponding to a clear definition for classification purposes. The ICRC itself decided a few years ago to renounce the use of the misleading phrase “internationalized internal armed conflict”, preferring to stick to the clearly defined categories of IAC and NIAC, recognizing that “armed conflict with a double legal classification” are however possible (see here for a discussion).
Along the same line, Kubo proposes a new model that would allow getting rid of the confusing expression of internationalized armed conflict, to focus instead on a bilateral approach, looking at “conflict pairs”. This “hybrid model” is first based on a rejection of what Kubo calls the “pure global” model, according to which any foreign military intervention in a pre-existing NIAC would render the law of IAC applicable to all parties to the conflict. The “pure mixed” model is equally rejected, for it limits the applicability of the law of IAC exclusively to the hostile relationship between the foreign intervening State and the territorial State, and thus creating too narrow and unrealistic a compartmentalization (the relationship between the armed group and the target State remaining a NIAC). Instead, Kubo submits that “it is the degree of armed violence used and the extent to which it affects the other conflict pairs that determines whether the conflict pairs should be considered separately (mixed approach) or together (global approach)” (p. 100). Recognizing that “the exact location of this ‘tipping point’ may be difficult to determine”, the threshold is placed somewhere on a scale measuring the degree of co-ordination between the parties. More precisely, when the relationship between the foreign intervening State and the non-State armed group is one of “mutual support without it reaching the level of joint organization, co-ordination, or planning of military operations” (p. 102), the classification remains double – i.e. an IAC between the two States and a NIAC between the territorial State and the armed group. I agree with this conclusion. However, when “the level of mutual assistance and support between the conflict parties […] develop[s] to provide the outside party a role in the making of strategic and tactical decisions as to how to engage the common enemy”, the law of IAC is said to become applicable to all parties to the armed conflict. Although this threshold sounds at first akin to that of the overall control test, Kubo suggests that joint participation of the “allied” parties in the organization, co-ordination, or planning of the military operations would be sufficient to already internationalize the conflict. Under this model, the dividing point is hence the “moment at which the two parties can be said to be using force together” (p. 103). Here, I agree that the relationship between the two States will be governed by the law of IAC; however, I fail to understand why – and how – the law of IAC should also apply to the non-State party, which seems to retain a high degree of independence and autonomy, being simply involved in some sort of coalition with the intervening State. Indeed, the identity of the actors is key to define the international character of the armed conflict: statehood is and should remain the baseline against which the existence of an IAC will be measured (see here for a discussion). As such, situations of subordination of an armed group to an intervening State, in the sense of the overall control test, will be governed by the law of IAC. But this is because the members of the armed group have become the equivalent of agents of the intervening State, to the effect that the parties to the armed conflict are actually States. A joint use of force alongside the intervening State, when there is no such subordination, maintains the independent existence of the armed group and hence the applicability of the law of NIAC to the relationship between the armed group and the target State.
Consequences of applying the law of IAC
Parts II and III then turn to the interpretation of the rules of IAC so that they can be applied to what will factually remain a non-State armed group. Although very well-argued and legally sound, one may regret that these parts do not go one step further and examine the practical consequences of applying the full body of IHL to internationalized armed conflict, and in particular to situations where the internationalization derives from the overall control by the intervening State over an armed group (which I have personally always found fascinating from both a theoretical and a practical point of view).
Let’s take a simple and schematic example for the sake of clarity: the armed group X fighting against State A is actually under the overall control of State B, which is not present on the territory of State A and only controlling the armed group from a distance. It is determined that the control exercised by B over X is sufficient for the armed conflict to become an IAC, with the law of IAC applying to the entire situation. One question that will arise is that of the status of the members of the non-State party. There, Kubo goes in depth into a demonstration of how the legal status of combatant and the applicable legal frameworks – defined in GCIII and in API when applicable – can be interpreted so that it is practically feasible for members of a non-State armed group to which the law of IAC is applicable to meet the requirements of such status. One important step is this respect is whether the members of the non-State armed group, which as a group has been “absorbed” by the foreign intervening State, necessarily become members of the armed forces of that State in the sense of IHL. It is accepted – we agree with Kubo – that the members of the non-State armed group have become agents of the intervening State. However, IHL sets specific requirements in order for someone to be considered a combatant. Kubo suggests that, in the majority of cases, they will fall under the category of irregular armed forces.
When API is not applicable, the definition is provided by Art. 4 of GCIII. It includes the criterion of “belonging” to the party to the conflict, which has been interpreted by Pictet to mean that mere affiliation or tacit agreement can be sufficient. However, under GCIII, irregular armed forces must also meet the four criteria set in Article 4(A)(2). There, it is regrettable that Kubo seems to exclude the possibility – and its consequences – that the four conditions might not be respected by the group as a whole (for instance, the group could collectively decide not to wear any distinctive sign, or not to carry arms openly).
Of course, this is different if API is applicable, as it sets a different threshold to define members of the armed forces of a State. In particular, Art. 44 of API relaxes the requirements for combatants to distinguish themselves and to wear arms openly. However, Kubo considers that the requirement under Art. 43 of API of “being under a command responsible to that Party for the conduct of its subordinates” creates a higher standard than that of “belonging” to the party, initially posed by Art. 4 of GCIII (see p. 179). While it is considered that the requirement of “belonging” will generally encompass the members of a group under the overall control of a foreign State, in his view the requirement of “being under a command responsible” to that State is “a threshold higher than that required by the criterion of […] the ‘overall control’ test.” Kubo however discards the issue by saying that because of the “savings clause” in Art. 44(6) of API, members of non-State armed groups who would qualify as prisoners of war under GCIII cannot be denied such status for failing to meet the definition of API. As a consequence, Kubo concludes that “even if the interconnection between the internal non-state actor and the external intervening power fell below the level of the former being ‘under a command responsible’ to the latter, members of the non-state group could still qualify for combatant status provided that the criteria under GCIII were met.” But this conclusion obviously does not hold for groups which collectively do not meet the requirements under GCIII. What would be the consequences in such cases? Can we have a proxy group bound by the law of IAC (because of having been absorbed by the foreign intervening State) whose members fail to be combatants? Do they automatically become civilians in such a case? If so, how will the law of IAC apply in practice, knowing that the only fighting force physically present is factually a non-State armed group, whose members only qualify as civilians under the law of IAC?
Now, the classification of the members of the proxy group is not the only tricky question raised by the applicability of the law of IAC in such scenarios. For instance, let’s say that members of X capture and intern one (or several) member of A’s armed forces. Many would agree that, given the classification, the captured enemy combatants should be given prisoner-of-war status. But what about the authority of the non-State armed group X to capture and intern such enemy combatants in the first place? During a “classical” IAC, Art. 21 of GCIII would permit State B to capture and intern them (“the Detaining Power may subject prisoners of war to internment”). Is such permission transferred to the armed group X, acting as a proxy for B? If we follow Kubo’s reasoning (and more broadly the logic of the overall control test), the answer should be positive: the members of X are agents of B; accordingly, IHL applies to them the same way it applies to other agents of State B. However, although this makes absolute sense in theory, it is unlikely that State A in this scenario will be willing to recognize such authority to what it will usually consider as a non-State armed group. Furthermore, pushing the reasoning even further, one can wonder how some provisions of GCIII will be applied in practice in our scenario. For instance, Art. 39 of GCIII requires that “every prisoner of war camp shall be put under the immediate authority of a responsible commissioned officer belonging to the regular armed forces of the Detaining Power”. If we consider that the permission to intern enemy prisoners of war is conditioned upon the ability to respect the other rules of GCIII, does that mean that the non-State armed group will be precluded from interning any enemy combatants from State A, unless State B sends an officer from its regular armed forces to monitor their internment (which is clearly unrealistic)?
Once again a huge thank you to Opinio Juris for the opportunity to raise some questions and I look forward to continuing the discussion online!