Symposium: Comment on “Internationalized Armed Conflicts in International Law”

“Internationalized Armed Conflicts in International Law” by Kubo Mačák presents a detailed and insightful analysis of the tipping point at which non-international armed conflict (NIAC) may be ‘internationalized’ and considered to be an international armed conflict (IAC), with the focus in particular in relation to the status of combatants and the law of occupation. Far from esoteric, the topic is timely, relevant and has a real impact on the rights and obligations in the conduct of warfare.

A few observations as I perused the book – some general in nature, and others specific to certain aspects covered in the book. As a first point, the increased relevance of the topic given the number of complex conflicts that often start as purely internal conflicts but that have the tendency to transform, with multiple actors and in some cases, multiple states involved. I am hard-pressed to think of any ‘classic’ international armed conflicts such as the Iraq – Iran conflict anymore. Hence, the relevance of the blurring of distinctions between NIAC and IAC, and the importance of assessing when this internationalization occurs. While arguments as to the relevance of the distinction between NIAC and IAC have raged, the book squarely takes the position that this distinction is here to stay. It is a practical approach to the way in which conflicts have evolved, and concerns itself with clarifying the law for more effective implementation. Given that states are not apt to blur this distinction anytime soon despite the confluence of these categories, it is a realistic approach and assessment. Given that the scope of obligations and protections in an IAC are more encompassing than that of a NIAC, while the project is an assessment of the law as it is, it lends itself to a broader goal – that of extending protection of humanitarian law to civilians and combatants, which is surely the ultimate aim of this body of law.

One of the aspects of the book that I was particularly challenged by was the categorization of the types of internationalization that take place (Chapter 2), particularly in the section pertaining to self-determination, the author clearly traces the development of the concept as well as the impact on the categorization of conflicts. While the separation into categories of dissolution vs. destabilization is very helpful conceptually, one can’t help but wonder if this is a too neat a classification, that side-steps some of the messy realities on the ground? For instance, a particular example relates to the issue of refugee flows that may internationalize a conflict, specifically the 1971 conflict resulting in the creation of Bangladesh (p. 63 – 65). While it is clear that the legal position on aggression by India was untenable and that refugee flows may or may not internationalize a conflict, the reality is that the conflict was also intrinsically tied to the aspect of self-determination of Bangladesh. Hence, the confluence of facts on the ground may belie a neat categorization or separation, such as “disintegration” (section 2.3.1) v. “destabilization” (section 2.3.2). While appreciating the categorization in an effort to assess more accurately the types of internationalization, there is also a fluidity and unavoidable interrelationship between some categories. As a related point, while the book clearly is not meant to focus on particular cases, the characterization of one of the longest and increasingly bloody conflicts – Kashmir – would seem to pose substantial challenges to the categorization espoused. It may well fall within multiple categories outlined and the authors view as to its characterization would be valuable indeed.

Linked to the issue of refugee flows, the book is timely. The current developments at the U.S. – Mexico border in particular raise concerns, with the deployment of active duty troops at the border and the threat to use these troops. While much of this seems to be rhetoric (with the ‘influx’ of refugees itself in dispute), there are also other ongoing humanitarian crises, and the escalation with potential application of the laws of armed conflict in these contexts may not be farfetched (e.g., Bangladesh – Myanmar, Venezuela – Colombia). Another point worth contemplating – linked to the underlying basis that may result in internationalization – relates to the ‘war on drugs’ and the growing interventions and regionalization in this regard – both in the Central and South American context, as well as South East Asia. The invocation of IHL in the Americas is clear, but less evident in the case of SE Asia (due to the different nature and type of militarization and operations).

At the heart of the book – where the principles adduced are applied to the cases of combatant status and belligerent occupation – while stating the obvious perhaps, few areas are as indicative of the state centric nature of international law. For instance, particularly striking is the role of the state in the recognition of belligerency, and the failed attempts on the part of insurgencies to invoke the application of IHL. Sovereignty vis-à-vis combatant status it is posited was based on the premise of traditional ‘civil wars’ and the political power in the hands of the sovereign – but that internationalized conflicts are different and therefore the same objections should not be attributed. Essentially, the argument is that the paradigm of sovereignty is not invoked in regard to the status of combatants, but rather due to the classification of a “war of national liberation”, such as the objections by Morocco relating to the Western Sahara situation and the Polisario Front. Understanding the finesse of the argument, while the objection may not be articulated on the express basis of sovereignty, in effect it is, when the classification itself undermines that sovereignty. (Chapter 6, p. 150 – 151)

While the emphasis on sovereignty and its impact on belligerent occupation as well as the status of combatants is striking, there is reference to the increasing trend towards the ‘humanization’ of international law. While not dealt with extensively, humanization of international law is going to be of greater significance, with not only the growing areas of overlap between IHL and IHRL, but also with the judicial validation of such humanization. As an example, at the International Court of Justice, Judge Trindades in his concurring opinion to the Provisional Measures Order in the Jadhav case, expanded on the ‘humanization’ of international law. While not in the context of humanitarian law (but related to consular assistance and the death penalty), the focus on the state versus the individual is blurred and increasingly interdependent. This is an area to monitor in the future, for the reduced emphasis on sovereignty and a greater emphasis on protection of individuals and populations.

The last point of focus relates to the persuasive assessment by the author of complex conflict situations (Chapter 3). The approach of whether the internationalization of a ‘mini-conflict’ within a plethora of conflicts results in the internationalization of all such conflicts geographically, or whether the internationalization is limited only to that particular conflict excluding others from its realm. Rather than either of these choices i.e. a global or a mixed approach, the author posits that there is a ‘hybrid’ approach, which is not only the most appropriate but also a practical approach in assessing these conflicts – and importantly, in the resulting application of the norms of IAC. Of particular clarity and usefulness is the sliding scale presented by the author, of the permutations and combinations that these ‘hybrid’ conflicts may present as, and the tipping point on this scale that would lead to the determination of internationalization of the conflict.

Overall, greater protection is accorded in an internationalized armed conflict, and there needs to be better implementation of the law as it stands now, regardless of discussions pertaining to a potential new convention. In its clarity and detail, this book will contribute to advancing the protections of humanitarian law, and in the humanization of international law.