Symposium: Three Questions to the Author

[Elvina Pothelet is a Ph.D. candidate at the University of Geneva. Her research interests focus on the international law governing the use of force, the law of armed conflict and war crime law.]

Kubo Mačák’s book is a rich and thought-provoking contribution to the scholarship on IHL applicability. The writing style and structure of the book make it a smooth and enjoyable read – to the extent this is possible for a book dealing with armed conflicts. The author’s expert analysis of the law is enriched with plenty of historical and contemporary illustrations.

The book clarifies inter alia when a non-international armed conflict (NIAC) is “internationalized” in a legal sense, i.e. when it transforms into an international armed conflict (IAC). This question is of practical importance because, as Kubo emphasizes, the law that applies to IACs and NIACs is not yet exactly the same. Kubo identifies four types of internationalization: foreign intervention, State dissolution, national liberation wars and “relative internationalization” (through recognition of belligerency, special agreement or unilateral declaration). The case of foreign intervention in a NIAC is of obvious contemporary relevance, with examples from Colombia to the Philippines, including in the Sahel, Libya, Ukraine, Syria, Yemen and Afghanistan. Such interventions vary in nature and degree and they do not necessarily impact, or impact differently, the law applicable to the conflict.

Listing every compelling argument of the book would take me well over the word limit. Instead, I would like to submit three questions to Kubo. The first is admittedly provocative as it touches on the legal relevance of the very notion of internationalized armed conflicts. The second is a question of clarification concerning his preferred test for when an external intervention truly internationalizes a NIAC (overall control or “joint use of force”). The third related question is an invitation to reconsider the policy reasons in favor of applying only IAC law to a conflict involving a group not subordinated to any State. I will suggest that negating the character of the group as a “party” to a parallel NIAC has non-negligible drawbacks.

1) Is the concept of “internationalized armed conflict” legally relevant?

Kubo argues “for a specific conceptualization of internationalized armed conflict in international law” (p. 2). His ambition is “to set forth a clear, reasoned, and practical conceptualization of conflict internationalization” thereby “confirm[ing] the continuing relevance of the concept of internationalized armed conflicts for the theory and practice of international law” (p. 3, see also p. 241).

If it was not for Kubo’s book, the term “internationalized armed conflict” would seem to have vanished from recent IHL scholarship, probably due in significant part to the ICRC’s rejection of the phrase. According to ICRC lawyer Tristan Ferraro the term “quite wrongly suggests a blanket application of the law of IAC in such situations, which is contrary to the fragmented approach” favored by the ICRC and “[i]t could also give the impression that these situations form a third category of armed conflicts.” Indeed, the use of a term distinct from “IAC” and “NIAC” strongly suggests a different species of armed conflict, subject to its own body of rules.

Kubo explicitly rejects this possibility (p. 27) and indeed defines internationalized armed conflicts as “prima facie NIACs, the legal nature of which has transformed, with the effect that the law of IAC becomes applicable to them” (p. 2). His analysis of the effects of internationalization (on combatant status and belligerent occupation) further confirms that he sees these conflicts simply as IACs. As regards a “blanket application of the law of IAC” in cases of external interventions in a NIAC, Kubo’s approach is more nuanced (more on this below).

Hence, the reader is left wondering why Kubo insists that internationalized armed conflict is relevant as a legal concept. After all, it would seem that internationalized armed conflicts as defined by Kubo are nothing more than newly formed IACs. Kubo argues that the reluctance toward this concept is the “product of the prevailing static approach to conflict qualification, which assesses the legal nature of a conflict in isolation at a particular point in time. Instead, the notion of internationalization is better understood as highlighting the dynamic idea of conflict transformation” (p. 27).

I would argue that while the process of qualification requires a dynamic approach – i.e. an analysis of contextual elements which may span over an extended period of time – the act of qualification is static and not dynamic. One always seeks to determine the applicable law “at a particular point in time” (a belligerent contemplating a military operation, the ICRC seeking to gain access to those affected by a conflict, a war crime judge assessing whether a murder was covered by IHL, etc.). The dynamic element reflected in the adjective “internationalized” is irrelevant for the act of qualification. It merely signals a different qualification in the past (a NIAC before the IAC) which has no relevance for which IHL rules now apply to the conflict (irrespective of whether the conflict used to be a NIAC, it is now regulated by IAC rules) or on how these rules apply (IAC rules will cover inter alia the non-state party to the former NIAC but they will not be applied differently than if there was no NIAC prior to the IAC).

Kubo might in fact agree with this, and I think it would have been more true to his conclusions to acknowledge that internationalization is a factual process informing the classification exercise, but that “internationalized armed conflict” is arguably not a legal concept as such.

2) Overall control or “joint use of force”: when does indirect intervention transform a NIAC into an IAC?

In Chapter 2, Kubo explores the different ways internationalized armed conflicts may come about. One way is through indirect foreign intervention in support of the non-state party to an NIAC. Kubo indicates that this indirect intervention results in internationalizing the conflict “provided that [the intervening State] wields sufficient control over the group” (p. 39, emphasis mine). The question is then which degree of control is required. Kubo makes two points.

First, the control necessary for internationalization differs from the control necessary to attribute the acts of the group to the State for the purpose of State responsibility (pp. 43-44). Thus, contrary to the ICTY or the ICRC, Kubo accepts the possibility that an intervening State exercises sufficient control over a group to internationalize the conflict while not being responsible for the group’s unlawful actions (p. 46). It would be interesting to hear Kubo’s views on arguments pointing to the illogicality of this position (how can one establish the existence of an IAC without attributing the use of force to a State?) and the responsibility gap it creates (if the State is not responsible for violations of the law of IAC, who is?) (Marco Sassòli, International Humanitarian Law: Rules, Solutions to Problems Arising in Warfare and Controversies, forthcoming 2019, paras. 6.15-6.17).

Second, Kubo argues that the test for internationalization is whether the intervening State “has used force through a non-state group” and this is achieved if it exercises overall control over the group, i.e. it supports and coordinates the group’s military activities (pp. 44-46). In other words, Chapter 2 concludes that when a State exercises overall control over a non-state party to a pre-existing NIAC, it uses force through that group and therefore the entire situation is governed exclusively by the law of IAC. This seems to contradict Chapter 3, where Kubo abandons the requirement of control.

In Chapter 3, Kubo examines how intervention affects the law applicable to these “Complex Conflict Situations”. He describes two positions: the “global approach”, which argues that intervention results in an overarching single IAC and the “mixed approach”, under which the former NIAC co-exists with a new IAC. Kubo proposes a “hybrid model” which adopts the mixed classification as a baseline and provides that, at a certain point on the spectrum of intervention, “the use of force by the outside intervener and the rebels it supports becomes so indistinguishable that it is impossible to separate the conflicts anymore” (p. 101). The entire situation becomes exclusively governed by IAC law. If I follow Kubo’s definition of internationalization (see above), only from this moment on is the conflict truly “internationalized” (under the mixed approach, there is no internationalization).

Kubo argues that this tipping point is reached when the intervening State and the group “can be said to use force together”. Such joint use of force exists if the two entities “participate in the organization, co-ordination, or planning of their military activities” and “neither of them [are] using force autonomously” (p. 103). Importantly, this test does not require any form of control from the State over the armed group. If the two entities use force jointly, the law of IAC will govern the entire situation, even if there is no relationship of subordination.

This “joint use of force” test in Chapter 3 differs from the overall control test for internationalization in Chapter 2. If a State and an armed group use force in certain joint operations and yet there is no relationship of subordination, does Kubo qualify the situation as a single IAC? What if the State exercises overall control but the group uses force completely autonomously in one specific area of the country: does the law of IAC nonetheless apply to the military activities of the group in this area?

3) Do we really want to internationalize NIACs involving armed groups not subordinated to any State?

Pending Kubo’s clarification, I will consider that his preferred test to determine when foreign intervention in a NIAC transforms the situation into a single IAC is “joint use of force”. Under this test, “the law of IAC applies ‘globally’ to the situation at hand” (p. 244) even if the State exercises no control over the armed group.

The absence of a control requirement is problematic not only in terms of State responsibility (see above) but also because it means that the group cannot legally be considered a “party” to the conflict. As a result, many IAC rules addressed to parties to the conflict will not bind the armed group as such. For instance, who will be bound by the duty of parties to take passive precautions to protect civilians under their control (Art. 58 API) in areas not controlled by the State but by its partner armed group? The fact that Kubo’s test focuses on joint use of force also means that the State may have no business in the group’s activities that are unrelated to the use of force (e.g. detention or recruitment). If only IAC law applies, these activities will not be appropriately regulated.

When no State exercises control over the group we should resist the temptation to internationalize the conflict as would be the case under Kubo’s joint use of force test. Maintaining instead a mixed classification, i.e. the existence of a separate NIAC but also the character of the armed group as a party to this NIAC, has a number of advantages. First, a parallel NIAC means that applicable rules would be addressed to the (non-state) party which has the ability to comply with them, rather than to its supporter State. Hence, whereas under the single IAC approach the armed group’s recruitment policy would be unregulated by IHL if not controlled by the supporter State, the mixed classification would trigger the prohibition for the group to recruit children (Art. 4(3)(c) APII). Second, and relatedly, if rules are directly addressed to the armed group, actors seeking to enhance compliance with the law will be able to engage with the group more efficiently. Third, NIAC rules are designed to regulate this specific type of conflict and therefore are often more realistic (e.g. with regard to the administration of justice by armed groups). Finally, the “presumption in favor of protection” (p. 249) does not necessarily point to IAC law. Yes, IAC law is more detailed, but when one adds human rights law (HRL) into the picture this is not necessarily a good thing: when an IAC rule regulates a specific question (e.g. can I target an enemy combatant?), it prevails over HRL as far as this specific question is concerned. Inevitably, given the lesser density of IHL applicable in NIACs, the more protective HRL has more influence in this type of conflicts.

I would like to thank Kubo for his enlightening work and Opinio Juris for the opportunity to engage on this important topic.