Editor’s Note: This is the first article in a mini-series on the new publication of the International Committee of the Red Cross Report on international humanitarian law and the challenges of contemporary conflicts. Other coins in the series can be found here, here and here.
Every four years since 2003, the International Committee of the Red Cross (ICRC) publishes its Report on international humanitarian law and the challenges of contemporary conflicts. This year’s report, which has just been published, is a powerful round-up of the most difficult questions that arise in the field of international law officially called international humanitarian law (IHL), or the law of armed conflict (LOAC). ), in the age of international terrorism. . While the ICRC could have gone further in its analysis and recommendations in several respects, particularly with regard to the legal frameworks applicable to terrorism and the fight against terrorism, the United States would do well to integrate the perspectives that the organization has made progress in the report in its policies and practices. .
Some of the more immediate issues that I found under-examined in the report relate to the scale of violence required to bring IHL into effect, when IHL ceases to be in effect, and the geographic reach of IHL. once triggered by armed conflict. .
Since IHL only applies in and for armed conflicts, the first task is to determine when an armed conflict begins and ends. The reference source is the Yugoslav Tribunal Tadic decision, which contains two elements. The first is relatively clear: there must be at least two opposing parties. Although there is some leeway on what constitutes a “party to an armed conflict”, the second element may be more difficult to discern: the frequency and/or severity of hostilities must reach a certain threshold in order to be qualified as an armed conflict. For wars between states (known as an international armed conflict, or IAC), virtually any use of force by one against the other will be enough to trigger the application of IHL. But where non-state armed groups are fighting each other (a situation known as a non-international armed conflict, or NIAC), there is little indication of how many killings are sufficient before the jump is made from the powers of the police under international human rights law – where killing is permitted only when necessary to save lives – to IHL, under which it is permissible to kill members of opposing armed forces and participating civilians directly into hostilities, even if they do not pose an immediate threat to life.
The question of when an armed conflict can be declared over is also up in the air, largely due to confusion over whether the same standards should be used to mark both the start and the end of hostilities. According to one view, once an armed conflict is established, IHL should be able to remain below the threshold of evidence required to trigger the application of IHL. the Tadic cas, for example, says that the NIAC ends not when the conditions for its start no longer exist, but rather when a “peaceful settlement” is reached. But this proves impractical when dealing with non-state armed groups, since neither they nor the states they fight against tend to negotiate such agreements. For ease of application, it makes more sense for the bookends to be identical. Furthermore, the sooner IHL is replaced by a return to domestic law tempered by human rights obligations, the greater the protection offered by the law against extrajudicial executions and arbitrary detention – two important objectives of the IHL and international human rights law.
On the other hand, it has been argued that when State A is engaged in a conflict on the territory of State B, premature abandonment of IHL does not automatically trigger the added value of international human rights law. ‘man. On the contrary, for states that deny the application abroad of international human rights law, it triggers what all rights-respecting lawyers should hate: a legal vacuum in which neither IHL nor international law human rights do not apply and atrocities could be committed with impunity. This argument would be stronger if there was general agreement that states’ human rights obligations do not accompany them abroad. But the United States is one of the few outliers that still maintains the woefully outdated “no extraterritoriality” position. While the ICRC, recognized as the guardian of IHL, may seek a broader application of its protection, a truly humanitarian perspective would recoil from allowing the aberrant position of the United States to hold human rights law hostage.
The ICRC report also addresses the question of the geographical extent of the armed conflict and asserts that there is not, and never has been, a “global war on terrorism”. This is not only because an “ism” cannot be a party to an armed conflict, but also because the extraordinary rules of international humanitarian law should not be able to be exercised by an American soldier dining in Paris, against a al-Qaeda fighter eating at the next table or vice versa. The logic is seductive, but not unassailable. We can conclude that there is no global war against terrorism, or for that matter against al-Qaeda, but admit that hostilities between States and a non-State armed group could “carry” IHL wherever the players go. The argument that law enforcement in Paris can perform counterterrorism duties may be appealing to the American soldier, but not so much to the al-Qaeda fighter, since French law will certainly favor the American soldier. . This is not a criticism of France. Domestic law can — and should — discriminate between members of a state’s armed forces who enjoy “belligerency privilege” or “combat immunity” under IHL, and members of a terrorist organization who do not possess such privilege and who are, in and of themselves, criminals. But IHL logically requires equal treatment under its law for parties to an armed conflict. Thus, the replacement of IHL by domestic law (as opposed to the co-application of IHL and domestic law) would subvert IHL’s concept of the equality of parties to an armed conflict. While no legal framework is perfect, it makes sense that the further away you are from a recognizable battlefield, the less you should be able to assert the laws of war. What if instead of having dinner in Paris, the American soldier and the Al-Qaeda fighter crossed paths during a walk in the Sahara? Questions of Algeria’s sovereign sensitivities aside, it’s unclear what they should or shouldn’t be able to do to each other in the absence of domestic law enforcement mechanisms. In short, questions about the geographic scope of the application of IHL may well be tied to the standard questions of parties and frequency/severity of hostilities, but things may not be so clear beyond the “battlefield”. traditional” as the ICRC may suggest.
Instead of tying the application of IHL to an indeterminate distance between players and a “traditional battlefield”, an admittedly radical, but logical solution would be to interpret IHL as requiring capture, rather than killing. , when possible, regardless of geography. In other words, to impose an obligation that IHL does not currently impose, by limiting the application of the concept of “military necessity”, so as to oblige a party to request surrender when it can be accomplished without additional risk , rather than authorizing extrajudicial executions which is now the hallmark of IHL. At least one well-known scholar just security readers believe that such a requirement already exists (see Ryan Goodman’s The power to kill or capture enemy combatants) but this is a minority opinion. Admittedly, it would be a long and difficult climb to get states to agree, but that adds no logical weight to the claim that, for the purposes of IHL, Paris is so different from Kabul.