What armed conflict? What law of armed conflict?

When a state, say the United States, uses military force on the territory of another state, say Syria or Pakistan, without the consent of that state, what legal rules constrain this use of military force? What if the attacking state does not target the armed forces or institutions of the other state, but rather targets an organized armed group (e.g. ISIL or the Taliban) operating in the other State ?

According to the International Committee of the Red Cross (ICRC) Commentary 2016 on the First Geneva Convention, if a state uses military force on the territory of another state, the use of force triggers an international armed conflict (IAC) between the two states, unless the territorial state consent to the use of force. Accordingly, IAC law applies to, and limits, all such uses of force.

It is important to note that the law of the IAC applies even if the intervening state exclusively targets an organized armed group operating in the territorial state. If there is a non-international armed conflict (NIAC) between the intervening state and the armed group, NIAC law may apply in parallel.

The position of the ICRC has given rise to numerous criticisms, in particular on just security (see here, here and here). I hope to address some of these criticisms in a future article. For now, I will try to explain why I find the ICRC’s point of view convincing. This post, like the previous one, comes from a great recent an event at the University of Georgia Law School which considered a number of issues raised by the comment.

Before we begin, let’s remember why the question is worth asking and why the answer matters. Conflict classification may seem dry and technical, but it affects both protection and accountability in armed conflict.

First, IAC treaty law is much more detailed and robust than NIAC treaty law. More importantly, the Geneva Conventions and Additional Protocol I are far more protective of civilians and combatants than either Common Article 3 or (in case of internal conflict) Additional Protocol II.

Second, IAC customary law remains distinct from NIAC customary law, although the gap has certainly narrowed since the 1990s. For its part, the ICRC identifies 23 customary rules applicable in IAC but not in NIAC. States that take a more conservative approach to customary international law may conclude that the gap between the CAI and the NIAC remains even wider than the ICRC claims.

Finally, the Statute of the International Criminal Court recognizes 34 war crimes in IAC but only 19 war crimes in NIAC. In particular, the Statute recognizes the conscious violation of the rule of proportionality as a war crime when committed in IAC, but not when committed in CANI.

To correct ideas, consider the following scenario:

No consent: State A launches an airstrike against organized armed group G in the territory of State T, presumably killing several civilians. State T has no control over Group G, but neither does State A consent to the strike.

According to the commentary, the strike in State A triggers an IAC with State T to which the IAC law applies. If there is, in addition, a NIAC between State A and group G, these two conflicts occur in parallel.

(Note that the classification of the conflict does not depend on the legality of State A’s attack under the jus ad bellum. For these purposes, it does not matter whether State A legally defends itself against an armed attack by Group G or illegally uses military force to eliminate a possible future threat.)

In my view, the position of the ICRC fully reflects the text, object and purpose of the Geneva Conventions and their Additional Protocols. An international armed conflict is a dispute (“conflict”) between (“international”) States involving the use of military (“armed”) force. It is difficult to imagine a more serious dispute between States than a dispute over the use of military force by one on the territory of the other.

Indeed, states have enacted the IAC Act in order to protect their civilians and armed forces from the extraterritorial force of foreign states. States that use force beyond their borders may not recognize many legal, ethical or political constraints to their conduct. Accordingly, when State A uses force on the territory of State T, we need the right of the IAC to protect the civilian population of State T from the military operations of State A and (as as we shall see) to protect the armed forces of State A from criminal prosecution by State T.

In contrast, states have enacted NIAC law primarily to regulate internal armed conflicts on their own territory. States that use force on their own territory may feel constrained by national law, human rights law, concern for their own citizens, and domestic politics. As a result, the need for strong protection under the law of armed conflict may have seemed less urgent.

The other view – that there is no IAC and that IAC law does not apply – seems deeply implausible.

First, the NIAC law may not apply either. According to the prevailing view, including that of the ICRC, NIAC law only applies to protracted armed confrontations between state armed forces and organized armed groups or between such groups. If group G is not organized in the right way, or if the fighting between State A and Group G is not intense enough, there would then be a gap in protection that no State would accept. (Like just security readers know, I partly reject the prevailing opinion and partly disagree with the ICRC on this point.)

Second, it is hard to believe that states would want the legal protection of their civilians against foreign forces to depend on what those foreign forces choose to target. If an intervening state targets the armed forces of the territorial state, civilians may benefit from strong protection under Additional Protocol I. In contrast, if an intervening state targets an organized armed group, civilians may only benefit from the minimum protections of Common Article 3 (which, arguably, in no way regulates the conduct of hostilities). Proponents of the other view must explain why states would accept such limited protection for their civilians from foreign forces in such cases.

Thirdly, in internal CANI states can be constrained in their treatment of their citizens by human rights law and by national law. By contrast, in cross-border cases, IHL is the primary (but not exclusive) constraint on the conduct of the intervening state. Accordingly, in cross-border cases, we should not rely on NIAC law to provide civilians with the level of protection envisaged by parties to the Geneva Conventions and Protocols.

In my opinion, the customary NIAC customary law now offers civilians protection comparable to that afforded by NIAC customary law. However, in my view, we should interpret Common Articles 2 and 3 of the Geneva Conventions in light of the customary law of NIACs as it existed when these treaties were adopted and entered into force. At that time, no state would have invoked the customary law of NIAC to protect its civilians from foreign states operating on its territory without their consent.

Fourth, the other view exposes intervening state forces to criminal prosecution by the territorial state. There is no combatant immunity in NIAC and according to the other view there is no IAC. It follows that, if State T captures the pilot from State A, then State T can prosecute the pilot for killing its civilians under the domestic criminal law of State T even if the strike n did not violate NIAC customary law targeting rules.

In my view, the capture of the pilot by State T may itself trigger an IAC between the two States, so that the law of the IAC would regulate his detention. However, the strike occurred before the capture and therefore, according to the other view, before the start of an IAC. Therefore, the pilot would not be entitled to combatant immunity with respect to the strike. Given that combatant immunity exists to protect combatants from prosecution by foreign states for acts that do not violate the laws of armed conflict, it is difficult to see why states would deny their own forces such protection in such cases.

Finally, the alternative view seems ad hoc. If a state uses military force against anything else in another state – citizens, state armed forces or foreign visitors, private property, state institutions or refugee camps – then it seems clear that an IAC exists and the IAC law applies. Defenders of the other vision must justify the creation of an exception to this general rule for strikes directed against armed groups. Given the obvious need to protect civilians from the intervening state and to protect captured combatants from the territorial state, such a justification seems difficult to imagine.

For these reasons, I prefer the position of the ICRC to the other point of view. The use of force by one state on the territory of another should be limited by IAC law, even if that force is directed at an organized armed group on that territory, unless the territorial state consents to this use of force. As mentioned earlier, the ICRC’s position has drawn criticism, some of which I hope to address in a future article.