JURIST Guest Columnist Charles Kels of the US Air Force Reserve and the Department of Homeland Security argues that legal experts should think twice before diluting the clarity of international armed conflicts…

The law of armed conflict (LOAC) applies when the threshold of armed conflict is met. Since the 1949 Geneva Conventions, this triggering mechanism has been relatively straightforward in the case of discord among states, but considerably murkier when it comes to violence that involves non-state entities.

International v. Non-International Armed Conflicts

Common Article 2 of the Geneva Conventions establishes their application to both “cases of declared war or of any other armed conflict” between state parties, regardless of formal recognition by the governments involved. The Commentaries to the Conventions make clear that the general nature of this language was intended to deprive belligerent nations “of the pretexts they might in theory invoke for evasion of their obligations.” Indeed, the omnibus term “armed conflict” was deliberately inserted to prevent the endless legal wrangling over the meaning of “war” from excusing noncompliance with the treaties.

Common Article 3 also employs the phrase “armed conflict,” but does so in the negative, as pertaining to “armed conflict not of an international character.” Jean Pictet noted [PDF] that the drafters “deliberately refrained from defining” such non-international armed conflicts (NIACs), at least in part due to a lack of consensus. Common Article 3 was revolutionary in making inroads into state sovereignty, necessitating sensitivity to the historical reluctance of governments “to impose international obligations on states in connection with their internal affairs.” In order to allay fears that Geneva law would thenceforth regulate “any form of anarchy, rebellion, or even plain banditry,” the Commentaries offered some “convenient criteria” for recognizing a NIAC, while also cautioning that they were “in no way obligatory.”

Contemporary observers seemed unconcerned about any resulting ambiguity, given that the “mini-Convention” of Common Article 3 merely encapsulates the basic “rules of humanity which are recognized as essential by civilized nations.” In this view, there was no incentive for responsible parties not to comply with Common Article 3, since its precepts actually derived their moral and legal force from standards of conduct long predating the Conventions.

However, this sense of confidence overlooked two subsequent developments. First, although the triggering provisions of the Geneva Conventions technically applied to those specific treaties alone, they have grown over the decades to define the threshold for the application of LOAC [PDF] more generally. If anything, this trend has been exacerbated as the customary international law of NIACs has come to approximate the rules governing interstate conflicts (IACs). Second, pinning down a definition for NIACs — although studiously avoided during the Conventions’ negotiations — later became a matter of justiciability before international courts.

The Jurisprudence of NIACs

Rejecting a jurisdictional challenge in its inaugural Tadic case, the appeals chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) famously determined that “an armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state.” This decision simultaneously reiterated the bright line rule for recognizing an IAC and set criteria for classifying a NIAC.

Building on this definition, the ICTY trial chamber [PDF] developed a two-part test for NIACs, based upon “the intensity of the conflict and the organization of the parties to the conflict.” The Tadic formulation was then codified in the Rome Statute establishing the jurisdiction of the International Criminal Court (ICC). The purpose of these definitional exercises was to delineate the parameters under which international judicial bodies could impose criminal liability on bad actors, but they have taken on a life of their own as the definitive statements on what “armed conflict” means. In so doing, the jurisprudence on NIACs has arguably frustrated the Geneva commentators’ premise that Common Article 3 “should be applied as widely as possible.”

NIAC Goes Global

The debate over NIACs took on heightened importance after 2001, when the US claimed to be engaged in a “global war on terrorism,” and then later in an “armed conflict with al Qaeda, the Taliban, and associated forces.” Whereas the traditional challenge to international law has been states’ steadfast resistance to perceived erosion of their sovereignty — as manifested by the refusal of besieged governments to acknowledge the existence of a civil war — the world’s lone superpower today invokes a transnational NIAC to justify an extensive architecture of targeted killings and indefinite detention.

Well-meaning scholars and advocates have responded to this claim by emphasizing the dual Tadic elements and insisting [PDF] that outside of “hot” conflict zones, the hostilities with al Qaeda and its associates do not rise to the level of armed conflict. For example, a committee of the International Law Association (ILA), comprised of a veritable all-star cast of legal experts from across the globe, produced a report on the “meaning of armed conflict” intended specifically to counter the US narrative of a “global war on terror.” The upshot of this view is that the applicable legal regime governing US counter-terrorism activities is not LOAC but human rights law (HRL) &#151 i.e., the law enforcement paradigm.

An Intensity Test for IACs?

In explicating the Tadic criteria of intensity and organization, the ILA report downplayed the distinction between IACs and NIACs, citing state practice that ostensibly exhibited an intensity threshold for armed conflict regardless of type. In the same way that NIACs are distinguished [PDF] “from less serious forms of violence, such as internal disturbances and tensions, riots, or acts of banditry,” some scholars now seek to exclude “incidents, border clashes, and skirmishes” from the purview of IACs.

This approach contradicts the hard-and-fast rule advocated by Pictet that “any difference arising between two states and leading to the intervention of armed forces” constitutes an IAC, regardless of “how long the conflict lasts, or how much slaughter takes place.” Indeed, it runs counter to a close reading of the Tadic appellate decision, which used the word “protracted” only in reference to internal conflicts.

Applying a NIAC-like intensity evaluation to IACs &#151 beyond the “very low” [PDF] common sense bar that the interstate violence at issue be a function of hostility rather than simple mistake — deliberately erodes the “categorical” test [PDF] that now exists. By exchanging such clarity for the muddle of NIAC classification, the current trend risks encouraging precisely what the Geneva commentators hoped to avoid by divorcing the treaties’ application from state pronouncements. The 1949 negotiators knew from whence they spoke: just a decade earlier, imperial Japan had termed its invasion of China a mere “incident” so as to eschew international law.

The movement to restrict the scope of IACs is symptomatic of an increasing discomfort among some international law circles with the legal framework of war. Such commentators tend to focus on the belligerent privileges afforded by LOAC to “kill without warning” and “detain without trial,” rather than its concomitant responsibilities to mitigate suffering [PDF] to the extent practicable under circumstances unfathomable in peacetime. They understandably prefer the more humane regime afforded by HRL, whereby lethality is only condoned “when strictly unavoidable in order to protect life.”

What this approach overlooks is the essential nature of LOAC, which was crafted not to legitimize violence but to regulate it once it broke out. It is undoubtedly a positive sign for humanity if the world is progressively more wary of the types of force authorized in war, but international law also cannot wish such violence away by neglecting to regulate it in practical terms. Doing so would be the equivalent of seeing an assailant coming towards you and putting your head down to disregard the impending disaster.

Hindering the reach of LOAC in the quintessential case of interstate strife turns Geneva law on its head and courts the lawlessness [PDF] inherent in a vacuum where the rules for everyday life are neither practicable nor enforceable. The perfect should not be permitted to act as the enemy of the good.

Major Charles Kels is an attorney for the Department of Homeland Security and a judge advocate in the Air Force Reserve. Opinions expressed in this commentary are those of the author alone and do not necessarily reflect those of the Departments of Homeland Security, Air Force or Defense.

Suggested citation: Charles Kels, Against an Intensity Test for Interstate Conflict, JURIST – Hotline, Feb. 27, 2013, http://jurist.org/hotline/2013/02/charles-kels-niac-definition.php