The Challenges of Asymmetric Warfare. Enhancing Compliance with International Humanitarian Law by Organized Armed Groups

Martinovic, María Alejandra

The Challenges of Asymmetric Warfare. Enhancing Compliance with International Humanitarian Law by Organized Armed Groups

Politics - International Politics - Topic: Public International Law and Human Rights

Summary

All armed conflicts, whether international or non-international, are characterized by some sort of asymmetry. Disparities between parties to armed hostilities have always been an issue as a matter of fact, although not necessarily addressed by International Humanitarian Law (IHL) as a matter of law. IHL remains a stranger to such situations, for it is based on its equal applicability to all parties of a conflict.
Nonetheless, contemporary conflicts have shown that the said equality may no longer be the rule, but rather the exception. This refers in particular to non-international armed conflicts where parties are inherently asymmetrical and the weaker ones tend to act in straightforward violation of universally hailed rules in order to engage their technologically advanced and more resourceful enemy.
Accordingly, the ways in which asymmetric actors behave during armed conflicts challenge IHL’s basic foundations, and the fact that civilians still endure the burden of hostilities, as their primary victims, underpins the necessity for further efforts in the attempt to promote respect for IHL.
This work assesses diverse alternatives to respond to these brutal forms of asymmetric confrontations, with a view on those mechanisms which best address the causes why non-state actors deny not only complying with IHL from a legal perspective but also contemplating policy-making considerations.

Excerpt

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xiii

IST OF

BBREVIATIONS

ANSA

Armed Non State Actor

AP I

Protocol Additional to the Geneva Conventions of 12 August

1949 and Relating to the Protection of Victims of International

Armed Conflicts.

AP II

Protocol Additional to the Geneva Conventions of 12 August

1949 and Relating to the Protection of Victims of Non-

International Armed Conflicts

DPH

Direct Participation in Hostilities

EBO

Effect Based Operations

European

Union

GCs

Geneva Conventions of 12 August 1949

GC I

Geneva Convention I for the Amelioration of the Condition of the

Wounded and Sick in Armed Forces in the Field

GC III

Geneva Convention III relative to the Treatment of Prisoners of

War

GC IV

Geneva Convention IV relative to the Protection of Civilian

Persons in Time of War

HRC

Human Rights Council

HRW

Human Rights Watch

IAC

International

Armed

Conflict

IACHR

Inter-American Court on Human Rights

ICC

International Criminal Court

xiv

ICID

International Commission of Inquiry on Darfur to the United

Nations

ICJ

International Court of Justice

ICRC

International Committee of the Red Cross

ICTR

International Criminal Tribunal for Ruanda

ICTY

International Criminal Tribunal for the Former Yugoslavia

IHFFC

International Humanitarian Fact Finding Commission

IHL

International

Humanitarian

Law

ILA

International Law Association

ILC

International Law Commission

KGR

Kurdistan Regional Government

LTTE

Liberation Tigers of Tamil Eelam

MRM

Monitoring and Reporting Mechanism

MSF

Médecins Sans Frontières

NGO

Non-Governmental Organisation

NIAC

Non International Armed Conflict

OAG

Organized Armed Group

OTP

Office of the Prosecutor

PIL

Public International Law

PKK

Kurdistan

Worker's

Party

POW

Prisoner of War

SCSL

Special Court for Sierra Leone

SPLM

Sudan People's Liberation Movement

SRUN

Special Rapporteur to the United Nations

UNTS

United Nations Treaty Series

UNGA

United Nations General Assembly

United

Nations

UNICEF

The United Nations International Children's Emergency Fund

UNITA

National Union for the Total Independence of Angola

UNSC

United Nations Security Council

UNSG

United Nations Secretary General

VCLT

Vienna Convention on the Law of Treaties

YPD

People´s

Units

Protection

NTRODUCTION

The changing nature of warfare has always posed challenges upon

International Humanitarian Law [hereinafter IHL], which overarching goal is

to minimize the harm to civilians,

without making the conduct of hostilities

impossible.

Yet from an estimated 250 conflicts since the end of World War

II, casualties range from 70 to 170 million, and most of them were non-

combatants.

Civilians have thus remained the primary victims of violations

of IHL, bearing the brunt of armed conflicts.

One of the challenges that IHL faces nowadays rests on the detrimental

effects that the so-called asymmetric warfare proffers to its named purpose.

The term asymmetric warfare refers to a comprehensive catalogue of

inequalities between belligerents that tends to drive the disfavored party to

strive on seeking the enemy's weaknesses and to engage or strike them, more

often than not, unlawfully. This description echoes quite well the popular

saying that there truly is nothing new under the sun, since disparities between

parties to an armed conflict have always been an issue as a matter of fact,

although by no means addressed by IHL as a matter of law.

The relevance of this phenomenon that is paradoxically irrelevant for the

body of law in which this work is based on, lays on the consequences it

STREICHER

S. (2012). Privileging Asymmetric Warfare (Part III)? The Intentional Killing of Civilians

under International Humanitarian Law. In: Chicago Journal of International Law, Vol. 12; p. 589.

Cf. D

INSTEIN

Y. (2004). The Conduct of Hostilities under the Law of International Armed Conflict.

Cambridge University Press, UK; p. 4 et seq.

HERIF

ASSIOUNT

M. (2008). The New War and the Crisis of Compliance with the Law of Armed

Conflict by Non-State Actors. In: The Journal of Criminal Law and Criminology Vol. 98, No. 3;

p. 712.

ICRC (2007). 30th International Conference of the Red Cross and Red Crescent: International

Humanitarian Law and the challenges of contemporary armed conflicts. [30IC/07/8.4]; p. 3.

brings about in relation to IHL compliance rates. In fact, it has been

submitted that the existence of some sort of asymmetries causes the presence

of other sorts of asymmetries

and likewise, that the more asymmetric a

conflict becomes, the more problematic compliance with IHL results.

Consequently, in non-international armed conflicts [NIACs], which are

inherently asymmetric,

compliance with IHL is at the very least, one of its

biggest challenges.

In the light of the above, the present work aims at assessing some specific

aspects of asymmetric hostilities that excel from others (insofar they deter

compliance with IHL in a more prominently manner), with a view to the

understanding of certain roots, patterns or causes for incompliance. Finally,

said revision shall lead to the analysis of the available mechanisms and

practices that can be enforced in the intent of fighting said causes back, to

ultimately enhance compliance rates in NIACs.

Notwithstanding that violations to IHL are not exclusively committed by

dissident forces, but also States themselves; given that the international legal

framework binding for the latter afford better mechanisms for IHL

implementation, monitoring and (provided that a violation has in fact

occurred) responsibility allocation, this study will focus on the increase of

ASKOLOGLU

I.,

LPARSLAN

KER

A.,

DANA

S. (2013). A perspective of Application of

Unmanned Systems in Asymmetric Warfare. In: International Journal of Information and Education

Technology, Vol. 3, No. 6; p. 656.

ASSÒLI

, M. (2007). The Implementation of International Humanitarian Law: Current and Inherent

Challenges. In: Yearbook of International Humanitarian Law 10; p. 58.

, R. (2006). Asymmetric Conflict Structures. In: International Review of the Red Cross. Vol.:88

No. 864. December, Geneva; p. 761.

compliance rates stemming from Armed Non-State Actors [ANSAs], also

known as Organized Armed Groups [OAGs].

II.

SYMMETRIC

ARFARE

i. General Features

With only one remaining superpower, imbalances between contending

parties have become a characteristic feature of contemporary armed conflicts.

Fairly speaking, C

LAUSEWITZ

's concept of war between essentially equal

parties, never hold true entirely for the so-called Westphalian wars either. In

fact, to some extent, all wars are asymmetrical, given that there are never

identical belligerents.

Therefore, war has always been characterized by at least one form of

asymmetry.

In this sense, armed conflicts maybe affected by asymmetries of

power, means, organization, time

, weapons, technology, norms,

etc.

Moreover, asymmetry operates at all levels of a given conflict, encompassing

the tactical sphere through the operational and reaching the strategic one.

A military imbalance entails that one party is standing at a more

advantageous position than another and logically, that boosts the weaker

party's endeavors to level up to their opponent. Thus, the problem arises

given that the way in which these parties try to compensate for their

deficiencies, tends to involve evading universally hailed rules of IHL. As a

matter of fact, the UN Secretary General reported in 2010 that: "armed groups

R. (2006). Supra note 7; p. 757.

FANNER

(2005). Asymmetrical Warfare from the Perspective of Humanitarian Law and

Humanitarian Action. In: International Review of the Red Cross, Vol. 87, No. 857; p. 151.

EINTSCHEL VON

EINEGG

W. (2011). Asymmetric Warfare: how to respond. In: International Law

Studies: U.S Naval War College, Vol. 87, Cap. XVII; p. 464.

FANNER

, T. (2005). Supra note 9; p. 151.

SCHMITT, M., N. (2007). Asymmetrical Warfare and International Humanitarian Law. In: Air Force

Law Review Vol. 62; p. 3.

Ibídem; p. 4.

have often sought to overcome their military inferiority by employing

strategies that flagrantly violate international law."

In this vein, asymmetric warfare can be understood as:

"[A]rmed hostilities in which one actor/party endeavors to

compensate its military, economic, or other deficiencies by

resorting to the use of methods and means of warfare that is not

in accordance with the law of armed conflict or with other rules

of public international law."

Asymmetric warfare, also referred to as irregular warfare or fourth

generation warfare,

is the result of decades of unnoticed development from

the aforementioned Westphalian model,

to a contemporary state of

prevalence of one sort of hostilities: those which are fought within State

borders.

In this regard, it has been submitted that the current most common

type of asymmetric conflict finds its roots in insurgency;

where its parties

are inherently asymmetrical.

Asymmetrical confrontations can therefore observe scenarios characterized

by low technology and a high degree of fragmentation of parties to the

UN S

ECRETARY

-G

ENERAL

(2010). Report on the Protection of Civilians in Armed Conflict. In: UN

Security Council, November [UN doc. S/2010/579]; §8.

EINTSCHEL VON

EINEGG

, W. (2010). Asymmetric Warfare. In: Max Plank Encyclopedia of Public

International Law [MPEPIL], encyclopedia entry; §4.

, R. (2006). Supra note 7; p. 759.

ISS

P.,

(2014).

Winning Wars amongst the People: case studies in asymmetric conflict. Potomac

Books; p. 24.

For further information on the subject, please see Chapter III.

ISS

P. (2014). Supra note 17; p. 10.

conflict,

the Syrian armed conflict for instance, being a case that stands out

in the latter regard.

Finally, another classic feature of asymmetric confrontations is the presence

of a weak opponent that seeks to exploit its adversary's weaknesses to attain

tactical or strategic advantages; although such weaknesses may not

necessarily entail the enemy's military capacity, but are rather more

intangible and with the aim of inciting violent reaction that feeds public

disquiet.

ii. Specific Features

The first types of imbalances that stick out concern technology and

weaponry, since superiority of equipment is one of the main conspicuous

features of most NIACs. Such significant inequality creates incentives for the

technologically disadvantaged party to undermine certain rules as a result of

the basic problems they face, namely, "how to survive and how to engage the

enemy effectively."

ICRC (2011). International Humanitarian Law and Challenges of Contemporary Armed Conflicts.

(Available at: https://app.icrc.org/e-briefing/new-tech-modern-battlefield/media/documents/4-

international-humanitarian-law-and-the-challenges-of-contemporary-armed-conflicts.pdf

[Accessed on 20 Feb 2016]); p. 5.

For more details on the fragmented Syrian opposition please see: C

AFARELLA

ASAGRANDE

G. (2015). Syrian Opposition Guide. In: Institute for the Study of War. Backgrounder of Oct 07.

(Available at:

http://understandingwar.org/sites/default/files/Syrian%20Opposition%20Guide_0.pdf [Accessed

20 Feb 2016]).

ALBOT

ENSEN

E. (2007). The ICJ's "Uganda Wall": a barrier to the Principle of Distinction and an

entry point for lawfare. In: Denver Journal of International Law and Policy, Vol. 35, No. 241; pp.

269-270.

CHMITT

M.,

N. (2007). Supra note 12; p. 13.

Even though IHL is not concerned with technological weaknesses insofar as

the principle of equal application of the law of armed conflicts goes; during

the Diplomatic Conference that led to the adoption of Additional Protocol I

[AP I], States taking part not only acknowledged the persistence of significant

disparities in military capacity, but accepted that factual disparities between

opponents may even lead to differing humanitarian law obligations.

Therefore, it has been observed that as a matter of policy, IHL obligations

may impose higher burdens to high-tech belligerents;

and this normative

relativism is said to be the birth of a capabilities-based IHL regime.

Other types of asymmetries imbue methodological differences, that is to say,

diverse approaches to engage in hostilities. Notwithstanding that effect-based

operations [EBOs] have seemingly replaced attrition war,

the dissimilar

options for conducting attacks that parties can afford are also echoed in this

new era: while superior parties tend to rely on attacking targets without

unnecessarily placing human force at risk (i.e. with drones)

, weaker parties

still rely on approaches designed to drain the resources of the State by

Protocol [No. I] Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of

Victims of International Armed Conflicts. June 8 1977. [1125 U.N.T.S. 3].

, R. (2006). Supra note 7; p. 761.

In reference to Article 57 of Additional Protocol I to the Geneva Conventions of 1949. S

CHMITT

N (2005). War, Technology and International Humanitarian Law. In: HPCR Occasional Papers

Series. Summer (Available at:

http://www.hpcrresearch.org/sites/default/files/publications/Occasion alPaper4.pdf [Accessed on

23 Jan 2016]); p.2.

Ibídem.

SCHMITT, M., N. (2007). Supra note 9; p. 6.

U.S

EPARTMENT OF

ORCE

ARFARE

(2000). Doctrine Document 2-1, 22 January

[Online]. (Available at: http://www.bits.de/NRANEU/others/ENDArchive/USAFafdd2_1(2000).

pdf [Accessed on 23 Jan 2016]; § 3.

protracting the conflict

and occasionally resort to other versions of EBOs

that usually take the form of terror attacks.

The less noticeable

albeit critical sort of asymmetry, is normative. While

the most striking distinction between International Armed Conflicts [IACs]

and NIACs lays on the fact that only regular armed forces of States can be

parties to the former, whereas non-State armed forces take part in the latter;

the most valuable discrepancy (for the sake of this work) is provided by the

disproportionate amount of conventional norms applicable to one over the

other.

That is a clear manifestation of the diverse legal status of the parties to a

NIAC, since States are, in accordance with the classic international legal

theory, the sole parties (to said conflicts) that possesses relevant international

subjectivity; although modern theories increasingly support a role for

individuals in international law.

State actors are compelled to abide all applicable conventional rules that they

have ratified, and are further bound by customary provisions (as long as they

do not bear persistent objector status), while the foundations of IHL's binding

nature for OAGs, is far from settled.

The debate on its bindingness shall be properly addressed in Chapter VI, but

as a mere introductory overview of the problem, it is fair to point out that:

HERIF

ASSIOUNT

M. (2008). Supra note 3; p. 767

CHMITT

, M., N. (2007). Supra note 9; p. 6, fn 15.

ATTS

S. (2009). Reciprocity and the Law of War. In: Harvard International Law Journal, Vol. 50,

No. 2; p. 383:

"[I]t is impossible to visualize the conduct of hostilities in which

one side would be bound by rules of warfare without benefiting

from them and the other side would benefit from rules of

warfare without being bound by them."

Lawfare as a Means of Asymmetric Confrontation

Lawfare is a relatively new concept that can be defined as the "strategy of

using or misusing law as a substitute for traditional military means to achieve

military objectives."

The term currently bears a distinctly pejorative

connotation, which seems unusual given that the concept itself is simply

neutral.

In accordance with said description, one might assume that the resort to

lawfare may result in a "more humane" war, when in fact; experience dictates

that it produces behaviors that jeopardize the well-being of protected persons

more often than not.

In this sense, it can be said that lawfare is usually

associated with the misuse of the law, rather than the use of it and therefore,

the version that has become more associated with the term is the one that

AUTERPACHT

H. (1953). The Limits of Operation of the Laws of War. In: British Yearbook of

International Law. Vol. 30; p. 212.

OUNCIL ON

OREIGN

ELATIONS

(2003). Lawfare, the Latest in Asymmetries. 18 March. In:

Transcript of 6

Session of FY03 National Security Roundtable [Online]. (Available at:

http://www.cfr.org/defense-and-security/lawfarelate st-asymmetries/p5772 [Accessed on 06 Mar

2016]).

TEPHENS

D. (2011). The Age of Lawfare. In: International Law Studies: U.S Naval War College,

Vol. 87, No. 327, Cap XIII; 330.

Cf. D

UNLAP

(2001). Law and Military Interventions: Preserving Humanitarian Values in 21st

Century Conflicts. In: Center for Human Rights, John F. Kennedy School of Government, Harvard

University. Working Paper, 2001. (Available at: http://people.duke.edu/~pfeaver /dunlap.pdf

[Accessed on 07 Mar 2016]); p. 4.

describes it as a phenomenon that entails the manipulation of the law as a

mean of warfare.

Lawfare has also a political connotation: it is based on the misapplication of

formal legality to achieve extra-legal and asymmetric effects.

It does so by

deconstructing C

LAUSEWITZ

's components of the remarkable trinity

(the

government, the military and the people) and imposing it contrariwise upon

the enemy.

Hence, it can also be characterized as a means to politicize the

laws and customs of war, that threatens to erode the foundations of

humanitarian law.

In that regard, lawfare is largely seen as a tool of asymmetric warfare due to

the leverage that its use may portray on the military disadvantaged party. It

is used to neutralize superior military might through the mobilization of

negative political pressure and popular perceptions.

With the aim of obtaining military and political advantages, OAGs may invite

the application of force against themselves or their proxies, civilians (as

incidental loss) or ostensible civilian objects (that have lost their protection)

all which, while strictly lawful, nonetheless generates political costs for the

attacking State.

Due to the underlying neutrality of the term, some scholars opt to refer to it as illegitimate lawfare

when evocating the negative use of this strategy, terms may be used interchangeably herein.

TEPHENS

D. (2011). Supra note 35; p. 328.

Which, according to Clausewitz, conduct to a victory in war when their energies are

combined.

UNLAP

(2001). Supra note 36; p. 4.

TEPHENS

D. (2011). Supra note 35; p. 327.

EWTON

M.,

A. (2011). Illustrating Illegitimate Lawfare. In: Case Western Reserve Journal of

International Law, Vol. 43, No. 255; p. 258.

TEPHENS

D. (2011). Supra note 35; p. 328.

In particular, OAGs may deploy military assets within civilian facilities such

as schools or worship buildings, in the hopes that if attacks do take place,

they produce incidental loss that will serve their cause through the moral

judgement of the people. For example, when the Taliban placed a tank and

two large antiaircraft guns under trees in front of the office of CARE

International.

In that occasion it was reported that:

"By shifting soldiers and military equipment into civilian

neighborhoods and taking refuge in mosques, archeological sites

and other nonmilitary facilities, Taliban forces are confronting U.S.

authorities with the choice of risking civilian casualties and

destruction of treasured Afghan assets or forgoing attacks."

Illegitimate lawfare can thus transform appropriate and expected tactical

decision-making into a weapon that digs into the moral domain of a conflict.

In that regard, it is important to reflect on the role of the media, given that it

is often at its behest that testimonies are swayed, facts are twisted and

mistakes are magnified. In fact, "globalized media can be misused to mask

genuine violations of the law with spurious allegations and

misrepresentations of the actual state of the law."

UNLAP

(2001). Supra note 36; p. 5.

RAHAM

OEB

(2001). Taliban Dispersal Slows U.S.; Enemy Moves Forces To Civilian

Centers, Complicating Airstrikes. In: The Washington Post [Online]. 06 November. (Available at:

http://pqasb.pqarchiver.com/washingtonpost/doc/409202788.html?FMT=ABS&FMTS=ABS:FT&d

ate=Nov6%2C+2001&author=Bradley+Graham+and+Vernon+Loeb&pub=The+Wahington+Post&

edition=&startpage=A.01&desc=Taliban+Dispersal+SlowsU.S.%3B+Enemy+Moves+Forces+To+Ci

vilian+Centers%2C+ComplicatinAirstrikes [Accessed on 07 Mar 2016]).

EWTON

M.,

A. (2011). Supra note 42; p. 259.

Ibídem; p. 256.

III. N

-I

NTERNATIONAL

RMED

ONFLICTS

Following the end of World War II, conventional wars between States have

progressively decreased. Furthermore, the downfall of the bipolar World

brought about the reduction of superpower confrontation; yet intrastate

conflicts not only continued, but actually became the most common type of

warfare,

to the point in which nowadays most armed conflicts qualify as

being of a non-international character.

In fact, as of 2015, the Uppsala University database on armed conflicts

determined that worldwide, 71 armed conflicts were of a non- international

character.

That information, along with the developing role of OAGs, underpins the

necessity of further efforts in the attempt of promoting respect for IHL;

especially when realizing that international law, in general is made by and

addressed to States, when in fact the international reality is less and less State

centered.

i. Legal Framework

In spite of the fact that IHL applies to situations of armed hostilities between

two or more parties, it is not remotely concerned with the opinion that said

ISS

P.,

(2014).

Supra note 17; p. 3.

ELLAL

ASEY

-M

ASLEN

S. (2011). Enhancing Compliance with International Law by Armed

Non-State Actores. In: Goettingen Journal of International Law Vol. 3, No. 1; p. 176.

PPSALA

NIVERSITET

(2014). UCDP Conflict Encyclopedia [Online]. (Available at: http://ucdp.uu.

se/#/encyclopedia?id=1&__utma=1.1411570256.1467127102.1467127102.1467127102.1&__utmb=1.1

1.10.1467127102&__utmc=1&__utmx=&__utmz=1.1467127102.1.1.utmcsr=ucdp.uu.se|utmccn=(ref

erral)|utmcmd=referral|utmcct=/&__utmv=-&__utmk=37150496 [Accessed on 28 Jun 2016].

ASSÒLI

, M. (2010). Taking Armed Groups Seriously: Ways to Improve their Compliance with

International Humanitarian Law. In: International Humanitarian Legal Studies 1; p. 10.

parties have on whether a situation qualifies as an armed conflict or not, for

its applicability relies on a factual situation.

It is nonetheless problematic to

determine whether such situation exists, due to the fact that the Geneva

Conventions [GCs] of 1949 do not provide a definition of armed conflicts

generically, but rather sort them into two categories according to the parties

involved: IACs, which are introduced by Common Article 2 and NIACs, as

set forth by Common Article 3:

"In the case of armed conflict not of an international character

occurring in the territory of one of the High Contracting Parties,

each Party to the conflict shall be bound to apply, as a

minimum, the following provisions: (1) Persons taking no

active part in the hostilities, including members of armed forces

who have laid down their arms and those placed ' hors de

combat ' by sickness, wounds, detention, or any other cause,

shall in all circumstances be treated humanely, without any

adverse distinction founded on race, colour, religion or faith,

sex, birth or wealth, or any other similar criteria. To this end,

the following acts are and shall remain prohibited at any time

and in any place whatsoever with respect to the above-

mentioned persons: (a) violence to life and person, in particular

murder of all kinds, mutilation, cruel treatment and torture; (b)

taking of hostages; (c) outrages upon personal dignity, in

ITÉ

S. (2009). Typology of Armed Conflicts in International Law: legal concepts and actual

situations. In: International Review of the Red Cross, Vol. 91, No. 873; p. 91.

Both Articles are entitled in this manner due to its presence in all four Geneva Conventions of

the 12 August, 1949.

particular humiliating and degrading treatment; (d) the passing

of sentences and the carrying out of executions without

previous judgment pronounced by a regularly constituted

court, affording all the judicial guarantees which are recognized

as indispensable by civilized peoples. (2) The wounded and sick

shall be collected and cared for. An impartial humanitarian

body, such as the International Committee of the Red Cross,

may offer its services to the Parties to the conflict. The Parties to

the conflict should further endeavour to bring into force, by

means of special agreements, all or part of the other provisions

of the present Convention. The application of the preceding

provisions shall not affect the legal status of the Parties to the

conflict."

Common Article 3 has been referred as a "Convention in miniature".

It exists

as such, due to the fact that its content is the product of the negative of its

drafters to include an article at the beginning of each Geneva Convention

expressing its applicability to NIACs unless otherwise expressed by the High

Contracting Parties;

which would have led to a final outline that draw up a

definition of all applicable humanitarian principles to NIACs in addition to a

list of minimum mandatory rules.

ICTECT

J.,

S. (1958). Commentary to the Geneva Convention IV relative to the Protection of Civilian

Population in times of War. International Committee of the Red Cross, Geneva; p. 34.

ICRC (1946). Report on the Work of the Preliminary Conference of National Red Cross Societies for the

Study of the Conventions and of Various Problems relative to the Red Cross. 26 July03 August. [ICRC

1974, Series I, No.3a]; pp. 14 et seq.

ICTECT

J.,

S. (1958), supra note 54; p. 33.

The International Court of Justice [ICJ] also noted that Common Article 3 is

the "minimum yardstick" that applies to all sorts of armed hostilities as it

contains "elementary considerations of humanity".

These statements were

developed and followed by several other jurisdictional assurances regarding

the character of Common Article 3 as a constituent of International

Customary Law.

However, the level of discretion of Governments to determine whether these

rules are applicable,

as well as the fact that a brief set of rules may not allow

to adequately respond to urgent humanitarian needs

remained a concern

and thus, during the Conference of experts convened between 1971 and 1972

by the International Committee of the Red Cross [ICRC] to draft the

Additional Protocols to the Geneva Conventions, two alternatives were

assessed: either to establish a procedure to objectively determine whether an

armed conflict exists, or to clarify the concept of NIACs.

It then became

apparent to said experts that the first option would be almost impossible to

ICJ (1986). Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua

vs. United States). Judgment on the merits of the 27 June. [1986 I.C.J Reports 14]; § 218.

ICTY, A

PPEALS

HAMBER

(1995). Prosecutor v. Dusko Tadi. Decision on the Defence Motion

for Interlocutory Appeal on Jurisdiction of 02 October. [Case No. IT-91-4-A]; § 89-98. In the same

sense: ICTR,

RIAL

HAMBER

(1998). Prosecutor v. Jean Paul Akayesu. Judgement of 2 September

[Case No. ICTR-96-4-T]; § 608610.

ICRC. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection

of Victims of Non-International Armed Conflicts (Protocol II): commentary of 1987 to Article 1. In:

Treaties, States Parties and Commentaries [Online]. (Available at: https://www.icrc.org/

applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&docmentId=15781C741BA1D4DCC12563

CD00439E89).

ICRC. General introduction to the Commentary on Protocol II. In: Treaties, States Parties and

Commentaries [Online]. (Available at: https://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?ac

tion=openDocument&documentId=0F47AE2F6A509689C12563CD004399DF [Accessed on 05 Feb

2016]); § 4361.

ICRC. Supra note 62; §4449.

accomplish and therefore, they undertook to work on the second alternative.

Additional Protocol II

[AP II] was then crafted to develop and supplement

Common Article 3 and its first Article define its scope of applicability in the

following words:

"1. This Protocol [...] shall apply to all armed conflicts which

are not covered by Article 1 of [...] (Additional) Protocol I and

which take place in the territory of a High Contracting Party

between its armed forces and dissident armed forces or other

organized armed groups which, under responsible command,

exercise such control over a part of its territory as to enable

them to carry out sustained and concerted military operations

and to implement this Protocol.

2. This Protocol shall not apply to situations of internal

disturbances and tensions, such as riots, isolated and sporadic

acts of violence and other acts of a similar nature, as not being

armed conflicts."

The first paragraph stipulates as a perquisite for the Protocol to be applied,

that governmental forces must be a party to the conflict. This creates grave

inconvenience given that when it states "in the territory of a High Contracting

Party between its armed forces and dissident armed forces or other organized

armed groups", it implies that it is inapplicable to conflicts between OAGs as

Ibídem, § 4450.

Protocol [No. II] Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of

Victims of Non- International Armed Conflicts. June 8 1977 [1125 UNTS 609].

long as a State is not a party to said conflict too.

This is considered one of the

biggest failures of the Protocol.

Concerning the conditions of the second paragraph, though they seem sharp,

it does not comply with the purpose of reducing States' margin of discretion

regarding when the threshold of violence has been reached and quite frankly,

it is problematic given that States tend to deny that such threshold has indeed

been reached, in order to quash those situations under the standards of

domestic law enforcement procedures or ultimately, as counter-terrorism

operations.

Additionally, there might be other motivations behind of said denial, usually

aimed at undermining the role of the OAGs and rejecting their status as a

"party". Odd as it may be, it would be a logical explanation to why (even

though Common Article 3 provides for these groups to stand by its rules

without this fact affecting their legal status), States much more rather treat

those feuds under domestic law enforcement mechanisms that entail human

rights standards which are much more higher than those applicable to

NIACs, and with more sophisticated control and accountability mechanisms,

at least on regional levels.

In this vein, Marco Sassòli, for instance agrees with the view that the U.S Supreme Court

held in Hamdan v. Rumsfeld, that every armed conflict which "does not involve a clash

between nations" is not of an international character, and that such phrase "bears its literal

meaning." In: S

ASSÒLI

M. (2010). Supra note 51; p. 11. (See: U.S S

UPREME

OURT

(2006).

Hamdan, Salim v. Rumsfld, Donald. Judgement of 29 June. [No.05-184]; § 67.

IVAKUMARAN

S. (2012). The Law of Non-International Armed Conflict. Oxford University Press,

UK; p. 184.

EJIC

J. (2007). Status of armed conflicts. In: Perspectives on the ICRC Study on Customary IHL.

Cambridge University Press; p. 79.

It is also noteworthy that in the light of the absence of a definition provided

by the Geneva Conventions, there is still no objective characterization of

armed conflicts, or an authority to formally declare its existence and the

subsequent applicability of IHL. Nonetheless, insofar the ascertain of an

armed conflict's existence (practical implications aside), it is still possible to

rely on Praetorian creations such as paragraph 70 of the International

Criminal Tribunal for the Former Yugoslavia´s [ICTY] decision on the

interlocutory appeal on jurisdiction of the Tadi case, which reads:

"[A]n 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."

The importance of the determination of a given situation as an armed conflict

also reflects on the fact that there are other scenarios that are categorically

outside the scope of armed conflicts, but still observe armed forces engaging

military operations against asymmetric actors, such as counter piracy

operations.

These are not ruled by IHL but rather by the International Law

of the Sea and, when applicable, the relevant Security Council Resolutions.

ii. Geographical scope of application

The wording of Common Article 3 has been construed as establishing the

applicability of its relevant provisions in the whole territory of the State party

ICTY, A

PPEALS

HAMBER

(1995). Supra note 58; § 70.

EINTSCHEL VON

EINEGG

W. (2011). Supra note 10; p. 464.

Ibídem.

to an internal armed conflict. Likewise, the ICTY observed that IHL

"continues to apply in [...] the whole territory under the control of a party,

whether or not actual combat takes place there."

This approach has been nonetheless sniped and catalogued as both, overly

broad and overly narrow.

The first critic responds to the fact that the

quoted logic fades away when faced against conflicts which are

circumscribed to only one part of the State's territory as, for example, the

Moro Islamic Liberation Front conflict with the Philippines, which has always

been contained in the South-Western region of Mindanao Island.

Insofar the narrowness of the understanding, it is based on a literal

interpretation of Common Article 3, under which IHL only governs hostilities

taking place within a State's geopolitical borders, on the grounds that the

wording of Common Article 3 subjects its scope of applicability to conflicts

occurring "in the territory of one of the High Contracting Parties".

Accepting such an understanding would not only contradict IHL's lex specialis

applicability, so long as it would consent the fact that the domestic law of the

territorial State (along with International Human Rights Law) would govern

the extraterritorial hostilities of a NIAC;

but would also carry highly

regressive implications, such as the deprival of protection to "civilians

ICTY, A

PPEALS

HAMBER

(1995). Supra note 58; § 70.

IVAKUMARAN

S. (2012). Supra note 65; p. 251.

Ibídem.

CHMITT

N (2014). Charting the Legal Geography of Non-International Armed Conflict. In:

International Law Studies: U.S Naval War College, Vol. 90 No.1; p. 9.

Ibídem

possibly affected by the fighting, as well as persons who fall into enemy

hands".

In fact, in this regard, S

ASSÒLI

asserted that:

"[i]f such wording meant that conflicts opposing states and

organized armed groups and spreading over the territory of

several states were not `non-international armed conflicts',

there would be a gap in protection, which could not be

explained by states' concerns about their sovereignty."

Thereupon, the previous characterization is overly narrow so long as IHL

actually extends to belligerents who are located in the perimeters of a

bordering State in spite of not being present in the territory where the conflict

is taking place, because the applicable law "does not suddenly cease when it

reaches a territorial frontier, nor is it transformed into the law of IAC when it

crosses the border."

Said approach has been deemed fully consistent with the interpretation that

Common Article 3's reference of "in the territory of one" of the parties, can be

reasonably understood as to encompass hostilities taking place in the

territory of any of the High Contracting Parties, regardless of whether that

given State is a party to the NIAC.

ICRC (2011). International Humanitarian Law and the Challenges of Contemporary Conflicts. In:

Report Prepared for the 31

International Conference of the Red Cross and Red Crescent

[31IC/11/5.1.2, 911]; pp. 9-10.

ASSÒLI

(2006). Transnational Armed Groups and International Humanitarian Law. In: Program

on Humanitarian Policy and Conflict Research, Harvard University, HPCR Occasional Paper

Series; p. 9.

Ibídem.

CHMITT

N (2014).Supra note 73; p. 12.

Furthermore, it has been submitted that the GCs are typically unequivocal

when territoriality is actually a limiting factor

, for example GC IV's

provisions on occupied territories.

It then follows that the lack of

geographical limitation within Common Article 3 "implies it was not

intended to be so limited."

It is noteworthy that NIACs frequently produce international ramifications of

the original internal conflict, generally known as spillover effects or simply

spillovers. These do not affect the character of the conflict;

in fact, it is of

utmost importance not to confuse such scenarios with the transition of a

conflict from a NIAC to an IAC: the remanence of the intra-State hostility that

triggered spillover effects as a NIAC, respond to the lack of involvement of

the State where the conflict has spread over, against the State where the

spillovers have originated from. The significance of having conceptual clarity

over these situations shall not be eviscerated, since otherwise the conflict

could easily be misconstrued as an international armed conflict, which would

wrongly prompt the applicability of a whole other set of rules.

Last but not least, it has been observed that given a case where OAGs are

engaged in a NIAC and seek refuge in a neighboring State, for the reasons

above exposed, they will not necessarily be exempt from attack.

Accordingly, if location does not immunize belligerents from the operation of

the law, it has been pointed out that it brings forward the need to deviate

Ibídem.

Geneva Convention (IV) relative to the Treatment of Prisoners of War [75 U.N.T.S 135]; Arts. 47

and 48.

CHMITT

N (2014).Supra note 73; p. 12.

EINTSCHEL VON

EINEGG

W. (2011). Supra note 10; pp. 463-464.

Ibídem; p. 464.

from the geographically-based criteria for the applicability of the law; for

which AP II provides a better formulation under Article 2.1 when it states

that the Protocol shall apply to "all persons affected by an armed conflict."

The ICRC commentary to the named Article dwelled upon this idea

expressing that:

"Persons affected by the conflict within the meaning of this

paragraph are covered by the Protocol wherever they are in

the territory of the State engaged in conflict. The situation may

only affect a small part of the territory; this is why [...] the

applicability of the Protocol follows from a criteria related to

persons, and not to places."

This becomes widely relevant in contexts where the highest ranks of OAGs

are based in neighboring States rather than that where battles are being

fought, which is a common thread in current hostilities, given that

asymmetry is prone to drive OAGs away from the conventional battlefield, as

it enables them to profit from any potential limitations to the applicability of

IHL by shielding themselves from their militarily advantaged enemy's

targeting process.

However, this has raised questions regarding how close to the actual territory

under hostilities belligerents must be, to be lawfully targeted. Despite of

IVAKUMARAN

S. (2012). Supra note 65; pp. 251-252.

ICRC. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection

of Victims of Non-International Armed Conflicts (Protocol II): commentary of 1987 to Article 2. In:

Treaties, States Parties and Commentaries [Online]. (Available at: https://www.icrc.org/

applic/ihl/ihl.nsf/1a13044f3bbb5b8ec12563fb0066f226/9cd233913b6bc768c12563cd00439fd4

[Accessed on 09 Mar 2016]); § 4490.

CHMITT

N (2014).Supra note 73; p. 17.

being certain that the protection afforded by IHL cannot be deprived to

persons merely as a result of belligerents taking refuge in another State, it is

not yet clear how far can the extraterritorial application of IHL go. Indeed, the

overstatement of this approach would resemble pretty accurately the U.S

policy against terror.

In addition, the ICRC has categorically rejected the interpretation that

Common Article 3 has no geographical limitations on the grounds that:

"It would have the effect of potentially expanding the

application of rules on the conduct of hostilities to multiple

states according to a person's movements around the world as

long as he is directly participating in hostilities in relation to a

specific NIAC. [T]his scenario [...] would in effect mean

recognition of the concept of a `global battlefield´."

While it is accepted that IHL applies throughout the territory of any State

party to a NIAC and neighboring States where belligerents may have sought

refuge, the extent of such extraterritorial application of IHL is still an ongoing

debate. It would appear, though, that the state of affairs is more or less as

follows: IHL also applies to States not parties to the conflict and not

geographically linked to it when the intensity and organization criteria of a

NIAC (as established by AP II) are satisfied within such State too.

ICRC (2011). Supra note 75; p. 22.

CHMITT

M.,

N (2014). Supra note 73; p. 18. In the same vein, also see: L

UBELL

, N. (2012). The

War(?) against Al-Qaeda. In: International Law and the Classification of Conflicts Vol. 32; pp. 421,

43437.

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