Part I, 2 Identifying, Defining, and Classifying the Activities of Armed Forces
Daragh MurrayEdited By: Elizabeth Wilmshurst, Françoise Hampson, Charles Garraway, Noam Lubell, Dapo Akande
- Human rights remedies — Armed conflict, international — Armed conflict, non-international — International crimes — Maritime boundaries — Armed forces
2.01 While international human rights law may in principle apply across the whole spectrum of military activities, the law of armed conflict applies only in armed conflicts, including belligerent occupation. The classification of a situation as an armed conflict will therefore determine whether that body of law is applicable to particular military activities and which rules will govern the conduct of armed forces.
2.02 Within the broad category of armed conflict, there are further legal distinctions between international armed conflict, non-international armed conflict, and belligerent occupation. The law of armed conflict has specific rules covering each and, as explained in Chapters 3 and 4, the nature of the armed conflict is relevant to (p. 42) determining the relationship between the law of armed conflict and international human rights law. The process of classification is therefore important to both the application of the law of armed conflict and international human rights law and must be understood by the military lawyer. The types of armed conflicts and other military operations discussed in this book are outlined below and the process of classification is discussed in Section 7.
2.03 An international armed conflict is an armed conflict between States. The International Criminal Tribunal for the former Yugoslavia (ICTY), whose case law has been seminal in the classification of armed conflict, has held that ‘an [international] armed conflict exists whenever there is a resort to armed force between States’.1 This is a factual determination based on the conduct of States and their armed forces; a declaration of war is not necessary.2
2.04 The existence of an international armed conflict does not depend on the intensity of fighting, nor the number of casualties inflicted. There is support for the notion that an international armed conflict can exist where there is no fighting but where armed forces from one State have been captured and are being detained by another. The length of detention is not a relevant criterion in satisfying the threshold. In the 1958 International Committee of the Red Cross (ICRC) commentary to the Geneva Conventions an international armed conflict was characterized thus:
Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2 [of the Geneva Conventions], even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous are the participating forces; it suffices for the armed forces of one Power to have captured adversaries falling within the scope of Article 4. Even if there has been no fighting, the fact that persons covered by the Conventions are detained is sufficient for its application. The number of persons captured in such circumstances is, of course, immaterial.3
2.06 Where violence between a State and a non-State armed group or between such groups has reached a threshold of intensity and the armed group or groups are operating with a certain level of organization, the situation may be classified as a non-international armed conflict.4 Once classified as a non-international armed conflict, common Article 3 of the Geneva Conventions applies to all parties to the conflict. The text of this Article refers to an ‘armed conflict not of an international character occurring in the territory of one of the High Contracting Parties’.5 It prescribes basic rules in respect of a non-international armed conflict.6 The text of common Article 3 itself does not elaborate further on how to define a situation as a non-international armed conflict.
(p. 44) 2.07 Determining whether a non-international armed conflict exists with reference to common Article 3 and customary international law is done in the light of the overall nature of the conflict. It can include situations where two or more non-State armed groups are using violence against each other without the involvement of a State. It is generally accepted that such non-international conflicts can exist within one territory, across State borders, or exclusively extra-territorially.
2.08 The Statute of the International Criminal Court, which makes provision for the prosecution of crimes committed in the context of a non-international armed conflict, describes such a conflict for purposes of the Statute as: ‘…a protracted armed conflict between governmental authorities and organized armed groups or between such groups.…[it excludes] situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.’7
2.09 Non-international armed conflicts have been distinguished from internal disturbances and tensions, banditry, disorganized and short-lived insurrections, or terrorist activities which are not subject to international humanitarian law on the following basis:
a. The intensity of violence: hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces.8
b. Organization of non-State armed groups: non-governmental armed groups involved in the conflict must be considered to be ‘parties to the conflict’, in that they possess organized armed forces. This means in particular that these forces have to be under a certain command structure and have the capacity to sustain military operations.9
the number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the intensity of a conflict.10
(p. 45) 2.11 It is generally considered that the threshold of the level of violence required to establish a non-international armed conflict is higher than that for an international armed conflict. In one instance, however, a situation has been classified as a non-international armed conflict in the absence of either a high level of violence or prolonged hostilities. The Inter-American Commission on Human Rights held that common Article 3 applied where fighting between Argentinean armed forces and forty-two armed attackers who stormed a military barracks lasted thirty hours and resulted in around thirty fatalities.11
2.12 Conversely, circumstances have arisen where the intensity of violence has resulted in significant numbers of deaths of both the State’s armed forces and the opposing armed groups over the course of many years, yet there has been a political unwillingness by the State involved to admit to the existence of a non-international armed conflict. Where a government has made a definitive statement that military action against an armed insurgency does not amount to a non-international armed conflict, the government will not be applying the law of armed conflict. Their armed forces should use international human rights law as the sole framework governing their operations, subject to any valid derogations to the relevant human rights treaties.12 See Chapter 1 regarding derogations and Chapter 4 for more detail on the interaction between the law of armed conflict and human rights law.
a. the existence of a command structure and disciplinary rules and mechanisms within the armed group;
c. the ability to procure, transport, and distribute arms;
d. the ability to plan, co-ordinate, and carry out military operations, including troop movements and logistics and to negotiate and conclude agreements such as ceasefire or peace accords.13
(p. 46) These requirements are not cumulative, but rather indicators of what constitutes an ‘organized armed group’.14
2.14 Additional Protocol II contains further rules applicable to non-international armed conflicts, but only applies to those that meet criteria additional to those required for common Article 3 non-international armed conflicts. This stricter definition of a non-international armed conflict is relevant only for the application of Protocol II and does not affect the body of law applicable to common Article 3 non-international armed conflicts.
This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (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.15
2.16 The distinction between the thresholds applicable to common Article 3 and Additional Protocol II creates two different types of non-international armed conflict: one where common Article 3 alone applies and one where both common Article 3 and Additional Protocol II apply. Within a human rights law context this may be significant in that the law of armed conflict is silent on particular issues in common Article 3 conflicts; for the effect of this silence see the discussion in Chapter 4, Section 3.4.
2.17 In the 2005 Study on Customary International Humanitarian Law the ICRC did not distinguish between the two categories of non-international armed conflict on the basis that, in practice, States did not make a distinction between the two. However, there are key differences in the criteria required to meet the threshold of Protocol II and in the application of the Protocol.
(p. 47) a. Non-international armed conflicts for the purpose of Protocol II must be between the armed forces of a State and dissident armed forces or groups, rather than between non-State armed groups alone.16
b. The Protocol applies only to the territory of the State in which the non-international armed conflict is taking place and cannot be extra-territorial.
c. For a situation to be a non-international armed conflict under the Protocol, a non-State armed group must ‘exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations’.17 This is not required by common Article 3 and not always exhibited by non-State armed groups during a non-international armed conflict.
d. The Protocol refers to ‘sustained and concerted military operations’, which has been argued by some to mean that the violence threshold is higher than that required by common Article 3.
2.18 Despite these differences, in general this book does not distinguish between the different forms of non-international armed conflict. For the purposes of determining the applicable law, the distinction the book makes is between what it terms ‘active hostilities’ and ‘security operations’, in both non-international armed conflict and international armed conflict. For discussion of this distinction see Chapter 4.
2.19 If an external State intervenes to assist a territorial State fighting a non-international armed conflict against a domestic insurgency, the intervening State may be considered a participant in the non-international armed conflict. Intervention to assist a territorial State in a non-international armed conflict will not change the nature of the conflict, which remains non-international if it is not between States but between allied State forces against those of a non-State armed group.
2.20 There may be circumstances where an armed conflict in which a State is participating becomes a non-international armed conflict having been an international armed conflict, and the State’s position alters from that of a State party to an international armed conflict to that of an external State assisting the territorial State in a non-international armed conflict. Thus in Afghanistan in 2001/2 and Libya in (p. 48) 2011, the establishment of the nascent internationally recognized government supported by Western States triggered the transition in each case from international armed conflict to non-international armed conflict. The initial use of force by Western coalitions against Afghanistan and Libya comprised State-to-State and therefore international armed conflict. In each case, once the newly established government and intervening coalition were on the same side, there was no longer a State-to-State armed conflict, but one State, assisted by others, fighting an insurgency, and as such, a non-international armed conflict.
2.21 In a non-international armed conflict, an intervening State’s armed forces may also act under the auspices of an international governmental organization. For example, NATO took the lead of the UN-mandated International Security Assistance Force (ISAF) in Afghanistan from 11 August 2003. ISAF’s mandate was to enable the Afghan government to provide effective security across the country and develop new Afghan security forces. Afghan forces assumed full security responsibility at the end of 2014, when the ISAF mission was completed.
2.22 If a State’s armed forces intervene to assist a non-State armed group fighting in a non-international armed conflict against a State, this may have the effect of transforming the non-international armed conflict into an international armed conflict, if this intervention creates an armed conflict between two States. Alternatively, there could be an international armed conflict alongside the non-international armed conflict. Where the external assistance to the non-State armed group falls short of military intervention and is instead military assistance in other forms, the classification exercise becomes more difficult.
2.23 The crucial question that arises is at what point does the assistance of the external State to the non-State armed group transform the conflict from non-international armed conflict to international armed conflict? This issue was considered by the ICTY in Tadić,18 the International Criminal Court in the Lubanga case,19 and the International Court of Justice (ICJ) in the Nicaragua20 case and the Bosnia Genocide case,21 but the law remains opaque and opinions vary.
2.24 It was held in the Tadić case that ‘overall control’ of a non-State armed group by an external State would be sufficient to transform a non-international armed conflict (p. 49) into an international armed conflict.22 This did not require the ‘issuing of specific orders by the State, or its direction of each individual operation’. It was adequate that the assisting State ‘had a role in organizing, coordinating or planning the military actions’ of a given non-State armed group.23
2.25 The ‘overall control’ test developed by the ICTY in Tadić was broader than the test for the attribution of State responsibility to an external State for the actions of an armed group in the earlier judgment of the ICJ in the Nicaragua case.24 In Nicaragua the Court found that, for an external State to bear responsibility, it was necessary for the State to have ‘effective control’ over the armed group and that the armed group had to be operating on the instruction, or at the direction of, the foreign State. In the later Bosnia Genocide case,25 in determining whether the Federal Republic of Yugoslavia had State responsibility for the genocide at Srebrenica, the Court again applied a test of strict control with respect to the attribution of responsibility for all acts of an armed group and the ‘effective control’ test for attributing specific acts (reaching negative conclusions on both). The Court held that the broader test of ‘overall control’ applied by the ICTY in Tadić was not applicable because in Tadić the question at issue was whether an armed conflict was international or non-international and not one of State responsibility;26 secondly, in any event, the test of ‘overall control’ would have overly broadened the scope of State responsibility.
2.26 There is a further question whether foreign military intervention or ‘overall control’ over rebel groups by an external State in a situation which would otherwise be a non-international armed conflict transforms the entire conflict into an international armed conflict or only the conflict between the two States. It is widely accepted that it is possible for an international armed conflict and a non-international armed conflict to take place concurrently on the same territory, as determined in the Nicaragua case.27 The ICJ in its judgment found that the conflict between the Nicaraguan government and the contra rebels was a non-international armed conflict while the simultaneous conflict between the United States and Nicaragua was an international armed conflict.28 Similarly, in the Tadić case the ICTY Appeals Chamber held that the conflict in the former Yugoslavia (p. 50) could be considered, at certain times, both a non-international armed conflict and an international armed conflict.
2.27 When a State uses lethal force against individuals in the territory of another State, it may not be immediately clear how to classify this use of force and accordingly the legal framework that should regulate it. Where lethal force (for example, through the use of remotely piloted aircraft) is targeted against individuals extra-territorially, this use of force may not constitute an armed conflict in itself. If it does not, and if the attack is not part of another armed conflict, the law of armed conflict will not be applicable; international human rights law will apply.
2.28 Occupation takes place when ‘territory…is actually placed under the authority of the hostile army’.29 Where the armed forces of a State are in occupation in all or part of the territory of another State, irrespective of whether or not this occupation is met with armed resistance, the law of occupation applies. A period of occupation will end when the armed forces of the occupying State withdraw from the occupied State. Occupation may also occur indirectly where a State controls another State through a ‘puppet’ administration.30 In this scenario the ‘controlling’ State is responsible for the actions of the ‘puppet’ government. See commentary on Ilascu v. Moldova and Cyprus v. Turkey in Chapter 3, Sections 4.1 and 4.2 for more detail.
2.29 The extent to which the occupying State is responsible for protecting the human rights of citizens within its control will be determined by a range of factors addressed in detail in later chapters. The application of international human rights law in a situation of occupation is discussed further in Chapter 3, Section 4.1. The use of force during occupation is discussed in Chapter 4, Section 3.5. Occupation itself is addressed in detail in Chapter 10.
2.30 Peace support operations, discussed in Chapter 11, are operations conducted by one or more States that are either established as a subsidiary organ of the United (p. 51) Nations, or are subject to the ultimate authority and control of the United Nations Security Council. ‘Peace support operation’ is an umbrella term that includes a wide range of military and political activity, including peace enforcement and peacekeeping.31 Because peace support operations encompass a broad spectrum of activity the applicable legal framework is often difficult to define.
2.31 One form of peace support operation, peace enforcement, is defined by the United Nations as an operation that ‘involves the application of a range of coercive measures, including the use of military force…[and] requires the explicit authorisation of the Security Council’.32 Peace enforcement operations are mandated pursuant to Chapter VII of the UN Charter and authorize ‘all necessary measures’ to carry out the specific mandate, which may include the protection of civilians, monitoring and investigating violations of human rights, and creating the conditions for the delivery of humanitarian assistance. Peace enforcement operations do not require the consent of the territorial State but may be conducted at that State’s request. It is possible for the UN-mandated force to become a party to an armed conflict. See Chapter 11, Sections 3 and 5 for discussion.
2.32 Peacekeeping is a further activity that falls within the category of peace support operations. The United Nations describes peacekeeping as: ‘…operations [which] are, in principle, deployed to support the implementation of a ceasefire or peace agreement [but which]…are often required to play an active role in peacemaking efforts and may also be involved in early peacebuilding activities’.33 Peace support operations, peace enforcement, and peacekeeping are discussed in Chapter 11.
2.33 Humanitarian assistance34 and disaster relief operations35 do not in general involve the use of offensive force. Any use of force by troops will be regulated by (p. 52) international human rights law and the applicable domestic and military law. Humanitarian assistance is discussed further in Chapter 12.
2.34 Military operations take place in the air and in the maritime environment both in support of land-based operations36 and independently, in circumstances where activities may be governed by both the law of armed conflict and international human rights law. The applicability of the law of armed conflict in all such operations will depend on the existence of an armed conflict, determined by reference to the factual situation. Military air operations and the legal framework governing them are discussed in Chapter 13 and maritime operations are discussed in Chapter 14.
2.35 Armed forces are increasingly operating as part of coalitions and the use of unilateral military force is becoming less prevalent. Military coalitions can take a number of forms including participation in a NATO37 or UN38 mission, intervening in an existing armed conflict39 or forming a so-called ‘coalition of the willing’.40 When States operate within a coalition, their human rights obligations may differ from State to State. For example, UK armed forces may have obligations pursuant to the European Convention on Human Rights (ECHR) that are not applicable to their military colleagues from the United States or Australia. The law applicable to multinational operations is discussed in Chapter 16.
2.36 Classification of military activity can be a complex and challenging endeavour in light of the variable situations in which armed forces become involved. There is no internationally agreed classification process that exists to determine whether a situation amounts to an armed conflict or as to the form of armed conflict. The classification of a military activity must be based on the factual circumstances, in the light of the legal principles concerned. Furthermore, as the parties or the situation on the ground change, there may be consequent changes in the legal classification. It is therefore important that the legal obligations of armed forces are subject to regular review.
2.37 Governments have not always been explicit in defining and stating whether their armed forces are engaged in an armed conflict, and if so, of which type.41 Governments will classify a situation, either publicly or internally, for the purpose of assessing which rules are applicable to their armed forces, but often a definitive classification will not publicly or officially be declared unless or until a situation comes before a court.
2.38 In the context of multilateral operations, classification of NATO operations is based on factual criteria but is not often or even typically made public. Even if NATO were to provide a view as to classification this may not reflect the opinion of States involved in NATO operations.
2.39 In the case of military operations authorized by UN Security Council resolutions under Chapter VII of the Charter, there is no classification of the situation given in the resolution concerned. Here too the determination as to the existence and nature of an armed conflict should be carried out on the basis of the factual situation and the legal context.(p. 54)
2 See, for example, common Article 2 to the Geneva Conventions of 1949: ‘In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.’
3 J. Pictet (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. III (Geneva: ICRC, 1960) 23. See also Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ‘Article 2: Application of the Convention’, para. 45, 2nd edn., (Cambridge: ICRC/Cambridge University Press, 2016). States may not necessarily accept the existence of an international armed conflict in the case of isolated incidents; see e.g. UK Manual of the Law of Armed Conflict 29: ‘an accidental border incursion by members of the armed forces would not, in itself, amount to an armed conflict, nor would the accidental bombing of another country’.
4 Prosecutor v. Tadić, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, ICTY IT-94-1-AR72, 2 October 1995, para. 70; Tadić Judgment, ICTY, IT-94-1-T, 7 May 1997, paras. 561–8; see also Prosecutor v. Limaj, Judgment, ICTY, IT-03-66-T, 30 November 2005, para. 84.
6 Common Article 3 provides: ‘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:
(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.
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.’
12 For example, the UK entered derogations to the European Convention on Human Rights pursuant to Article 15 in respect of the actions of State agents in Northern Ireland. See Brannigan and McBride v. the United Kingdom App. no. 14553/89 (ECtHR, 26 May 1993).
13 See Prosecutor v. Limaj, Judgment, Trial Chamber II, ICTY, Case no. IT-03-66-T, 30 November 2005, para. 90; Prosecutor v. Haradinaj, Judgment, Trial Chamber I, ICTY, Case no. IT-04-84-T, 3 April 2008, para. 60.
16 The ICTY has confirmed that the definition of a common Article 3 non-international armed conflict continues to include situations where ‘several factions [confront] each other without involvement of the government’s armed forces’. Y. Sandoz, C. Swinarski, and B. Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: ICRC, 1987) para. 4461.
23 Ibid., paras. 131, 137. For criticism of the Tribunal’s decision, see for example L. Moir, The Law of Internal Armed Conflict, Cambridge Studies in International and Comparative Law (Cambridge: Cambridge University Press, 2002) pp. 49–50.
26 Ibid., para. 405.
31 Peace support operations can also, in the view of the UN, ‘facilitate the political process, protect civilians, assist in the disarmament, demobilization and reintegration of former combatants; support the organization of elections, protect and promote human rights and assist in restoring the rule of law’, http://www.un.org/en/peacekeeping/operations/peace.shtml.
34 United Kingdom Joint Doctrine Publication 3-52 defines humanitarian assistance as ‘a secondary Military Task, which is the provision of relief aid by military forces conducting operations other than disaster relief operations. In circumstances where there is a pressing humanitarian need there may be no option but to render assistance. In such cases, the humanitarian principle of impartiality (assistance based on need) should be strictly applied, and responsibility handed over to an appropriate civilian agency at the earliest opportunity.’
35 United Kingdom Joint Doctrine Publication 3-52 defines a Disaster Relief Operation (DRO) as a primary Military Task and contribution to a disaster relief response. It provides specific assistance to an afflicted overseas population. Disaster Relief is a specified Military Task categorized as a Contingent Operation Overseas in Defence Strategic Guidance. Disaster Relief is the organized response to alleviate the results of a catastrophe. The aims are to:
36 For example, 21 Royal Navy and Royal Fleet Auxiliary ships and submarines participated in Operation Veritas, the UK military operation in support of the US-led Operation Enduring Freedom against the Taliban in Afghanistan in 2001, despite Afghanistan being a ‘land-locked’ country.
37 Examples include ISAF and Resolute Support in Afghanistan, Operation Active Endeavour in the Mediterranean, Operation Unified Protector in Libya, Peace Support Operations in Bosnia and Herzegovina, the Former Yugoslav Republic of Macedonia and Kosovo.