Losing the forest for the trees: Syria, law, and the pragmatics of conflict recognition.

AuthorBlank, Laurie R.
PositionII. The Evolution of Non-International Armed Conflict Recognition B. The Strict Elements Test Takes Hold through IV. Concluding Thoughts, with footnotes, p. 720-746
  1. The Strict Elements Test Takes Hold

    Over time, however, Tadic morphed into a formal test of elements. Challenges to the ICTY's jurisdiction over events in Kosovo appear to have been the primary catalyst for this evolution in how Tadic is understood. Starting with Prosecutor v. Milosevic, (110) the ICTY began to alter its presentation of the Tadic definition of armed conflict and how it should be applied. Rather than setting forth the definition, looking at the evidence proffered regarding the situation at issue, and reaching a determination as to the existence of a conflict based on an overall understanding of who was fighting, how they were fighting, where they were fighting, for how long, and so on, the Tribunal began to state the definition and then immediately list two factors: intensity and organization. (111) Analysis then proceeded solely within the construct of this two-part test, with little or no regard for any of the other considerations discussed in the Commentary or elsewhere, such as the nature of the government response or the involvement of the international community. (112)

    A trio of cases cemented the two factors as a strict elements test for determining the existence of an armed conflict--Prosecutor v. Limaj, Prosecutor v. Haradinaj, and Prosecutor v. Boskoski--the first two addressing events in Kosovo and the latter events in Macedonia. (113) Limaj, decided in 2005, provided a new and extensive analysis of intensity and organization as the apparently exclusive determinative factors in applying the Tadic definition of armed conflict to the facts at hand. The Limaj judgment devotes forty-two paragraphs to the analysis of the requisite organization of the parties and thirty-four paragraphs to the analysis of the intensity of the fighting. (114) In so doing, the judgment laid the foundation for a comprehensive elements test--one that would itself ultimately include lists of subfactors and components. (115) Three years later, the ICTY left no doubt as to its reliance on this strict elements test. In Haradinaj, the Trial Chamber first devoted extensive attention to formulating the test based on past precedent and then, like Limaj, engaged in extensive analysis of the facts regarding the fighting solely within the framework of intensity and organization. (116)

    Boskoski involved alleged crimes committed in the northern part of the former Yugoslav republic of Macedonia in 2001. (117) Events in Macedonia had not yet come before the ICTY and the charges therefore mandated a fresh examination of whether an armed conflict existed at the time, so as to attach international criminal responsibility for violations of the laws and customs of war. As in the previous two cases, the Trial Chamber began with the Tadic definition and expressly stated that the definition had to be applied by examining intensity and organization, to the exclusion of other considerations discussed in the Commentary. (118) The judgment explains:

    The Trial Chamber in Tadic noted that factors relevant to this determination are addressed in the Commentary to Common Article 3 of the Geneva Conventions. These "convenient criteria" were identified by the drafters of Common Article 3 during negotiations of the Geneva Conventions in order to distinguish an armed conflict from lesser forms of violence, although these were rejected from the final text. While these criteria give some useful indications of armed conflict, they remain examples only. The drafters of the Commentary were of the view that Common Article 3 should be applied as widely as possible and could still be applicable in cases where "armed strife breaks out in a country, but does not fulfil any of the above conditions". The Trial Chamber in Limaj, after having reviewed the drafting history of Common Article 3, concluded that "no such explicit requirements for the application of Common Article 3 were intended by the drafters of the Geneva Conventions". Consistent with this approach, Trial Chambers have assessed the existence of armed conflict by reference to objective indicative factors of intensity of the fighting and the organisation of the armed group or groups involved depending on the facts of each case. (119) In effect, the interpretation of the Tadic definition of armed conflict had thus fully morphed into a test of two exclusive and independent factors: intensity and organization.

    Throughout the same process, the understanding of intensity and organization themselves as useful indicators of the existence of armed conflict also changed and transformed into an elements test. In a variety of cases, the ICTY has highlighted key factual information that helps to demonstrate the intensity of fighting, such as the number, duration, and intensity of individual confrontations; the types of weapons and other military equipment used; the number of persons and types of forces engaged in the fighting; the geographic and temporal distribution of clashes; the territory that has been captured and held; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. (120) Frequency of confrontations and the involvement of the UN Security Council also prove to be indicative of intensity for the purposes of identifying an armed conflict. (121) Similarly, with regard to organization, cases have focused on a range of information about the groups involved in the conflict, such as a hierarchical structure; territorial control and administration; the ability to recruit and train combatants; the ability to launch operations using military tactics; the ability to enter peace or cease-fire agreements; the ability to issue internal regulations; and the ability to coordinate multiple units. (122)

    There is little doubt that all of these various considerations are useful means for assessing the intensity of fighting and the organizational framework of parties to a conflict. However, the regular application of the Tadic definition through an elements test has further influenced the presentation and analysis of intensity and organization into factor tests of their own, only serving to solidify the formalized nature of the inquiry. A look at how the examination of organization as a key element of the armed conflict test has changed offers a useful example of the overall dynamic. Early cases focused on whether the hostilities involved at least two sides fighting against each other, without too much further detail. (123) The ICTY has regularly referred to "some degree of organization" (124) when broadly characterizing this pillar of its armed conflict analysis. Indeed, this phrasing coincides with the ICRC's characterization of "a minimum amount of organisation" (125) as a feature of non-international armed conflicts. Seeking evidence of some organization is obviously logical, as the law itself is framed in terms of "parties" to an armed conflict.

    Over time, however, organization began to be understood as a strictly independent requirement, analyzed as a series of factors, such as the five categories of factors set forth in Boskoski: factors signaling the presence of a command structure, factors indicating the ability to carry out military operations in an organized manner, factors indicating a level of logistics, factors relevant to whether the group has sufficient discipline to implement the LOAC, and factors demonstrating that the group can speak with "one voice."(126) As a result, the focus of the organization inquiry shifted from identifying some modicum of organization to satisfy the "party" element of armed conflict, enabling consideration of how this element interrelates with the intensity of operations, to an independent requirement. (127) Several cases have also detailed components of an intensity analysis as well, listing many of the considerations identified in the previous paragraph. (128) Notwithstanding the relevance of any one or more of the various subfactors the cases have identified, the effect of a factor based analysis for intensity and organization has only served to solidify the idea of a strict elements test for the definition of armed conflict.

    The application of this strict elements test has taken hold beyond the ICTY's jurisprudence and has seemingly become the authoritative standard for assessing conflict recognition in situations of internal violence. (129) In May 2005, motivated by the United States' assertion of a "global war on terror" in response to the attacks of September 11, 2001, the Executive Committee of the International Law Association (ILA) approved a mandate for the Use of Force Committee to produce a report on the meaning of war or armed conflict in international law. (130) In effect, the United States consistently claimed the right to exercise belligerent privileges applicable only during armed conflict anywhere in the world where members of terrorist groups are found. (131) This position ran directly contrary to a trend of states generally attempting to avoid acknowledging involvement in wars or armed conflicts. (132) The ILA report relied substantially on the Tadic definition of armed conflict and "confirmed that at least two characteristics are found with respect to all armed conflict: 1.) The existence of organized armed groups; 2.) Engaged in fighting of some intensity." (133) The report continued:

    The Committee, however, found little evidence to support the view that the Conventions apply in the absence of fighting of some intensity. For non-state actors to move from chaotic violence to being able to challenge the armed forces of a state requires organization, meaning a command structure, training, recruiting ability, communications, and logistical capacity. Such organized forces are only recognized as engaged in armed conflict when fighting between them is more than a minimal engagement or incident. (134) In reaching this conclusion, the report effectively wraps the past few decades of...

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