Politics by other means: the battle over the classification of asymmetrical conflicts.

• Author: Shereshevsky, Yahli

ABSTRACT

Transnational armed conflicts between states and non-state armed groups have emerged as a defining characteristic of twenty-first century warfare. Humanitarian actors tend to classify such conflicts (e.g., between the United States and ISIL) as non-international armed conflicts rather than international armed conflict. This classification is subject to considerable debate; yet both sides present their views as the inevitable result of the interpretation of the relevant International Humanitarian Law (IHL) treaty articles.

This Article demonstrates that the classification of transnational armed conflicts as non-international armed conflicts does not merely concern the application of the relevant laws, but represents a fundamental shift in the attitude of humanitarian actors: while IHL has traditionally been considered the most effective legal constraint on the brutality of warfare, the current trend perceives International Human Rights Law as the desirable legal regime for regulating asymmetrical conflicts. Humanitarian actors prefer to classify these conflicts as non-international armed conflicts because the relative lack of IHL norms applicable to that class of conflict enables extensive application of the more protective international human rights law as a complementary mechanism. Nonetheless, the adoption of this classification by the U.S. Supreme Court in Hamdan v. Rumsfeld may have been a Pyrrhic victory for this novel approach due to the United States' reluctance to apply international human rights law norms to extraterritorial conflicts. Thus, instead of the full application of IHL norms, only the vague norms relevant to noninternational armed conflicts apply, without the benefit of applying international human rights law as a complementary legal regime.

TABLE OF CONTENTS I. INTRODUCTION II. IHL'S PRAGMATIC COMPROMISE AND THE REGULATION OF ASYMMETRICAL CONFLICTS: THE CASE OF NON-INTERNATIONAL ARMED CONFLICTS III. TWO ALTERNATIVE RESPONSES TO THE INEQUALITY OF THE LAW OF NON-INTERNATIONAL ARMED CONFLICTS A. The Inclusive Approach: From Tadic to the ICRC Study of Customary International Humanitarian Law B. The Exclusive Approach: The Classification of Transnational Armed Conflicts 1. The Exclusive Approach: Transnational Armed Conflicts as Non-International Armed Conflicts 2. An Alternative Interpretation: Transnational Armed Conflicts as International Armed Conflicts IV. THE BATTLE OVER THE LAWS OF WAR--IHL, IHRL, AND THE CLASSIFICATION OF CONFLICTS A. The Development of the IHL-IHRL Convergence Debate and the "Exclusive Approach" B. The Role of IHRL in the Regulation of NIACs and the Classification of Transnational Armed Conflicts V. CRITICAL THOUGHTS ON THE EXCLUSIVE APPROACH IN LIGHT OF THE IHRL-IHL DEBATE VI. CONCLUSION I. INTRODUCTION

Much has been written about the politics of international humanitarian law (IHL). (1) IHL constitutes a fertile ground for ideological confrontation with disagreement even stemming from the name assigned to this legal regime. (2) The inherent tension in the delicate balance between humanitarian considerations and military necessity that underlies IHL makes the conflict between competing ideological positions almost unavoidable. This Article focuses on one particular normative tension: the way in which the classification of transnational armed conflicts between states and extraterritorial non-state armed groups (transnational armed conflicts), (3) as either international armed conflicts (IACs) or non-international armed conflicts (NIACs), has been used as a strategic tool in the general ideological struggle over the regulation of warfare. These conflicts, such as the conflicts between the United States and ISIL, (4) between the United States and al Qaeda, or between several African states and Boko Haram, have drawn much attention in recent years. Surprisingly, although the question of the classification of transnational armed conflicts is one of the major debates in contemporary IHL discourse, it has largely been left outside of the discussion on the politics of IHL, even by authors who discuss these politics openly in other contexts. (5)

The contemporary classification debate is the outcome of a long history of states' reluctance to support the full application of IHL norms in internal armed conflicts. IHL is built on a pragmatic compromise aimed at minimizing the calamities of war to the greatest extent possible, by regulating warfare but not prohibiting it altogether. Its core principles limit the ways in which the opposing sides can conduct their operations, whilst at the same time allowing them to conduct an effective military campaign. Significantly, this compromise is based to a large extent on the notion of symmetry between the parties to the conflict: in order to reach and follow a compromise between military needs and humanitarian considerations, the parties to a conflict must be able to expect to incur similar gains and burdens from this agreed compromise. Indeed, one of the most important principles of the laws of war is the equality of belligerents. This principle means that IHL norms apply equally to all parties to a conflict regardless of the potential differences between them. (6) It is believed that normative symmetry has an important impact on the willingness of parties to the conflict to comply with IHL norms. (7)

Asymmetrical conflicts, in which the application of similar rules has radically different repercussions for the parties involved, complicate the ability to effectively regulate warfare. There are several asymmetries that can be discussed in the context of armed conflicts. (8) This Article focuses on situations that combine two main asymmetries: significant differences in power between the parties to the conflict and the asymmetry between states and non-state actors with respect to international legal personality. Significant asymmetry in power results in a divergence of interests between the parties to the conflict with the stronger side having a clear interest in looser regulation. It is easier for the stronger side to realize its military advantage and achieve its goals with fewer limitations on its ability to use force. Moreover, asymmetry in political status and clout enables the stronger side to design the law in accordance with its interests and preferences. The influence of these asymmetries can be clearly seen in the creation of two different types of conflicts under IHL--IACs and NIACs. The laws of IACs, which have traditionally been regarded as applicable to conflicts between two or more states, usually reflect IHL's pragmatic compromise. In contrast, with regard to NIACs, which were traditionally regarded as internal armed conflicts, states have long resisted the introduction of the same normative regime applicable in IACs due to the power asymmetries discussed above. As a result, the norms of NIAC have become biased in favor of state interests.

The lesser regulation in NIAC is a cause for concern from a humanitarian perspective due to the diminished ability to protect the victims of armed conflict under such a regime. Humanitarian actors, such as the International Committee of the Red Cross (ICRC), have tried to advance the full application of IHL norms in NIACs in order to increase the protection of civilian populations in such conflicts. When direct attempts to change the laws of NIAC by way of legislation to better reflect the IHL ethos failed, the need arose to take a different path. Ostensibly, this path was fairly clear: if it was not possible to explicitly revise the treaties governing NIACs, then interpretation could be used to narrow the gap between the law of IAC and the law of NIAC. One way of achieving this goal was to widen the definition of IAC to include at least some asymmetrical conflicts previously deemed outside its scope of application. However, this was not the only available solution to the problem. This Article describes the classification debate relating to two situations--the conflict in the former Yugoslavia and the transnational armed conflicts of the twenty-first century--and argues that it reflects two competing responses to the deficiencies of the law of NIAC. While the conflict in Yugoslavia was widely classified as an IAC, transnational armed conflicts have been widely classified as NIACs. Neither of these situations fit the classical attributes of an internal armed conflict: the conflict in the former Yugoslavia involved both states and internal non-state armed groups with strong relationships to foreign states, while the transnational armed conflicts of the twenty-first century involve states on the one hand and non-state armed groups operating inside the territory of foreign states on the other.

If this were a matter of simple interpretation, there would be no real puzzle, and, indeed, many scholars treat the classification of transnational armed conflicts as the inevitable result of the interpretive exercise. However, this Article demonstrates that in both situations an alternative classification as a NIAC or IAC was a valid interpretation. This Article argues that the choice between these competing interpretive approaches reflects a battle over the role of IHL in the regulation of asymmetrical armed conflicts. Put differently, the interpretive alternatives reflect two opposing approaches regarding the desirable normative regime in such conflicts. Whereas the interpretive approach to the events in the former Yugoslavia, which I call the "inclusive approach," envisioned the implementation of IHL norms pertaining to IACs as a desirable goal, the interpretive position regarding the classification of transnational armed conflicts, which I call the "exclusive approach," views the more protective International Human Rights Law (IHRL), which fills the many gaps of IHL in NIACs, as the preferable normative regime.

The politics of IHL are often presented as a binary tension...