The qualification framework of international humanitarian law: too rigid to accommodate contemporary conflicts?

• Author: Holland, Elizabeth

1. INTRODUCTION

   The nature of war demands its constraint and regulation, and in contemporary armed conflict this is found in international humanitarian law (IHL). (1) This legal framework aims to alleviate the effects of armed conflict by restricting the means and methods of warfare and directly protecting those not, or no longer, participating in the conflict. (2) The application of particular IHL rule sets is traditionally predicated on qualifying a conflict as either international or non-international. (3) Many of the rules specific to each framework are significantly different in scope and detail; for instance, the status of combatant, prisoner-of-war (POW) and protected person are applicable only within international armed conflict. (4) The often broad geographic and temporal reach of today's conflicts, as well as the involvement of a combination of state and non-state actors, complicates this preliminary assessment of international versus non-international armed conflict. (5) This complexity may result in disagreement and uncertainty in the classification of a conflict under IHL, which may in turn lead to the adoption of a legal scheme deficient of adequate protection. (6)

   This Note examines the traditional binary qualification framework in the context of contemporary conflicts marked by ever-changing degrees of cross-border activity, third-state involvement, and non-state actor participation. (7) First, this Note lays out the material scope of international and non-international armed conflicts. (8) Next, it examines three cases in which the International Court of Justice (ICJ), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the U.S. Supreme Court addressed questions of qualification. (9) The Note then questions whether the binary framework is incongruous with contemporary conflicts due to the difficulty in qualifying many situations. (10) The Note concludes by suggesting that rather than develop new law to address current challenges, a broader and more flexible application of protections found in existing law, less restricted by the traditional dichotomy, may provide a constructive and practical basis from which to proceed when determining application of international or non-international armed conflict rules to specific contexts. (11)

2. FRAMEWORK FOR QUALIFICATION

   1. State-centricity of the IHL Framework

      IHL is traditionally state-centric, falling within the larger category of public international law. (12) This inherent state-centricity tests the application of the four Geneva Conventions and their Additional Protocols--ratified only by states--to contemporary situations in which non-state armed groups, often with transnational reach, play prominent roles. (13) Non-state actors' increasing participation in armed conflict complicates the classification analysis, yet demands a precise approach to classification under the IHL framework as a predicate for applying particular IHL provisions. (14)

   2. Application of IHL to Armed Conflict

      A key distinction in public international law is between the rules governing the resort to the use of armed force (jus ad bellum) and the rules governing the use of armed force (jus in bello) (15) IHL governs the latter, independent of determinations made within the framework of the former. (16) The drafters of the Geneva Convention replaced the term "war" with "armed conflict," so as to preclude semantic arguments for non-application of the rules. (17) The IHL framework applies only to situations of armed conflict, and its application requires a factually based assessment that a certain threshold of violence is met. (18) The application of IHL, tied to the question of threshold of hostilities, provides for significantly different behavior by state agents. (19) For instance, during peace time a state is not allowed to target individuals based on their status, nor is the state allowed to detain people without charge; both are allowed, with some qualification, during armed conflict. (20)

      The Commentary to article two, common to the Geneva Conventions (Common Article Two) describes international armed conflict as "any difference arising between two States and leading to the intervention of members of the armed forces." (21) Commentators have suggested this is a low threshold, especially when compared with the definition offered by Oppenheim in his classical treatise: "[w]ar is a contention between two or more States through their armed forces, for the purpose of overpowering each other and imposing such conditions as the victor pleases." (22) The ICTY articulated a general definition of "armed conflict," widely adopted as applicable for both international and non-international armed conflicts: "[W]e find that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State." (23) Regardless of the standard adopted, recognition of an armed conflict is a always fact-based assessment of the circumstances, and is no longer affected by the subjectivity inherent in formal state recognition of war. (24)

   3. Qualification of Armed Conflict

      The Geneva Conventions and their Additional Protocols govern international and non-international armed conflict, the former being subject to a broader and more detailed set of rules. (25) Though the application of the specific provisions of IHL is predicated on the international/non-international framework, the Conventions and Protocols do not contain detailed indicia delimiting international from non-international armed conflict. (26) It is suggested that the framework for international armed conflict establishes an "outer boundary of permissive action," because if a state may permissibly engage in conduct under the international armed conflict framework, then a fortiori it may engage in those activities in non-international armed conflict, where their sovereignty concerns are paramount. (27)

      1. Material Scope of International Armed Conflict

      1. Common Article Two Conflicts

         International armed conflict, defined in the Geneva Conventions and elaborated in Additional Protocol I, triggers a broad framework of more than 500 articles. (28) Common Article Two provides for the application of the law of international armed conflict when there is an armed conflict between two or more states. (29) In keeping with the tenets of the Westphalian system, states have long distinguished between conflicts exclusively engaging states and those involving non-state entities by curtailing the number and scope of international rules applicable to the latter. (30)

      2. Additional Protocol I Conflicts

         Article one, paragraph three, of Additional Protocol I states that the Protocol "supplements the Geneva Conventions ... [and] shall apply in the situations referred to in Article 2 common...." (31) Thus, the Commentary to the Protocol suggests that the threshold standard of violence for Common Article Two of the Geneva Conventions should apply to Additional Protocol I conflicts as well. (32) Article one of Additional Protocol I adds another formulation of conflict within the scope of the treaty, namely "armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self determination." (33) Under Additional Protocol I, a war of national liberation must satisfy a two-part test: it must be a conflict (1) waged in pursuit of self-determination, (2) against colonial domination, alien occupation or racist regimes. (34) Thus, wars in pursuit of secession or waged against oppressive regimes are excluded from the definition. (35)

         2. Material Scope of Non-international Armed Conflict

         A fundamental difference between international and noninternational armed conflicts is the latter's inclusion within its ambit of non-state armed groups. (36) The non-international armed conflict framework is comparatively limited due to states' interests in ensuring minimal infringement on their sovereign right to regulate internal matters. (37) Article three common to the four Geneva Conventions (Common Article Three), often referred to as a "Convention in Miniature," and Additional Protocol II, regulate non-international armed conflict. (38) Although the wording of the Commentary states that Common Article Three applies "to non-international conflicts only," the ICJ held that it reflects "elementary considerations of humanity," and applies as a "minimum yardstick" to international conflict as well. (39) Such an approach may be advantageous when faced with a situation that is difficult to classify, providing at least a basic framework of protective principles. (40) Additional Protocol II is applicable if the relevant state has ratified it, and if the heightened threshold of intensity is met. (41)

      1. Common Article Three Conflicts

         Common Article Three applies to "armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties." (42) Thus, it defines non-international armed conflict in the negative. (43) The article applies to armed conflicts arising between the armed forces of a state and non-governmental armed groups, or to hostilities between non-governmental armed groups. (44) Given the near universal ratification of the Geneva Conventions, the relevance of the territorially restrictive phrase "occurring in the territory of one of the High Contracting Parties" is arguably lessened. (45)

         Common Article Three contains no explicit requirement of a minimum threshold of hostilities to trigger its application, and the threshold for international armed conflict is inapplicable to situations in which non-state actors are involved. (46) It is generally accepted that the baseline in article one, paragraph two, of Protocol II applies by analogy. (47) It states "[t]his Protocol shall not apply to...