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viii
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ix
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ABLE OF
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xiii
L
IST OF
A
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
EU
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
xv
SPLM
Sudan People's Liberation Movement
SRUN
Special Rapporteur to the United Nations
UNTS
United Nations Treaty Series
UNGA
United Nations General Assembly
UN
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
1
I.
I
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,
1
without making the conduct of hostilities
impossible.
2
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.
3
Civilians have thus remained the primary victims of violations
of IHL, bearing the brunt of armed conflicts.
4
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
1
E
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.
2
Cf. D
INSTEIN
Y. (2004). The Conduct of Hostilities under the Law of International Armed Conflict.
Cambridge University Press, UK; p. 4 et seq.
3
C
HERIF
B
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.
4
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.
2
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
5
and likewise, that the more asymmetric a
conflict becomes, the more problematic compliance with IHL results.
6
Consequently, in non-international armed conflicts [NIACs], which are
inherently asymmetric,
7
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
5
H
ASKOLOGLU
,
I.,
A
LPARSLAN
E
KER
,
A.,
&
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.
6
S
ASSÒLI
, M. (2007). The Implementation of International Humanitarian Law: Current and Inherent
Challenges. In: Yearbook of International Humanitarian Law 10; p. 58.
7
G
EI
, R. (2006). Asymmetric Conflict Structures. In: International Review of the Red Cross. Vol.:88
No. 864. December, Geneva; p. 761.
3
compliance rates stemming from Armed Non-State Actors [ANSAs], also
known as Organized Armed Groups [OAGs].
4
II.
A
SYMMETRIC
W
ARFARE
i. General Features
With only one remaining superpower, imbalances between contending
parties have become a characteristic feature of contemporary armed conflicts.
8
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.
9
Therefore, war has always been characterized by at least one form of
asymmetry.
10
In this sense, armed conflicts maybe affected by asymmetries of
power, means, organization, time
11
, weapons, technology, norms,
12
etc.
Moreover, asymmetry operates at all levels of a given conflict, encompassing
the tactical sphere through the operational and reaching the strategic one.
13
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
8
G
EI
,
R. (2006). Supra note 7; p. 757.
9
P
FANNER
,
T.
(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.
10
H
EINTSCHEL VON
H
EINEGG
,
W. (2011). Asymmetric Warfare: how to respond. In: International Law
Studies: U.S Naval War College, Vol. 87, Cap. XVII; p. 464.
11
P
FANNER
, T. (2005). Supra note 9; p. 151.
12
SCHMITT, M., N. (2007). Asymmetrical Warfare and International Humanitarian Law. In: Air Force
Law Review Vol. 62; p. 3.
13
Ibídem; p. 4.
5
have often sought to overcome their military inferiority by employing
strategies that flagrantly violate international law."
14
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."
15
Asymmetric warfare, also referred to as irregular warfare or fourth
generation warfare,
16
is the result of decades of unnoticed development from
the aforementioned Westphalian model,
17
to a contemporary state of
prevalence of one sort of hostilities: those which are fought within State
borders.
18
In this regard, it has been submitted that the current most common
type of asymmetric conflict finds its roots in insurgency;
19
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
14
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.
15
H
EINTSCHEL VON
H
EINEGG
, W. (2010). Asymmetric Warfare. In: Max Plank Encyclopedia of Public
International Law [MPEPIL], encyclopedia entry; §4.
16
G
EI
, R. (2006). Supra note 7; p. 759.
17
K
ISS
,
P.,
A.
(2014).
Winning Wars amongst the People: case studies in asymmetric conflict. Potomac
Books; p. 24.
18
For further information on the subject, please see Chapter III.
19
K
ISS
,
P. (2014). Supra note 17; p. 10.
6
conflict,
20
the Syrian armed conflict for instance, being a case that stands out
in the latter regard.
21
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.
22
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."
23
20
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.
21
For more details on the fragmented Syrian opposition please see: C
AFARELLA
,
J.
&
C
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]).
22
T
ALBOT
J
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.
23
S
CHMITT
,
M.,
N. (2007). Supra note 12; p. 13.
7
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
24
[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.
25
Therefore, it has been observed that as a matter of policy, IHL obligations
may impose higher burdens to high-tech belligerents;
26
and this normative
relativism is said to be the birth of a capabilities-based IHL regime.
27
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,
28
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)
29
, weaker parties
still rely on approaches designed to drain the resources of the State by
24
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].
25
G
EI
, R. (2006). Supra note 7; p. 761.
26
In reference to Article 57 of Additional Protocol I to the Geneva Conventions of 1949. S
CHMITT
,
M.
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.
27
Ibídem.
28
SCHMITT, M., N. (2007). Supra note 9; p. 6.
29
U.S
D
EPARTMENT OF
A
IR
F
ORCE
,
A
IR
W
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.
8
protracting the conflict
30
and occasionally resort to other versions of EBOs
that usually take the form of terror attacks.
31
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.
32
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:
30
C
HERIF
B
ASSIOUNT
,
M. (2008). Supra note 3; p. 767
31
S
CHMITT
, M., N. (2007). Supra note 9; p. 6, fn 15.
32
W
ATTS
,
S. (2009). Reciprocity and the Law of War. In: Harvard International Law Journal, Vol. 50,
No. 2; p. 383:
9
"[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."
33
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."
34
The term currently bears a distinctly pejorative
connotation, which seems unusual given that the concept itself is simply
neutral.
35
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.
36
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
33
L
AUTERPACHT
,
H. (1953). The Limits of Operation of the Laws of War. In: British Yearbook of
International Law. Vol. 30; p. 212.
34
C
OUNCIL ON
F
OREIGN
R
ELATIONS
(2003). Lawfare, the Latest in Asymmetries. 18 March. In:
Transcript of 6
th
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]).
35
S
TEPHENS
,
D. (2011). The Age of Lawfare. In: International Law Studies: U.S Naval War College,
Vol. 87, No. 327, Cap XIII; 330.
36
Cf. D
UNLAP
,
C.
J.
J
R
.
(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.
10
describes it as a phenomenon that entails the manipulation of the law as a
mean of warfare.
37
Lawfare has also a political connotation: it is based on the misapplication of
formal legality to achieve extra-legal and asymmetric effects.
38
It does so by
deconstructing C
LAUSEWITZ
's components of the remarkable trinity
39
(the
government, the military and the people) and imposing it contrariwise upon
the enemy.
40
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.
41
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.
42
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.
43
37
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.
38
S
TEPHENS
,
D. (2011). Supra note 35; p. 328.
39
Which, according to Clausewitz, conduct to a victory in war when their energies are
combined.
40
D
UNLAP
,
C.
J.
J
R
.
(2001). Supra note 36; p. 4.
41
S
TEPHENS
,
D. (2011). Supra note 35; p. 327.
42
N
EWTON
,
M.,
A. (2011). Illustrating Illegitimate Lawfare. In: Case Western Reserve Journal of
International Law, Vol. 43, No. 255; p. 258.
43
S
TEPHENS
,
D. (2011). Supra note 35; p. 328.
11
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.
44
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."
45
Illegitimate lawfare can thus transform appropriate and expected tactical
decision-making into a weapon that digs into the moral domain of a conflict.
46
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."
47
44
D
UNLAP
,
C.
J.
J
R
.
(2001). Supra note 36; p. 5.
45
G
RAHAM
,
B.
&
L
OEB
,
V
.
(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]).
46
N
EWTON
,
M.,
A. (2011). Supra note 42; p. 259.
47
Ibídem; p. 256.
12
III. N
ON
-I
NTERNATIONAL
A
RMED
C
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,
48
to the point in which nowadays most armed conflicts qualify as
being of a non-international character.
49
In fact, as of 2015, the Uppsala University database on armed conflicts
determined that worldwide, 71 armed conflicts were of a non- international
character.
50
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.
51
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
48
K
ISS
,
P.,
A.
(2014).
Supra note 17; p. 3.
49
B
ELLAL
,
A
.
&
C
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.
50
U
PPSALA
U
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].
51
S
ASSÒLI
, M. (2010). Taking Armed Groups Seriously: Ways to Improve their Compliance with
International Humanitarian Law. In: International Humanitarian Legal Studies 1; p. 10.
13
parties have on whether a situation qualifies as an armed conflict or not, for
its applicability relies on a factual situation.
52
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:
53
"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
52
V
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.
53
Both Articles are entitled in this manner due to its presence in all four Geneva Conventions of
the 12 August, 1949.
14
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".
54
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;
55
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.
56
54
P
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.
55
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.
56
P
ICTECT
,
J.,
S. (1958), supra note 54; p. 33.
15
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".
57
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.
58
However, the level of discretion of Governments to determine whether these
rules are applicable,
59
as well as the fact that a brief set of rules may not allow
to adequately respond to urgent humanitarian needs
60
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.
61
It then became
apparent to said experts that the first option would be almost impossible to
57
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.
58
ICTY, A
PPEALS
C
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,
T
RIAL
C
HAMBER
(1998). Prosecutor v. Jean Paul Akayesu. Judgement of 2 September
[Case No. ICTR-96-4-T]; § 608610.
59
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).
60
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.
61
ICRC. Supra note 62; §4449.
16
accomplish and therefore, they undertook to work on the second alternative.
62
Additional Protocol II
63
[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
62
Ibídem, § 4450.
63
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].
17
long as a State is not a party to said conflict too.
64
This is considered one of the
biggest failures of the Protocol.
65
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.
66
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.
64
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
C
OURT
(2006).
Hamdan, Salim v. Rumsfld, Donald. Judgement of 29 June. [No.05-184]; § 67.
65
S
IVAKUMARAN
,
S. (2012). The Law of Non-International Armed Conflict. Oxford University Press,
UK; p. 184.
66
P
EJIC
,
J. (2007). Status of armed conflicts. In: Perspectives on the ICRC Study on Customary IHL.
Cambridge University Press; p. 79.
18
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."
67
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.
68
These are not ruled by IHL but rather by the International Law
of the Sea and, when applicable, the relevant Security Council Resolutions.
69
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
67
ICTY, A
PPEALS
C
HAMBER
(1995). Supra note 58; § 70.
68
H
EINTSCHEL VON
H
EINEGG
,
W. (2011). Supra note 10; p. 464.
69
Ibídem.
19
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."
70
This approach has been nonetheless sniped and catalogued as both, overly
broad and overly narrow.
71
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.
72
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".
73
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;
74
but would also carry highly
regressive implications, such as the deprival of protection to "civilians
70
ICTY, A
PPEALS
C
HAMBER
(1995). Supra note 58; § 70.
71
S
IVAKUMARAN
,
S. (2012). Supra note 65; p. 251.
72
Ibídem.
73
S
CHMITT
,
M.
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.
74
Ibídem
20
possibly affected by the fighting, as well as persons who fall into enemy
hands".
75
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."
76
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."
77
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.
78
75
ICRC (2011). International Humanitarian Law and the Challenges of Contemporary Conflicts. In:
Report Prepared for the 31
st
International Conference of the Red Cross and Red Crescent
[31IC/11/5.1.2, 911]; pp. 9-10.
76
S
ASSÒLI
,
M.
(2006). Transnational Armed Groups and International Humanitarian Law. In: Program
on Humanitarian Policy and Conflict Research, Harvard University, HPCR Occasional Paper
Series; p. 9.
77
Ibídem.
78
S
CHMITT
,
M.
N (2014).Supra note 73; p. 12.
21
Furthermore, it has been submitted that the GCs are typically unequivocal
when territoriality is actually a limiting factor
79
, for example GC IV's
provisions on occupied territories.
80
It then follows that the lack of
geographical limitation within Common Article 3 "implies it was not
intended to be so limited."
81
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;
82
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.
83
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
79
Ibídem.
80
Geneva Convention (IV) relative to the Treatment of Prisoners of War [75 U.N.T.S 135]; Arts. 47
and 48.
81
S
CHMITT
,
M.
N (2014).Supra note 73; p. 12.
82
H
EINTSCHEL VON
H
EINEGG
,
W. (2011). Supra note 10; pp. 463-464.
83
Ibídem; p. 464.
22
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."
84
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."
85
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.
86
However, this has raised questions regarding how close to the actual territory
under hostilities belligerents must be, to be lawfully targeted. Despite of
84
S
IVAKUMARAN
,
S. (2012). Supra note 65; pp. 251-252.
85
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.
86
S
CHMITT
,
M.
N (2014).Supra note 73; p. 17.
23
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´."
87
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.
88
87
ICRC (2011). Supra note 75; p. 22.
88
S
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.