We are grateful to Rogier Bartels for his thoughtful comments on our recent post and article in which we argue that IHL authorizes State parties to a NIAC to detain suspected insurgents. In this rejoinder, we briefly respond to Rogier’s main criticisms of our argument.
Equal protection versus equal status
The crux of Rogier’s criticism flows from his understanding of what the principle of equal application requires. For Rogier—as well as for Leggatt J in Serdar Mohammed and Dapo Akande and Lawrence Hill-Cawthorne (see here and here) —‘a principle of IHL has to apply equally to all sides; otherwise it cannot be a principle’. All parties to a NIAC, both States and non-state actors, must have exactly the same rights (including authorities) and obligations under IHL. Thus, our position that IHL authorizes States (but not organized armed groups) to detain produces unacceptably ‘asymmetrical rules’.
As we explain in our article, this ‘symmetry’ objection stretches the principle of equal application beyond its breaking point:
If the principle [of equal application] demands that all belligerents must enjoy the same status and rights and CA3 does not confer the full panoply of belligerent status and rights on non-State actors, then the only logical conclusion is that the parties to the Geneva Conventions and AP II gave up their status and rights as States and assumed the same status and rights as non-State actors. This not only contradicts commonsense, but also the plain language of CA3, which declares that it does not affect the legal status of the parties, State and non-State alike, to the conflict. In fact, CA3 thereby conserves any pre-existing inequality between the belligerent status and rights of State and non-State parties to a NIAC.
The principle of equal application requires that the protections and obligations under IHL apply to all parties to an IAC or NIAC whatever the lawfulness of resort to force under the jus ad bellum. Entitlement to protection is not dependent on how the conflict began or the relative justice of the causes involved. Similarly, the scope of IHL obligations should not be linked to organizational capacities or military rationales. However, none of this alters the fact that there is an undeniable asymmetry in the status of parties to a NIAC. One is a State and the other is not. The fact that an internal situation rises to the level of a NIAC does not transform the State party into a non-State actor or vice versa. As René Provost notes in his comments on the debate between Marco Sassòli and Yuval Shany referred to by Rogier: Read the rest of this entry…