The United States is currently engaged in an armed conflict with an organized armed group operating from the territory of two foreign states. Is this armed conflict an international armed conflict (IAC), a non-international armed conflict (NIAC), both, or neither? The question matters because the answer determines which international legal rules apply to the conflict and regulate its conduct.
In his recent speech to the American Society of International Law, U.S. State Department Legal Adviser Brian Egan noted that “some of our foreign partners have asked us how we classify the conflict with ISIL and thus what set of rules applies. Because we are engaged in an armed conflict against a non-State actor, our war against ISIL is a non-international armed conflict, or NIAC.”
So far, so good. Few would deny that the United States is in a NIAC with ISIL. However, Egan continues: “Therefore, the applicable international legal regime governing our military operations is the law of armed conflict covering NIACs.”
Not so fast. In its recently released Commentary on the 1949 Geneva Conventions, the International Committee of the Red Cross writes that “an international armed conflict arises between the territorial State and the intervening State when force is used on the former’s territory without its consent.” If the territorial state consents to the use of force on its territory—including force directed at an organized armed group—then there is no international armed conflict between the two states. Since Iraq has consented to the United States using force against ISIL on its territory, there is no international armed conflict between the United States and Iraq. It follows that only the law of armed conflict covering NIACs governs U.S. military operations in Iraq.
Again, so far, so good. But what about U.S. military operations in Syria? According to the ICRC, if the territorial state does not consent to the use of force on its territory—even force directed exclusively at an organized armed group—then an international armed conflict arises between the two states. Importantly, “[t]his does not exclude the existence of a parallel non-international armed conflict between the intervening State and the armed group.”
It seems to follow that, according to the ICRC’s approach, the United States is both in a NIAC with ISIL and in an IAC with Syria. Accordingly, both the law of armed conflict covering NIACs and the law of armed conflict covering IACs govern U.S. military operations in Syria. Read the rest of this entry…