A few weeks ago, my great friend Elvina Pothelet analysed, on this blog, the decision of the International Criminal Court (ICC) Prosecutor’s to request authorization to investigate, inter alia, acts of ill-treatment of detainees allegedly committed since 2002 by the CIA in black sites in Poland, Romania and Lithuania, in connection with the armed conflict occurring in Afghanistan. Elvina affirmed that there may be an added value in qualifying these alleged behaviours as war crimes, but she also hinted that such qualification might support the idea that International Humanitarian Law (IHL) applies globally, even outside the borders of the States where active hostilities take place. In this post I will argue that a wide geographical scope of application of the IHL rules on the treatment of detainees — especially those contained in common Article 3 to the Geneva Conventions and reflected in customary international law — does not necessarily imply an equally wide applicability of the rules on the conduct of hostilities.
To put my intervention in context, I should recall the obvious: a war crime presupposes a serious violation of an IHL rule. And for a rule of IHL to be applicable, there must be a sufficient link of correlation (so-called ‘nexus’) between the behaviour in question and an armed conflict (see ICTY AC, Kunarac, § 57 ff., referring to acts that are ‘closely related to the armed conflict’; see also Cassese). Although these sources refer to international criminal law (ICL), they build on the principle that IHL only applies to conducts and events which are sufficiently related to an armed conflict, as recognized e.g. in the ICRC Introduction to IHL, at pp. 28 and 59 (see also Practitioners’ Guide to Human Rights Law (HRL) in Armed Conflict, § 4.23). When such behaviour occurs outside the theatre of hostilities — e.g. where acts of torture were allegedly perpetrated in Poland/Romania/Lithuania, but the supposedly related hostilities took place in Afghanistan — one should ask whether such ‘sufficient nexus’ exists and, additionally, whether are there any geographical limitations to its establishment. In other words, is IHL applicable to conduct or an event as soon as it is sufficiently connected to an armed conflict, regardless of the territory where it took place (as contended, e.g., by Lubell-Derejko)? Or should the applicability of IHL be limited only to behaviour occurring in the area where active hostilities are being fought, or in the territory of a State party to the conflict (as deemed preferable by the ICRC in its 2015 report, at p. 15)?
Like ‘global battlefield’ theorists, I am convinced that geographical considerations per se do not necessarily limit the applicability of IHL. But, as also accepted by Lubell and Derejko, I believe that they are a fundamental factor to be taken into account when assessing the existence of the necessary nexus between an event under scrutiny and an armed conflict. Geographical distance from the actual conflict may be an indication that the relevant conduct or event is sufficiently ‘closely related to the hostilities’. And that is where I think the difference between the rules on the treatment of detainees and other IHL rules (especially those on the conduct of hostilities) lies. Read the rest of this entry…