Thank you for your comments.

I agree with the general principle that the jus ad bellum and the jus in bello ought to be kept separate. However, jus ad bellum principles can and must inform whether or there is an international armed conflict under the jus in bello. Where there is a use of force by one State on the territory of another State, it is the jus ad bellum that tells us whether that use of force is against the other state and thus a conflict between the two. So if there is no consent to the use of force, then the use of force is against the other State. If so, there is a conflict between the two. It makes no sense to say State A has used force against State B (and thus incurs international responsibility to State B) but there is no armed conflict with State B. However, you don’t seem to disagree me on this point.

Where we do disagree is whether in the context of the international armed conflict between the two States, the fighting with a non-State group is part of that conflict and also governed by the rules concerning international armed conflict. You say we have 2 conflicts: one international between the two states and the other non-international between the State and the non-State actor. I think this is the ICRC position too. This reliance on the notion of mixed conflicts is problematic for the following reasons.

(a) Both the ICJ in Nicaragua and the ICTY in Tadic were not dealing with the type of conflict we are dealing with here. The non-international conflict they were dealing with was between a State and a non-State actor taking place on the territory of that first State. Although the State in question (Nicaragua or Bosnia) was also involved in an overlapping conflict with a foreign State (the US or the FRY) there is a very important difference. To accept the involvement of the foreign State as transforming the conflict with the non-State actor is to provide an incentive all domestic rebels to seek foreign intervention. It would transform an internal matter, where States wish to have (and arguably the law provides) more limited regulation, to one where more extensive regulation applies. States are not prepared to accepted this, otherwise all efforts to keep the regulation of non-international armed conflicts distinct goes out the window. The ICJ and ICTY decisions simply reflect this.

b) In the case of conflicts with non-State groups on the territory of another State, there is little reason to have the more limited regulation. This is not an internal matter. The autonomy reasons for having more limited regulation of non-international armed conflicts do not apply. Importantly, the State on whose territory the conflict is being fought has interests at stake. As I pointed out earlier, the rules relating to the conduct of hostilities are the main area where the interests of the “host State” (the State where the conflict takes place) are most at play. IHL applicable in international armed conflict provides detailed rules in this area. Rules which do not apply as a matter of treaty law in non-international armed conflicts (for example the prohibition of targetting civilian objects or the rule preventing starvation as a means of warfare). Where hostilies are conducted against a non-State actor on territory of another State (and without its consent) these are also uses of force against the host State (and therefore part of the conflict with that State). It is impossible to separate the two things. The very conduct of hostilities against the non-State actor is also conduct of hostilities against the host State. So the attacking State is bound by the rules regarding international armed conflicts even if the object of its attacks are persons associated with the non-State group. The principle of equality would suggest that the non-State group is also bound by the same rules when acting in the territory of the host state.

- In the Armed Activities case, the ICJ said there is only occupation when the foreign territory is under the effective authority of the occupier. But the absence of occupation does not mean the absence of any obligations, only the absence of obligations under the law of occupation. The Court expressly applied IHL to situations outside the occupations scenario, eg in Kisangani.

I have doubts that the classification of transnational conflicts is as clear-cut as you suggest.

I second Andreas that the condition of consent brings dangerously close ius ad bellum and ius in bello. The modern regulation of IHL is based on the factual existence of armed conflict, which leads to the conclusion that an international armed conflict is indeed armed hostilities between nations.

It’s been some time that I last read the Congo vs. Uganda decision but I think that it was based on the fact that Uganda breached its primary duty as an occupying power to ensure order. However, it explicitly denied the existence of a state of occupation when it found that Ugandan armed forces had not exercised effective authority over Congolese territory, which implies that there could be situations when foreign troops station on the territory of another state without the latter’s consent – an apparent violation of GA Res. 3314 – but there is still no international armed conflict in the absence of actual hostilities and occupation.

Moreover, even if there is indeed an international armed conflict between the foreign and the host state, that does not necessarily mean that the hostilities between the foreign state forces and the non-state actor(s) take place in the framework of that conflict.
Both the Nicaragua case and the ICTY jurisprudence accepted that armed conflicts can take place parallelly, even in the same geographical location. Consequently, one could very well conclude that in such a situation there is an international armed conflict between the two respective states and a non-international armed conflict between the foreign state and the non-state actor.

This solution seems more realistic to me than simply envisaging the entire situation as a single international armed conflict. For instance, during transnational conflicts aimed exclusively against non-state actors states routinely deny that they are engaged in an international armed conflict, even though the host state usually protests the violation of its sovereignty. (I have written an article on this question, hopefully it will be published soon in the 2007 Hague Academy Research Centre’s volume.)

I think that the Supreme Court in Hamdan didn’t quite know what it was doing or what to do as regards the classification of the conflict. You are right that they refer to the specific wording of CA3 ["conflict not of an international character"], interpret it and say that it applies. This suggests that they took the view the conflict with Al-Qaeda is non-international. On the other hand, they begin their analysis of the question by saying explicitly they are not deciding that there is even a conflict with Al-Qaeda which is separate and distinct from that with the Taliban and and by saying that CA3 AT LEAST applies. They also finish their analysis by citing with approval dicta of the ICJ in Nicaragua and ICTY in Tadic that CA3 applies as a minimum yardstick in all armed conflicts (ftnote 65).

On the general point about transnational conflicts between States and non-state actor my point is not so much that a conflict between the State and the group as such could be an international armed conflict. Rather I was pointing out that in so far as the conflict is on the territory of another State and without its consent, then both parties are involved an international conflict. That conflict is part of and linked to the conflict between the two States because, at least in so far as targetting goes, you cannot separate the two. Any attack by the State involved in fighting has to meet the rules of an international armed conflict because otherwise it would be violating its obligations to the State on whose territory the conflict is being waged.

My point above is supported by the Armed Activities case (DRC v. Uganda). In that case the ICJ applied the rules regarding international armed conflict to the actions of Uganda in the DRC. I don’t think any fighting took place between the Ugandan Armed forces and the Congolese Army. Sure, there was a situation of occupation in Ituri but Uganda was found to violate IHL even in places outside Ituri and the ICJ did not condition its findings of violations on the establishment of an occupation. Uganda was in the DRC to fight non-state groups. It also engaged in fighting with Rwanda in and around Kisangani (which is not in the Ituri region). The ICJ found that Uganda had violated its IHL obligations to the DRC (not to Rwanda) with respect to fighting against Rwandan forces on DRC territory. Thus, the Court was accepting that there was an armed conflict between Uganda and the DRC even though the DRC was not involved in the fight. The same would be true even if the fighting in Kisangani had involved Uganda and a non-State group and killed the same people and caused the same destruction.

So the point is that fighting between a State and a transnational group outside the territory of that State and without the consent of the territorial State is part of an international armed conflict. Perhaps I shouldn’t go so far as to say that the conflict between the State and the group is an international armed conflict. I certainly do not accept that the conflict with the group as such and everywhere is an international armed conflict. The overall “conflict” with the group may well not be a single armed conflict for IHL purposes and may have to be territorially divided so that the fighting in some States is governed by the law relating to non-international armed conflicts. For example any fighting within the State concerned must be regarded as a non-international conflict.

This is messy but I think that’s where we are. I also think it is important not to accept the view that conflicts between a State and a non-State group are as such non-international armed conflicts. The repercussions for the law relating to targetting and the conduct of hostilities would be unfortunate. To accept such a view would also be to deprive States (like the DRC or Lebanon or Iraq) of rights which they have and to free other states (like Uganda or Israel or Turkey) of their obligations. There is a tendency to view these matters through the lens of the so called war on terror. However, these are issues that are of great relevance to many conflicts around the world.

In conclusion, I readily admit that even if part of the US conflicts with Al-Qaeda (that part which took place in Afghanistan as part of the conflict with the Taleban) was governed by the rules relating to international armed conflict, that does not provide all the answers regarding detention of Al-Qaeda members.

Thanks so much for the thoughtful response. Your point on the issue of military necessity is well taken. I think the essentiality of an act, such as detention, to the defeat of the enemy is so far subject to the discretion of a party to the armed conflict as to be a virtually empty standard.

I agree that states have rejected a perfect unity between laws governing IAC and NIAC. I don’t really think that is true as a matter of targeting or detention of the adversary as a matter of customary IHL. I believe they all do it with the understanding that they have the legal authority to do so. They refuse to recognize its legitimacy if engaged in by a non-state actors (except in a very limited way in AP I). This is not surprising.

You argue that detention in IAC is affirmatively supported by customary IHL. I fail to see how state practice does not support it in the IHL governing NIAC as a matter of CIL (otherwise why regulate it in CA3 and AP II). If it is not, all detention in NIAC is basically prohibited hostage-taking. If it is supported in NIAC as a matter of CIL, it is of course subject to applicable domestic, conventional or customary IHL limits. But these limits always apply in both international and non-international armed conflict.

Maybe we are really in the land of Lotus. If IHL permits it, it is not prohibited. The authority to do anything at all – attack, defend, observe, etc. – must therefore be based in domestic law, rather than affirmatively supported by IHL.

You are of course right that there is no provision in GCIII or API that explicitly says “parties have the right to detain combatants”. I agree that IHL relating to detention of combatants (i.e the law regarding POWs) starts from the factual premise that these people have been captured. However, it doesn’t just recognise that fact it must be regarded as providing affirmative authority to detain, i.e to continue to keep, by regulating not merely how they are detained but for how long they can be detained. All of this detailed regulation only makes sense against a background of a rule that gives permission to detain. That is a rule of customary international law as affirmed by the practice of States. The same is true for the targetting of combatants. The starting point is an affirmative permission to attack combatants.

I don’t agree that military necessity is the basis for either the permission to detain or to attack. It is not the case that it is always necessary as a military matter either to detain enemy combatants or to attack them. To suggest that military necessity is the basis of the rule is to say that attacks against combatants are not always permitted but only where military necessity permits (some people take this view) but I think State practice is against that view.

Your point could be interpreted as saying that there is a customary rule which allows detention in non-international armed conflicts. You base this on some sort of basic unity of the concept of armed conflict and what is permitted in an armed conflict. However, the notion of a basic unity of the concept has been categorically and repeatedly rejected by States. They have done so despite suggestions that the there should be such unity. Both at the time of the drafting of the GCs and the AP, there were suggestions of unifying the law regarding international and non-international armed conflicts. These proposals were rejected leaving us with the division that we currently have. The drafting of the Rome Statute again reveals that states do not accept that there should be any consistency or unity in the notion of an armed conflict. They again chose to make careful distinctions between international and non-international armed conflicts (even overruling some of the specific points made in Tadic). So one cannot then argue that because something is permitted in one type of armed conflict, it is implicitly permitted in the other. States have chosen to leave the law of non-international conflict as differently regulated.

One can take the ICRC Customary International Law study /Tadic approach that customary international humanitarian law blurs the division but one area where states have clearly not accepted a blurring of the division is with regard to issues of detention and prosecution.

Great post, just a few comments on the classification of the purported armed conflict with Al-Qaeda.

First, on the Hamdan decision. I agree that your reading of Hamdan as not necessarily saying that the conflict with Al-Qaeda is non-international in character is a possible one, and that as matter of IHL it is the better one. But textually, just on the face of what the judgment says, the more plausible reading is that the Court thought that the conflict was non-international, because its parties were not states:

“The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being “‘international in scope,’” does not qualify as a “‘conflict not of an international character.’” 415 F. 3d, at 41. That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations.”

Hamdan, slip op. at 67.

Second, it is true that the Obama administration brief does not say what the administration’s reading of Hamdan is. But it also doesn’t say that it backtracks from the interpretation of the decision by the Bush administration, that the conflict was a non-international, CA3 one.

Third, as for your argument on the possibility of an international armed conflict existing between a state and a non-state actor. It is certainly true that such a possibility is theoretically there, for instance through recognition of belligerency, or Art. 1(4) of AP I. But your more general argument is somewhat more problematic, even though for the most part I could actually agree with it.

Let’s consider the Israel/Hezbollah conflict. You say that this conflict can be qualified as an international one, because Lebanon has not consented to the Israeli invasion of its territory. I fully agree. But this would then have been an international armed conflict between Israel and Lebanon, i.e. between two states, NOT an int armed conflict between Israel and Hezbollah. In this conflict, Hezbollah fighters were for the most part civilians taking a direct part in hostilities, but the conflict was nonetheless an inter-state one, even if the official Lebanese side was mostly passive.

This type of conflict cannot exist between the US and Al-Qaeda, with the exception of the initial invasion of Afghanistan. The US government is arguing that it is engaged in an armed conflict with Al-Qaeda AS SUCH, and EVERYWHERE, all over the world. There is, today at least, no state which is engaged in an international armed conflict with the US, in which Al-Qaeda might be a participant, as Hezbollah was in the example above.

Thus, in short, I don’t see how it could be argued that an international armed conflict could exist between a state and a non-state actor as such, with the caveats given above. Unlike non-international conflicts, international armed conflicts presume an equality of status. In other words, if accepted that Al-Qaeda can be a party to such a conflict, if its fighters started wearing uniforms etc starting tomorrow, they would be entitled to the privilege of belligerency, POW status and so on. To me that is conceptually impossible, as well as practically unlikely.

My recent article in the JICJ discusses the distinctions you mention in relation to the Military Commissions Act and the history of punishing law of war violations in the U.S. I understand them well.

The point I made to Marko, and will now make to you, is that the IHL of international armed conflict DOES NOT expressly or affirmatively authorize detention or targeting of combatants.

As to detention, it (GPW “who have fallen into the power of an enemy” and AP I “”who falls into the power of an adverse party”) governs status of combatants (prisoner of war or not), conditions of detention, punishment and ancillary matters when detention occurs. The power to detain combatants (as opposed to civilians) comes only from the concept of military necessity. Nowhere does IHL governing international armed conflict affirmatively authorize the detention of combatants.

Likewise, targeting of combatants falls only within the broad scope of attacks on a military objective in Arts. 48-49, & 57 of AP I. One can argue whether those provisions expressly authorize attacks or delimit their scope. I believe the language favors the latter. It does not expressly or affirmatively authorize attacks, it only defines them, recognizes that they are a fundamental aspect of armed conflict and places limits on them when they are used (for example, that they be directed only to military objectives).

This returns to the administration’s brief. The powers to attack and detain an enemy are only implicit (or perhaps better stated as recognized as fact) in the IHL of international armed conflict. I submit that they are therefore also implicit in IHL’s recognition of anything titled non-international ARMED CONFLICT. Nevertheless, it is certainly recognized for both types of conflicts in U.S. domestic law, under both its common law of war and constitutional law.

Current IHL scholarship seems to be obscuring the point that fighters in NIAC may be targeted and detained as fighters. That they have no combatant immunity provided by IHL is a given, unless the domestic law governing NIAC provides it either explicitly or implicitly (as happened during the U.S. Civil War). This is fully consistent with the Grotian tradition of “mixed” wars, public on one side, private on the other.

It appears to me that lawyers raised in the civil law tradition are, quite naturally, searching for positive domestic law on a point for which IHL does not even have positive law. Whether that positive law is required in NIAC is therefore dependent on the requirements of the domestic constitution and legal system of a nation engaged in it.

The real problem here, as I see it, is that if we don’t maintain theoretical consistency in the fundamental nature of what is an armed conflict, we threaten the entire body of law governing NIAC (regarding which Tadic and the Rome Statue took a large leap forward). It will become subsumed and replaced with human rights law. I am not sure if that is a step forward when nations are confronted with existential threats from non-state actors, either internally or transnationally.

Thanks for your commments. Let me respond to your question about the distinction between the status of fighters in international and non-international armed conflicts. Here, I agree with Marko. In international armed conflicts IHL provides for a category of combatants and says that these combatants have a right to participate in an armed conflict and may not be prosecuted merely for taking part in hostilities. This is the combatants privilege or combatants immunity. It is implicitly in GC IIIand more explicit in Art. 43(2) of Add. Protocol I. This immunity is also a rule of customary international law.

In non-international armed conflicts, IHL does not give those who fight on the side of the non-State actor the right to take part in hostilities. This for the reasons that Marko points out in his post. Thus, States are entitled to criminalise the act of taking part in hostilities, killing, destruction of property, etc even if there has been no violation of IHL. But it is domestic law that does the job of criminalising. All international law does is to leave it free to domestic law to take whatever position it wishes.

So we have a fundamental distinction here between international and non-international armed conflicts. BUT this is not to say that the IHL applicable in non-international armed conflicts has nothing to say about the status of fighters. It does IHL in non-international armed conflicts still makes a distinction between fighters and civilians as this is important for the purposes of the law of targetting. Civilians may be targetted but fighters may not. So we need to know who the fighters are. Add. Protocol II famously uses the term civilians but fails to define it or to tell who is not a civilian and therefore open to targetting. But customary international law does define who a fighter is. They are members of organized armed groups.

So we can look at three aspects of IHL that touch on the status of people:

- targetting :
IHL in both international and non-international armed conflicts makes determinations about the status of fighters

- detention:
IHL in international armed conflicts classifies individuals and says who can or cannot be detained,, and speaks to the conditions of detention. IHL in non-international armed conflict only speaks to the conditions of detention. It doesn’t say anything about who can be detained

- prosecution
IHL in international armed conflicts says “lawful combatants” may not be prosecuted merely for taking part in the armed conflict. IHL in non-international armed conflict provides no immunity to anyone for prosecutions under domestic law. All that Add. Protocol II does is to encourage amnesties.

I don’t think that this is in any way inconsistent with the fabric of IHL. However, there is some truth to your point that the law of non-international armed conflicts is a bit like law enforcement. This is precisely the point, international law in that internal situation leaves states able to enforce their laws (eg laws regarding treason).

An interesting take on the brief. My earlier responses to Marko only served to emphasize that the brief writers are missing a fuller view of U.S. law on the subject, apparently including its constitutional component. To emphasize the point, I provide the following excerpt from an 1850 Supreme Court decision:

“[a] war, therefore, declared by Congress, can never be presumed to be waged for the purpose of conquest or the acquisition of territory; nor does the law declaring the war imply an authority to the President to enlarge the limits of the United States by subjugating the enemy’s country. The United States, it is true, may extend its boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace, in order to indemnify its citizens for the injuries they have suffered, or to reimburse the government for the expenses of the war. But this can be done only by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war. His duty and his power are purely military. As commander-in-chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power.”

This quote recognizes two things. First, that implied powers are broad and include all military measures necessary to defeat and subdue the enemy designated by Congress (scary in light of the scope of the AUMF passed after 9-11). Second, that implied powers cannot include those constitutionally dedicated to another branch of the U.S. government.

In other words, there are both unquantifiable implied powers and discoverable implied limits on those powers. In other cases, the court is clear that international law forms a part of those implied limits. Thus, to say that IHL informs the BREADTH of implied powers is accurate but slightly misunderstands their nature. Their substance is not “informed by” IHL, their limits are. Their substance is informed by the need to successfully prosecute a war by employing the military forces and capabilities at the Commander in Chief’s disposal. They are, however, limited by any clearly applicable conventional or customary IHL, and – to the extent not controlling – by their underlying general principles. That is where I hope the administration is heading in its understanding of the Commander in Chief powers.

Regarding the first paragraph of your response to Andreas, I am curious whether you think that current attempts to draw fine distinctions between the status of fighters in the IHL of international and non-international armed conflict are that helpful. In a draft article, I note that the concept of a “combatant adversary” in non-international armed conflict is mentioned in the ICC Statute re: the crime of treachery (Art. 8(2)(e)(ix)). The modern trend in IHL scholarship attempting to confine the use of the term “combatant” to only those acting on behalf of a sovereign or other entity with international legal personality appears to be (1) ahistorical, and (2) inconsistent with the fundamental understandings, concepts and principles of armed conflict.

It seems to me that if we fail to recognize that there are individuals on both sides of a non-international armed conflict that may be engaged/targeted based on their status rather than their conduct, we are fundamentally adopting a law enforcement/self-defense model for non-international armed conflict. While this might be perceived as preferable from the perspective of fundamental human rights , I am uncertain whether it fits within the fabric of IHL. Implicit in the recognition of any “ARMED CONFLICT” not of an international character are the fundamental aspects of what makes something an armed conflict in the first place, rather than law enforcement on steroids.

I think the above discussion is why the administration feels the need to reach to the IHL of international armed conflict to inform the substance of implied powers. Your disavowal of the notion that IHL provides any law on the subject of fighters in non-international armed conflict is understandable. I am just wondering what underlies it and how strong it is when you think of your above arguments with these thoughts in mind.