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Home Armed Conflict The United States is at War with Syria (according to the ICRC’s New Geneva Convention Commentary)

The United States is at War with Syria (according to the ICRC’s New Geneva Convention Commentary)

Published on April 8, 2016        Author: 

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. Presumably, this means that Syrian civilians enjoy the extensive protections afforded by the law covering IACs, while ISIL fighters are entitled to neither combatant immunity nor prisoner of war status.

Importantly, the United States does not claim that Syria has consented to U.S. military operations on Syrian territory. Egan himself says that “in the case of ISIL in Syria, as indicated in our Article 51 letter, we could act in self-defense without Syrian consent because we had determined that the Syrian regime was unable or unwilling to prevent the use of its territory for armed attacks by ISIL.” Although some scholars suggest that Syria has tacitly consented to U.S. airstrikes, this is not the U.S. legal position.

Is the ICRC’s new approach correct? Certainly, the objective existence of an armed conflict does not require formal declarations of war. But how can there be an armed conflict between two states without military confrontations between their respective armed forces?

In its 1958 Commentary, the ICRC took the view that an IAC requires “the intervention of members of the armed forces” of two or more opposing states. However, the new Commentary concludes that “[t]hat interpretation is too narrow.” For one thing, “[s]uch a position would in fact exclude from the scope of armed conflict the unilateral use of force by one State against another.” On the narrow interpretation, the law of armed conflict would not constrain the initial use of military force. For example, on the narrow interpretation, if one state suddenly attacks the civilian population of another state then no IAC exists until the victim state responds militarily. Since no IAC exists at the time of the attack on civilians, the law governing IACs does not apply to that attack and that attack does not constitute a war crime. This seems like an unattractive view.

In contrast, according to the new Commentary,

“International armed conflicts are fought between States. The government is only one of the constitutive elements of the State, while the territory and the population are the other constitutive elements. Therefore, any attack directed against the territory, population, or the military or civilian infrastructure constitutes a resort to armed force against the State to which this territory, population or infrastructure belongs.”

Accordingly, the use of force on the territory of a non-consenting state triggers an IAC, irrespective of whether its targets are military or civilian, public or private. If attacks on organized armed groups should be regarded as an exception to that general rule, then the burden of persuasion should lie on those asserting the exception.

For its part, the ICRC argues as follows:

“Some consider that in situations in which a State attacks exclusively members of a non-State armed group or its property on the territory of another State, no parallel international armed conflict arises between the territorial State and the State fighting the armed group. While that view is consequential in some respects, it is useful to recall that the population and public property of the territorial State may also be present in areas where the armed group is present and some group members may also be residents or citizens of the territorial State, such that attacks against the armed group will concomitantly affect the local population and the State’s infrastructure. For these reasons and others, it better corresponds to the factual reality to conclude 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.”

In other words, the law governing IACs was designed to protect civilians in one state from military operations conducted by foreign states. From the perspective of these civilians, it hardly matters whether these military operations are directed at their state’s armed forces or at organized armed groups operating from their territory. What matters most are the risks and harms these operations impose on the civilian population.

Should the United States resist the ICRC’s position? Certainly, it might be politically awkward for U.S. leaders to acknowledge that the United States is in an armed conflict with Syria. However, as we have seen, the objective existence of an armed conflict does not depend on its official recognition. In any event, two considerations may soften the blow.

First, most experts believe that the same customary international law rules govern targeting and attack in both IACs and NIACs. For example, Egan expresses the U.S. view that the principles of distinction, precautions, and proportionality, among others, apply with full force in NIACs. Accordingly, applying the law governing IACs should not impair U.S. military operations in Syria.

Second, if the United States is in an IAC with Syria then U.S. forces who fall into the power of Syrian authorities are lawful combatants entitled to combatant immunity from domestic prosecution as well as treatment as prisoners of war. In contrast, most experts believe that neither combatant immunity nor POW status exists under the law governing NIACs. Accordingly, U.S. forces may stand to benefit from the ICRC’s approach.

In closing, I was pleased to see that the ICRC cites EJIL:Talk!’s very own Dapo Akande in support of its new position. When Dapo took the same position in 2012, he argued that “[t]he sovereignty and State autonomy reasons that are used to justify having more limited regulation of non-international armed conflicts do not apply where the State is acting outside its own territory.” It is encouraging to see such first-rate scholarship influencing the legal position of the ICRC.

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27 Responses

  1. Martin Lederman

    Adil: I find this whole inquiry rather perplexing and, quite honestly, counterproductive (not your fault!).

    Let’s assume, as we should, that the use of force in Syria against ISIL by the U.S. and many other nations is a legitimate use of self-defense, complying with the requirements of necessity and proportionality, such that there is no “use of force against the territorial integrity or political independence of any state” (Art. 2); and let’s assume, moreover, that even in a practical sense (apart from the Charter), the U.S. and other nations are not using force *against* (i.e., to target) the Syrian government, military, territory, or civilian population.

    As you say, the U.S. and other states are in a NIAC with ISIL. And, I think you would concede that, in any colloquial or intuitive sense, those states are not in an armed conflict with, or against, Syria. Why then even ask (as you and the ICRC do) whether those states are nonetheless in an armed conflict with Syria as a technical matter of customary law? What *turns* on whether that relationship among states should be afforded such a counterintuitive (and highly provocative) characterization?

    Not the protection of Syrian civilians: As you note, and as Brian Egan confirms, the jus in bello protects those civilians whether there is an IAC or not, and presumably does so just as robustly in either case.

    What, then? The only other consideration you mention, not surprisingly, is the question of whether forces who “fall into the power” of Syrian authorities would be entitled to combatant immunity from domestic-law (i.e. Syrian law) prosecution for their belligerent acts (assuming those acts comply with the LOAC). I, for one, believe that there is, or ought to be, such immunity regardless of whether there’s an IAC with Syria, so long as the jus ad bellum is satisfied (and surely so long as there’s a NIAC). So, for instance, there’s no question at all that the U.S. is not engaged in an IAC with, say, Thailand; and yet if the U.S. were to inadvertently wound a Thai national in Syria, international law would (or ought to) prohibit Thailand from prosecuting the U.S. forces in question. And, in any event, whatever one thinks of the answer to that hypo, surely the result should be no different as between that case and a case of Syria prosecuting U.S. forces for wounding a Syrian national–either there’s combatant immunity in both cases or in neither.

    But if *that* (immunity from prosecution) is the question at stake, then arbitrarily announcing that there is or is not, in some abstract sense, an IAC with Syria, is hardly an ideal way of resolving it. Either international law does (or should) prohibit the prosecutions or it doesn’t (or shouldn’t); but the answer should not turn on a formal characterization of whether the U.S. is in an IAC as a technical legal matter–particularly if, as you suggest, the only reason for making or withholding that characterization in the first place is to determine whether such immunity attaches (which would be circular).

    You do hint at one other question–namely, whether it would be lawful for Syria to use military force against the states acting in its territory, including holding them as POWs in military detention (and presumably, targeting them). I don’t think it would be lawful–or shouldn’t be, in any event. (I doubt the question has ever been raised, so it’s unlikely any law has developed concerning it.) But again, in *answering* that question, it is not helpful, and it only confuses matters, or puts the proverbial cart before the horse, to simply assess the abstract question whether the U.S. and Syria are already in an IAC. Again, if *this* (the lawfulness of a Syrian military response) is all that turns on the “IAC or not?” characterization, then let’s simply address the pertinent question directly–namely, would (should) it be lawful for Syria to use force against the foreign forces currently operating in its territory, assuming that they are in compliance with both Article 51 and the LOAC?

  2. Ed Robinson

    Hello Adil – I just have one rather narrow question on this topic. If one agrees with the UK Court of Appeal’s Serdar Mohammed ruling (and various commentators e.g. http://www.ejiltalk.org/locating-the-legal-basis-for-detention-in-non-international-armed-conflicts-a-rejoinder-to-aurel-sari/) that the existence of a NIAC doesn’t confer an international humanitarian law right for states to intern individuals, does the IAC classification you are suggesting here (and the ICRC more generally) alter that situation? i.e. presumably it would mean that along with the civilian protections, Syria and the US would gain an international humanitarian law right to detain civilians to the extent permitted by GCIV, with possible consequences for their international human rights law obligations?

  3. Hi Marty,

    Good to hear from you. Understandably, you ask what *turns* on describing the Syria conflict as an IAC alongside a NIAC. Indeed, the ICRC makes several arguments from consequences, and you are right to say that those consequences could be achieved or prevented through other changes to international law, independently from the classification of the conflict.

    We agree that the customary law governing targeting and attack in IACs and NIACs has largely converged, though some disagree. And I am sympathetic to the view that state armed forces participating in transnational NIACs should be afforded combatant immunity, though that is probably not yet the law.

    I suspect that we also agree that the Rome Statute should be amended so that knowingly causing excessive harm to civilians in a NIAC can be prosecuted as a war crime, though such amendments do not seem forthcoming in the near term.

    Similarly, we may also agree that the intensity requirement for triggering a NIAC should be lowered, so that a first use of force by State A against organized armed group G in the territory of State B would be governed by IHL rules of precautions and proportionality even if, prior to the attack, there was no protracted armed violence between the two parties.

    Of course, some of these changes to international law will require some heavy lifting. In any event, I think you’re right that arguments from consequences alone can’t settle the conflict classification debate. We need arguments from logic and principle, which I think Dapo provides in his 2012 chapter.

    As Dapo explains, the historical justifications for the IAC/NIAC distinction presupposed that IACs involve the use of force on the territory of another state while NIACs involve the use of force on the territory of one’s own state. Some of these justifications were state-centric, while others were civilian-centric. The justification that I focus on is the idea that when a state uses force on its own territory, it is constrained by domestic law, by human rights law, and by political and emotional ties to the affected civilian population. In contrast, when states use force extra-territorially they are not necessarily equally constrained (though the distinction is not as sharp as it once was). It was therefore necessary for international law to step in to provide foreign civilians with robust legal protections. That logic seems to apply equally to foreign civilians caught up in a transnational NIAC.

    Of course, you are right that we could just eliminate the IAC/NIAC distinction altogether. But since that does not seem likely any time soon, we should remember why the distinction was drawn in the first place and interpret the distinction accordingly.

    Two quibbles: First, even if “the use of force in Syria against ISIL by the U.S. and many other nations is a legitimate use of self-defense” it does not follow “that there is no ‘use of force against the territorial integrity or political independence of any state’ (Art. 2).” Self-defense is a justification for infringing the prohibition on the use of force, not an exception to that prohibition. So it is perfectly consistent to say that the U.S. is using force against the territorial integrity of Syria and that it is acting in legitimate self-defense.

    Second, you write that “I, for one, believe that there is, or ought to be, such immunity [for state armed forces engaged in a transnational NIAC] regardless of whether there’s an IAC with Syria, so long as the jus ad bellum is satisfied (and surely so long as there’s a NIAC).” I wasn’t sure if you meant that a combatant’s immunity for fighting in a transnational NIAC should depend on whether his or her state conforms to the jus ad bellum. That would be an interesting view.

    You close with a fascinating question: “would (should) it be lawful for Syria to use force against the foreign forces currently operating in its territory, assuming that they are in compliance with both Article 51 and the LOAC?” Of course, we should distinguish the question of whether Syria would have a legal justification for using force against intervening forces from the question of whether *Syrian forces* would be entitled to combatant immunity for doing so. Classifying the conflict as an IAC would settle the latter question but leave open the former.

    With respect to the first question, I think the answer depends very much on how we understand jus ad bellum proportionality. In just war theory, a use of force is jus ad bellum proportionate only if it does more good than harm. However, according to the prevailing view in international law, a use of force is jus ad bellum proportionate so long as it is no more than necessary to repel or prevent an armed attack. On this view, it is jus ad bellum proportionate for State A to kill 1,000 civilians in State B to prevent Group G from carrying out periodic armed attacks that each kill no more than five or six civilians in State A. If that is correct, then it seems perfectly plausible that State B would be justified in using force to protect its civilian population from State A. The fact that the prevailing view of jus ad bellum proportionality in international law yields such results, in which both sides appear justified in using force, may be a reason to reject the prevailing view. But I leave that question to the future.

  4. Dear Ed,

    Interesting question. Certainly, since the intervening state is acting without the consent of the territorial state, the legal basis for detention cannot come from the domestic law of the territorial state (as would be the case in an internal NIAC). Nor could the domestic law of the intervening state do the job, since its domestic law could not justify extraterritorial acts potentially giving rise to state responsibility under international law. So the legal basis for detention must come from international law itself. Now, which branch of international law? Dapo would say that the IHL applicable to IACs both authorizes and regulates extraterritorial detention. He may be right. However, I find myself attracted to the view that IHL is prohibitive rather than permissive, and that any affirmative authorization for targeting or detention must come from the jus ad bellum. On my view, “the right to participate directly in hostilities” afforded to lawful combatants is an immunity and not a privilege. But, at least with respect to detention, I may be in the minority on that point.

    Many thanks,

    Adil

  5. Jordan

    Both the US and the ICRC are in error. Both would make US and European soldiers murderers if they kill members of ISIS or civilians who are DPH because the soldiers would have no combatant status or combatant immunity in a NIAC!
    This NIAC Nonsense (Google it) has to stop!
    IT IS AN IAC

  6. Very interesting post and fascinating comments / responses. Just one minor quibble with one of the post’s conclusions: “Second, if the United States is in an IAC with Syria then U.S. forces who fall into the power of Syrian authorities are lawful combatants entitled to combatant immunity from domestic prosecution as well as treatment as prisoners of war. In contrast, most experts believe that neither combatant immunity nor POW status exists under the law governing NIACs. Accordingly, U.S. forces may stand to benefit from the ICRC’s approach.”

    How is it that US forces stand to *benefit*? There seem to be two possibilities – either the US is in an IAC with Syria (=combatant immunity) or not (=no combatant immunity). But if it is not in an IAC, what do you need combatant immunity for in the first place? If there is no IAC, why would Syria ever want/be able to prosecute or detain US forces? If fighting occurs between US and Syrian forces, then it is an IAC either way and so combatant immunity attaches. If it is only a NIAC between the US and ISIL, then this does not concern Syria.

    In other words, as regards US v Syria, the two possibilities are not IAC v NIAC – as the excerpted paragraph seems to imply – but rather IAC or nothing.

    Or is this the question: may Syria prosecute US forces for participating in a NIAC against ISIL on Syrian territory? ie may Syria as the territorial state prosecute US forces for their involvement in a transnational armed conflict to which Syria isn’t a party? I find that unpersuasive, but it seems to me that is another possible interpretation of the excerpt.

  7. Hi Patryk,

    Indeed, the question is “may Syria prosecute US forces for participating in a NIAC against ISIL on Syrian territory?” For example, suppose that U.S. forces attack an ISIL target, knowing that several nearby Syrian civilians will be killed. The U.S. forces involved somehow fall into the power of Syrian authorities. May Syria prosecute the U.S. forces for criminal homicide, that is, for knowingly killing the Syrian civilians? If the U.S. forces are participating in an IAC (with Syria) then they could invoke combatant immunity to bar prosecution. However, if the U.S. forces are *only* participating in a NIAC (with ISIL) then they would not enjoy combatant immunity and would have to search for some applicable defense under Syrian criminal law.

    That seems like an unfortunate result. The problem is not that the death of Syrian civilians “does not concern Syria.” Certainly, such deaths *should* concern Syria (Syria’s actual level of concern for its citizens is of course debatable). The problem is that the general justification for combatant immunity seems to apply to this case. This seems to me a consideration in favor of the ICRC’s approach.

    Thanks,

    Adil

  8. Jordan

    ISIS merely has “insurgent” status, not “belligerent,” nation, or people; but the armed conflict does not occur “in a single state” (Pictet, ICRC COMM.) So GC 3 does not apply and the conflict is of an international character because of geography and participants from many states. Combatant status exist for members of armed forces of states, but not members of ISIS.

  9. Marty Lederman

    Adil: You assume that “if the U.S. forces are *only* participating in a NIAC (with ISIL) then they would not enjoy combatant immunity and would have to search for some applicable defense under Syrian criminal law.” You acknowledge that this “seems like an unfortunate result” and that “the general justification for combatant immunity seems to apply to this case.”

    Exactly right. But the solution to this problem is to recognize that international law does, or should, confer immunity in that hypothetical case (which is, in any event, only a theoretical concern–Syria isn’t about to initiate such prosecutions). Magically (and inaccurately) declaring that there’s an armed conflict between Syria and all the nations presently using force in its territory against ISIL–a characterization that would, counterintuitively, allow Syria itself to target and detain foreign combatants–strikes me as an especially ill-fitting way to deal with the alleged problem.

  10. Hi Marty,

    Remember that the approach taken in the Commentary does not entail “that there’s an armed conflict between Syria and all the nations presently using force in its territory against ISIL,” only that there is an armed conflict between Syria and all the nations presently using force in its territory *without Syria’s consent*.

    Take a clearer case: Suppose that State A uses force against Group G on the territory of State B, endangering State B’s civilian population, over State B’s consistent and unambiguous objections. It seems that there is a hostile relationship between the two states. As in a traditional IAC, State A may not have much concern for the civilian population of State B, and State B may not have much concern for the forces of State A. According to the ICRC, the law covering IACs arose to regulate hostile relationships between states and to afford both civilians and combatants robust legal protection from hostile states. Accordingly, the law covering IACs should apply to all non-consensual uses of force by one state on the territory of another. This is not (only) an argument from consequences, which could be rebutted by directly changing other legal rules, but (also) an argument from historical purpose.

    Now suppose that State A’s use of force against Group G flagrantly violates the jus ad bellum or the jus in bello. Perhaps Group G poses no imminent threat, or perhaps State A consistently launches attacks that predictably inflict excessive harm on civilians. On these facts, is it counterintuitive that State A is in an IAC with State B? Or to allow State B to target and detain combatants from State A? I’m not so sure. Yet, presumably, the classification of a conflict as an IAC or as a NIAC should not depend on either state’s conformity with the jus ad bellum or the jus in bello.

    In any event, I’m curious about your own view. Does an IAC only arise upon a clash between opposing state armed forces? Or only with an attack on state institutions or personnel? Or upon the clear and consistent objections of the territorial state? Does any cross-border attack on an armed group trigger an IAC? Or only attacks on armed groups that violate the jus ad bellum and/or the jus in bello?

    Best wishes,

    Adil

  11. Marty Lederman

    Thanks, Adil. Again, I don’t think it’s especially helpful to try to resolve these questions by answering the abstract, academic question of when a use of force in a nonconsenting state does, or does not, trigger an IAC between the two states. “IAC” is simply a label, established by lawyers, with certain legal consequences. And it does seem to me that you are trying to answer the “IAC or not?” question *with reference to the consequences.*

    You raise three questions relating to consequences:

    1. Must the “acting” (i.e., intruding) states comply with the jus ad bellum and the customary jus in bello, including its protection of civilians?

    Answer: Yes, regardless of classification.

    2. Could Syria prosecute members of those states’ armed forces (for, e.g., murder) for conduct undertaking in compliance with the LOAC?

    Answer: Should be: no. (But in any event, calling it an “IAC” isn’t informative of what the answer to this question is or should be.)

    3. Could Syria use military force to target or detain members of those states’ armed forces? (I take it this is the import of the series of questions in your last paragraph: When can Syria strike back?)

    A: Again, I would hope the answer is “no,” at least when the states in question have a valid claim under the jus ad bellum. You raise an interesting question, though: If the states claim they do have a valid right to act in self-defense, and the host state *disagrees* (e.g., because it insists it can itself ameliorate the threat from the NSA), is it lawful for Syria to use military force in reaction to the intrusion? I’m not sure what the answer to that is–I suppose it depends on who is right about the underlying self-defense question, something that won’t be definitively adjudicated–but one thing’s for sure: Once Syria does respond militarily, then there is an IAC, with all that entails.

  12. Marty Lederman

    P.S. It might help to look to practice, as well. As far as I know, the host state in such situations has rarely, if ever, *treated* such incursions (against an NSA, without targeting state forces/buildings/etc.) as triggering a war, or armed conflict, between the two nations. That is to say, they have neither used military force in response nor tried to prosecute the forces of the other state.

    The Caroline itself, of course, raised this very set of questions. The State of New York prosecuted McLeod for having set fire to the Caroline. McLeod and the British raised a variant of what we would today call the “combatant privilege” question. The British insisted that McLeod could not be tried for acts committed in legitimate self-defense even though there was no armed conflict between the UK and the U.S.

    There does appear to have been a dispute about whether the British were at “war” with those individuals on the Caroline (what we’d today call a NIAC)–and even a suggestion that New York’s prosecution of McLeod would create a state of war–but (as far as I know) no one argued that the British act of self-defense (burning down the Caroline in U.S. waters) established a war with the U.S. To the contrary — the U.S. and England denied any such thing, and the parties and court agreed.

    The N.Y. district attorney, for example, argued: “It is said, on the other side, that the invasion of our territory created a state of war: neither of the governments have so considered it, and it cannot be allowed to the prisoner to assume a position which his government does not claim.” 25 Wend. at 517.

    The NY Attorney General likewise argued: “It is not a true position that the destruction of the Caroline was an act of war, and that therefore the civil courts cannot take cognizance of it or of the matters growing out of it. It was an act of violence, but not of war.” Id. at 530.

    McLeod’s counsel replied by arguing that the individuals (non state actors) on the Caroline had initiated a war, but preceded that argument with this assurance: “It is not contended that [the facts in the record] show a state of war to exist between the United States and Great Britain, or the State of New York and the British colonial possessions, on her borders. Happily for both nations and all parties, we have as yet escaped this fearful crisis.” . . . [I]t has been said by the attorney general, that there was no war; that none was declared; that the party who came over and destroyed the Caroline were a horde of marauders and murderers. It is true that no war had been declared between the United States and Great Britain; but it is equally true that there had been a very significant declaration of war by those who took hostile possession of Navy island, and cannonaded the Canadian main; and that the steamboat destroyed and the man killed, had been engaged in transporting ‘volunteers’ and munitions of war to the island for the purpose of destroying the inhabitants of Canada, and subverting the government.” Id. at 548-49.

    Finally, the court, per Judge Cowen:

    Neither the provincial authorities, nor the sovereign power of either country have, to this day, characterized the transaction as a public war, actual or constructive. They never thought of its being one or the other. Both have spoken of it as a transaction public on one side, to be sure, but both claimed to hold fast the relations of peace.” Indeed, the judge reasoned that if such intrusions themselves established a state of war, then the U.S. and the UK would have been in a virtually perpetual state of war:

    “Counsel seem to have taken it for granted that a nation can do no public forcible wrong without being at war, even though it deny all action as a belligerent. At this rate every illegal order to search a ship, or enter on a disputed territory, or for the recaption of national property even from an individual, if either be done vi et armis, and work wrong to another nation or any of its subjects, would be pubiic war, necessarily so, though the actor should deny all purpose of war. Were such a rule once admitted, England and the United States can scarcely be said to have been at peace since the revolution which made them two nations.” Id. at 579.

    The judge, of course, denied that McLeod was immune from prosecution, precisely *because* the two nations were not at war–a holding that either was mistaken, or *ought* to be mistaken, IMHO (at least assuming that the U.K. claim of self-defense was deemed valid).

  13. Hi Marty,

    If your claim is that we should dispense with the distinction between IACs and NIACs and simply have one category of armed conflict to which the same legal rules apply then that is certainly a proposal worth exploring. As you know, I enjoy discussing such “abstract, academic questions.” However, since international law in fact distinguishes between IACs and NIACs we cannot avoid the classification question. How, then, to proceed?

    Certainly, the states that drafted and ratified the Geneva Conventions and the Additional Protocols distinguished between IACs and NIACs and created different treaty regimes to govern them. In your terms, those states attached different legal consequences to the application of the two labels, respectively. In applying the distinction today, we should think about why those states drew the distinction in the first place and apply that rationale to new contexts.

    In doing so, we should think about what those states would have expected the legal consequences of applying the different labels to be, not what they would be today or might be in the future. Otherwise, we will be in the odd situation of saying that whether a given situation is an IAC or a NIAC for the purposes of the Geneva Conventions and the Additional Protocols depends on subsequent treaties or later developments in customary law.

    Very best,

    Adil

  14. Jordan

    This is my draft addition to a footnote (regarding the new ICRC Commentary) to my draft article “Egregious Errors and Manifest Misconceptions in the 2015 DOD Law of War Manual” (on SSRN, and can easily be googled) [note the war against ISIS is taking place it at least two states and involves several state participants):
    This new Commentary correctly notes that proper application of common Article 2 rests upon “the pre-eminence of the factual existence of an armed conflict … [which] must be based solely on the prevailing facts.” Id. ¶ 20. It also notes that “[a] determination based on the prevailing facts should also conform to … the strict separation of jus in bello from jus ad bellum” so that “determination of the existence of an armed conflict and the related applicability of international humanitarian law depend only on the circumstances prevailing on the ground.” Id. ¶ 24. In sharp contrast, however, the new Commentary would hinge the nature of a cross-border conflict as an armed conflict of an international character on lack of “consent” of a territorial state to outside intervention, which is what some writers prefer to consider regarding jus ad bellum or use of force (often in error). See id. at n.98. According to the new Commentary, if a state consents “to the use of force in its own territory by a foreign State” the armed conflict will allegedly not be of an international character. See id. ¶¶ 69, 73. But if the state does not consent “it would amount to an international armed conflict.” See id. ¶ 70. And, if “cross-border or spillover” hostilities occur in the territory of a non-consenting State, “that intervention constitutes an unconsented to intrusion into the territorial State’s sphere of sovereignty … amounting to an international armed conflict.” Id. ¶ 71 (adding that this “was implicitly affirmed by the ICJ). Further, if the foreign State attacks non-state actors and the attacks “concomitantly affect the local population and the [territorial] State’s infrastructure … it better corresponds to the factual reality to conclude that an international armed conflict arises … when force is used” without consent of the territorial State. See id. § 72. Therefore, the ICRC recognizes that some cross-border violence will change the character of an armed conflict to one of an international nature. However, to rest classification of the character of a conflict on state “consent” is contrary to the ICRC’s own admonition regarding the distinction between law of war and use of force criteria and the recognized need to focus on the facts when making a choice about the existence and character of armed conflicts to which humanitarian law applies. Further, to limit the full reach of humanitarian law because of the happenstance of State “consent” is contrary to general efforts to provide greater protection for human beings during armed conflict. It is also dangerous with respect to soldiers who would have combatant status and combatant immunity for lawful acts of war when the conflict is of an international character, for example, whenever a cross-border conflict occurs without consent. Subsequent “consent” would make soldiers murderers when they lawfully kill enemy fighters during what has supposedly become a NIAC even though the fighting and facts “on the ground” are exactly the same. With respect to the multinational and transborder war against ISIS, consent by Iraq would supposedly make the war against ISIS in Iraq a NIAC, but lack of consent would supposedly make the same war against ISIS in Syria an IAC.

  15. Dapo Akande

    Dear Marty, Adil and all,

    I am sorry to be joining this conversation rather late. Adil, thanks very much for the post and for highlighting the ICRC’s view that the use of force by a state against a non-state group in the territory of another state, without the consent of the latter, amounts to an international armed conflict between the state using force and the territorial state. I am of course pleased that the new ICRC commentary comes to the same conclusion that I came to in the piece that you refer to you.

    Marty’s question as I understand it is: what turns on the issue of whether there is deemed to be an IAC between the state using force and the territorial state? The simple answer of course is that the law that applies would be different. But I take Marty’s question to be the more probing one of “what specifically would be different” (as compared with simply saying there is a non-international armed conflict -niac – with the non-state group). I also think he implicitly asks “why should we regard this as an IAC?”.

    As we know there is much convergence of the law relating to IACs and that relating to NIACs but there is not total convergence. Here are some differences:

    First, with regard to the rules relating to the conduct of hostilities, differences remain, for example, in the rules relating to the protection of the natural environment. So in the course of targeting a non-state group if the conflict brings into play IAC law then the state using force is bound to respect those rules like Art. 35(3) and 55(1) of API, which are more restrictive than the rules that apply in a NIAC.

    Second, with respect to detention, we have significant differences. If the state using force occasionally sends forces in to pick up people from the state where the non-state group is based (as the US has done in Syria) and then takes them back to its own territory (whether that is to sovereign territory or territory that is to all intents and purposes its own territory, eg Guantanamo?), for detention (and I don’t think the US has done this in Syria, but I may be wrong), then it matters whether IAC law or NIAC law applies. If there is an IAC between the state where the person is picked up and the state that is using force then GCIV applies and the detention regime of GCIV applies with regard to internment of civilians within the territory of a party to the conflict. Questions of course arise as to who is protected by GCIV, and does it extend to persons who have engaged in hostilities but who do not benefit from the protections of GCIII. However, that is a separate question from whether GCIV applies at all. [And the ICRC and many take the view that all those who do not benefit from GCI, II or III are entitled to the protections of GCIV unless there is a “derogation” from GCIV under Art. 5 of that Convention].

    This question of the detention regime that would apply is very significant indeed, in cases where the state using force also engages in detention operations. Completely different legal regimes would apply depending on whether we think there is an IAC or not. Or to be more precise, if there is an IAC the IHL procedural regime of detention kicks in, if there is only a NIAC, IHL will have little to say about who can be detained, for how long, or what standards of review are available.

    As Ed also notes, whether there is an IAC or not also has implications for the application of international human rights law with regard to detention. In my view (and in the view of the ECtHR in Hassan v UK, if there is an IAC, this would provide a legal basis for detention, for the purposes of human rights law. If it is only a NIAC, the legal basis for detention, for the purposes of satisfying human rights law, would need to be found elsewhere (as the English Court of Appeal held in the Serdar Mohammed case) . Also if there is an IAC there is the possibility (as was suggested in Hassan v UK by the ECtHR) of reading the IHRL review standards through the lens of IHL. Not so if the conflict is only a NIAC.

    – Third, with regard to prosecutions, Adil has already noted that there is combatant immunity in IACS but not in NIACS. Marty might wish there to be such immunity in NIACs but where is the practice. Also, if there is such immunity in NIACs would it apply also to the non-state side? Or would this be a case of lack of equal application of IHL. Now, there is an interesting question as to whether the ordinary immunity that foreign state officials are entitled to would apply with respect to actions taken by state forces on the territory of another state in a NIAC. But there is a view that this immunity does not extend to acts on the territory of the forum state done without the consent of the forum – a view that the English judiciary has embraced and which the US seems to embrace too with its indictments of Iranian, Chinese officials for hacking (something I might write about later).

    Fourth, and also relating to prosecutions, there is the question of ICC jurisdiction (something not relevant to US in Syria but relevant to France, UK and others in Syria). The list of war crimes subject to ICC jurisdiction is very different depending on whether the conflict is an IAC or NIAC. So whether action of a party to the Rome Statute in Syria or elsewhere is part of an IAC or NIAC is important for working out what crimes the ICC might be able to investigate or prosecute for.

    Finally, as I suggest in my article, I cannot see the viability of any other test for working out whether something is an IAC other than the test that a use of force on the territory of a state without its consent is a use of force against that state. I really would be interested in what the alternative test would be. If not this test, what is the test for an IAC? Surely it can’t be that the armed forces of both sides are engaged as that would mean that an attack on a civilian population of another state does not involve an armed conflict at all and IHL does not apply to that in any way ( as it is not against armed forces nor against an organized armed group). It is sometimes suggested that an IAC must involve an attack against the governmental infrastructure. But that is not only wholly unclear but the meaning of that would vary from state to state (is an airport like London Heathrow which is privately owned governmental infrastructure? or what of privately owned major roads like the M6 toll road that connects Birmingham to Manchster in the UK?). Also is there only an IAC when there is intent to target that infrastructure or when it is actually hit? Does it matter whether the state using force knows what status that infrastructure holds?

    In the chapter that Adil and the ICRC refer to I address why IAC law should apply in the case of a use of force on the territory of another state without the consent of the latter.

    I should say that the argument that there is an IAC between the two states does not detract from the point that there could and probably would also be a NIAC between the state using force and the non-state group.

  16. Martin Lederman

    Thanks, Dapo. That’s very helpful to identify still other legal questions that might turn on whether there’s an IAC. Even so, I’m still not sure too much of practical significance depends on the existence of an IAC.

    1. You say that “with regard to the rules relating to the conduct of hostilities, differences remain, for example, in the rules relating to the protection of the natural environment.” I’m not familiar with most of those differences, including, in particular, the protection of the environment. Why would that rule be any different in a NIAC?

    2. Detention. You’re right, of course, that international law is not as robust in governing NIAC detentions as it is w/r/t IAC detentions. Even so, I think most nations will follow the U.S. lead and begin to treat them as very analogous, if only as a matter of domestic law, with respect to detention of nonstate personnel. In any event, presumably any detainees in, e.g., Syria, will be captured as part of the NIAC (enemy forces), not the IAC; so any detention-related differences probably will arise only rarely.

    3. I continue to think there is virtually no practice — not after the McLeod prosecution arising from the Caroline, that is! — telling us much about whether combatant immunity applies in a NIAC. I think there’s no reason it shouldn’t and that, in any event, prosecutions are almost unimaginable, absent violations of the LOAC. (And no, the immunity does not apply to nonstate actors, just as it does not apply to state actors (spies, civilians, etc.) who are not part of (or accompanying) the armed forces.)

    4. The ICC point might be a very important one, albeit not w/r/t to the U.S. But again–would violations with respect to ISIL be covered, even if there were, in some abstract sense, a France/Syria IAC?

    5. As for what the “test” might be: How about simply whether the acting state targets anything other than the NSA whose “armed attacks” are the basis for the claim of self-defense?

  17. Hi Marty,

    You write “As for what the ‘test’ might be: How about simply whether the acting state targets anything other than the NSA whose ‘armed attacks’ are the basis for the claim of self-defense?”

    In my initial post, I wrote that “the use of force on the territory of a non-consenting state triggers an IAC, irrespective of whether its targets are military or civilian, public or private. If attacks on organized armed groups should be regarded as an exception to that general rule, then the burden of persuasion should lie on those asserting the exception.” It seems like you accept the general rule. What is your argument for the exception?

    In particular, does your exception apply only if the intervening state acts in legitimate self-defense? That would seem to make the classification of the conflict depend on the jus ad bellum. What if the group poses no imminent threat, or could be suppressed without the use of force or with less force than is used? Then would an IAC exist?

    Or, on your view, is it sufficient that the intervening state *claims* to act in self-defense? That would seem to make the classification of the conflict depend on state declarations rather than on objective, factual criteria. What if the state’s claim of self-defense is clearly pretextual? What if the state announces that it is targeting the group because its mere existence inspires internal political opposition? Then would an IAC exist?

    Many thanks,

    Adil

  18. Marty Lederman

    Thanks again, Adil. I suppose my initial response is that we should not decide the abstract IAC question at all; instead, we should simply encourage or assume or facilitate what Dapo refers to as the “convergence” of law in IACs and NIACs that already takes care of the vast majority of practical questions you’ve raised. (After all, as you note, the “IAC?” question is an open one–and yet it has not precipitated many, if any, actual controversies or unresolved questions *as applied to actual conduct (e.g., prosecutions).*)

    I acknowledge, however, that actual or hopeful “convergence” doesn’t take care of all the possible questions–in particular, with respect to the application of treaties, such as Geneva and the Rome Statute, that expressly turn on the question of whether an IAC exists. And so we (in some academic sense) “need” a metric. And the one I offered seems to me to reflect actual state practice–indeed, states rarely if ever claim to be at “war,” or in “armed conflict,” with one another until the two militaries themselves engage.

    As for your very good question about what should happen when the host state *disagrees* with the acting state as to whether the self-defense ad bellum predicate is satisfied: Well, just thinking out loud here, I imagine the decision will be made “on the ground.” If the host state actually engages by responding with military force, then of course we have an IAC, regardless of whether the ad bellum law allowed the host state to do so. If the host state does not respond (other than by complaining, as Syria has done), then I suppose I’d say that if the force of the “acting” state is directed only at the threatening NSA, there’s no IAC. But that’s only a preliminary instinct. And, as I said at the top, I think we’d get by just fine — same as we do today — if no state or other official source made any determination of whether an IAC existed or not.

  19. Jens David Ohlin

    A few points to add to the discussion:

    First, on the question of whether Syria has a right of response, defensively, against the extraterritorial defensive force waged on its territory against an NSA. The key issue here is that Syria must have suffered an unlawful attack. The right to self-defense is only triggered when a state suffers an unlawful attack. This requirement is sometimes so obvious that it isn’t explicitly discussed. But it is conceptually required, otherwise a state that “suffers” a Security Council-authorized enforcement action could respond “in self-defense” against the enforcement action. Or just take a regular and uncontroversial IAC between two states, one the aggressor and the other the victim. The aggressor state has no right of self-defense against the victim state’s exercise of legitimate self-defense.

    So the question w/r/t Syria requires an answer to the question of whether the violation of Syria’s territory is lawful or not. I think this issue is under-theorized, though a few people have papers in the works about it. But here’s one thought. If Syria is unwilling to resolve the threat, then they have violated an international legal obligation to ensure that their territory is not used as a basis for attacks against third parties. This violation makes them subject to a counter-measure. The counter-measure would be the violation of their sovereignty. There would be an armed conflict between the intervening state and the NSA. But the piercing of the territorial state’s sovereignty, provided that no government assets are militarily engaged, would not trigger the existence of an armed conflict between Syria and the intervening state. But it would constitute an act under international law that could be judged wrongful or justified by basic principles of international law. And as I said, if Syria is unwilling, then they have violated a legal duty and the infringement against their sovereignty is a justified counter-measure.

    Alternatively, what if Syria is unable? In that case, it seems to me again that there is an armed conflict between the intervening state and the NSA. And again, it seems that the territorial infringement does not generate an armed conflict with the host state, but in this case for different reasons. It is not that the host state has violated its international obligation, but rather the state’s sovereignty (as a function of control) is already called into question because they are unable to exercise the type of territorial control that is implicit in the factual notion of sovereignty. In that case, it isn’t clear to me that the technical violation of sovereignty by the intervening state is actually a violation of sovereignty at all. Such a “violation” implies a level of sovereign control that simply does not exist in that situation. Either the host state has effective control over the NSA or they don’t. If they don’t have that control, it doesn’t seem to me that they can complain that their sovereignty was violated.

  20. Nicolás Carrillo-Santarelli Nicolás Carrillo-Santarelli

    While I understand that the ICRC’s approach may provide greater guarantees to civilians, the interpretation can be abused if it is understood as making all IAC rules applicable, insofar as the invading party or the one with the initiative could pretend that it is entitled to attack combatants of the third/territorial State. To prevent this we could resort to the doctrone of abuse of rights and to employ human rights law as lex specialis for certain purposes.

  21. Dear Nicolás,

    Thanks for your comment. Of course, you are correct that the law covering IACs does not prohibit attacks on combatants. Importantly, neither does the law covering NIACs. So, if an intervening state is in a NIAC with an armed group on the territory of another state then it is not clear that the law covering NIACs would prohibit the intervening state from attacking the armed forces of the territorial state.*

    In any event, such an attack on the armed forces of the territorial state would immediately trigger an IAC between the two states. The law covering IACs would then apply and, as such, these attacks would not be prohibited under the law covering IACs.

    So whether we adopt the ICRC’s approach or the alternative approach defended by Marty and others, we must look elsewhere for legal constraints on attacks against the armed forces of the territorial state. You may be right that human rights law could help here. I would suggest that the jus ad bellum would be relevant as well, as such a use of force would seem to be neither a necessary nor a proportionate means of preventing armed attacks by the armed group.

    Thanks again,

    Adil

    * I can imagine an argument that, on the view that there is *only* a NIAC between the intervening state and the armed group, the armed forces of the territorial state are *civilians* because they are not armed forces *of a party to the conflict*. However, attacks on the armed forces of the territorial state would immediately trigger an IAC to which those very armed forces would be a party, thereby rendering them combatants on any view. So this very interesting possibility seems moot.

  22. RJ

    “most experts believe that neither combatant immunity nor POW status exists under the law governing NIACs. Accordingly, U.S. forces may stand to benefit from the ICRC’s approach.”
    Just to clarify: Wouldn’t that mean that IS combatants enjoy the same status and privileges in their fight the US and other members of the alliance?

  23. Hi RJ,

    You ask whether “IS combatants enjoy the same status and privileges in their fight [as] the US and other members of the alliance?”

    The law covering NIACs grant neither state armed forces nor organized armed groups the status of privileged belligerents. Indeed, common article 3 explicitly states that its application “shall not affect the legal status of the Parties to the conflict.”

    Accordingly, IS fighters enjoy no privileged status as they are only participating in a NIAC. In contrast, under the ICRC’s approach, US forces are participating in both a NIAC with IS and an IAC with Syria. Although US forces enjoy no privileged status under the law covering the former, they enjoy privileged status under the law covering the later.

    Many thanks,

    Adil

  24. Jens David Ohlin

    “The law covering NIACs grant neither state armed forces nor organized armed groups the status of privileged belligerents. Indeed, common article 3 explicitly states that its application “shall not affect the legal status of the Parties to the conflict.”

    Adil, this is what every textbook on the subject says. But of course common article 3 doesn’t say that the privilege does not apply. All it says is that nothing in common article 3 changes the situation regarding legal status. But it doesn’t tell us what that legal status is…. The only thing it says is that common article 3 doesn’t change their status.

  25. Hi Jens,

    In one sense, of course you are correct that the wording of common article 3 leaves open the possibility that armed groups fighting in a NIAC might enjoy privileged status under customary law. We should therefore look to the opinio juris of states when they ratified GCI-IV.

    According to the ICRC, the provision was inserted because states did not wish to “appear to give the status of belligerents to insurgents, whose right to wage war could not be recognized” (http://bit.ly/1Q6VO7V). Accordingly, the provision makes clear that common article 3 “does not affect [a state’s] right to prosecute, try and sentence its adversaries for their crimes, according to its own laws and commensurate with any other international legal obligations that may apply to such procedures.” This suggests that members of armed groups do not enjoy privileged status under either treaty or custom.

    Of course, some very impressive scholars disagree: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2473713

    Thanks,

    Adil

  26. Jordan

    Jens and Adil: The customary laws of war “tell us” that common art. 3 was new, that “belligerents” (as in the U.S. Civil War (CSA) had immunity (e.g., Lieber Code), but what we term “insurgents” (who lack outside recognition as “belligerents,” or a nation, people, or state) had never had such immunity and have no such immunity in GC 3.
    Marty was correct regarding the Caroline self-defense action (but not re: immunity under laws of war, because the laws of war would apply if the rebels had reached the status of “belligerents”) and that the UK was not at war with the U.S. — nor is the U.S. at war with Pakistan or Syria with respect to targetings of NSAs under the law of war paradigm and the self- or collective self-defense paradigm. That sort of nonsense seems to drive the error in the new ICRC Commentary which uses a test of “consent”