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Home Armed Conflict What Exactly Internationalizes an Internal Armed Conflict?

What Exactly Internationalizes an Internal Armed Conflict?

Published on May 7, 2010        Author: 

I’d like to turn our readers’ attention to the comment thread of Constantin’s post, which has raised a fascinating issue – when does an internal armed conflict become internationalized? I’d like to add a few thoughts of my own, first on some matters of definition.

We first need to agree on what the ‘internationalization’ of an internal armed conflict actually means. To my mind, that concept is only legally useful if it denotes the transformation of a prima facie non-international armed conflict into an international one, thereby rendering applicable to the said conflict the more comprehensive IAC legal regime. As is well known, there has been a long-standing trend – promoted, for example, by the case law of the ICTY and the ICRC customary law study – of arguing that most of IAC rules now apply to NIACs as well.

Crucially, however, at least one distinction between the two legal regimes remains. In IACs, the parties to the conflict are (at least) two equal sovereigns. Lawful participants in the hostilities who in effect represent those sovereigns thereby have combatant status, and enjoy the privilege of belligerency. They cannot be prosecuted by the other party for their mere participation in the hostilities, but solely for violations of IHL. In NIACs, however, the parties are fundamentally different – most commonly a government and a rebellious non-state actor. Because governments have every right to suppress rebellions against them, no combatant status or privilege exists in NIACs. A rebel can be prosecuted for the mere fact that he is a rebel, even if he has been completely observant of the rules of IHL. Thus, for example, the government of Afghanistan has every right to imprison a Taliban soldier, even if that soldier committed no war crime.

Note that this distinction is based on party structure to the conflict and is therefore here to stay. Note also that because the distinction between IACs and NIACs is based on party structure, one cannot logically first ask the question (as Federico does in the comments) whether there is an armed conflict simpliciter, and the ask further whether that conflict is international or non-international. Rather, IACs and NIACs are separate legal categories, neither of which is residual in nature, as it is impossible to establish either without making an inquiry into party structure. In other words, an ‘armed conflict’ exists when there is an IAC or a NIAC, not the other way around.

Per Common Article 2 of the Geneva Conventions, IACs are defined as conflicts between states. There are thus two basic ways of ‘internationalizing’ a NIAC: (1) for treaties and/or custom to exceptionally expand the definition of an IAC to include as parties some sufficiently state-like entities, or (2) for the non-state actor which is a party to a NIAC with a state to be considered as acting on behalf of a third state.

As for option (1), I know of only two such possible exceptions: Art. 1(4) AP I, which renders international a conflict between a state and an oppressed people, which would otherwise be considered a NIAC; and the recognition of belligerency, which has now fallen into disuse, but perhaps not desuetude. As for the former, the idea behind Art. 1(4) AP I is that a people entitled to self-determination, whose right thereto is being denied by a state, exhibits a form of proto-statehood or sovereignty, an innate legitimacy that requires the application of the IAC regime, the privilege of belligerency and all. However, Art. 1(4) is not widely accepted as reflecting customary law, and it has to my knowledge never actually been applied. As for the recognition of belligerency, it allows the state fighting an insurgent and/or third states to recognize the fact that the magnitude of the insurgency is such that it would be appropriate to treat it as a belligerent. It has been used in the 19th century, when the operational concept of the law of war was, well, war, most notably during the American Civil War. It has not been used since, but it could conceivably still be used to ‘upgrade,’ as it were, a NIAC into an IAC, in case of particularly protracted civil war involving large-scale hostilities and stable insurgent control over large areas of territory (i.e. a conflict on an AP II scale).

Conceivably, one could demonstrate sufficient state practice and opinio juris to expand option (1) and the definition of an IAC even further, to include other situations. However, I don’t believe that such a case can convincingly be made for any currently relevant situation. It is thus option (2) which is of practical relevance – a NIAC will become internationalized if it is shown that a non-state actor fighting a state is actually doing so on behalf of a third state. In other words, if the definition of an IAC that we are operating under is solely the CA2 one, i.e. if option (1) is excluded, a conflict will become international only if there are two states parties to it.

This, I think, is an answer to Federico’s argument in the comments that the current conflict in Afghanistan has become internationalized because of the presence of foreign forces there. As other commenters pointed out, this cannot be the case, as there are no two states fighting each other. The US, the UK, and other NATO states are fighting the Taliban, a non-state actor, jointly with the government of Afghanistan. In effect, they are acting on its behalf, with its consent, and in alliance with it. This conflict cannot be international, because if it was, the Taliban would have the right to fight, and so long as they respected the rules of IHL they could not be punished merely for rebelling against the lawful government of Afghanistan.

To successfully argue otherwise, Federico would need to show that the definition of an IAC has changed through custom, and this is not something that I think he can do. ‘International’ armed conflict means precisely that – a conflict between nations – unless an exception to that definition is established, as under my option (1). In that regard, I think Federico’s reliance on the Israeli Supreme Court’s Targeted Killings judgment is misplaced. There the Court wrongly considered an IAC to be any armed conflict which crosses the state boundary, but that is not the CA2 definition, nor is it supported by state practice. Likewise, that the Israeli-Palestinian conflict is taking place in an occupied territory (as argued, e.g., by Cassese) is also insufficient to internationalize a NIAC, as again there are no two states parties to the conflict, while Art. 1(4) AP I is unavailable since Israel is not a party. For more, see my article on Hamdan and Targeted Killings in the 2007 International Review of the Red Cross.

Thus, both Iraq and Afghanistan after the overthrow of Saddam and the Taliban, as well as the Israeli-Palestinian conflict, can to my mind only be qualified as NIACs. They cannot be internationalized, because there are no two opposing states, and because no other exception to the definition of an IAC as an inter-state conflict can be proven.

Hence, there are in my view only two possible scenarios of the internationalization of prima facie NIACs involving a state and a non-state actor:

(i)              State A intervenes into an internal conflict in state B, in support of the non-state actor and against state B. This is the Bosnian scenario, where Serbia and Croatia supported the Bosnian Serbs and Croats against the internationally recognized government of Bosnia. This is likewise the scenario of the coalition attack on Afghanistan post 9/11, when they acted jointly with the Northern Alliance against the Taliban who were then the de facto government of Afghanistan, before the new government of Afghanistan was set up.

(ii)            State A attacks a non-state actor located in state B, without B’s consent. This is the scenario of the 2006 Israel-Hezbollah conflict in Lebanon, and this is the scenario to which Dapo refers in the comments.

What, then, would be the exact mechanism whereby the prima facie NIACs are turned into IACs? Commenter Julian argues that this mechanism is attribution as a matter of the secondary rules of state responsibility. This, of course, was famously the approach of the ICTY Appeals Chamber in Tadic, where it considered that the acts of the Bosnian Serbs had to be attributable to the FRY/Serbia in order for the conflict to become international, and fashioned the ‘overall control’ test of responsibility in order to do so, thereby rejecting the ICJ’s approach to attribution in the Nicaragua case.

There is an intuitive appeal to the Tadic approach. After all, what else could it mean for a non-state actor to be acting on behalf of state than for its acts to be attributable to the state?

However, I have argued at length in my article on State Responsibility for Genocide, (2006) 17 EJIL 553, at 575 ff, that the Appeals Chamber’s approach was misguided, for two basis reasons. First, it actually misinterpreted the ICJ’s Nicaragua judgment as setting out only ONE test of attribution, that of effective control, and thought that this single test was unreasonable and impracticable. Indeed, it would be so, had the ICJ not set out TWO tests of attribution – that of complete dependence and control, operating at a general level and seeking to attribute ALL of the acts of a non-state actor to a state, and that of effective control, seeking to attribute SPECIFIC acts controlled by the state.

Second, and more importantly for our purposes, I have argued that it is conceptually inappropriate for secondary rules of attribution to determine the scope of application of the primary rules of IHL. Rather, it is upon IHL to fashion a test which determines when the relationship between a state and a non-state actor is such that a NIAC is to be internationalized – and that test may well be that of overall control (at 584-585).

Similarly, in its 2007 Bosnian Genocide merits judgment, the ICJ held that (paras. 404-405):

This is the case of the doctrine laid down in the Tadić Judgment. Insofar as the “overall control” test is employed to determine whether or not an armed conflict is international, which was the sole question which the Appeals Chamber was called upon to decide, it may well be that the test is applicable and suitable; the Court does not however think it appropriate to take a position on the point in the present case, as there is no need to resolve it for purposes of the present Judgment. On the other hand, the ICTY presented the “overall control” test as equally applicable under the law of State responsibility for the purpose of determining ⎯ as the Court is required to do in the present case ⎯ when a State is responsible for acts committed by paramilitary units, armed forces which are not among its official organs. In this context, the argument in favour of that test is unpersuasive.

It should first be observed that logic does not require the same test to be adopted in resolving the two issues, which are very different in nature: the degree and nature of a State’s involvement in an armed conflict on another State’s territory which is required for the conflict to be characterized as international, can very well, and without logical inconsistency, differ from the degree and nature of involvement required to give rise to that State’s responsibility for a specific act committed in the course of the conflict.

Again, I do not disagree that there is an intuitive appeal to the Tadic approach. In that regard, the ICJ’s holding to the contrary was criticized quite ably by Marina Spinedi in her excellent article ‘On the Non-Attribution of the Bosnian Serbs’ Conduct to Serbia,’ (2007) 5 JICJ 829.

However, in my view, Tadic is right only to the extent that if the acts of the Bosnian Serbs were attributable to Serbia, then the conflict would surely have been international in nature, since the Bosnian Serbs would not have been a non-state actor at all, but agents of Serbia. Likewise, if the acts of Hezbollah were attributable to the state of Lebanon, for example because Hezbollah acted in the absence or default of official authorities in Southern Lebanon, then the 2006 Israel-Hezbollah conflict would in fact simply have been an international conflict between Israel and Lebanon. However, IHL, as a distinct body of primary rules, can adopt its own solution regarding the link between a state and a non-state actor that would suffice for internationalization of a conflict, and that link need not be attribution as a matter of state responsibility.

As for the nature of that link, I would like to draw the readers’ attention to another excellent article, this time in the most recent issue of the EJIL – Katherine Del Mar, ‘The Requirement of ‘Belonging’ under International Humanitarian Law,’ (2010) 21 EJIL 105, focusing on the ‘belonging to a party’ test under Art. 4(A)(2) GC III. Katherine argues – and I agree – that a non-state actor militia group may well ‘belong’ to a state party to an IAC, on the basis of nothing more than a de facto agreement, but at the same time its acts might not be attributable to the state under the general rules of state responsibility.

In short, the internationalization of a prima facie NIAC of the first type that I have set out above – an intervention into a civil conflict by a third state – depends on the nature of the relationship between the intervening state and a non-state actor. That relationship may, but need not be, attribution. A relationship of overall control, which does not suffice for attribution, or de facto agreement may also suffice.

What, then, of the second possible type of internationalization, that of the Israel-Hezbollah example, assuming, arguendo, that the acts of Hezbollah were NOT attributable to Lebanon? My view is the same as Dapo’s – it is the very fact that state A uses force against the people of state B without its consent that creates an international armed conflict. Israel’s invasion of Lebanon initiated a conflict with Lebanon, not just with Hezbollah. This would remain the case even if Israel limited itself strictly to attacking Hezbollah targets (which it did not). To my mind, Hezbollah could then be classified either as a militia fighting on behalf of Lebanon, whose members would have to satisfy the additional requirements of Art. 4(A)(2) GC III in order to earn combatant status, or as civilians taking a direct part in hostilities.

The alternative to this approach would be to limit internationalization strictly to those cases where the acts of the non-state actor could be attributed to the state. Since the general rules of attribution are strict precisely because they are general, this would either greatly limit the number of possible cases of internationalized NIACs, or would lead to jurisprudential conflicts on attribution of the Nicaragua/Tadic/Genocide variety. Likewise, this would necessitate accepting the possibility of parallel conflicts, as was of course done by the ICTY in a number of cases. Thus, there would have been an IAC between Bosnia and Serbia only when the acts of the Bosnian Serbs were attributable to Serbia, while a NIAC between the Bosnian government and the Bosnian Serbs would be running in parallel. Likewise, there would have been an IAC between Israel and Lebanon and a parallel NIAC between Israel and Hezbollah, unless the acts of Hezbollah could be attributed to Lebanon.

To my mind, this alternative is not only messy, but is needlessly so. Such a patchwork of overlapping regimes might be unworkable, and is to my mind undesirable. But, of course, reasonable people can disagree.

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22 Responses

  1. Tom

    Hi Marko,

    thank you for this excellent post. Also thanks to all the others who have contributed to the lively discussion relating to Constantin’s post.

    I agree with your general analysis. However, I would like to point to the different but related problem of the legal qualification of conflicts in which peacekeepers are involved. This was clearly outside the scope of your post, but I think it would be interesting to think about it in this context in any event.

    Before I offer some thoughts on that topic, two caveats: I don’t want to dive into the more general discussion of applicability of IHL to peacekeepers, nor whether the use of force against peace keepers is ever lawful. For the purpose of this post I simply assume that a) IHL is applicable and b), if peacekeepers are involved in an armed conflict, their status is regulated by IHL only.

    The scenario I’m thinking about is the following: imagine that a neutral peacekeeping force is deployed in a situation of NIAC to keep rebel and government forces apart. The peacekeepers takes no stance on the legitimacy of the rebellion and treates government forces and rebels equally. Lets now imagine that the fighting erupts again both between government and rebel forces, as well as between peacekeepers and rebels and peacekeepers and the government. Lets further assume the fighting crosses the threshold to an armed conflict. How would the legal relationsship between the peacekeepers and the rebel forces be qualified? To my mind, it would be imperative to extend to the peacekeepers both combatant privilege, as well as the full protection of POWs in case they are captured. The reasons for excluding these in NIAC, i.e. as mentioned by Marko the legitimacy of the government struggle against rebels, are not valid for neutral peacekeepers, for whom the legitimacy of the struggle is immaterial. The principle of reciprocity would then require that the rebels be extended the same protection (again, I here assume that once an armed conflict exists, peacekeepers can be legitimate military targets). In other words, the armed conflict between rebels and peacekeepers should be regulated by IHL applicable to IACs. If Marko’s arguments is correct there is no room for such a qualification unless the rebels are somehow sufficiently connected with a state. I think that neutral peacekeepers being involved in an armed conflict with rebels could constitute another example of “internationalized” conflicts.

    I realize that this argument is not directly supported in the text of the Geneva Conventions and APs. However, I think it can be deduced from their overall logic and rationale.

    In any case, I’m very much looking forward to hearing other people’s views on this.

  2. Tamás Hoffmann

    Dear Marko,

    Thanks a lot for your customarily lucid summary of a really difficult topic.
    I agree with you on most points, however, I find your arguments pretty unpersuasive regarding the last part, i.e. “the second possible type of internationalization”.
    There, without much argument you simply propose that in case of a foreign military intervention without state consent the hitherto non-international armed conflict suddenly transforms into an international one. Even though this view seems to be quite widely accepted – see Dapo – it seems to come dangerously close to confusing jus ad bellum with jus in bello.
    After all, a military strike without the territorial state’s consent is obviously a breach of Art. 2(4) of the UN Charter, but why is it necessarily an international armed conflict if there is no actual fighting taking place between two states and there is no state of occupation, either.
    You propose that Hezbollah in such a scenario should be regarded as a militia of the Lebanese armed forces – I think that was the argument of the Human Rights Commission – but that is simply counterfactual. Lebanon repeatedly denied that it had any operational control over Hezbollah militias or that there was any connection between their forces. The Security Council itself repeatedly declared that the Lebanese government had no control over South Lebanon.
    Finally, you reject the parallel application of legal regimes as “messy”. Messy it might be, that is not a legal argument to deny the theory’s viability. After all, legal regulation is not necessarily logical or leads to a result we find aesthetically pleasing.

  3. Marko Milanovic Marko Milanovic

    Tom,

    I fully agree that the peacekeepers problem is a very complex one. It is, I think, possible in principle to internationalize this type of conflict – but this would have to be done through my option (1), i.e. through the redefinition of the existing notion of IAC, rather than through subsuming it under the existing definition (option (2)). In that regard, I think that the state practice on the matter is largely indeterminate and conflicted.

    As you know, the Rome Statute in Arts 8(b)(iii) and 8(e)(iii) prohibits attacks on peacekeepers so long ‘as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict.’ It is somewhat bizarre to treat professional soldiers carrying weapons as civilians, but this is what states have done. So one might infer from this that in your examples the peacekeepers would be treated as civilians, rather than parties to a conflict – just as say policemen would be so treated. But if they do start taking a direct part in hostilities, then I’m unsure as to how we would proceed.

    At any rate, this is an issue deserving of some serious thought.

    Tamas,

    I agree that Dapo’s and my view, which focuses on the existence, vel non, of state consent, may tend to confuse the jus ad bellum and the jus in bello – but I think this only appears at first glance. It is not the jus ad bellum LAWFULNESS of state A’s use of force on the territory of state B that is in my view relevant for internationalization. Rather, it is solely state B’s CONSENT, and the two are NOT necessarily the same.

    Take the Israel/Hezbollah conflict as an example. I think that Israel made a credible claim to acting in self-defense against the attacks by Hezbollah. That claim was ultimately widely rejected by other states, the UN SG etc, but solely on the grounds that the use of force was disproportionate. In other words, I think it may well be that Israel’s use of force in Lebanon was initially LAWFUL under the jus ad bellum, and that it only became unlawful once it exceed a proportionality threshold.

    So, let’s accept arguendo that this was the case: Israel had the right to use force in Lebanon, even without Lebanon’s consent (or just imagine that Israel had UNSC authorization). Lebanon’s consent would now only be relevant for whether the conflict should be characterized as an IAC or a NIAC. Again, I don’t think it unreasonable to call bombing a state’s population and cities without its permission an international armed conflict, even if the state’s armed forces are too weak to effectively respond to the attacks.

    As for whether qualifying Hezbollah a militia fighting on behalf of Lebanon would be counterfactual – perhaps it would be. However, you know as well as I just how complicated the situation on the ground and the governmental structure of Lebanon actually was at the time, and still is. Even so, this is why I said that in the alternative Hezbollah could be characterized as civilians taking a direct part in hostilities.

    Finally, as for whether my rejection of parallel conflicts on grounds of excessive ‘messiness’ is a proper legal argument – I concede that it is not. It is a POLICY argument, and it is perfectly proper to take such arguments into account when faced with a choice between several legal alternatives in a largely indeterminate or underdeterminate legal situation. But again – reasonable people can certainly disagree on all of this.

  4. Tom

    Marko,

    thanks for your response. You are absolutely right that if I’m correct in arguing that a conflict engaging neutral peacekeepers is regulated by IHL applicable to IACs, this situation would be acheived via a customary definition of IAC different from that enshrined in the GCs.

    Just a quick thought on the issue you raise regarding the Rome Statute: I think there is a little-discussed but important tension in the cited paragraphs. The provision really says that attacking peacekeepers is a war crime as long as they are entitled to the protection of civilians. This implies two things: 1) under certain conditions peacekeepers are entitled to the protection of civilians (i.e. are civilians for the purpose of the law); 2) under some circumstances they are not. This in turn raises two related questions: 1) when peacekeepers have the status of civilians, why is there a provision making attacking them a war crime, where attacking civilians is a war crime itself? My guess is that the special provision is supposed to express the special gravity of attacking peacekeepers, while it doesn’t actually differ in scope from that criminalizing attacks on other civilians. Second, if peacekeepers are not entitled to civilian protection, what is the regime applicable? This is the question you raise at the end of your response. I think the situation is not particularly difficult if a peacekeeper directly participates in hostilities in private capacity, i.e. not as part of his mandate. In such a situation he should be treated like other civilians who directly participate in hostilities. However, the situation must be different where peacekeepers systematically engange in fighting, e.g. to defend the objective of their mission. I think it would be entirely unthinkable not to grant them combatant privilege in those situations, i.e. apply IHL of IACs.

    If this interpretation is correct, however, we are faced with a further difficult question: attacking one peacekeeper would be a war crime, while engaging a peacekeeping force might fall more under the ius ad bellum than under the ius in bello. In other words: if attacks against peacekeepers do not cross the threshold of an armed conflict, they constitute war crimes. If an attack results in an armed conflict, violence against peacekeepers become legitimate activities. The question would be, as is so often the case, where to draw the line. I don’t have an answer to it, but I think its a question worth thinking about and I’d be delighted to hear some other people’s thoughts.

    Thanks!

  5. Tamás Hoffmann

    Marko,

    Thanks for the reply.
    I still have problems with such reliance on the existence of state consent. Let’s take for instance the case of Colombian armed actions against FARC in Venezuela: a clearly unauthorized intervention, yet, it is difficult to say that at any point it was directed against the population of Venezuela.
    So where do you place state military actions against non-state actors in another country where the armed group is merely taking refuge at another ocuntry? (I could mention LRA as well, which has repeatedly taken refuge in the DRC).

    As to your reference to policy arguments: I’m no fan of the New Haven Law School and I only accept policy arguments de lege ferenda but like you said – reasonable people can certainly disagree on such questions :)

  6. Natasha

    Marko,

    Thanks for this very helpful explanation. I wonder what would be the result of one state exceeding the consent given by another state to actions taken against a non-state actor on the second state’s territory? For example, let’s assume, arguendo, that the Government of Pakistan has given its consent to the use of force by the United States on Pakistani territory under a number of conditions: say, in certain areas, against certain targets, and using certain kinds of weapons. To the extent that the US complies with those conditions, then the conflict in Pakistan would be non-international in nature. But if the US exceeds those conditions, say by attacking unauthorised targets, or extending the geographic reach of its campaign, would the whole conflict thereby become international in nature? Or would you then have a non-international conflict (within the boundaries of Pakistan’s consent) and an international conflict (between the US and Pakistan insofar as the US forces exceeded Pakistan’s consent) existing concurrently?

    Natasha

  7. Marko Milanovic Marko Milanovic

    Natasha,

    That’s a most interesting scenario, on which I have no definite views. Much would of course depend on the specific facts. My tentative thoughts would be that it would be Pakistan’s reaction to a breach of the conditions that it had previously set that would matter the most. An isolated incident or two wouldn’t necessarily lead to the internationalization of the whole conflict, while, as you say, it is certainly possible to treat the situation as one of two concurrent conflicts.

  8. Justinas

    Marko,

    Thanks for very interesting insights. In addittion to what was raised by Tamás and Natasha, I’d like to ask one thing which is maybe a little bit off the scope though related. I do agree that there’s a mess with regimes. But don’t you think that in some circumstances we might turn a state (like Lebanon) into “hostage” of non-state actor actions if we will treat conflicts like Izrael – Hezbollah automatically (or presume it) as IAC? Correct me if I’m wrong but in that case every military object in Lebanon will automatically become a potentially legitimate military target (even though it has nothing to do with Hezbollah). Moreover, having in mind Dinstein’s beloved “state of war”, I would have pitty on Lebanon or situations alike :)

  9. Marko Milanovic Marko Milanovic

    Justinas,

    I don’t think that’s right. Israel could already target whatever military objective in Lebanon it wanted as a matter of the jus in bello. Whether an IAC already existed, or would simply be initiated by Israel’s attacks, seems to be irrelevant. Nothing would change in this regard whether you opt for my internationalization argument or not.

    Where the unlawfulness of Israel’s actions would lie (and did lie) is in the jus ad bellum. It is the fact that it attacked far more Lebanese facilities etc than it had to that made it a disproportionate exercise of self-defense.

  10. Tamás Hoffmann

    Dear Marko,

    Could you give any reflections on my previous post about attacking a foreign non-state actor in another country, e.g. the military operation against FARC in Venezuela?
    I would be really interested…

  11. Marko Milanovic Marko Milanovic

    Tamas,

    In your ‘spillover NIAC’ scenario, I would retain my previous position that the conflict would be internationalized as a whole if the territorial state does not give its consent (though I admit that it is not obviously correct). Even if state A bombs an empty field in state B without B’s permission, it has used force against state B. Unlike with NIACs, it is not necessary to demonstrate ‘protracted armed violence’ for an IAC to exist – all that is required is the use of interstate force.

    Thus, it is in my view not necessary for FARC to have expressed any allegiance to Venezuela for the conflict to (briefly) become internationalized. All that matters is that Venezuela did not allow Colombia to engage the FARC on Venezuelan territory.

    The alternative (that I think you’d probably argue for) would be the parallel existence of an IAC between Colombia and Venezuela and of a spillover NIAC between Colombia and the FARC.

  12. Justinas

    Dear Marko,

    Sorry, maybe I did not make myself clear. In your comment you wrote:

    “Israel could already target whatever military objective in Lebanon it wanted as a matter of the jus in bello. Whether an IAC already existed, or would simply be initiated by Israel’s attacks, seems to be irrelevant. Nothing would change in this regard whether you opt for my internationalization argument or not.”

    To my mind the problem might be that opting for internationalization argument might be a way to draw a state into IAC when this state has not so much do with it except that AC takes place in its territory. In our case, as far as I understand, Israel can not target whatever military objective in Lebanon it wanted if the overall situation would be initially qualified as NIAC (though I do see a problem with CA3 “in territory of HCP” issue).

  13. Marko Milanovic Marko Milanovic

    Justinas,

    I’m afraid I still disagree. Let’s assume, arguendo, that there was only a NIAC between Israel and Hezbollah in Lebanon. If Israel then went on to, say, bomb the Beirut airport (as it did), even though the airport may have had no connection to Hezbollah, this would still not amount to a per se violation of IHL. It would be the start of a separate, parallel IAC with the state of Lebanon, and the lawfulness of that attack would be measured under the applicable rules, e.g. whether the airport was a legitimate military objective.

    In other words, the jus in bello lawfulness of the attack on the airport does not depend on whether the conflict is initially characterized as an IAC (as I would have it), or initially as a NIAC with a parallel subsequent IAC. It is the jus ad bellum which may well say that the attack on the airport was not justifiable by self-defense – though the airport may actually have been a valid military objective under IHL (airports generally are).

    There is thus no issue of ‘drawing in’ Lebanon into an IAC. It was either already a party to an IAC from the get go, or it will be drawn in by further Israeli military action against it. Even if an IAC existed from the beginning, Israel would not have had the unlimited right to target any Lebanese military objective. Doing so would be unlawful under the jus ad bellum, but be lawful under the jus in bello.

  14. Justinas

    Marko,

    I see your point. Though when I’m trying to reconsile it with ICRC commentary (Art.2) which states that IAC is “Any difference arising between two States and leading to the intervention of armed forces” (reiterated in Tadic) I see no armed forces intervention on Lebanese side (except if we will agree that Hezbollah ‘belongs’ to Lebanon armed forces but Lebanon fiercly denied any link). I fully agree that Izrael military action can trigger IAC but don’t we need at least some response from Lebanon, at least response as a victim of attack? To my view if we assume “automatic” triggering of IAC in cross-border attacks on non-state actors, then what to do with the “border incident” when to my knowlegde state vs. state cross border armed violence is not necessarily treated as short-lived IAC? I know that I’m going a bit back to XIXth century, but I guess it is still not absolutely clearly resolved issues.

    Moreover, you wrote: “If Israel then went on to, say, bomb the Beirut airport (as it did), even though the airport may have had no connection to Hezbollah, this would still not amount to a per se violation of IHL”.

    And what about if Izrael killed, let’s assume, Lebanese (not Hezbollah) military personnel, i.e. combatants according to IAC? Also legal under jus in bello, but illegal under use ad bellum? I.e. this is not self-defence but still no responsibility under IHL just because state ordered to do so though commander of attack fully understands controversity of action?

    And what about IHL Customary Rule 8 (derived from Prot.I): “In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. (IAC/NIAC)” Can’t we apply it to the airport’s situation to say that it’s destruction of an object with no military necessity is violation of IHL as well? Proportionality and other principles are also seems to be valid in NIAC.

    Sorry for being so persistent in asking.

  15. Tamás Hoffmann

    Marko,

    I can definitely see that your solution really simplifies the qualification of armed conflicts but I think that in some cases it goes a little bit to the extreme.
    After all, you have tried to justify qualification of the Israel-Hezbullah conflict as international armed conflict by treating the Hezbullah as Lebanese militia. How do you do the same with the FARC? Should we regard them as Venezuelan militia?
    How do you qualify the conflict between the KLA and Serbia? Non-international till the moment of NATO intervention and then suddenly transforming into an international conflict?

  16. Marko Milanovic Marko Milanovic

    Justinas,

    I am now unsure as to where our disagreement actually lies. I would just reiterate the in bello/ad bellum distinction. The in bello ‘military necessity’ is a concept deliberately distinct from any legitimacy or legality of the use of force under the jus ad bellum. So, that Israel may not have needed to destroy the Beirut airport in order to hurt Hezbollah is an ad bellum issue. Whether destroying the airport had a military advantage is an in bello issue, and it does not depend on the former. In the in bello framework it is for Israel to say what the goals of its military operation are. The position is the same with regard to your question about the killing of Lebanese soldiers. It is always lawful in IHL to kill combatants who are not hors de combat – but it may be a violation of the jus ad bellum, Lebanese sovereignty etc.

    Tamas,

    As I said above, Hezbollah need not necessarily qualify as a Lebanese militia – they could simply be civilians taking a direct part in hostilities. The same would go for the FARC example.

    As for the Serbia/KLA conflict, it is distinct from our prior examples. Internationalization there would depend on the relationship between the intervening state and the non-state actor, as in Bosnia etc. The issue then is what the precise nature of that relationship should be, and as I’ve said in my post, that could be overall control or de facto agreement. So, if you can prove that the KLA was under the overall control of NATO countries, that it ‘belonged’ to them in a sense, then there would be a single IAC. If not, then there would be an IAC between the NATO states and Serbia, and a parallel NIAC between Serbia and the KLA.

    The Israel/Hezbollah example is different because the intervening state attacks a non-state actor within the territory of another state, without that state’s consent. Internationalization would in such circumstances depend not on the relationship between the territorial state and the non-state actor, but on the existence, vel non, of the territorial state’s consent.

  17. Natasha

    Marko,
    Thanks very much for your response to my Pakistan hypothetical. But if the use of force by one state against a non-state actor on the territory of a second state, in the absence of consent from that state, is to be regarded as a use of force against the state itself (regardless of either state’s view of the conflict), then I’m not sure how the impact of a breach of conditional consent could depend on either state’s view of the significance of the breach.
    Of course, if the second state responded by withdrawing its consent to any use of force on its territory by the first state, then the position is clear: unless the first state halts its actions, we have an international armed conflict on our hands. But let’s assume the second state does not withdraw its conditional consent, but it continues to protest a breach of the conditions. I guess that leaves us either with the whole conflict being internationalised (which I agree seems a bit of a stretch), or two conflicts in parallel, one international in nature and the other non-international in nature. Since the notion of parallel conflicts would involve the same messiness of the Bosnia/Serbia example which you have discussed in your blog post, neither description is really ideal.

    Natasha

  18. Marko,

    I can definitely see that your solution really simplifies the qualification of armed conflicts but I think that in some cases it goes a little bit to the extreme.
    After all, you have tried to justify qualification of the Israel-Hezbullah conflict as international armed conflict by treating the Hezbullah as Lebanese militia. How do you do the same with the FARC? Should we regard them as Venezuelan militia?
    How do you qualify the conflict between the KLA and Serbia? Non-international till the moment of NATO intervention and then suddenly transforming into an international conflict?

  19. Marko Milanovic Marko Milanovic

    Bruce,

    Please see my last reply to Tamas. In short, we could regard both the Hezbullah and FARC as civilians taking a direct part in hostilities, rather than as a militia belonging to a state party to the conflict. As for the KLA and Serbia, the process of internationalization there is different, as the intervening states did not attack the non-state actor, but were allied to it. Thus, if it could be shown that the KLA was under the overall control or belonged to the intervening states, then the conflict as a whole would have been internationalized. If not, there would have been an IAC between Serbia and the intervening states, and a parallel NIAC between Serbia and the KLA.

  20. Dan Mburu

    This is a very fascinating discussion and the views being put forward are equally intriguing. I have noticed that ICTY and ICJ jurisprudence is normally the staple for the discussion on internationalization. What are your thoughts on ICC decisions on this matter? In particular, Lubanga and Katanga confirmation decisions, which have qualified the conflict in Ituri as international by virtue of the ICJs determination that Uganda was an occupying power in Ituri. Was the qualification correctly conceived?

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