Afghanistan accedes to Additional Protocols to Geneva Conventions: Will AP II govern the conflict in Afghanistan?

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Last week (June 24) Afghanistan acceded to Additional Protocols I & II to the Geneva Conventions. These treaties continue to inch towards univeral participation as there are 169 States parties to AP I and 165 party to APII. The ratification by Afghanistan ruins, somewhat, the point I usually make in class when introducing the Geneva Conventions and its APs.  I point out that though the APs are among the most widely ratified treaties, the list of States not parties to them is practically a list of  countries that have been involved in major armed conflicts over the last 30 years. The Additional Protocols will enter into force 6 months after the deposit of the instrument of accession by Afghanistan, i.e at the end of December. This means that from that date, AP II (which applies to non-international armed conflicts) will apply to the conflict in Afghanistan (i) in so far the conflict takes place between the forces of the government of Afghanistan and insurgents; and (2) in so far as the Taleban and other insurgents “exercise such control over a part of [Afghanistan’s] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” (Art. 1(1) APII)  This second condition is often seen as a weakness of APII and is a condition not required by Common Art. 3 of the GCs, which also applies to non-international armed conflicts. However, that condition appears to be fulfilled in the case of Afghanistan as reports indicate that between 50 to 72% of that country are controlled by the Taleban or have a Taleban presence.

Given that much, if not most of the fighting against the Taleban is undertaken not by the Afghan armed forces but by the NATO led International Security Assistance Force (ISAF), APII will not apply to much of the conflict in that country. This would indicate yet another weakness of APII (in additon to the fact that it provides only rudimentary provisions for the non-international conflicts it covers). If, as is common, the country in which the conflict takes place invites another country or countries to fight against rebels, APII will not govern the conflict between invited country and the rebels. This will be the case even if the invited country is itself party to AP II as that treaty applies only a conflict “which take[s] place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups . . .” The question that then arises is whether the host country can  be held responsible for any violations committed by the invited forces. Under the ILC’s Articles on State Responsibility such responsibility can only be attributed to the host state if, accordinig to Art. 6, the armed forces of the invited State are “placed at the disposal” of the host State. The ILC Commentary to Art. 6 states that:

” The notion of an organ “placed at the disposal of ” the receiving State is a specialized one, implying that the organ is acting with the consent, under the authority of and for the purposes of the receiving State. Not only must the organ be appointed to perform functions appertaining to the State at whose disposal it is placed, but in performing the functions entrusted to it by the beneficiary State, the organ must also act in conjunction with the machinery of that State and under its exclusive direction and control, rather than on instructions from the sending State.” [Commentary para 2]

The commentary goes on to note that:

” . . . mere aid or assistance offered by organs of one State to another on the territory of the latter is not covered by article 6. For example, armed forces may be sent to assist another State in the exercise of the right of collective self-defence or for other purposes. Where the forces in question remain under the authority of the sending State, they exercise elements of the governmental authority of that State and not of the receiving State.” [Commentary Para. 3

This pretty much rules out the application of Art. 6 to the cases of invitation by one state to the armed forces of another to fight rebels, except in cases where the inviting State exclusively controls the forces of the invited State. Furthermore, the provisions of the ILC Articles (Arts. 16-18)  dealing with responsibility of a State in connection with acts of another State (eg aiding or assisting another state) will also be inapplicable as they only apply where both States are subject to the international obligation that is breached.

Given all of these weaknesses of APII, its good to be told by the ICRC (in its Customary International Humanitarian Law Study) and the ICTY (in the Tadic case) that customary international law provides a pretty robust framework which applies to non-international armed conflicts!!

In other treaty ratification news, Chile ratifed the Rome Statute of the ICC yesterday and becomes the 109th State party to that treaty. This ratification means that all the States in South America are now party to the ICC Statute (or will be when the Statute comes into force for Chile in September).

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    Robert Cryer says

    July 1, 2009

    Dear Dapo,
    Very interesting, as ever. I have a question, rather, admittedly, than an answer. How does this fit (if at all) with the recent(ish) decision of the UK Court of Appeal in al-Saadoon, that UK forces in Iraq last year were acting in essence as Iraqis for the purposes of detention (paras 32-3), such that the UK's ECHR obligations that would otherwise be engaged do not apply? It seems to me that in al-Saadoon they took a very broad view of when a State has put its forces at the disposal of another State. Of course, it might just be that al-Saadoon was wrong to do so. I'd be very interested to hear your views.

    Marko Milanovic says

    July 1, 2009

    Rob,

    If I may interject with a comment: Al-Saadoon is a decision hard to comprehend in pretty much every respect. The Court of Appeal was ruling that AS was not within the UK's jurisdiction for the purpose of Art. 1 ECHR, not that the UK organs in Iraq were put at the disposal of Iraq within the meaning of Art. 16 ILC ASR. The former is a question of the existence and breach of an obligation, the latter a question of attribution. The Court of Appeal held that because the UK in forces in Iraq were keeping AS detained with the consent of the Iraqi authorities, they exercised no legal power over him, and thus did not have Art. 1 jurisdiction. I would argue, however, that Art. 1 jurisdiction does not require the exercise of any legal power over an individual, but that's a long story.

    Just as a heads up for our readers, tomorrow the European Court of Human Rights (whose provisional measures the UK disobeyed when it transferred AS to Iraq) is expected to make public its admissibility decision in Al-Saadoon. We'll see what they make of the Art. 1 jurisdiction question - commentary will follow.

    Marko Milanovic says

    July 2, 2009

    Addendum: the decision will actually be made public on Friday.

    Robert Cryer says

    July 2, 2009

    Many thanks Marko, I too have a number of difficulties with al-Saadoon, I look forward to tomorrow's decision. I agree with you that the idea that someone has to have legal power over someone for their to be Article 1 jurisdiction is, simply, wrong. The reason I think there may be some relevance here is the statement in para 33 of al Saadoon that "In these circumstances the United Kingdom was not before 31 December 2008 exercising any power or jurisdiction in relation to the appellants other than as agent for the Iraqi court. It was not exercising, or purporting to exercise, any autonomous power of its own as a sovereign State." As I said though, I think they may just have been wrong. We'll see tomorrow (I hope).

    Dapo Akande says

    July 3, 2009

    Rob,

    That's a great question and the answer is relevant to the point I discuss in the post. If the Court of Appeal in Al Sadoon was saying that British forces in Iraq who held criminal detainees were effectively at the disposal of Iraq (and if the CA was right to say this) then that would mean that the relevant acts of the British forces are to be attributed to Iraq. Presumably, the same reasoning would apply to US forces holding criminal detainees in Iraq.

    I do think that the statements of the Court of Appeal in paras. 32 & 33 are directly related to attribution and I think they are intended to be so related. When the Court says in para. 33 that :

    In these circumstances the United Kingdom was not before 31 December 2008 exercising any power or jurisdiction in relation to the appellants other than as agent for the Iraqi court. It was not exercising, or purporting to exercise, any autonomous power of its own as a sovereign State.

    what it was saying is that the acts of the UK forces were not acts of the UK but actually acts of Iraq. The question is whether this is right. The acts will only be that of Iraq if Art. 6 of the ILC Articles applies and the British forces are at the disposal of Iraq. In para. 32, Laws LJ stated,

    In my judgment, from at least May 2006 until 31 December 2008, the British forces at Basra were not entitled to carry out any activities on Iraq's territory in relation to criminal detainees save as consented to by Iraq, or otherwise authorized by a binding resolution or resolutions of the Security Council.

    He seems to think that all that is required for attribution to Iraq is consent by Iraq or authorization by Iraq for the detention. This is where he gets it wrong. Consent or authorization is not enough. The ILC commentary I quote above also requires that the act of the British forces must be under the exclusive direction and control of Iraq. So the question is this: Is Iraq exclusively (i.e effectively) controlling the British forces as they held these detainees? Arguably not.

    But what if Iraq was in exclusive control of the British forces? Would this affect jurisdiction under Art. 1. You and Marko think not. I'm not sure that the Court is wrong. Assume that jurisdiction means the exercise of authority and control (this is where some would disagree) then one could argue that though the detainees are under the control of certain British forces, they are not within the jurisdiciton of the UK as the UK as a State has no control over those forces and only Iraq can exercise authority and control the detainees. The ILC uses the Privy Council (a UK organ acting as final court of appeal for former British colonies) as an example of organ of one State placed at the disposal of another. Presumably, persons affected by decisions of the Privy Council sitting as final court for a commonwealth state are not within British jurisdiction under Art. 1 though the organ in question is a British organ.

    The question in Al Sadoon is actually is very similar to that which arose in the Behrami decision of the ECHR. Both the ECHR and the Court of Appeal are saying that the armed forces of a State are not constrained by the Eur Convention because those armed forces are not acting as the State but rather acting as part of another entity (NATO, UN, Iraq). The difference is that the two courts have approached it differently. The ECHR in Behrami uses attribution to deny the jurisdiction of the Court )(and the application of the treaty ratione personae), while the English Court of Appeal uses attribution to say that the UK did not have jurisdiction under Art. 1. Arguably the ECtHR decided Behrami as it did so as to avoid getting to the Art. 1 question.

    Marko Milanovic says

    July 3, 2009

    Dapo,

    We are actually in agreement, I think. I concur that in some cases attribution might be a prerequisite for jurisdiction, as I've written here http://ssrn.com/abstract=1139174. Take Loizidou as an example: if jurisdiction means effective overall control of an area (northern Cyprus), and the question is whether Turkey had such control, then it must be established that persons whose acts are attributable to Turkey exercised such control. In Loizidou this was not in dispute, as it was the regular Turkish armed forces who were in control of northern Cyprus. The same is with Behrami, as you mentioned - it was perfectly proper for the Court to see whether the acts of French troops in Kosovo were still attributable to France, before it could say whether France had control over a part of Kosovo. It's just that it got the attribution question so spectacularly wrong.

    Now, why is it that I think that the Court of Appeal was not ruling on attribution: because this argument was actually made before the High Court, which clearly rejected it (see para. 29 CA, para. 79 HC). The European Court case that was on point was Drozd and Janousek v. France and Spain, where the ECtHR found that the acts of French and Spanish judges that served as judges in Andorra were not attributable to France and Spain, as they were put at the disposal of the state of Andorra. This is of course Art. 6 ILC ASR attribution. You will see that the Court of Appeal makes no mention of Drozd, other than in para. 29. They are therefore not making the Drozd attribution argument, they are ruling on the basis that Art. 1 jurisdiction requires the exercise of legal authority, which the UK did not have independently of Iraq.