This post is part of our book discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international“.
I am grateful to the editors of EJIL: Talk! for organizing this discussion – the first one around a book in French! I also would like to warmly thank Professor Julia Grignon and Doctor Tristan Ferraro – whose articles, books and reflections were very important while writing L’acte déclencheur d’un conflit armé international – for their thoughtful comments on my work. In this contribution, I consider some of the questions they raise in each of their pieces, mainly on the capture of a soldier as a triggering act of an IAC (response to Julia Grignon) and on the classification of transnational armed conflict (response to Tristan Ferraro).
I will not respond in detail to Julia Grignon’s development of my rejection of a criteria of animus belligerendi for the existence of an IAC (Part II, Question VI). She perfectly summed up my main arguments. The intent of a State to be in an IAC or in a state of war has no influence on the existence of an IAC. Once again, to exclude subjective elements from the definition of an IAC was one of the key reason for the shift in 1949 from the notion of war to the one of IAC. This said, as explained in the book, for such a conflict to take place, a State must nevertheless have the intent to use force against another one. I propose to defend this element through the objective requirements on the origin of an IAC (Part II, Question IV). In other words, if a State uses force against another one through its organs, acting in their capacity, following instructions and not mistakenly, the animus to use force is considered fulfilled.
Capture of a soldier
As underlined by Julia Grignon in her piece, I defend the proposition that the mere capture of a soldier in the absence of any act of hostilities or occupation does not trigger an IAC (for my arguments in favor of this position, see p. 193-199). In this respect, I depart from the majority view, including the position of Julia Grignon and the one of the ICRC (see for instance Commentary to Article 2 and 4 to GC III of 1960). For the tenants of this majority view, the capture of a soldier should launch an IAC as this soldier would then benefit from the protection of GC III. Before explaining my reasoning, I would like to stress the rarity of situations of captures occurring without acts of hostilities or occupation. This is even more true as I am in favor of functional definition of occupation. In other words, I consider that occupation begins with the phase of invasion and that there is no necessity of an effective control of a territory. For our discussion, this means that when the troops of a State A are advancing on the territory of a State B and capturing in this setting a soldier of State B, this soldier is covered by the GC because there is an occupation. This preliminary remark is important as many of the examples advanced by the doctrine on the capture of a soldier as a triggering act use situations that in my view are already covered by IHL because of a previous act of violence or an occupation.
I advance several arguments against the capture of a soldier as a triggering act – the main one, as underlined by Julia Grignon, is that the prisoner of war status was not intended and indeed makes little sense for situations of capture out of hostilities or occupation. It seems for instance rather strange to hold that IHL should apply to captures occurring out of hostilities when the main consequence of this application will be the immediate release of this soldier following Article 118 and 119 GC III. In addition, the IHL regime would not always be the appropriate framework for a soldier captured out of hostilities and occupation. For instance, if a State arrests a soldier of another State for illegal entrance into its territory, there is little reason for this soldier to benefit from the regime of prisoner of war (Article 85 GC III).
I did not address directly the question raised by Julia Grignon on the application of IHL to soldiers whose capture precedes and entails the launching of an IAC through a subsequent use force against the detaining State. I would tend to think that this specific situation should not be an exception to the rule I defend in my book and that those soldiers would not benefit retroactively to the moment of the capture of the provisions of GC III. This said, I understand the specificities of the case and agree that this question would benefit from deeper investigations.
Julia Grignon also raises the question whether IHL should apply to the capture and internment of foreign civilians in the absence of previous hostilities. For instance, if a State A, on its own territory, captures and detains civilians of a State B because of inimical relations, would IHL, and particularly GC IV, apply? According to my findings, it is not sufficient that the main situations covered by the GC (existence of the first wounded, sick, shipwrecked, captured soldier or captured civilian) take place for an IAC to be triggered (discussed p. 142-143). Only a use of force between two States, a declaration of war, a war of national liberation or an occupation without resistance have the potential to lead to the application of the laws of IACs. Consequently, many hostile actions between States, such as breakdown of diplomatic relations, movement of troops around the borders, economic sanctions, etc. – and even the accumulation of those acts (p. 252-253) – do not trigger an IAC even if some of those acts would be covered by the GC once there is a situation of IAC or occupation.
Such a reading can be supported by several elements of the interpretation of Article 2 common to the GC under the Vienna Convention on the laws of treaties (VCLT). For instance, the ordinary meaning (Article 31, VCLT) of the terms “armed conflict” of Article 2 common requires an armed action that does not exist with the capture and internment of civilians out of hostilities. This is confirmed by the vast majority of the doctrine and jurisprudence. In addition, when analyzing the context of Article 2 common (Article 31, VCLT), it appears that the personal scope of application of the GC depends on the material scope of application of the GC (p. 155-157). Consequently, foreign civilians captured and interned (personal field of application of GC IV) benefit from protection under IHL only after a use of force between two States or an occupation without resistance (material field of application of all the GC). This reading is confirmed by Article 6 GC IV which states that “[t]he present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2”. In the same way, the Commentary of the ICRC to this Article 6 GC IV specifies that “the majority of the provisions [of GC IV] are only applicable when the conditions laid down in Article 2 are fulfilled. The purpose of that Article [2 common] is then to define the cases in which the Convention is applicable, whereas the present paragraph [of Article 6] is concerned with the beginning of its applicability by the Contracting Parties engaged in the struggle [i.e. once the conditions of Article 2 common are fulfilled]. From that moment the Convention applies to all protected persons provided they themselves, as individuals, fulfil the conditions laid down in Article 4”.
In sum, the GC (and AP I) protect different categories of people because of the existence of an IAC or an occupation without resistance. Therefore, those categories make little sense out of the situations laid out in Article 2 common. Moreover, if there is no use of force or occupation, foreign civilians are protected from the power of the territorial State by other corpus of norms, among them human rights law which seems much more appropriate for the situation and more beneficial for the persons concerned.
Transnational armed conflict
Dr. Tristan Ferraro focuses in his piece on one of the most controversial part of L’acte déclencheur d’un conflit armé international, namely my classification of single NIAC of transnational uses of force by a State against an armed group located on the territory of another State. I defend the position that the absence of consent of the territorial does not add an IAC to the ongoing NIAC (Part II, Question V). In a recent article, I detail the three main arguments in favor of my position. Firstly, the distinction between IACs and NIACs and the existence of a law of NIACs which is the appropriate framework for hostilities between a State and an armed group. Secondly, the separation between ius ad bellum and ius in bello, as the IAC emerging when the territorial State does not consent has the goal of recognizing the damage suffered by this State. In my opinion, this is typically a question of ius ad bellum, not of ius in bello. Finally, it is still unclear to me, in situations of double-classification because of the absence of consent of the territorial State, what conduct would be governed by the law of IACs. Indeed, the proponents of the position defended by Tristan Ferraro do not explain what is the added-value of the emergence of an IAC because of the absence of consent of the territorial State as they underline that in such situations the hostilities are exclusively governed by the law of NIACs.
Tristan Ferraro’s arguments are based on certain assumptions which do not necessarily bear out. Firstly, he claims that “when a State conducts military operation in the territory of another State without its consent, these operations are by definition against that State”. In terms of IHL, when such attacks are solely directed against a non-state armed group, this does not seem to be convincing. While the military operations may be against the territorial integrity of the State, it seems more reasonable to recognize this damage through ius ad bellum (p. 367-368). Nevertheless, as armed actions are taking place, concretely, between a State and a non-state armed group, classification should rely on this element because, once again, the law of NIACs is the appropriate framework for such actions and the law of IACs does not make any significant contribution.
Secondly, Tristan Ferraro seems to assume that I argue against the double-classification IAC-NIAC in situations of transnational conflicts (p. 371-374). In my view, if the intervening State targets not only the armed group but also the territorial State, the “armed conflict with a double-classification” would be appropriate. What I reject is that every use of force of one State on the territory of another one without its consent qualifies automatically as an IAC-NIAC. According to my research, this additional IAC should only appear if the use of force is directed against another State. As a reminder, the book establishes a presumption that an armed action by a State on the territory of another one triggers an IAC unless proved that the operation was directed against an armed group. In the book, I detail a list of criteria to assist with determining if the actions are directed against the armed group, the territorial State, or both (p. 353-366). For instance, I conclude that there was a NIAC between Israel and Hezbollah and an IAC between Israel and Lebanon in 2006. This additional IAC did not appear because Israel used force on the territory of Lebanon but rather because some Israeli actions were directed against Lebanon.
Thirdly, contrary to what is suggested by Tristan Ferarro, I do not intent to bring back a subjective element in the determination of the existence of an IAC. I underline above my rejection of a criteria of animus belligerendi and explain that I secure the necessity of the animus of one State to use force against another one through objective elements. Moreover, I repeat at numerous places in the book my attachment to a factual definition of IAC. Finally, as already said, I precisely develop presumptions and a list of criteria in the book to determine what is the target of a use of force without referring solely to the intent of the belligerents.
Fourthly, I do not think, as suggested by Tristan Ferraro, that I inconsistently give an importance to consent for occupation whereas rejecting this element for the existence of an IAC. In my view, I consistently give a strong importance to the absence of consent both for the existence of an IAC and for a situation of occupation. Indeed, in my opinion, and according to the majority view and jurisprudence, an IAC (and an occupation) can only take place without the consent of the territorial State. This said, I do not consider that this absence of consent is sufficient in itself for the existence of an IAC. In other words, the absence of the consent of a State is necessary but not sufficient for an IAC (and an occupation) to exist.
This talk was a wonderful occasion to continue the reflections on the definition of an IAC. Due to space constraint, I did not respond to all the very pertinent comments made by Julia Grignon and Tristan Ferraro and I hope this discussion will continue in the following days and in other settings.