This post is part of our book discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international“.
While giving an interpretation of Article 2 common to the Geneva Conventions, in order to define the notion of international armed conflict, Djemila Carron touches upon a profusion of subsequent questions. This is one of the interests of this book. This is also what makes this present contribution challenging. Indeed, reading Djemila Carron’s reflection on the act that triggers an international armed conflict makes one, me at least, want to write a ten page contribution on each specific topic. And this is not only because of the proximity between the subject analyzed in her book and my own area of interest in research in international humanitarian law. In my view, in addition to the overall depth and quality of Djemila Carron’s rationale, there are two reasons that explain that feeling when reading her book. First, the prism through which she has decided to deliver the results of her research, that is an analysis under the Vienna Convention on the Law of Treaties, and second the choice that she has made to answer six (plus one) specific questions in order to reach her own conclusions. Not only does a rigorous interpretation that follows the methodology of the Vienna Convention offer a new perspective for the exercise of classification of conflicts, but it also gives a broad overview which is enriched, at the same time, with numerous and often thought-provoking details. In parallel, the structure of the work, built around specific questions, gives the opportunity to open a dialogue. An opportunity that I seize in the following lines.
In the present contribution I have arbitrarily, but purposely, chosen to focus on two of the many issues that the author explores in order to analyze the act triggering an international armed conflict, namely the capture as an act that may trigger an international armed conflict and the necessity, or not, of identifying an animus belligerendi in order to classify a situation as international armed conflict. Within the structure of the book, the first is a sub-question of Question II regarding the nature of the triggering act and the second is a Question in such, namely Question VI regarding the necessity of an animus belligerendi. This choice has been made on purpose, since these two topics are among those with which I have dealt in my own research, but through a different prism, that is the temporal scope of applicability of international humanitarian law.
The capture as a triggering act for International Armed Conflicts
In her book Djemila Carron argues that the mere capture of soldiers from a foreign State does not automatically trigger an international armed conflict. Despite the fact that the literature, whilst not very numerous, has constantly reaffirmed that any soldier captured by a foreign force must benefit from the Third Geneva Convention (even if there are no other hostilities between his State of origin and the detaining State), Ms. Carron demonstrates quite successfully that an analysis under the Vienna Convention on the Law of Treaties might lead to another conclusion. Among her strongest arguments, she shows that the whole regime attached to the prisoner of war status does not make sense without any other hostilities. Indeed, the rule according to which prisoners of war cannot be prosecuted solely for having participated in the hostilities, or the rule that prescribes that they have to be released at the end of active hostilities, would have no justification in the absence of hostilities accompanying the act of capture. Even more, to its logical extreme, considering that the mere capture of foreign combatants does trigger an international armed conflict could result in an absurd reasoning. Whilst convincing, the argument made here raises at least two questions. The first is directly linked with the capture of foreign soldiers: what if this act of capture triggers an international armed conflict in that sense that the State from which these combatants come from decides to engage in hostilities with the detaining State? Would the soldiers be covered by the Third Geneva Convention only from the moment in time at which these hostilities amount to an international armed conflict according to Djemila Carron’s conclusions? Or would they benefit from the protective provisions of Geneva Convention III, a posteriori, from the moment of their capture? Moreover, if one can follow Ms. Carron’s rationale regarding the capture of foreign soldiers, what about the capture and the internment of foreign civilians? This is the second question. When there has been no previous hostilities, how can a distinction be drawn in this case between ordinary detention and detention governed by international humanitarian law? Even if, according to the author, in that case the target of the act would fall under an exception that prevents a conclusion that an international armed conflict has been triggered by this sole capture, is there really no situation in which civilians must not be protected by the Fourth Geneva Convention? Since, in these circumstances, internment or assigned residence would be ordered in the interests of the security of the State carrying out that measure, in our view international humanitarian law should apply to these situations, which in themselves are signs of inimical relations between the two States in question. On the contrary, should it not therefore be the purpose of detention, namely security, and the status of the persons concerned, as nationals of a given third State, that is decisive in this case?
An animus belligerendi as a necessity or not in order to trigger an International Armed Conflict
As underlined by Djemila Carron, and as it has been discussed elsewhere by myself:
“traditionally animus belligerendi was manifested by a “declaration of war or any other formal pronouncement”, whereas international humanitarian law seeks to disregard any expression of a position when it comes to pinpointing the start of its application. The obligations that this branch of the law imposes on States involved in armed conflicts […] lead them [sometimes] to deny the existence of any such conflict in order to evade the application of international humanitarian law. For this reason, any attempt to detect an animus belligerendi would inevitably be stymied by declarations or stances at odds with the situation on the ground. Consequently, although the use of this notion is ostensibly appealing because it seems to facilitate the identification of enmity between the States in question, its untoward effects make its restoration undesirable.” (Grignon, 2014)
The work of Djemila Carron however goes far beyond and confirms – maybe definitively – the reasoning. While so doing, she prevents any attempt to revive the animus belligerendi as an element contributing to interpreting an act as triggering international armed conflicts, which should be recognized and very welcome. After having examined, as she does with a constant meticulousness in all her work, the ordinary meaning of the words “armed conflict which may arise between two or more of the High Contracting Parties” (Article 2 common to the Geneva Conventions), the context, the object and purpose, the subsequent practice, the travaux préparatoires and the circumstances of the conclusion of the Geneva Conventions, her conclusion is relentless: “no criterion of an animus to be in an international armed conflict or in a state of war does exist.” And if any doubt might have remained, the precaution that Djemila Carron takes to contemplate all forms of animus puts an end to any debate even before it could have arisen. Without an animus to be in an international armed conflict in its factual sense, or an animus to be engaged in a state of war in a legal sense, there is absolutely no subjective element that might blur the determination of the existence of an international armed conflict. The only animus that exists is an animus to use force against another State, but this element is an objective one, that is the intention of a State to use force against another which is deduced from the identity of the organ that provokes the triggering act of an international armed conflict, within the scope of its functions and in accordance with instructions; objective criteria that are dealt with in the answer of Question IV of the book relating to the origin (provenance) of the triggering act.