Harmonizing Standards in Armed Conflict

Editor’s Note: This post is part of the joint series of posts hosted by EJIL:Talk!, Lawfare and Intercross (blog of the International Committee of the Red Cross) and arising out of the Transatlantic Workshop on International Law and Armed Conflict held in Oxford this summer.

One of the consequences of the non-international armed conflicts (NIACs) of recent years has been widespread recognition that the current international humanitarian law (IHL) treaty framework regulating such conflicts is inadequate. One interim solution that some states have pursued has been to apply the rules developed for international armed conflicts (IACs) in conflicts with non-state armed groups.

The United States, Australia, Canada, the Netherlands, the United Kingdom, and others, for example, have issued guidance stating that their armed forces will apply IAC rules as a matter of policy in NIACs. And since 2009,the US has taken the position that “[p]rinciples derived from law-of-war rules governing international armed conflicts. . . must inform the interpretation of [its Guantánamo] detention authority.” Yet the extent to which states look to IAC principles as a means of delimiting their authority is unclear.

The Project on Harmonizing Standards for Armed Conflict, which I co-direct with Sir Daniel Bethlehem at the Columbia Law School Human Rights Institute, seeks to augment such efforts by exploring the extent to which the IAC treaty regime can be practically applied, as a matter of law, in NIACs.  The ultimate goal of the project is to help harmonize the IHL rules applicable in all armed conflicts to the higher standards established for IACs. States would adhere to the regime by registering a unilateral declaration of intent with an appropriate body, possibly the Swiss Federal Council (the depository for ratifications of the Geneva Conventions).  The resulting regime would be legally binding on that state as a matter of international law.

One consequence of the approach would be to substantially reduce the significance of characterizing a conflict as either an IAC or NIAC.  If successful, the project could help significantly raise the level of protection for individuals in non-international armed conflicts while clarifying a participating state’s IHL obligations.  More broadly, it could complement longer-term law reform efforts by demonstrating the feasibility of holding states to the higher standards of protection from IAC, and ultimately catalyse the development of a more harmonized regime of IHL legal standards.

The Problem

While international armed conflicts are subject to hundreds of detailed treaty provisions under, inter alia, the four Geneva Conventions of 1949 (GCs) and Additional Protocol I (AP I), IHL treaty obligations in non-international armed conflicts are limited to Common Article 3 of the GCs and the 18 substantive articles of Additional Protocol II (AP II).  For non-parties to AP II such as the United States, IHL treaty obligations in NIAC are limited to Common Article 3.

This bifurcation of legal regimes results in significantly lower IHL treaty protections for individuals in NIACs, confusion over the applicable body of law for states engaged in NIACs and for actors evaluating those operations, and difficulties in coordination among states participating in multilateral NIACs.

The recent conflict in Afghanistan helps illustrate the challenges.  Immediately after the September 11 attacks, the military action against the Taliban government by the United States and others constituted an international armed conflict, governed by that detailed treaty regime.  Yet in early 2002, western states recognized the nascent Hamid Karzai regime, and he invited the allied states to conduct hostilities in Afghan territory. These political events legally transformed the conflict into a non-international armed conflict between allied states and the Taliban insurgency.  Thus, overnight the applicable IHL treaty regime shifted from the elaborate treaty rules of IAC to the much more limited treaty law governing NIAC, despite the fact that the character of the conflict had not changed, and at its peak involved an international coalition of nearly 150,000 foreign military personnel from 50 foreign states.  The international law regime governing the conflict thus became a variable geometry in which different states looked to entirely distinct treaty rules, other bodies of law, and policy directives to determine the specific rules governing their forces, and thus attempted to coordinate their efforts and fight a complicated insurgency in a context of legal uncertainty.

The challenge of determining what legal rules a state should apply in NIAC, and of states unilaterally looking to the rules governing IAC for legal guidance, is not new.  Indeed, an approach like the Harmonization Project is envisioned in Common Article 3’s admonition that parties to NIAC “should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.” The 1863 Lieber Codewas commissioned by President Lincoln from Professor Francis Lieber of Columbia Law School as a set of obligations derived from the then-existing customary international law rules for IAC, to govern U.S. armed forces in the American Civil War.  During the Vietnam War, the United States also looked to IAC rules, issuing detainee directives that extended POW status to specific non-state armed groups and to certain other irregular fighters captured in the conflict.

The international community as a whole, however, has never been willing to date to comprehensively apply IAC rules in NIAC as a matter of treaty law.  This has been due in part to state concerns about inappropriate intrusions on their sovereignty and legitimating the belligerency of armed groups, and the felt need to ensure that equal legal obligations were undertaken by all parties to a conflict, including the non-state armed group.

The Project

With the assistance of a distinguished steering committee of leading legal experts in international humanitarian and human rights law from the US, UK, Canada, Australia, the Netherlands, and elsewhere, the Harmonization Project is conducting a detailed thematic review of IAC treaty rules, considering whether and how those rules might be practically applied by states in conflicts in which the opposing party is a non-state armed group. The project, which will be issuing its report at the end of this year, seeks to develop a framework that would apply the IAC treaty rules as comprehensively as possible, with such limited reservations only as are necessary as a practical matter to adapt the IAC regime to NIAC contexts.

The Harmonization Project is premised on the view that states should extend their IAC treaty obligations into NIAC as a matter of law, and not merely policy. Under the policy approach that is currently pursued, states may be subject to the criticism that they are cherry-picking aspects of IAC rules that they find convenient.  To the extent states seek to extend their IAC rules in NIAC, they may also find greater legitimacy in asserting these positions as a matter of law and not merely policy.  And the acceptance of IAC obligations as a matter of law will aid in interoperability considerations, particularly in contexts in which states find coordination possible only if they can be assured of another state’s clear legal obligations, such as in the case of humane treatment and transfer of detainees.

Relation to Other Reform Efforts

The paucity of NIAC treaty rules has inspired a number of other law clarification and reform efforts in recent years, including the ICRC’s Study on customary international humanitarian law and its consultation process on strengthening legal protection in detention, the Copenhagen Principles on Detention, and exploration of the application of human rights law in armed conflict before the European Court of Human Rights and elsewhere.

The Harmonization Project complements these other important efforts in a variety of ways.  The project explores the practical, operational considerations involved in applying IAC rules to conflicts with non-state actors, and thus seeks to provide a pragmatic near-term solution for individual states that may also inform longer-term legal development.  By relying on rules that states currently accept in IACs, rather than attempting to craft new rules from whole cloth, the project may be able to achieve greater state support in the near term.  By creating a possibility for adherence by individual states, the project can confront the substantive conceptual challenges raised by NIACs in isolation from the political and collective action problems involved in the consensual legal development of multilateral instruments. And by establishing unilateral obligations for the declaring state, the project importantly breaks from the equality of legal obligations between belligerents that has obstructed the development of comprehensive legal protections in NIAC.  States would accept these obligations in NIAC as a matter of their own values, not on the assumption of mutual legal obligations.

Challenges 

Thinking through the actual operation of IAC treaty rules and how those rules could be applied most comprehensively in conflicts with a non-state group poses a number of interpretive and conceptual challenges.  These include questions of status, including whether and under what circumstances non-state actor belligerents might enjoy combatant immunity; questions regarding what detention regime is most appropriate for detention of belligerents in a NIAC (the POW detention regime for enemy belligerents under GC III, or the regime for interning civilians who are imperative threats to security under GC IV); and a plethora of other questions including what entity would perform certain administrative roles for non-state armed groups.

Perhaps surprisingly, many of the obligations under IAC treaty law can be applied by their terms to the NIAC context.  Many of the challenges posed by NIACs are also confronted by states to varying degrees in IAC contexts, particularly in conflicts with irregular forces or with a belligerent state that is either unable or unwilling to cooperate or comply with its treaty obligations.

Thus, the project’s preliminary conclusions include the following:

• Rules regarding medical and religious personnel, protection of the wounded and sick, and treatment on the basis of rank, management of personal effects and securitycan be administered unaltered in NIAC.
• The role of protecting power already is often played by the ICRC in both IACs and NIACs.
• IAC treaty law provides detailed protections for civilians who are not nationals of the state party. Because NIACs—and in particular internal insurgencies—often involve individuals who are nationals of the state party, GC IV protections should be applied in NIAC without regard to nationality.
• With respect to detention and internment, directly applying the IAC treaty rules into NIAC would mean that states could apply the GC III/AP I regime to detain members of non-state armed groups on the basis of status until the end of the conflict only when the armed group satisfies the Convention criteria for such status (e.g., GC III Art. 4(A)(2)), and the state also affords its members combatant immunity, since combatant immunity is inextricably intertwined with POW status. Since these conditions for detention until the end of the conflict will rarely be met, faithful application of the IAC rules would render the GC IV regime the presumptive detention model in NIAC, with detention based on an individualized determination of an imperative threat to security and bi-annual procedural reviews.
• Most of the IAC rules regarding humane treatment and repatriation can be readily applied in NIAC. The GCs also require that states may transfer detainees only to other GC signatories, and thus ensure humane treatment by requiring the existence of parallel legal obligations towards persons in custody. Translating these obligations to NIAC would require that states adopting a unilateral declaration engage in due diligence before conducting a transfer, to ensure the adequacy of humane treatment protections in the receiving state.
• Although there has been significant convergence of the law of criminal accountability in IAC and NIAC, a few IAC crimes are not clearly established as war crimes in NIAC. States adopting a unilateral declaration may need to resolve individually whether they consider these additional obligations applicable in NIAC.

Relation to Other International Law Obligations

The Harmonization Project is modest in ambition and limited in scope.  The project seeks to apply the highest treaty standards of IHL to all situations of armed conflict, however they may be characterized. The project does not address the scope or adequacy of IHL rules more broadly, or the relationship between IHL and other rules of national and international law that may be applicable in armed conflict, including customary international law, international human rights law, international criminal law, or other bodies of international law such as international environmental, telecommunications or trade law. The authors recognize that IHL is not exclusive, and additional domestic and international legal obligations of a state will often apply in particular circumstances.  Thus, the project’s model unilateral declaration explicitly would not alter a state’s other applicable international legal obligations.  In particular, how human rights norms interface with IHL rules in various armed conflict contexts, both domestic and extraterritorial, is beyond the scope of the project. Notably, for example, the Harmonization Project takes no position on the adequacy of the GC III and GC IV detention regimes for detention in all NIAC contexts. The project simply explores a near-term means for raising the floor of protection and clarifying the positive IHL rules operative for states in NIAC, by drawing from the highest existing treaty standards of protection that have been developed specifically for situations of armed conflict.