A colleague and I are currently working on an article on the qualification or classification of armed conflicts in modern IHL. The ongoing developments in Libya bring out a specific difficulty in the process of qualification which we see as problems of state representation. An excerpt from the draft is provided below, and it is very much work in progress; footnotes are omitted, while comments are welcome. For some relevant links, see yesterday’s post by Iain, this post on recognition by Dapo, and this post of mine on what exactly internationalizes a non-international armed conflict, i.e. turns a NIAC into an IAC.
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It may be easy to say that IACs are fought between states and statehood may be uncontested in a given case, but who gets to represent the state may turn out to be a very difficult issue. Not only is this question important for the initial qualification of a conflict, but it may also prove to be crucial for its requalification or transition from one type to another.
Consider, first, the invasion of Afghanistan by US-led coalition forces in 2001. The first representational difficulty we encounter in qualifying the conflict is that the Taliban regime was not recognized as the lawful government of Afghanistan by the states that launched the invasion or by the international community generally. That difficulty is however reasonably easy to deal with. It is precisely because historically the recognition of states and governments was a way to avoid the application of the law of war that the position in modern IHL is that it is de facto government and not recognition that matters. While they never controlled all of Afghanistan, at the time the Taliban were in effective power in most of the country, including the capital Kabul, and they had established institutions of government. Accordingly, there was an IAC between the US and other coalition states on one side and the state of Afghanistan, represented de facto by the Taliban regime, on the other, while there was also a NIAC running in parallel between the Taliban and the forces of the Northern Alliance.
But then the Taliban were defeated; their institutional rule over Afghanistan could not survive the joint coalition-Northern Alliance assault. Today we of course know that the defeat of the Taliban was far from complete, but it is still true to say that they lost the territorial control of the kind that denotes a government rather than simply an armed group. That vacuum was filled through a long transitional process, lasting from the end of 2001 up until 2003, which was approved by the UN Security Council and ultimately resulted in the establishment of a new Afghan government. The new government not only consented to the presence of international forces in Afghanistan, but together with the international forces continued to fight the growing Taliban insurgency. The question thus is whether and at what point the conflict transitioned from a mixed IAC/NIAC to a NIAC pure and simple, i.e. at what point the Taliban lost the capacity to represent the state of Afghanistan, and accordingly lost belligerent rights vis-à-vis third states intervening in Afghanistan.
At the heart of this question lies a tension between competing policy considerations. On one hand, we do not want the mere fact of military defeat to allow the intervening states to transform the character of the conflict simply by setting up a quisling administration that could then ‘consent’ to their presence in the country – think only of the German Reich’s modus operandi throughout Europe during the Second World War. At the same time, however, in some cases we want to enable the situation to move forward and allow a transition from an authoritarian regime to a more representative one under some level of international supervision. Such introduction of considerations of legitimacy, while perhaps inevitable both politically and legally, poses a particular danger for IHL as it smacks of the jus ad bellum that we for good reason wish to keep IHL insulated from.
We can observe the same dynamics at play in the case of Iraq post-2003, where there was initially undoubtedly an IAC which resulted in belligerent occupation; following a transitional process under international supervision a new Iraqi government was formed which provided its consent to the presence of coalition forces, thereby terminating the IAC and the occupation; as this process was underway, an insurgency erupted which for a substantial period crossed the threshold of ‘protracted armed violence’, thereby creating a NIAC.
The most recent examples of such problems of state representation are the conflicts in the Cote d’Ivoire and Libya. As for the former, the story of the disputed Ivorian elections in 2010 and the ensuing crisis is well known. According to international observers, the incumbent president Laurent Gbagbo lost the elections to his challenger Alassane Ouattara, but the results were overturned by a Gbagbo-appointed commission. After a number of unsuccessful attempts at resolving the crisis, Ouattara was formally recognized as the lawful president of the Cote d’Ivoire by the UN, ECOWAS, the African Union and many countries. A conflict erupted between state forces loyal to Gbagbo and various armed groups supporting Ouattara, in which the latter was the ultimate winner. This conflict was at all times undoubtedly a NIAC. But what complicates matters is the intervention near the end of this conflict in support of Ouattara by UN and French peacekeepers. Leaving the UN aside, when the French forces attacked Gbagbo’s compound and military assets, was this an IAC between France and the Cote d’Ivoire, or was it rather a NIAC since the French forces acted with the consent of Ouattara, the lawful and legitimate president of the country?
Similarly, in Libya, as we have already said the conflict was initially a mixed one: an IAC between Libya and the coalition states, and a NIAC between the Gaddafi regime and the Benghazi rebels. However, as the conflict intensified and the rebels became better organized, forming a National Transitional Council, a number of states have recognized this Council as the legitimate government of Libya. Together with the crumbling of the Gaddafi regime, has such recognition now led to the transformation of the IAC into a NIAC, with the coalition forces now intervening on behalf of the legitimate government of the country?
What is at stake here is a process of internalization, rather than internationalization, of a conflict, i.e. its transformation from an IAC into a NIAC. Looking at the competing policy considerations, we can see what is not enough for such internalization to occur. That the incumbent government of a country is defeated cannot by itself transform the conflict, nor can the establishment of a proxy government by the victors, as this would allow them to effectively strip by force the protections granted in IACs to the remaining combatants of the defeated state, turning them into unprivileged belligerents. Similarly, that a rebel group is recognized as the new legitimate government of the country cannot of itself transform the character of the conflict, as this would again allow the intervening states to unilaterally do what they will.
When would the transformation of the conflict then occur? In our opinion, both considerations of policy and recent practice support a rule consisting of the following three elements: the conflict would transform from an IAC into a NIAC only when (1) the old regime has lost control over most of the country, and the likelihood of it regaining such control in the short to medium term is small or none (negative element); (2) the new regime has established control over a significant part of the country, and is legitimized in an inclusive process that makes it broadly representative of the people (positive element); (3) the new regime achieves broad international recognition (external element). None of these elements is enough by itself, but jointly they take into account both questions of legitimacy and factual developments on the ground while providing safeguards against abuse. With regard to both the positive and the negative elements, the degree of control would be looked at holistically, taking into account not just troops on the ground but also direction over state institutions more generally, its economic assets, the media, and the like.
Thus, there is largely a consensus that the transitional processes in Iraq and Afghanistan at some point led to the transformation of the conflicts from IACs or mixed IACs/NIACs into NIACs pure and simple. Similarly, looking at the Ivorian example, when the Gbagbo regime was effectively reduced to Abidjan, with the forces of the internationally recognized president Ouattara holding the remainder of the country, the intervention by French troops cannot be said to have constituted an IAC. When it comes to Libya, on the other hand, the situation is more complicated. One could say that we are now rapidly approaching the tipping point, although it does not seem that we are there yet. The Gaddafi regime has sustained serious blows, but the NTC has not yet secured its authority in most of the country; the vacuum has not been filled with a reasonable degree of stability. Similarly, although the NTC has been recognized as the Libyan government by a number of states, its recognition is still not widespread enough – but that may soon change as it receives the imprimatur of the relevant international and regional organizations. The situation remains fluid, but for the time being the conflict continues to be a mixed IAC/NIAC.