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Home Armed Conflict How to Qualify the Armed Conflict in Libya?

How to Qualify the Armed Conflict in Libya?

Published on September 1, 2011        Author: 

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.

 

 

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10 Responses

  1. Matt Saul

    Marko,

    This looks like a very useful project. One thing I was wondering about is the significance you would place in the presence of international troops in relation to elements (1) and (2). Would it matter, for instance, if (1) and (2) appear only to be satisfied because of an internationally military presence? My initial sense would be that there should be signs that the control would be sustainable without the international military presence, as otherwise the value of elements (1) and (the control aspect of 2) would seem to be much reduced. But perhaps this would overly limit the situations which would come within the elements, as there are likely to be fewer situations where a significant level of control could be sustained without an international military presence.

    best

    Matt

  2. It is only realistic to view the war in Libya as an international armed conflict, since several countries and NATO as such are pounding the heck out of Qaddafi and his troops. Even under “traiditional” international law, the use of force to aid rebels against the government internationalizes the armed conflict. Quite clearly, outside military forces of several states and NATO have been doing that even before it became quite clear that protecting civilians was involving use of force to support regime change.
    More importantly for the participants, every time a state sends members of it military forces into combat in a foreign state (with or without the foreign state’s consent) the state should recognize that it is involved in an international armed conflict so that members of its military have “combatant” status and “combatant immunity” for lawful acts of war, as well as pow status, so that they cannot be prosecuted under relevant domestic law for unprivileged acts of violence (as would be the case if they were not combatants with combatant immunity during an international armed conflict).
    Please see also Paust, Bassiouni, Sharf, et al., International Criminal Law 661-662 (3 ed. 2007), available from Carolina Academic Press — http://www.cap-press.com
    see also http://ssrn.com/abstract=1520717
    http://ssrn.com/abstract=1497124

  3. Marko Milanovic Marko Milanovic

    Matt,

    Thanks for your comment. The issue you raise is I think an important one. It’s hard to give a precise answer to this, but I’d say that so long as the new regime is not clearly just a proxy for foreign forces, but has its own fledgling institutions and independent authority, elements (1) and (2) would be satisfied. One can’t honestly say that e.g. the Afghan or Iraqi governments are solely American puppets.

    Jordan,

    Yes, as I said in my post, the conflict between the coalition forces and the Gaddafi regime was initially certainly an IAC. But I don’t see why the conflict between Gaddafi and the rebels should be characterized as an IAC, unless the rebels were under foreign control. Practice is replete of examples of parallel or mixed conflicts – see, e.g., Nicaragua and Tadic.

    As for your argument that even a foreign intervention against a non-state actor with the consent of the territorial state should be characterized as an IAC, I must say I fail to see its logic. First, this does not satisfy the basic definition of an IAC in CA2 as conflicts between states. To take the current Afghan conflict as an example, you can’t just say that this is an IAC, as there are no two states opposing each other. Second, if you are arguing that an IAC can exist between a state and a non-state actor, then you need to affirmatively show a rule of IHL to that effect – and I don’t think such evidence exists. Finally, it’s not possible just for the troops of the intervening forces to have combatant status, as IHL must apply equally. If you say that the Afghan conflict is an IAC, then this would mean that the Taliban are presumptively entitled to combatant status and immunity, i.e. that they have the right to rebel against the Afghan state.

    Consent, in other words, is crucial, and here we have the problem of who has the capacity to give such consent, i.e. which entity actually represents the state.

  4. The U.S. has recognized that its armed conflict with some non-state actors required application of all of the then customary laws of war — e.g., (A) during our Civil War with a “belligerent” (the Confederate States of America (CSA) which had met all of the traditional criteria for “beliigerent” status: (1) conrolled terr. as its own, (2) fielded milt. units in sustained hostilities, (3) semblance of a govt., (4) had followers (pop. base), and (5) had outside recognition as a belligerent (e.g., by UK and others); and (B) U.S. wars with certain Indian nations and tribes. A belligerency is an int’l armed conflict. So would a war between a state and a nation. Of course, a state vs. merely an “insurgent” would be armed conflict not of an int’l character.

    I am one who considers that breaking up “conflicts” into int’l and non-int’l altough there arise in the same context (and are usually quite interrelated) is unrealistic, unnecessary, and not policy-serving. Moreover, we don’t teach our soldiers to note that when they shoot at a member of Qaddafi’s milt. who is standing next to some “insurgent” to apply all of the CIL laws of war with respect to shooting at the first and only GC3 and some other norms when shooting at the latter. We train them to react as if they are in an int’l armed conflict and, in reality, they are when they engage in combat in a foreign state. Choice is always possible — one blind and ahistorical; one open to reality and attentive to the history of wars between states and other entities such as belligerents, free cities, nations, tribes, etc.
    Have some engaged in muddled thinking? Sure.
    And just think of all of the actors who have played formal roles in the international legal process other than the state and who have had rights, duties, competencies under international law in the 1700s, 1800s, 1900s, and today, including states, nations, peoples, tribes, belligerents, insurgents, etc. http://ssrn.com/abstract=1701992

  5. p.s. I think that it is wonderful to be engaging in these discussions, esp. “across the pond”. We can all benefit from more detailed attention to history, actual features of context, relevant legal policies at stake, and so forth. Thank goodness for EJIL Talk!

  6. Tamás Hoffmann

    Just to put my two cents in the discussion and also engage in some shameless self-promotion, I think that the only acceptable way of classifying mixed (or transnational) conflicts is to split up the conflicts into their components.
    As you pointed out, the real difficulty comes with the introduction of subjective notions such as recognition of states and governments to the system of international humanitarian law which is supposed to be based on factual elements.

    I have written a few pages on these issues, if anybody’s interested it is entitled ‘Sqaring the circle? – International humanitarian law and transnational conflicts’ in Michael J. Matheson and Djamchid Momtaz (eds) Rules and institutions of international humanitarian law put to the test of recent armed conflicts (Martinus Nijhoff, 2010) 217-274

    The unedited draft is accessible at
    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1734486

    I have changed my mind on some minor points – the article was finished in early 2008 – but I think the main arguments are still valid.
    (Btw, I thought that I had coined the expression ‘internalization’ to such scenarios but it is obviously not the result of some unparalleled burst of genius 🙂

  7. Marko Milanovic Marko Milanovic

    Jordan,

    Agreed – there are some conflicts between states and non-state actors that can be qualified as IACs. That, however, requires a rule of international law, whether conventional or customary, which CHANGES the CA2 definition (please see my post on internationalization cited above). Two examples of such rules are Art. 1(4) of AP I and the recognition of belligerency; on the perhaps continued viability of the latter, see today’s post on the Palmer report.

    But from this does not follow, as you seem to think it does, that ANY conflict which crosses state borders turns into an IAC. Again, you need to show a rule to that effect, whether under custom or under treaty, which redefines the CA2 definition of IACs as inter-state conflicts. And you run into the fundamental difficulty that rebels or various non-state actors en masse become privileged belligerents, which is not what states ever wanted, nor do they want this today.

    Tamas,

    Many thanks for the cite to your article – it looks interesting.

  8. GC art. 2 does not speak merely to states, but also recognizes that what we call an international armed conflict can exist with a “Power” that is not recognized, etc. That’s most likely a belligerent at least because of customary international law’s recognition of belligerent status and belligerencies amounting to armed conflicts to which all of the customary laws of war apply. Francis Lieber helped write the 1863 Lieber Code, which was considered to reflect CIL and was appled by the United States during the belligerency with the CSA. The Lieber Code also became infleuntial in Europe and Lieber communicated with Bluntschli as well as Henry Dunant. Our U.S. Dep’t of Army Field Manual (also of some influence abroad) recognizes that all of the CIL laws of war apply once the rebels are recognized as a belligerent, although GC3 was created to apply to an insurgency [although now we know that the CIL reflected in GC3 also applies during any armed conflict, any international armed conflict as well]. There are many textwriters who hav recognized this point about all of the CIL appling to a belligerency. See, e.g., our casebook (last post) at pp. 644-45, 648-49, 651-52, 657, 661, 673-74 (and the many references cited, including Bluntschli).
    I agree with you regarding the U.S. intervention into Afghanistan on Oct. 7, 2011 and the international character of the armed conflict that occurred immediately between U.S. armed forces and those of the Taliban, but al Qaeda types were participating in that international armed conflict and we cannot be at “war” with al Qaeda as such b/c they never met the criteria for a state, nation, sole rep. of a given people, belligerent, or even an insurgent. Moreover, I disagree with respect to the armed conflict that was occuring at that time between the Taliban and the Northern Alliance, which was a belligerency, and, let us not forget, many members of the armed forces of Pakistan were fighting with the Taliban against the Northern Alliance (which also internationalized that conflict) — and it was so un-politically correct for the U.S. that we had to spirit them out of the country in several flights at night! See my Cornell Int’l L.J. article, etc. re: such.
    And lets not forget the significant policies at stake if, for example, UK or Dutch soldiers who are fighting in county X, with or without the consent of country X, are thought to be fighting merely in some conflict not of an international character (which does not meet common sense, right?), because they would not be entitled to “combatant” status and “combatant immunity” for lawful acts of war, like killing enemies when reasonably needed, etc., and they could be prosecuted for murder. Also, they would not have pow status if captured. And this could be the result in one “breaks up” the armed conflict that in reality is occuring into an int’l when fighting certain folk and a non-int’l when fighting others who might be standing side-by-side with the int’ls (not common sense for sure).
    Clearly, it is in the interest of every state to recognize that when its military personnel are fighting in a foreign country the conflict is int’l.

  9. Tamás Hoffmann

    “And lets not forget the significant policies at stake if, for example, UK or Dutch soldiers who are fighting in county X, with or without the consent of country X, are thought to be fighting merely in some conflict not of an international character (which does not meet common sense, right?), because they would not be entitled to “combatant” status and “combatant immunity” for lawful acts of war, like killing enemies when reasonably needed, etc., and they could be prosecuted for murder.”

    Well, if foreign troops are fighting in support of the local government in compliance with the laws of armed conflict in non-international armed conflict then they obviously don’t commit neither war crimes nor crimes under local law.
    Moreover, your repeated references to ‘common sense’ actually don’t make much sense for me, since that would require the acceptance that clashes between states and non-state groups should be regarded as international armed conflicts when they are clearly not.
    Finally, most authorities are on the position that recognition of belligerency has fallen to desuetude so practice from the US Civil War seems to be only of historical interest.

  10. No — that’s the point. If they follow the laws of war in terms, for example, of who to target and with what weaponry, during an int’l armed conflict they would have combtant status and combatant immunity. But if they did so during an armed conflict not of an international character they would not have combatant status or combatant immunity and would, therefore, be subject to prosecution under relevant domestic law for murder. This is not in the interest of most military professionals or their governments.
    On the second matter — “common sense” and Libya regarding an internationalized conflict, how many countries have engaged in or directly supported combat sorties or missions in Libya? How many sorties have NATO pilots flown to date?