ICRC Commentary of Common Article 3: Some questions relating to organized armed groups and the applicability of IHL’

This post is part of the joint blog symposium hosted by EJIL:Talk!, Lawfare and Intercross and arising out of the 5th Transatlantic Workshop on International Law and Armed Conflict held at the European University Institute in Florence this summer.

I was asked during our workshop to discuss some questions related to non-state armed groups raised by the chapeau of Common Article 3 (In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions) and the 2016 ICRC Updated Commentary to Geneva Convention I.

It is well known that for there to be a non-international armed conflict, the violence must involve an organized armed group.  So one of the first questions to arise in this context is what degree of organization of the armed group is required in order to trigger the application of international humanitarian law (IHL)?  

The 2016 ICRC Commentary acknowledges that Article 3 does not provide a detailed definition of its scope of application, nor does it contain a list of criteria for identifying the situations in which it is meant to apply. It is however uncontroversial that armed groups must reach a certain level of organization so as to be bound by IHL. As the well known definition of armed conflicts in the ICTY 1995 decision in the Tadić case reminds: ‘[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’ (Prosecutor v. Dusko Tadić (aka ‘Dule’), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), ICTY (Case No. IT-94-1), 2 October 1995, §70).

How to determine the appropriate level of organization seems to be the difficult question. For the ICRC, the parties involved must show a ‘minimum of organization’. The ICTY 2008 Boskoski case (Prosecutor v Boskoski, Judgment, Trial Chamber, ICTY (Case No IT-04-82-T) 10 July 2008, para. 195 and ff) stated that a group would need to have ‘some hierarchical structure’ and that as a minimum, the group must be able to implement the basic obligations of CA 3. It added five elements that could help identify the degree of organization of an armed group.

– the existence of a command structure;

– the fact that the group could carry out operations in an organized manner;

– elements indicating a level of sophistication with respect to logistics;

– the existence of internal discipline; and

– the ability to speak with ‘one voice’.

The ICRC and the case law thus seem to point to a relatively low threshold of the degree of organization of the armed groups for IHL to apply. But one could wonder if an armed group with a low degree of organization will still be have the capacity to implement certain IHL norms (for instance obligations relating to fair trial (article 3, para. 1(d)) require a substantial degree of organisation). Here perhaps the debate needs to be shifted to the notion of ‘equality of belligerent’ and to the question of the implementation of IHL, rather than on the applicability of IHL to a group (See notably Sassòli M (2011) Introducing a sliding-scale of obligations to address the fundamental inequality between armed groups and states? International Review of the Red Cross 93(882):426-431 and Sassòli M (2010) Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law. Journal of International Humanitarian Legal Studies 1:5–51.

In practice, the issue of the level organization of armed groups is of particular importance in certain conflicts in Africa notably in the DRC, CAR or in the Lake Chad region, where there exist a number of armed groups with very loose degree of organization (like the Mai Mai in the DRC, the anti-Balaka in CAR or various ‘vigilante groups’ in the Lake Chad region). The difficulty here will be to consider which legal framework is applicable to these groups, despite the high level of violence they exert often in a context where state official institutions are at best weak or more often completely failing (See for instance, ICG Africa Report N°230, ‘Central African Republic : The roots of Violence’, Sept. 2015 explaining how armed groups transformed themselves in armed communities ; and the ICG Africa Report N°244  of 23 February 2017, ‘Watchmen of Lake Chad: Vigilante Groups Fighting Boko Haram’ on the unclear relationship between vigilante groups and the state).

Another interesting question is to consider whether and when it is possible to aggregate violence by various armed groups such that collectively the intensity threshold for non-international armed conflicts (NIAC) is crossed.

In addition to the organization of the armed group, the other condition triggering the application of IHL is the existence of a certain degree of armed violence between a state or several states and one or several armed groups, or between armed groups themselves, so as to differentiate the situation from mere internal disturbances or riots that are regulated by domestic and human rights law. The requisite degree of intensity may be met: ‘when hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces.’ The 2016 ICRC Commentary does not provide for much more information in this regard apart from reminding the relevant case law, notably from the ICTY 2008 Boskoski, the 2008 Haradinaj and 2005 Limaj cases, which offer a series of factors that could help assess if the requisite threshold of violence has been met.

In particular, neither with regard to the degree of organization, nor with regard to the condition of ‘protracted violence’ does the ICRC 2016 Commentary specify whether the conditions must be met individually for each group or can be aggregated by several armed groups to meet the requisite thresholds. In his commentary of Common Article 3, Lindsay Moir affirms that ‘since Common Article 3 does not require government participation, the organization test must be applied to each group involved in hostilities. Where several armed groups engage state forces, but without coordinating their activities, provided the requisite level of organization can be demonstrated for each group, a lack of organization between these groups would not seem to preclude the existence of a NIAC (or, indeed several conflicts) in the context of Common Article 3’. (Lindsay Moir, ‘The Concept of Non-International Armed Conflict’, in : Clapham, A., Gaeta P., Sassoli, M (eds), The Geneva Conventions of 1949 : A Commentary, Oxford University Press, 2015, p. 406, emphasis added//). With regard to the level of violence and the elements indicated in case law, he adds that ‘as is also the case with the various criteria/elements for organization, it should be noted that, whilst these factors assist in determining whether the necessary level of intensity has been reached, they are to be applied on a case-by-case basis’. (p. 413, emphasis added) This perhaps brings us to the next question to be discussed, i.e. the links between armed groups so as to be considered a single party to a conflict.

What linkages or relationships must exist between non-state armed groups in order to consider them as a single party to a conflict, including across borders?

To be fair, there does not exist much information either in the text of the conventions or in case law about what kind of relations should or must exist between different armed groups so as to be able to consider them a single party to a conflict. Similarly the 2016 ICRC commentary does not address the issue. Establishing the relationship between armed groups is of particular importance with regard to the territorial scope of IHL, it also brings to the fore the more basic question of how to delineate armed groups for the purpose of classifying non-international armed conflicts and applying IHL as well as with regard to the end of NIAC with armed groups and their different factions. The issue is of particular relevance in case of the PKK and the TAK in Turkey (or even between the PKK and YPG/YPJ in Syria); Al Qaeda and their so-called ‘affiliates’ (AQMI, AQAP and other groups); the Islamic State and the different groups of pledged allegiance to it (among the groups that have pledged allegiance to IS, that were recognized as such by the group, one can name Boko Haram (Nigeria) on 13 July 2014, Ansar al-Sharia (Libya) on 31 October 2014, Ansar Beit al-Maqdis/Sinai Province (Egypt) on 10 November 2014, and JundAllah (Soldiers of God) in Pakistan on 17 November 2014). For example, the Obama administration maintained that the United States was in an armed conflict with Al Qaeda ‘and associated forces’, notably Al Shabab—and that members of the latter could accordingly be detained and targeted during the course of hostilities as party to the same armed conflict, even the armed groups did not operate from the same territory (in this case, Yemen and Somalia) (See on that the post on Associated Force and Co-belligerency’, by Nathalie Weizmann.)

Scholarship has devised a number of theories to delineate the boundaries of organized armed groups. For instance, some authors argued in favour of applying the notion of ‘co-belligerency’ to non-state armed groups in NIAC (Kevin Jon Heller in Opinio Juris, Goldsmith Responds About “Co-Belligerency”). Others have proposed to apply ‘by analogy the notion of ‘associated forces’ (Article 51 API and Article 4 GC III) to devise the relationship between armed groups, notably for the purpose of targeting (See Ryan Goodman, ‘Al-Qaeda, the Law on Associated Forces and “Belonging to” a Party (did the new UN drones reports get it right?), 18 October 2013). These proposals were met with some criticisms usually because they lack firm basis in law (either treaty or customary international law) or because the application of the law and concepts from the law relating to international armed conflicts (IAC) to NIACs in these particular cases was thought to be inadequate (see the blog entry of Kevin Jon Heller, The Problematic “Belonging To” Analogy: A Response to Goodman, 23 October 2013). It was also suggested that an aspiring faction would belong to an armed group if it falls under the ‘command and direction’ of that group.  This approach seems to be the one taken by the then Special Rapporteur on Extrajudicial, summary or arbitrary executions Christof Heyns in his 13 September 2013 Report where he stated that ‘the established legal position is that, where the individuals targeted are not part of the same command and control structures as the organized armed group or are not part of a single military hierarchical structure, they ought not to be regarded as part of the same group, even if there are close ties between the groups’. In that regard, it could also be interesting to look at the practice of armed groups themselves. For instance, in 2014, at the peak of their power, IS claimed that some of the groups that pledged allegiance would not be accepted until they maintained a direct line of communication to Baghdadi and until he appointed or formally recognized the group’s leadership (see the Stanford University database, ‘Mapping militant organizations: The Islamic State’). While I can agree in some circumstances with the proposal that armed groups with a common ‘command and structure’ should be considered as one entity, the problem is that the structure of armed groups are often opaque and may evolve rapidly. For these reasons, absent clear legal basis and case law, the better solution, might be, as stated above, to establish for each group whether the requisite thresholds of organization and intensity of violence have been met and whether individually each group is party to a NIAC or not. This is the approach taken the War Report 2012, 2013, 2014 and the War Report 2016, (Oxford University Press and Geneva Academy of IHL and Human Rights) when assessing the existence of NIACs.

Finally, what is the geographical scope of IHL application within a single state where there is a NIAC.

A final question I was asked to address in our workshop has to do with the geographical scope of applicability of Common Article 3. The issue at stake here is the following:  if a conflict is localised in a specific zone, whether IHL should be applied only to the geographical zone concerned and not to the entire territory of the state. (see for example Noam Lubell and Nathan Derejko, ‘A Global Battlefield ? Drones and the Geographical Scope of Armed Conflict’, Journal of International Criminal Justice 11 (2013), 65-88). 

The text of Common Article 3 (‘The following acts are and shall remain prohibited at any time and in any place whatsoever’) and case law (Tadic: ‘the temporal and geographical scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities…IHL continues to apply in the whole territory of the warring States’) (State’ (Prosecutor v. Dusko Tadić, § 70.) do suggest that IHL applies to the entire territory of a state even if hostilities are geographically confined.

The 2016 ICRC Commentary confirms this interpretation, but notes that ‘the applicability of humanitarian law in the whole of the territory of a State party to the conflict does not mean that all acts within that territory therefore fall necessarily under the humanitarian law regime. As noted by the ICTY, a particular act must be ‘closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict’ for that act to be committed in the context of the armed conflict and for humanitarian law to apply…The applicability of humanitarian law to a specific act therefore requires a certain nexus between that act and the non-international armed conflict. Acts that have no such connection to the conflict generally remain regulated exclusively by domestic criminal and law enforcement regimes, within the boundaries set by applicable international and regional human rights law’ (para. 460).

Given the high volatility of the armed groups’ use of violence in certain conflicts (for example kidnapping or suicide bombings in a capital, while the main hostilities are located elsewhere), I believe that the application of IHL to the entire territory of a state is the correct option so as to be able to establish the criminal responsibility for war crimes that might be committed by the parties to the conflict and to ensure the broadest possible protection of civilians.