The second post in our joint blog series arising from the 2017 Transatlantic Workshop on International Law and Armed Conflict, ‘Common Article 3 and Linkages Between Non-State Armed Groups’- by Ashley Deeks (University of Virginia School of Law) is now available over on Lawfare.
Here’s a snippet:
Assume State A finds itself in a NIAC with a NSAG – call it “Group X.” What happens if and
when another NSAG – call it “Group Y” – begins to provide certain assistance to Group X? At what point does Group Y become part of the State A/Group X NIAC, and thus become subject to military force by State A? This question has arisen in a variety of scenarios, including in the interactions between core al Qaeda and al Qaeda in the Arabian Peninsula and between al Qaeda and al Shabaab.
[…]
Approach 1 – State A should never treat Group X and Group Y as participating in single armed conflict. Instead, State A should treat its fights with Group X and Group Y as two distinct NIACs.
[…]
Approaches 2 and 3: These two approaches analogize from the concept of co-belligerency, which originated in international armed conflicts. Approaches 2 and 3 (described below) take different positions on what that concept requires.
[…]
Approach 3 – Assistance by Group Y to Group X in Group X’s NIAC against State A is enough to render Group Y a functional co-belligerent, even if Group Y does not directly engage in hostilities against State A.
[…]
Approach 4 – Use the ICRC’s “direct participation in hostilities” (“DPH”) factors to evaluate Group Y’s efforts in relation to the State A/Group X NIAC.
Read the full post on Lawfare.
Proportionality
During our conference, I was asked to generate discussion regarding the procedural regulation of detention during armed conflict, particularly during non-international armed conflicts (NIACs). Though lawyers love process, there is a tendency for both soldiers’ and civilians’ eyes to glaze over when they hear the words “procedures,” as they invoke memories of mind-numbing bureaucratic process endured at one’s department of motor vehicles. Yet procedures are vitally important, as they transform values into reality; they are how fairness marries with pragmatism to produce just results. In wartime detention, they ensure exigent detention is reasonable, and work to satisfy fundamental notions of fairness; furthermore, giving process that is due helps reinforce the legitimacy and hence strategic efficacy of military operations. Establishing and following procedures is just as vital an endeavor in ensuring that individuals detained during armed conflict pragmatically should be detained and lawfully can be detained, as it is in ensuring militaries intentionally target military objectives and not civilians.
This post suggests that while the components of the obligation to investigate reasonably suspected international humanitarian law violations are, in most respects, well settled, their application in and to multinational coalition operations is under developed. Thus far, that result seems to reflect not so much a lack of satisfactory answers on accountability in coalition operations but rather avoidance in asking the questions and acknowledging an inherent tension.
The fair trial protections that apply in non-international armed conflicts (NIACs) have received much less attention in recent years than have the protections on targeting and security detention. No doubt, this is because the basic contours of a fair criminal trial are generally not in dispute. Still, they raise a number of interesting questions. Here, I describe the current legal landscape and identify some issues that warrant further study.
ICRC Commentary of Common Article 3: Some questions relating to organized armed groups and the applicability of IHL’
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. Read the rest of this entry…