The ICC’s take on aggregation of intensity in Al Hassan case

On 26 June, the Trial Chamber X (the Chamber) of the International Criminal Court (ICC) handed down its ruling in the Al Hassan case. The judgment was keenly awaited by those concerned with armed groups’ governance (see here and here) and gender persecution. However, the Chamber was also expected to lay out its views on some new developments on the classic international humanitarian law (IHL) matter of conflict classification.

Specifically, it was hoped that the ICC in Al Hassan could shed more light on the issue of aggregation of intensity of violence in non-international armed conflicts (NIACs), given its contentious character (Fortin). This post analyzes the Chamber’s position on this issue and finds that the judgment falls short of these expectations. In doing so, the post focuses on the legal standard applied by the Chamber and does not evaluate the evidence the Chamber used to support its views.

The problematics of complex violent scenarios for classification purposes

Classifying a situation as a NIAC calls for an assessment of whether the conflict parties are sufficiently organised, and the violence involved is sufficiently intense. Typically, each bilateral scenario of violent interaction is assessed individually. However, the complexity of contemporary violence scenarios has challenged the possibility of an individual assessment.

Firstly, many contemporary violence scenarios are characterized by a multiplication of the actors involved in them. These actors operate in close geographical proximity, form coalitions and alliances, split up, form new alliances. The potential changes in these scenarios are unpredictable, as they are often opportunistic and based on the changing dynamics of the operational environment.

Secondly, the fact that more armed groups have a decentralized structure, i.e. they operate as alliances of smaller armed groups (ICRC, Roots of Restraint, 46), adds another layer of complexity. When such groups operate in close proximity to each other, it can be extremely difficult to make sense of their structures and determine the relationships between them. In addition, armed groups conceal the information about their structures and operations since such information is “a source of vulnerability for them” (Provost, 20).

Having noted these trends, the ICRC and several scholars argue that assessing the intensity criterion in complex violence scenarios on a bilateral basis could lead to a mismatch between the reality and legal analysis. Instead, they have suggested aggregating the intensity of violence resulting from different bilateral scenarios, provided there is some link between them. However, there are different approaches to what constitutes such a link.

The approaches

Kleffner argues that aggregation is appropriate in complex scenarios where acts of violence by multiple armed groups “occur on a geographical and temporal continuum” (p.177). In other words, intensity can be aggregated if multiple armed groups operate in the same area at the same time and collectively cause “death, injury and destruction” at a level that would normally be characterised as sufficiently intense, even if they fight against each other rather than together.

For the ICRC, geographical and temporal proximity does not seem to suffice to aggregate the intensity. Nor would it be enough to share ideological and political views or have a common enemy. Instead, the ICRC suggests that armed groups should act “in some sort of coalition, objectively and effectively demonstrating a collective approach of the fighting” (Nikolic, de Saint Maurice, Ferraro). Such a collective approach does not need to be formalised but should be discernible through some indicators. Such indicators may be explicit, e.g. armed groups making declarations or communicating on behalf of the coalition, or implicit, e.g. consisting of the performance of common and coordinated tasks, the establishment of a centralised command, the existence of common rules between groups, intelligence-sharing (ibid).

Wentker, Jackson and Hill-Cawthorne have recently discussed this issue, too. They did not focus specifically on the aggregation of intensity, but on how different actors become co-parties to an armed conflict. As will be shown, such a difference in the framing of the question has certain consequences. Particularly, they suggest that to become co-parties, there must be “some degree of cooperation or coordination of their [actors’] activities against a common adversary regarding the specific hostilities” (p.19). A reference to Nikolic, de Saint Maurice, Ferraro with “see similarly” suggests that they see this requirement in much the same way as the ICRC. However, they add two additional requirements. Firstly, they suggest a subjective element, requiring armed groups to act “with knowledge of the relevant facts” regarding the activities of their partner/(s) (p.20). Secondly, they suggest that all co-parties should have a direct connection to hostilities by means of the nature of their activities and “their geographical and temporal proximity to harm caused to the adversary” (pp.18-19). While the ICRC does not explicitly set such a requirement, it is clear that framing the question as an aggregation of intensity issue presupposes that each group itself engages in some hostile acts even if such acts are insufficient to reach the intensity threshold on their own. On the contrary, following Wentker, Jackson and Hill-Cawthorne, it seems that an armed group can become a co-party to an armed conflict if it does not commit hostile acts itself, but, for example, provides intelligence that another group uses to commit such acts (this is to be distinguished from the ICRC’s mention that intelligence-sharing can be an indicator that groups act in a coalition). This would seem to mean that non-hostile acts directly related to hostilities could be counted in the intensity assessment.

Finally, Redaelli questions the use of coalitions as a criterion for aggregating intensity because of the potential practical challenges posed by the instability of such coalitions of armed groups. She also notes that Kleffner’s approach extensively relaxes the intensity criterion. Instead, she suggests that in order to aggregate intensity, armed groups should be fighting in geographical and temporal proximity against a common enemy.

The complexity of the violent scenario in Mali

The situation in Mali in the period considered in the Judgment represents a complex violent scenario (Judgment, §427-43). At least four armed groups were active in the geographical area during the period in question: al-Qaeda in the Islamic Maghreb (AQIM), National Movement for the Liberation of Azawad (MNLA), Ansar Dine as well as the Movement for Oneness and Jihad in West Africa (MUJAO). AQIM, Ansar Dine and MUJAO all aimed to establish an Islamic state in Mali or parts of it and had a decentralised structure and a system of allegiance. MNLA, was a secular and nationalist movement with an army-like structure. All groups operated in close geographical proximity and, according to the Chamber, initially all fought against the Malian army until June 2012 when AQIM, Ansar Dine and MUJAO began fighting against MNLA.

The Chamber’s assessment

Al Hassan’s Defence denied the existence of a NIAC challenging both the organization and the intensity requirement (Defence, §94-104). In making the latter argument the Defence, firstly, argued that there is no agreement on whether the intensity can be aggregated in principle (Defence, §102). Alternatively, the Defence argued that the Prosecution improperly aggregated the acts of different groups failing to show that they acted in an “alliance or coalition”, explicitly referring to the ICRC’s position in the footnote (Defence, fns 325-6).

When assessing the intensity requirement, the Chamber began by listing the acts that distinguish the situation from the lower violence-threshold situations of “banditry” and “terrorism” clearly putting the actions of all groups together (Judgment, §1264-5). In particular, it took note of the “traditional” set of indicators of intensity, such as the use of heavy weapons, the frequency of confrontations, the number of deaths and injuries, the area affected by the fighting as well as the consequences, such as widespread displacement and the UN Security Council reactions to the situation.

Only after that, in a single (and fairly convoluted) sentence, the Chamber noted that it assesses the facts in a holistic way and found the argument of the Defence on the need for an intensity assessment in each bilateral relationship unpersuasive (Judgment, §1266, fn 4064). In a footnote the Chamber concluded that “the evidence made it clear in the present case that Ansar Dine, AQIM, the MUJAO (and the MNLA to a certain extent and at a certain point in time) undertook military actions in a coordinated manner” (fn 4064, emphasis added). In support of this, the Chamber provided some examples of joint planning and execution of certain attacks, and the sharing of roles in the situations of territorial control. Such evidence seems to largely go in line with the examples provided by the ICRC.

Some additional pieces of the puzzle on aggregation can be found in the part on organization requirement. Specifically, in the last sentence in this section the Chamber noted that the groups in question “were able to enter into alliances” noting in the footnote that it rejects “the assertion of the Defence that the armed groups were not operating as an alliance or a coalition” (Judgment, §1263, fn 4053). While such a conclusion misses at least one crucial causal step since being able to form an alliance does not mean operating in one, it can be read as an endorsement of the ICRC’s “coalition and alliance” standard.

Conclusion

Those hoping that the Chamber would shed more light on the issue of aggregation of intensity are probably disappointed. For a contentious matter, the Chamber treated the issue only very marginally and in a rather unorganized way. One sentence and one footnote is about all the Chamber provides on the issue of aggregation of intensity in the relevant part of the judgment. However, the pieces of the judgment puzzled together suggest that the ICC considered that it is possible to aggregate the intensity in principle, and largely endorsed the ICRC’s position that aggregation is appropriate when armed groups form an alliance or coalition and thus act in a coordinated manner.

However, the lack of substantive engagement with the issue is unfortunate since the circumstances of the case, as well as the Defence’s arguments presented the Chamber with a perfect opportunity to do so. One can only guess whether the Chamber passed over the issue because it considered it too insignificant to address it in detail, or was too uncertain to explicitly pronounce itself on it.