The United States is currently engaged in an armed conflict with an organized armed group operating from the territory of two foreign states. Is this armed conflict an international armed conflict (IAC), a non-international armed conflict (NIAC), both, or neither? The question matters because the answer determines which international legal rules apply to the conflict and regulate its conduct.
In his recent speech to the American Society of International Law, U.S. State Department Legal Adviser Brian Egan noted that “some of our foreign partners have asked us how we classify the conflict with ISIL and thus what set of rules applies. Because we are engaged in an armed conflict against a non-State actor, our war against ISIL is a non-international armed conflict, or NIAC.”
So far, so good. Few would deny that the United States is in a NIAC with ISIL. However, Egan continues: “Therefore, the applicable international legal regime governing our military operations is the law of armed conflict covering NIACs.”
Not so fast. In its recently released Commentary on the 1949 Geneva Conventions, the International Committee of the Red Cross writes that “an international armed conflict arises between the territorial State and the intervening State when force is used on the former’s territory without its consent.” If the territorial state consents to the use of force on its territory—including force directed at an organized armed group—then there is no international armed conflict between the two states. Since Iraq has consented to the United States using force against ISIL on its territory, there is no international armed conflict between the United States and Iraq. It follows that only the law of armed conflict covering NIACs governs U.S. military operations in Iraq.
Again, so far, so good. But what about U.S. military operations in Syria? According to the ICRC, if the territorial state does not consent to the use of force on its territory—even force directed exclusively at an organized armed group—then an international armed conflict arises between the two states. Importantly, “[t]his does not exclude the existence of a parallel non-international armed conflict between the intervening State and the armed group.”
It seems to follow that, according to the ICRC’s approach, the United States is both in a NIAC with ISIL and in an IAC with Syria. Accordingly, both the law of armed conflict covering NIACs and the law of armed conflict covering IACs govern U.S. military operations in Syria. Presumably, this means that Syrian civilians enjoy the extensive protections afforded by the law covering IACs, while ISIL fighters are entitled to neither combatant immunity nor prisoner of war status.
Importantly, the United States does not claim that Syria has consented to U.S. military operations on Syrian territory. Egan himself says that “in the case of ISIL in Syria, as indicated in our Article 51 letter, we could act in self-defense without Syrian consent because we had determined that the Syrian regime was unable or unwilling to prevent the use of its territory for armed attacks by ISIL.” Although some scholars suggest that Syria has tacitly consented to U.S. airstrikes, this is not the U.S. legal position.
Is the ICRC’s new approach correct? Certainly, the objective existence of an armed conflict does not require formal declarations of war. But how can there be an armed conflict between two states without military confrontations between their respective armed forces?
In its 1958 Commentary, the ICRC took the view that an IAC requires “the intervention of members of the armed forces” of two or more opposing states. However, the new Commentary concludes that “[t]hat interpretation is too narrow.” For one thing, “[s]uch a position would in fact exclude from the scope of armed conflict the unilateral use of force by one State against another.” On the narrow interpretation, the law of armed conflict would not constrain the initial use of military force. For example, on the narrow interpretation, if one state suddenly attacks the civilian population of another state then no IAC exists until the victim state responds militarily. Since no IAC exists at the time of the attack on civilians, the law governing IACs does not apply to that attack and that attack does not constitute a war crime. This seems like an unattractive view.
In contrast, according to the new Commentary,
“International armed conflicts are fought between States. The government is only one of the constitutive elements of the State, while the territory and the population are the other constitutive elements. Therefore, any attack directed against the territory, population, or the military or civilian infrastructure constitutes a resort to armed force against the State to which this territory, population or infrastructure belongs.”
Accordingly, the use of force on the territory of a non-consenting state triggers an IAC, irrespective of whether its targets are military or civilian, public or private. If attacks on organized armed groups should be regarded as an exception to that general rule, then the burden of persuasion should lie on those asserting the exception.
For its part, the ICRC argues as follows:
“Some consider that in situations in which a State attacks exclusively members of a non-State armed group or its property on the territory of another State, no parallel international armed conflict arises between the territorial State and the State fighting the armed group. While that view is consequential in some respects, it is useful to recall that the population and public property of the territorial State may also be present in areas where the armed group is present and some group members may also be residents or citizens of the territorial State, such that attacks against the armed group will concomitantly affect the local population and the State’s infrastructure. For these reasons and others, it better corresponds to the factual reality to conclude that an international armed conflict arises between the territorial State and the intervening State when force is used on the former’s territory without its consent.”
In other words, the law governing IACs was designed to protect civilians in one state from military operations conducted by foreign states. From the perspective of these civilians, it hardly matters whether these military operations are directed at their state’s armed forces or at organized armed groups operating from their territory. What matters most are the risks and harms these operations impose on the civilian population.
Should the United States resist the ICRC’s position? Certainly, it might be politically awkward for U.S. leaders to acknowledge that the United States is in an armed conflict with Syria. However, as we have seen, the objective existence of an armed conflict does not depend on its official recognition. In any event, two considerations may soften the blow.
First, most experts believe that the same customary international law rules govern targeting and attack in both IACs and NIACs. For example, Egan expresses the U.S. view that the principles of distinction, precautions, and proportionality, among others, apply with full force in NIACs. Accordingly, applying the law governing IACs should not impair U.S. military operations in Syria.
Second, if the United States is in an IAC with Syria then U.S. forces who fall into the power of Syrian authorities are lawful combatants entitled to combatant immunity from domestic prosecution as well as treatment as prisoners of war. In contrast, most experts believe that neither combatant immunity nor POW status exists under the law governing NIACs. Accordingly, U.S. forces may stand to benefit from the ICRC’s approach.
In closing, I was pleased to see that the ICRC cites EJIL:Talk!’s very own Dapo Akande in support of its new position. When Dapo took the same position in 2012, he argued that “[t]he sovereignty and State autonomy reasons that are used to justify having more limited regulation of non-international armed conflicts do not apply where the State is acting outside its own territory.” It is encouraging to see such first-rate scholarship influencing the legal position of the ICRC.