Transformations Of Conflict Status
Transformations of Conflict Status
The present piece of research aims to discuss, in detail, the transformations of the armed conflict status in International Humanitarian Law, primarily, from Common Article 2 to Common Article 3 and vice-versa. For the same purpose, I have sub-divided this paper into four parts. Part I shall be discussing briefly about the two different types of Armed Conflicts that exist and the law applicable in each conflict. Part II of the paper shall be focusing on the transformation of the conflict status from Common Article 3 to Common Article 2 by giving comprehensive analysis of the study of invasion of Libya. Part III of the paper would, by giving the example of invasion of Iraq, be showing the transformation of Common Article 2 to Common Article 3. Eventually, in Part IV of the paper, I would be concluding by critiquing on the inadequacy of the current International law that govern the International and Non-International Armed Conflicts based on my analysis and opinion since the new and modern wars do not fit neatly in the abovementioned two categories of Armed Conflicts.
An armed conflict, legally speaking, can only be broadly sub-categorized into two classifications namely, International Armed Conflict (“IAC”) and Non-International Armed Conflict (“NIAC”). It is pertinent to determine the conflict status during a war situation since law applicable in each regime is different from the other and only after determining the nature of the conflict, the actions of related parties to the conflict can be determined and governed. Following the 1949 Geneva Conventions, an IAC is defined under Common Article 2 primarily as, an armed conflict that takes place between two or more High Contracting Parties. During an IAC, all four Geneva Conventions apply, in addition, for the States that have ratified it, the 1977 Additional Protocol I applies too. A NIAC, according to Common Article 3 of the 1949 Geneva Conventions, is said to be occurred when, an armed conflict not of an international character arises in the territory of one of the High Contracting Parties and the where the combatants of one state are not the armed forces of another. Such situations also include instances whereby government’s combatants are in conflict with organized non-governmental armed groups or the conflict is in between two non-governmental armed groups within the territory of a State. During a NIAC, apart from Common article 3, the Additional Protocol II applies too. The threshold for an internal conflict in a State to reach upto the standards of a Common Article 3 conflict has been laid down by the Tadić case, however, that is not something the present research piece focuses on.
The protests in Libya began in February 2011 in the city of Benghazi between the security forces and the anti-Gaddafi rebels. The violence rates had quickly escalated and by the end of February, the statistics of deaths had reached to 84 by way of indiscriminate killing of the anti-Gaddafi rebels by the means heavy ammunitions and artilleries. Even after such high death rates and violent acts, the situation in Libya had yet not reached the standards of a NIAC. It was only after the rebel forces took up Benghazi, were the changes brought about both in the organization of the rebels and the intensity of the fighting as well, triggering the applicability of Common Article 3. National Transitional Council, a group that had assumed the role of political representatives of the revolutionaries in Libya, had shown, supported with evidences, the compliance towards all three pre-requisites of Additional Protocol II. Therefore, this concluded that the conflict between the rebel group and the Libyan Government had met the criteria for Additional Protocol II along with Common Article 3 conflict.
American and European forces and subsequently the NATO, acting under the resolution passed by the United Nations Security Council in March 2011, made their first air strikes against the government targets in Libya. This led to the ‘internationalization’ of the on-going conflict in Libya. The external forces by the foreign internationals, acting as agents of the rebel group, fighting against the Libyan government, transformed the NIAC into an IAC and therefore brought the rules and applicability of Common Article 2 along with Additional Protocol I into the picture. This situation gives rise to the question as to what law shall be applicable keeping in mind that international forces are being a part of the on-going internal conflict between the Libyan government and the anti-Gaddafi rebel group.
Different school of thoughts have opined differently on this debate. However, in accordance with the rule of Additional protocol I and State practices, it appears to be more sustainable to apply the ‘global’ school of thoughts in situation of internationalized armed conflicts. Therefore, the situation that the existing NIAC between the anti-Gaddafi group and the Libyan government was internationalized by the American and European troupes, changed the applicability of law from Common Article 3 and Additional Protocol II to Common Article 2 and Additional Protocol I. This transformed conflict can still be re-transformed again to a NIAC from IAC. This could happen in instances where the external armed forces cease to fight against the government of the conflicting State.
On March 19, 2003, a coalition group of armed forces of United States of America (U.S.A) and the United Kingdom (U.K) invaded Iraq, opening a Common Article 2 conflict. All four Geneva Conventions were applicable to this conflict, except for Additional Protocol I since both U.S.A and Iraq were not the parties to this Protocol. Post USA’s announcement about an end of major combat in the Iraq conflict, the U.S occupation of Iraq began, during which all the Geneva Conventions were applicable. Iraq finally regained their sovereignty in June 2004 when the control over the country was passed onto the new interim Iraqi government. In terms of the law of armed conflicts, a Common Article-3 conflict began in Iraq at this time, between the new Iraqi government and the insurgents operating in Iraq. The United States remains present in Iraq to aid and assist the Iraqi government against the insurgents. This remains a Common Article 3 conflict.
Considering the abovementioned two examples of Iraq and Libya, one can conclude that the principal that pivots around the notion of armed conflict is that, in cases whereby a foreign state intervenes on behalf of a legitimate government to put down the insurgent groups, the conflict shall remain a NIAC. However, if the same foreign state intervenes an internal conflict on behalf of the anti-governmental group, the conflict shall transform into an IAC from NIAC and different rules of law shall be applicable then. Mere foreign financial assistance or logistical support for a rebel movement shall not internationalize an existing NIAC unless there exists sufficient evidence to lead to the fact that the foreign state also has overall control over the rebel group. The ICJ however, chose to conclude on the contrary note in the Nicaragua case in which Nicaragua was fighting the Nicaraguan rebel forces (Contras) who were aided by the United States of America. The International Court of Justice (ICJ) chose to opine that the conflict between the Nicaraguan government and Contras is a conflict not with an international character. Therefore, the laws applicable in this situation towards Nicaragua and Contras would be of NIAC whereas, that between Nicaragua and United States of America would be IAC. This approach was highly critiqued since it is against the customary law.
Both International Criminal Tribunal of former Yugoslavia (ICTY) and the ICJ have ruled differently on the level of a state’s involvement in an armed conflict that brings that state into the conflict as a party. While the ICTY employs an “overall control test” as seen from the Tadić case, the ICJ chooses to opt a more strict “sending on behalf of test” as seen in the Nicaragua case.
After having read about different instances whereby an Armed Conflict of either status is transformed into the other by the introduction of certain externalities, I am of the opinion that the present law on Armed Conflicts is not fit enough, and thus requires considerable adaptations to make the new and modern wars fit inside its domain. The law of armed conflict is premised upon a number of distinctions. Distinctions between the state and non-state actors, between combatants and civilians, between internal wars and international conflicts, and even the distinction between the military and private security military companies. New and modern wars pose unique threats for international law as they slowly erode many of these distinctions.
One of the key distinctions in the law of armed conflict is the one between so-called ‘internal’ wars and international armed conflicts. ‘New wars’ do not easily fit in such neat legal categories. Even conflicts that may seem internal take place in a globalized context in which international actors play an ever-increasing role. With the modern patterns of warfare and tactics that are involved, the wars are constantly changing and evolving, however the International law is evolving at a much slower rate. We have already seen, as mentioned up the two contrary opinions by the ICJ and the ICTY in terms of conflict status and the subsequent rules to be applicable in each scenario. The current law, I feel in outdated to absorb modern wars which are of complex natures.
The law that governs International and Non-International Armed Conflicts should be such that all categories, even if they are multi-dimensional in nature, should fall under the domain of these two sub-categories. For that to take place, the current law needs to adapt changes with time to include modern wars. The wars that are taking place in today’s era, are very unconventional unlike the typical times where two nations go on war against one another with set approaches in mind. However, the new wars involve more strategic ways, whereby the foreign states having effective control are purposely falling short of the threshold keeping in mind the precedents. This however, is not changing the repercussions and effects of such control since the control is now more strategic and evolved. There seem to be gaps in the current law, which if not filled with time, shall cause chaos in the international domain of conflicts leading to unimaginable and uncontrollable circumstances.