Use of Force Against Non-state Armed Groups: Nature of Armed Conflict

What happens when a State, assume the United States of America, uses military force on the territory of another State, lets say, Pakistan, without the consent of Pakistan. What laws would apply? Would these laws as applicable change, if instead of attacking the Pakistani armed forces, the US attacks other armed groups, or, kidnaps and kills Osama Bin Laden?[1] These questions have garnered significant attention due to the recent changes in the socio-political balance of the world. Historically, an armed attack primarily took place between two States or ‘High Contracting Parties’ as the Geneva Convention describes it. However, with the Cold War, proxy wars and guerrilla warfare, non-state armed groups like Al Qaeda and Taliban were created that even though quite powerful, had no state responsibility per se. They were harboured within states and use of force against them was classified as a Non-International Armed Conflict (NIAC). The result seemed appropriate as these non-state armed groups emanated primarily from one state and its activities were restricted to that state. However, now Al Qaeda itself has a worldwide operation with 19 subdivisions and an army 30,000 strong and Taliban occupied and governed Afghanistan.

This creates a problem for the current legal system. Originally, the first step for holding these non-state actors accountable came from the Nicaragua[2] and Tadic[3] cases by the International Court of Justice (ICJ) and the International Criminal Tribunal for former Yugoslavia (ICTY) respectively. Nicaragua case made US liable for the actions of Contras, whereas Tadic case classified the conflict as an International Armed Conflict (IAC), thereby applying stricter and more developed International Humanitarian Law (IHL) rules. However, with the advent of Al Qaeda like organisations, and now ISIS, these non-state armed groups are of significant size and possess great military power. Thus, the aim of this paper would be to classify the nature of conflicts with such non-state armed groups.

Before we dive into the debate of whether such a conflict should be labeled an IAC or a NIAC, we need to understand the differences between an IAC and a NIAC.

There are five major differences:

• Conduct of Hostilities: The level of protection given to environment is much lesser in a NIAC. Article 35(1) of the Additional Protocol I to the Geneva Convention (AP I) states that natural environment should not be targeted without reason. Such a provision is not present in Additional Protocol II to the Geneva Convention (AP II).
• Detention: If the state using force occasionally sends forces in to pick up people from the state where the non-state group is based (as the US has done in Syria) and then takes them back to its own territory for detention, then, in an IAC, Geneva Convention IV (GC IV) of 1949 will apply and these people will have to be given prisoner of war protection. This is not so in a NIAC.
• Prosecution: If soldiers of the foreign State were caught in an IAC, then they would be granted combatant immunity and would not be prosecuted.[4] However, in a NIAC, for example, US soldiers are caught then, they would face trial and jail time.
• The list of war crimes subject to International Criminal Court (ICC) jurisdiction is very different depending on whether the conflict is an IAC or NIAC. It is important to note here that damage to civilian objects is neither a NIAC war crime nor subject to proportionality. Thus, in a NIAC, the State is free to go on a wanton rampage destroying civilian objects and the ICC would not be able to prosecute them. Additionally, the ICC recognises 34 war crimes in IAC whereas only 19 in NIAC.
• Universal jurisdiction to prosecute crimes is only applicable if the crime is committed during an IAC.

At one level, even though there still exists huge difference between an IAC and a NIAC, the distinction between them does not seem to match. The purpose for which the distinction was created would be voided, if the conflict as described in the introduction would be labeled an IAC. The purpose being that hostilities involving a non-state armed group and another State does not match the quintessential IAC (between two High Contracting Parties). However, at the send level, these hostilities between the non-state actor and the State are not restricted to the territory of that said State. There is an involvement of a foreign state, thus internationalizing the NIAC. A quintessential NIAC, as described by the Common Article 3 of the Geneva Convention (GC) and Article 1(1) of the AP II, are different that the conflict as described above. Common Article 3 states that a NIAC is an “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties” and Article 1(1) of AP II refers to a NIAC as an armed conflict “which take[s] place in the territory of a High Contracting Party”. Thus, the common element in both these definitions is that a NIAC has to take place ‘in the territory’ of a High Contracting Party. In the present case, since there is an international element to the conflict, it ceases to perfectly fit within the definition of a NIAC.

Apart from this, there is a significant political pressure against classifying these internationalized NIAC into simple IACs. This is because there is a possibility that non-state actors would be unable to comply with many IAC provisions. Complying with them would mean Al-Qaeda would have to stop targeting civilians, which is its motto. On the other hand, States are unwilling to grant non-state actors immunities from prosecution that is granted to prisoners of war in IAC. This would mean that by being a soldier of ISIS in an IAC, he would have the right to kill military personnel of foreign states. Due to a lack of political will, other serious problems emerge that harm the citizens of the territorial state. Due to the absence of an IAC, citizens cannot take advantage of the universal jurisdiction of IAC crimes. Therefore, they will have to make use of the domestic legal system to obtain justice, which in most cases would be crippled due to the ongoing conflict.[5] In my view, the law that would govern such transnational conflicts between a State and a non-State group would depend on whether the territorial State in which the non-state group is based has given its consent to the foreign State using force against that group. In instances where the consent exists, it would be a NIAC. Then situation here will be no different from a situation in which the territorial State is itself fighting the non-State group and invites the foreign State to intervene. The absence of consent of the territorial State has the effect that there are two opposing States involved in the conflict.[6]

 Just to summarise, the law applicable to transnational conflicts between a State and a non-state actor is an IAC if the consent of the State from which the non-state actor emanates is not taken. This is conjoint with the underlying distinction between an IAC and a NIAC, as the ex hypothesi conflict would be between two High Contracting Parties as the consent of the territorial state is not obtained. Therefore, even though the two High Contracting Parties are not at war per se, since the consent is not taken, the conflict would be classified as an IAC. It would logically make sense branding the conflict as an IAC as the conflict no longer remains an internal matter of the State. The sovereignty and state autonomy argument synonymous with a NIAC as the territorial State has its interests at stake: be it that of protection of its territory or that of protection of its civilian population and infrastructure.

This change has been aptly recognised by the International Committee on Red Cross (ICRC). Thus, we see that ICRC revised its commentary to the GC. The ICRC, in its new commentary to Common Article 2 of GC dealing with IACs states that, “where a state uses force against a non-state group on the territory of another state without the consent of the territorial state it would amount to an international armed conflict between the intervening state and the territorial state”.

Thus, an intervention that would result in an unconsented-to armed intrusion into the territorial state’s sphere of sovereignty, even though primarily to attack a non-state armed group would amount to an IAC within the meaning of common Article 2(1), according to the new commentary by ICRC.[7]

This position was implicitly confirmed by the International Court of Justice in Armed Activities on the Territory of the Congo, in which the Court applied the law governing IAC to the military actions undertaken by Uganda in the Democratic Republic of the Congo (DRC) outside the parts of the DRC it occupied. According to the International Court of Justice, the conflict was international in nature even though Uganda claimed to have troops in the DRC primarily to fight non-State armed groups and not the DRC armed forces.[8] This does not exclude the existence of a parallel NIAC between the intervening State and the armed group.

[1] See also, use of force by Israel in Lebanon in 2006, acts by Uganda and Rwanda in the Democratic Republic of the Congo and Turkish use of force directed at PKK targets in Northern Iraq.

[2] Case concerning Paramilitary and Military Activities in and against Nicaragua (Nicaragua v. the United States of America), ICJ Rep., 1986

[3] Prosecutor v. Dusko Tadic, Appeal Judgement, IT-94-1-A, 15 July 1999

[4] Geneva Convention III

[5] LUBELL, EXTRATERRITORIAL USE OF FORCE AGAINST NON-STATE ACTORS, (2010); Kress, Some Reflections On The International Legal Framework Governing Transnational Armed Conflicts, (2010) 15 JCSL 245

[6] ICC Pre-Trial Chamber in Prosecutor v. Lubanga, Decision on Confirmation of Charges, ICC-01/04-01/06, Jan. 2007; Prosecutor v Katanga & Chui, Decision on Confirmation of Charges, ICC-01/04-02/07, Sept. 2008.

[7] Dapo Akande, Classification of Armed Conflicts: Relevant Legal Concepts’, in INTERNATIONAL LAW AND THE CLASSIFICATION OF CONFLICTS 74-77 (Elizabeth Wilmshurst, et. al. eds., 2012)

[8] ICJ, Armed Activities on the Territory of the Congo case, Judgment, 2005, paras 108, 146 and 208ff. See also, UN Commission of Inquiry on Lebanon, Report of the Commission of Enquiry on Lebanon pursuant to Human Rights Council resolution S-2/1, UN Doc. A/HRC/3/2, paras 50–62