Transatlantic Dialogue on International Law and Armed Conflict: When Does LOAC Cease to Apply?

As Dapo Akande of Oxford and Tracey Begley of the ICRC explain here and here, the next few weeks will see a series of short pieces posted here at Lawfare, at EJIL:Talk! (the blog of the European Journal of International Law), and at Intercross (the blog of the ICRC) giving readers a flavor of the topics addressed at this summer's 2nd annual Transatlantic Dialogue on International Law and Armed Conflict (though of course each post is a reflection of no more than that author's own views). It was an amazing event, and I'm very happy that we are following up with the series. In addition to my own post below, which was designed to stimulate discussion of when IHL/LOAC ceases to apply, the series will include:

Ken Watkin, Overlap of IHL and IHRL: A North American Perspective, Part I, September 5th on Intercross Sarah Cleveland, Harmonizing Standards in Armed Conflict, September 8th on EJIL:Talk! Ken Watkin, Overlap of IHL and IHRL: A North American Perspective, Part II, September 10th on Intercross Lawrence Hill-Cawthorne, Developing the Law of Non-International Armed Conflict: A view on the Harmonization Project, September 12th on EJIL:Talk! Geoff Corn, Squaring the Circle: The Intersection of Battlefield Regulation and Criminal Responsibility, September 15th on Lawfare Guglielmo Verdirame, September 17th on Intercross

A final word to note the tremendous partnership that helped bring about the Dialogue: It was organized and sponsored by the Oxford Institute for Ethics, Law and Armed Conflict, the Oxford Martin Programme on Human Rights for Future Generations, the International Committee of the Red Cross Delegations for the United States and Canada and for the United Kingdom and Ireland, the South Texas College of Law, and the Robert S. Strauss Center for International Security and Law at the University of Texas. And now, on to business: “Law at the End of Conflict” Bobby Chesney People sometimes speak of peacetime and wartime as sharply demarcated, their factual foundations and legal consequences being clearly distinct from one another. Everyone here will appreciate that it is not always or even often so simple, as Mary Dudziak has documented so richly in her recent book WAR TIME: AN IDEA, ITS HISTORY, ITS CONSEQUENCES. Circumstances of violence can occur across a broad spectrum of intensity, with the nature and intensity of events rising or falling in unexpected ways (and places) over time. Even the parties themselves can undergo sweeping changes. Small wonder, then, that we lawyers spend so much time wrestling with the details of IHL’s field of application. 1. Background: Triggering IHL in the NIAC setting Usually we approach the field-of-application question from the front-end, which is to say we talk about whether a given situation of violence has crossed over into the realm of armed conflict, bringing IHL to bear (and thus also complicating the question of IHRL’s role). It is a particularly vexing issue in the context of potential NIACs. The problem is not that we entirely lack guidance as to the legal standard to be brought to bear. As Sandesh Sivakumaran observes in his treatise THE LAW OF NON-INTERNATIONAL ARMED CONFLICT, “[i]t does not follow from the lack of definition [in Common Article 3] that the notion of an armed conflict not of an international character and the scope of application of common Article 3 is entirely uncertain.” Id. at 161. The drafting history makes plain that the concept was not meant to encompass mere riots, disturbances, disorder, strife, etc., but also that is was meant to encompass situations of violence, such as insurgency, falling below the threshold of belligerency. See id. at 161-62. How then to draw the line in close cases, though? Since 1995, we have looked to the formulation advanced by the ICTY Appeals Chamber in Tadić, which asserted that

“an armed conflict exists whenever there is … [i] protracted armed violence [ii] between governmental authorities and organized armed groups or between such groups within a State.”

Decision on Interlocutory Appeal on Jurisdiction, para. 70. This formulation of course raises further questions regarding which factors are necessary, sufficient, or simply relevant for determining whether the two core requirements are satisfied. Speaking of the violence criterion, Sivakumaran captures the open-textured nature of the inquiry when he writes:

“The requirement that the violence be of a certain level of intensity can be interpreted in a myriad of different ways. It could relate to the number of incidents of violence or the consequent number of deaths, injuries, or damage to property. Alternatively, it could be judged against the number of persons involved in the fighting and the military hardware used. Equally, it could involve consideration of the geographic spread of the violence or its duration. It could be assessed against a combination of the above or relate to something entirely different.”

Id. at 167. See also id. at 168 (elaborating relevant considerations in still more detail). The key, one might conclude, is to understand these factors to exist in dynamic relationship to one another, such that a comparatively strong showing on one dimension might allow one to find the existence of armed conflict despite a relatively weak showing on another dimension. Thus the Inter-American Commission on Human Rights in La Tablada famously concluded that the 30-hour assault on an Argentinian military base, and the counterassault against the attackers, implicated IHL notwithstanding the relatively brief and isolated nature of the fighting. See Juan Carlos Abella v. Argentina, Case 11.137 (Nov. 18, 1997), OEA/Ser.L/V/II.98, Doc. 6 rev (Apr. 13, 1998), para. 156. The organization criterion is similar, with various potentially-relevant indicia existing in dynamic relation with one another. See Sivakumaran, supra, at 170. All that said, there remains—quite unavoidably—much room for reasonable minds to disagree with respect to the precise application of these factors to real-world fact patterns. 2. Should the same approach govern when determining whether IHL no longer applies? Against that backdrop, consider the question that forms the foundation for this session: Does or should the legal analysis look the same when we speak of identifying the end of an armed conflict? One way to approach that question is to identify and assess alternative approaches. Below, I briefly address two alternatives before returning to the ICTY’s violence+organization test. Option 1: IHL ceases to apply in the NIAC setting only upon a declaration to that effect by the state party (assuming there is such a party) This is an unappealing approach, and certainly not lex lata. We do not condition the initial applicability of LOAC on the willingness of a state party to concede that a circumstance of armed conflict has arisen. History teaches that governments for various reasons may be unwilling to make such a concession no matter the intensity of the violence and degree of organization on the part of the non-state party, and for that reason it has long been thought an admirable humanitarian innovation to have the field-of-application test turn not on such formalisms but instead on the actual facts-on-the-ground, taking the question out of the hands of interested parties. These days, of course, one is perhaps more likely to hear concern about the possibility of the state party taking the opposite approach, asserting that armed conflict exists when a practical analysis of the facts might suggest otherwise; this suggests the wisdom of not making the state’s determination dispositive in either direction. Both concerns, at any rate, are the same both at the outset and at the potential end of a situation that might involve armed conflict. A harder question is whether a state party’s assertions might nonetheless be given some weight, as opposed to treating them as dispositive. One might argue that some assertions should factor into the analysis, for whatever they may be worth, as evidence of a party’s intentions regarding what kinds and degrees of force might be used going forward, a consideration that might have some utility in assessing the totality of the circumstances. Then again, one might respond that any impact this factor might have would simply be too remote to be worth the mischief invited by inviting attention to the parties’ subjective claims. Option 2: Require a “peace settlement” It is worth noting that the ICTY Appeals Chamber in Tadić further observed:

International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities […], in the case of internal conflicts, [until] a peaceful settlement is achieved. (para. 70) (emphasis added).

As Rogier Bartels argues here (at Opinio Juris), insisting upon a formal peace settlement before determining that LOAC has ceased to apply just does not seem to describe lex lata, and could be undesirable insofar as it could have the effect of sustaining LOAC authorities in circumstances that might have fallen far below the threshold that would be necessary for LOAC’s applicability in the first instance. The existence of a peace agreement, in short, might have some relevance (on the evidentiary theory advanced above) but should not be treated as either a sufficient or necessary condition. Option 3: Apply the threshold Tadic test both at the outset and on ongoing basis If formalities are to be disregarded in favor of a facts-on-the-ground assessment throughout the conflict and not just at the beginning, it would seem to follow unavoidably that the Tadić approach would need to apply as the ongoing measure of whether armed conflict continued to exist. Which brings us to a further question. 3. Addressing the “revolving door” risk? In Gotovina, the ICTY Trial Chamber described the potential for a “revolving door” problem in which parties to conflict might find themselves unsure at some moments as to which legal regime governed:

Once the law of armed conflict has become applicable, one should not lightly conclude that its applicability ceases. Otherwise, the participants in an armed conflict may find themselves in a revolving door between applicability and non-applicability, leading to a considerable degree of legal uncertainty and confusion.

Prosecutor v. Gotovina (2011), Trial Chamber Judgment, para. 1694. On one hand, this is an important caution, especially when mapped onto the context of a NIAC: There is a real risk of creating excessive uncertainty regarding the relevant legal regimes if one is too quick to make a determination that circumstances have changed, given the potential for the intensity of any given conflict to wax and wane over time and space, given the unpredictability of such fluctuations, and given the fog of uncertainty that often will surround the relevant facts (especially about the non-state party’s degree of organization. On the other hand, this sensible caution cannot become an excuse for paralysis. At some point, it must be possible to make the factual determination that the violence has fallen far enough below the intensity criterion to justify a conclusion that IHL no longer applies; that one of the parties has lost its organizational coherence to an intolerable degree; or both. This is so despite the fact that the passage of time could see a turn of events re-crossing the IHL threshold; recent developments in Iraq give us an ample demonstration of this. The trick then is to determine whether there is anything useful that can be said, either as a matter of legal doctrine or application of doctrine to law, about how best to strike the balance between Scylla and Charybdis in this context. One approach is to adopt a default rule tilting the playing field one way or the other. That is, one might adopt a presumption in favor of continuing an armed-conflict characterization once made, abandoning it only upon an unusually-clear showing that the violence or organization criteria are no longer met. That is the approach implied by the Gotovina revolving-door risk. It has the virtue of easier administrability, but then again so too would a reversed approach making it comparatively easy to abandon the armed-conflict characterization. The approach implied by Gotovina thus needs something else to recommend it. Perhaps the answer is simply that this solution is more likely to be adhered to by state parties. There would still be the objection, however, that this approach might tend to prolong hostilities unnecessarily. This seems a logical conclusion at first blush, but on closer inspection that is less clear. Might a premature assumption that the conflict has ended result in practical conditions on the ground enabling an insurgent force to gather strength and later resume fighting? Sometimes yes and sometimes no, presumably; we’ll never know for sure, not in advance at any rate. At any rate, we need to be cautious with the assumption that it is always best to bring about an end to the armed-conflict characterization at the earliest possible moment.