Chapter 3: Triggering the LOAC

1. Chapter 3: Triggering the LOAC

2. Historical Background • Prior to 1949, the laws and customs of war applied to ‘war’ • War was (and remains) an international legal term of art • Because it was assumed war would be self-evident, law of war treaties (like Hague IV) did not define situations of applicability

3. Historical Background • War required a contention between states in which one state sought to overwhelm another an impose its will • This resulted in a potential conflict regulation lacunae: • Military actions not motivated by a desire to impose a state’s will on another state • Conflict between a state and a non-state entity

4. Historical Background • WW II exposed the risk of ‘law avoidance’ resulting from the absence of a law application trigger • Spanish Civil War exposed the need to regulate intra-state hostilities (especially due to the failure of the belligerency concept)

5. Historical Background • Inclusion of law application triggers was a major advancement in the 1949 Geneva Conventions • These law triggering articles have since evolved into the CIL trigger for all LOAC regulation (not just the Geneva Conventions)

6. The CA2/CA3 Equation • 1949 Geneva Conventions substituted ‘armed conflict’ for war as the trigger for treaty applicability • This was a deliberate effort to ensure law applicability based on the de facto existence of situations mandating humanitarian protections

7. THE “TRIGGERING” MECHANISM • Common Article 2/Common Article 3 • The conflict classification mechanisms of the 4 Geneva Conventions • The international law standard for when the law of war applies

8. THE “TRIGGERING” MECHANISM • Common Article 2: The “international armed conflict” standard Any dispute between states leading to the intervention of armed forces (to include an uncontested belligerent occupation) = an international armed conflict TRIGGERING THE FULL CORPUS OF THE LAW OF WAR

9. THE “TRIGGERING” MECHANISM • CA 2 is triggered only when hostilities result between two states • CA 2 Commentary: • Focus on de facto situation • Focus on de facto authority of state • In some situations, a state may still contend that an intervention into another state’s territory is not the result of a genuine dispute • Cross border ‘hot pursuit’ operation • No legitimate government to dispute intervention

10. THE “TRIGGERING” MECHANISM • Intervention of Armed Forces: • CA 2 Commentary: • Duration of hostilities irrelevant • Intensity of hostilities irrelevant • Some scholars assert that armed conflict requires: • Organized armed groups • A certain level of significant intensity

11. THE “TRIGGERING” MECHANISM • Common Article 3: The “non-international armed conflict” standard • Any armed conflict not involving a contest between two states: • state v. non-state group • non-state v. non-state group • TRIGGERS ARTICLE 3 HUMANITARIAN PROTECTIONS

12. UNDERSTANDING COMMON ARTICLE 3 • A “mini convention” within each treaty • Looked to for two distinct purposes • Procedural Component: Conflict Classification: non-international armed conflict • Substantive Component: Humane treatment obligation applicable to any person not actively participating in hostilities

13. WHAT IS NON-INTERNATIONAL ARMED CONFLICT? • More than riots or isolated acts of banditry • Pictet’s non-binding criteria: • Organization • Authority • Territory • Respect for Law of War • Government responds with regular armed forces

14. WHAT IS NON-INTERNATIONAL ARMED CONFLICT • Originally NIAC was synonymous with ‘internal’ armed conflict: • Civil Wars • Internal Dissident Uprisings • Many experts believe it now extends to ‘transnational’ armed conflicts: • Hostilities between a state and non-state group • Transcending the national borders of the state • Hamdan v. Rumsfeld: CA 3 applies to any armed conflict not covered by CA 2

15. WHAT IS NON-INTERNATIONAL ARMED CONFLICT? • The 1977 Protocol II Additional Triggering Requirements: • Responsible Command • Control Territory Enabling: • sustained and concerted mil ops • implementation of Protocol provisions • US Position: apply AP II to any armed conflict that triggers CA 3

16. THE LOAC TRIGGER

17. Intruding on State Sovereignty • When triggered, the LOAC imposes obligations on states • This limits the discretion a state may exercise in responding to a threat • CA 2: Maximum intrusion (because the hostilities are inter-state) • CA 3: More restrictive intrusion (because states sought to preserve discretion to deal with internal dissident threats)

18. WHAT LAW APPLIES? The Essence of Sovereignty Domestic Law International Law

19. Piercing the Shield of Sovereignty Internal Armed Conflict/CA 3 State Sovereignty Human Rights International Armed Conflict/CA 2

20. WHAT ABOUT THAT “HUMAN RIGHTS” ARROW? • International Law that applies at ALL times to protect individuals from their governments • NOT a component of the LOAC, although core protections are often synonymous • While fundamental principles may overlap, TRIGGERING MECHANISMS ARE TOTALLY DISTINCT

21. HOW DO THE “PROTOCOLS” FIT IN? • 1977 Supplements to the Geneva Conventions of 1949 • An intersection of the Hague and Geneva traditions • Both treaties include additional humanitarian protections • Both treaties include provisions regulating the means and methods of warfare

22. HOW DO THE “PROTOCOLS” FIT IN? AP I: A supplement to rules related to international armed conflict When you think CA2 international armed conflict, think Hague, Geneva, and Customary Provisions of AP I

23. HOW DO THE “PROTOCOLS” FIT IN? AP II: A supplement to the CA 3“mini convention” applicable to non-international armed conflicts When you think CA 3 NIAC, think CA 3, plus Protocol II

24. Status of AP I and II in US Practice • Never ratified by US because of controversial provisions • US rejected AP I • US has indicated a willingness to enter into AP II (although still no advice and consent from Senate) • US considers most articles to reflect customary international law • Steadily growing case for overall customary international law status

25. Customary International Law and IAC • CIL regulatory norms apply to both CA 2 IAC and CA 3 NIAC • Role of CIL is less significant for IAC because conventional law is more developed • However, CIL plays an important role for US practice because it often results in applicability of AP I provisions

26. Customary International Law and NIAC • Many of the norms developed for IAC have ‘migrated’ to the realm of NIAC since 1949: • IAC/NIAC distinction almost irrelevant for targeting • LOAC treaties increasingly apply to both types of armed conflict • Humane treatment is a constant obligation in any armed conflict • Key remaining distinction: • inapplicability of lawful combatant status for non-state belligerents • A state cannot be subject to the law of occupation in its own territory

27. Questions?