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Letter to the Editor: “Lines in the Sand”—A Reply to Professor Haque

I have noted with interest Professor Adil Haque’s critique of my posts (here and here) concerning the classification of armed conflicts involving non-consensual cross border action by non-State actors—U.S. strikes against ISIL in Syria being a case in point.  I have also had the opportunity to read Professor Terry Gill’s response to the Haque critique regarding Gill’s article on the classification of the Syrian conflict. It is important that this issue be looked at from all perspectives, especially in light of the ICRC’s 2016 Commentaries to the Geneva Conventions on this topic, and Professor Haque’s comments add to that dialogue. Unsurprisingly, I find Professor Gill’s response highly persuasive on a number of points that I would otherwise raise, and therefore confine my comments to the specific issues raised in Professor Haque’s piece concerning consent, and the issue of assessing what a State actually does, and against whom, before determining how military action is categorized.

Regarding consent, Professor Haque disagrees with my assessment that the use of that term in the context of the ICRC 2016 Commentary makes it difficult to separate the jus ad bellum from the jus in bello.  He goes on to state that consent is relevant to both bodies of law and uses the example of “occupation” to highlight its application to international humanitarian law.  Unfortunately, Professor Haque’s post references my argument about consent without addressing the specific context in which it was made.  The association between the ICRC theory and consent relating to the jus ad bellum was specifically raised by me because of the express reliance in the 2016 Commentary on the International Court of Justice’s Armed Activities Case (para. 261), and because the Commentary relies on Dapo Akande’s thoughtful analysis (para. 261, fn 100), which refers to that case and includes in his analysis a breach of Article 2(4) of the United Nations Charter. Not referring to this theoretical underpinning does not make it any less a factor in the genesis of the Commentary approach. It is difficult to find a clearer connection to the jus ad bellum. Professor Haque’s critique would have been more persuasive had he addressed this aspect of my argument.

The Haque critique also refers to a State “non-consensually” occupying the territory of another State creating an international armed conflict.  I agree that this would be the situation if an occupation was occurring. While I do not frame it in the context of consent, a specific example I provided was that Turkey was potentially creating just such a situation with its August 2016 intervention should it seek to establish a buffer zone in Syria.  However, contrary to what is suggested by Professor Haque, that same logic does not apply to the use of armed force and the existence of an armed conflict.  Indeed, it bears emphasis that the Updated Commentaries (see paras. 301-22) saw the need to amend the previously broad assertion (found in the Pictet Commentaries) regarding the application of the Fourth Geneva Convention by significantly raising the threshold for actions to constitute an occupation. That significant revision substantively undermines Professor Haque’s assertion. Simply put, not all cross border interventions create an occupation, or invoke the Geneva Conventions. A deeper analysis and factual underpinning is required. Absent an occupation, or some other substantive act indicating hostilities between the States it remains that an international armed conflict is not “automatically” created because a border is crossed, territorial waters traversed, or airspace is entered into by one State without the consent of the territorial State.

This leads to another observation.  Professor Haque suggests it is an “unattractive view” to wait to actually see what the intervening State is doing before categorizing the conflict.  This alone highlights the “formalistic” nature of the argument he is seeking to support. It seems the only “facts” that need to be known, on his view, is the non-consensual crossing of a jurisdictional line involving the use of force. Of course it matters what a State is actually doing when assessing if an armed conflict is occurring, and if so what type. The rigidity and overbreadth of the “non-consensual” approach is highlighted by Terry Gill’s observation in his response that “any unlawful aerial incursion would seemingly trigger an armed conflict.” The reliance on what essentially appears to be a “line in the sand” approach can easily come back to haunt the person holding the stick.

The Haque critique embraces a theoretical approach that does not seem to take into account the complexity of modern operations, the weakness of State governance, or the practical challenges presented to States and their security forces. In this regard, the law cannot be applied in a factual vacuum.  As I highlighted in my analysis a State may be intervening for the purposes of law enforcement (e.g. hostage rescue against criminal gangs), to evacuate their citizens and other civilians at risk, or to conduct a strike against a non-State actor operating in completely ungoverned territory.  Depending upon the situation, international humanitarian law applicable to a non-international armed conflict may be relevant, or the more restrictive human rights law could apply to the operation. For example, not all cross border “non-consensual” interventions by State actors in the “ungoverned” spaces of the world involve armed conflict. This is simply the reality of our contemporary security situation. Criminal gangs, including pirates, regularly engage in hostage taking. Where operationally sound, a State will intervene to protect its nationals if the territorial State is unwilling or unable to do so. Where that intervention is for solely criminal law enforcement purposes the governing body of law must be human rights law. In assessing the choice applied by a State, the analysis must take into account the actual situation “on the ground,” as well as the operational goal. In other words, the applicable body of law has to relate to the action being taken, and who it is being taken against.

Requiring that those assessing State action actually consider what is being done does not mean “we will not know which legal protections civilians enjoy until it is too late,” as Haque puts it.  State action regarding the use of force is subject to the legal regime appropriate to the operation as it is being carried out. The acting State and its military forces have an obligation to sort out this issue before acting.  They should be held accountable based on all the facts, as well as the law. That is what a court will do. There is no requirement to presumptively declare an international armed conflict exists on the off chance one might actually occur in fact.  That is unless one of the broader goals underpinning the theory is to deter the use of force in the first place.

The rush to determine an international armed conflict is in existence raises the issue of whether the legal “tail” may be wagging the conflict “dog.” The rules applied by lawyers, States and ultimately courts have to match the true nature of the conflict rather than try to force the conflict to match the rules, or apply rules that were developed with a different conflict in mind. Legal theories cannot be divorced from practical reality, or they will simply remain academic in nature. There cannot and should not be a reflexive, indeed automatic, assertion there is an international armed conflict in existence. The danger arises when the conflict dog is unleashed. The consequences politically, and importantly in terms of protection for the civilians involved, requires a deeper assessment.  There simply is too much at stake. In jus ad bellum terms it seems ironic that the “non-consensual” approach can potentially create the very situation some of its proponents are hoping to avoid by establishing the rule in the first place, an increase in international armed conflicts.

Of greater practical consequence than what could become an endless back and forth of this academic discussion is the reality of what is occurring in Syria. In other words, get beyond the border and discuss what is actually going on. For example, the actions taken by Turkey in Syria, and even Iraq does raise issues of whether it has become an occupying power. I agree with Professor Haque that occupation triggers an international armed conflict. However, considerable analysis, including a clear understanding of the factual basis needs to occur before it is concluded an occupation is occurring. In terms of the debate going forward there is also considerable merit to looking at the broader questions raised by Ryan Goodman in an earlier post as to whether action taken by the United States in Syria has now created an international armed conflict with the territorial State.  This has started, as is evidenced in recent posts by Ryan Goodman on this site and Deborah Pearlstein at Opinio Juris.  However, underpinning consideration of what is actually occurring is an important discussion raised by Ryan about whether there can ever be an international armed conflict without it constituting a “war.” In Gabor Rona’s view that is not the case. The danger is that proponents of the “non-consensual” intervention argument may be relying too heavily on the notion that the two can be kept separate.

Further, it is attractive to argue that there are advantages to determining an international armed conflict exists because there are more certain humanitarian law rules governing the conduct of hostilities and treatment of detainees during international armed conflict, or prosecutions may be possible before national and international courts. However, those advantages have to be weighed against the possible disadvantages of potentially prematurely declaring powerful well-armed States are at “war” with one another. The argument has also been made that an international armed conflict categorization should be favoured because the European Court may be reluctant to apply humanitarian law rules to a non-international one. This seems speculative and may not materialize in the post Hassan environment. The European Court amended its previously strict adherence to an exclusively human rights law approach as it has struggled to deal with international armed conflict. It may yet follow the lead of its Inter-American counterpart and acknowledge the application of humanitarian law rules to internal conflicts as well.  The post 9/11 security environment is forcing change concerning many long held views of international law. In any event, to the outside observer this ultimately seems to be more of a question of European treaty interpretation than one that should necessarily be determinative of how the broader international legal community views this issue.

In an international humanitarian law context this debate is about interpretive choices that can have far reaching consequences both within and beyond that body of law. They should not be made without a full assessment of the facts on ground, as well as their short- and long-term impact on international security. There is considerable danger in rushing to embrace an interpretive choice that increases the number of inter-State conflicts, and potentially unleashes the elevated levels of violence associated with “war” between States. If there is one lesson to be learned from the 20th Century it is the tremendous human suffering that can result. It is prudent to refer to Professor Gill’s assessment in his article (p. 387) where he notes:

if the conflict between the coalition and ISIS is classified as an IAC in which the coalition States are acting against Syria and are consequently “at war” with it, then they logically would also be “at war” with Russia and Iran as co-belligerents with Syria. Needless to say, this would have consequences, both legal and non-legal, which go far beyond the scope of the conflicts within Syria.

Conflict categorization can have significant political, and ultimately humanitarian consequences. Some of it unintended and exceedingly tragic. This seems to me to be at the heart of Terry Gill’s, Deborah Pearlstein’s, and Gabor Rona’s contributions. As horrific as the Syrian situation is, a determination that the conflict has morphed into “wars” involving multiple States engaged in a region that readily meets the definition of a “powder keg” has the potential to expand the violence, death and destruction in terms of geography and human suffering. This can potentially include the use of lawful methods of war such as strategic bombing.  What is more, with the determination that there is a conflict between States, proponents of the traditionally exclusionary lex specialis theory will no doubt be empowered to argue there is little or no room for human rights law to apply.  It is more difficult to make this argument with respect to conflicts not of an international character because of the nature of counterinsurgency and counterterrorism operations.

In summary, while the humanitarian goals being sought are laudatory, the potential gains may appear less attractive if they ultimately facilitate the crying of havoc and let slip the dogs of war. Ultimately, the discussion of these classification issues would benefit from a more holistic consideration of their impact, including on the other bodies of law applicable to “war.”

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About the Author

is Brigadier-General (Ret’d), Canadian Forces, QC. He served four years as the Judge Advocate General, and is the author of Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict.