Shots Fired: A Reply to Gill and Watkin

Thanks to Terry Gill and Ken Watkin for their replies to my earlier post. To recall, the ICRC takes the view that the use of armed force by one State on the territory of another, without its consent, triggers an international armed conflict between the two States to which the law of international armed conflict applies. I offered my arguments in favor of this view here and responded to criticisms of that view by Gill and (to a lesser extent) Watkin here. We all agree that the classification of conflicts has important implications for the conflagration in Syria.

In his reply, Gill writes that his “position is that a State uses force against another State when it engages in hostilities against its armed forces, attacks national assets under the territorial State’s control, or occupies its territory.” On this view, a State that launches terror attacks on the civilian population of another State, or bombs refugee camps owned and operated by the UN or an INGO in the territory of another State, does not use force against that State. Nor does the attacking State violate the law of armed conflict (international or non-international) or commit war crimes. I find this view difficult to accept.

Gill also writes that

an intrusion or violation of sovereignty in itself does not determine whether conflict between them exists. If that were the case, any unlawful aerial incursion would seemingly trigger an armed conflict. That would be hard to defend considering the frequency at which such incursions occur.

Watkin endorses this objection in his reply as well.

This objection seems misplaced, for two reasons. First, the Commentary clearly refers to armed interventions and armed intrusions involving violence, that is, to attacks on the State’s territory. Second, the Commentary clearly

rule[s] out the possibility of including in the scope of application of humanitarian law situations that are the result of a mistake or of individual ultra vires acts, which – even if they might entail the international responsibility of the State to which the individual who committed the acts belongs – are not endorsed by the State concerned. Such acts would not amount to armed conflict.

Accordingly, an unlawful but harmless aerial incursion, resulting from a pilot’s mistake or contrary to a pilot’s instructions, would not trigger an armed conflict.

In his article in International Law Studies, Gill took the view that territory, property, and civilians under the control of an armed group can no longer be identified with the territorial State. On this basis, Gill argued that uses of force on such territory that damage such property and kill or injure such civilians are not directed against the territorial State. Watkin seems to endorse this view. As far as I can tell, neither has provided any legal basis for this view.

In my post, I raised doubts about this view. In my view, territory, property, and civilians under the control of an armed group remain identified with the territorial State. As evidence, I noted that if the intervening State enters such territory and exercises effective control, a State of occupation would arise (absent consent). Since control never passes back to the territorial State, this scenario indicates that loss of control does not alter a State’s legal boundaries.

In his reply, Gill indicates that territorial control was never central to his view:

If the territorial State no longer controls the territory or public property in a particular part of that State because it is under the control of the armed group, an attack against the armed group controlling it is in my view not tantamount to an attack on the territorial State because the attack is not directed against the territorial State.

As we have seen, Gill takes the view that an attack is directed against a State only if it is directed at that State’s armed forces or national assets. Accordingly, on Gill’s view, an attack against an armed group is not directed against the territorial State even if the armed group does not control the area in which it is attacked. Put the other way around, an armed group’s control over territory is irrelevant to whether an attack against that group is tantamount to an attack on the territorial State. As noted above, I find Gill’s view implausibly narrow.

In his reply, Watkin repeats his claim that the ICRC conflates the jus ad bellum and the jus in bello. I have already explained why I think this claim is mistaken. Watkin’s only evidence for this claim appears to be that the ICRC cites, in support of its position, the ICJ’s decision in the Armed Activities case and a chapter by Dapo Akande.

Recall that the ICRC takes the view that the use of force on the territory of another State, without its consent, is a use of force against that State, and that the use of force by one State against another triggers an armed conflict between the two States.

Accordingly, the relevant finding by the ICJ in the Armed Activities case was that Uganda’s intervention into the DRC to fight non-State armed groups was a use of force by Uganda against the DRC. Of course, the ICJ went on to find that Uganda’s use of force against the DRC was not a lawful exercise of self-defense. However, that jus ad bellum finding is not relevant to conflict classification.

Similarly, Akande writes that

when States use force abroad, even against non-State groups, they routinely invoke article 51 of the UN Charter. Article 51 is an exception to article 2(4) and invocation of that article is an acceptance that article 2(4) is engaged and that absent article 51, the use of force would be against the territorial integrity of another State.

According to this passage, the use of force against non-State groups on the territory of another State, without its consent, may be lawful or unlawful. However, such a use of force is always against the territorial State.

In my view, Watkin has failed to show that the ICRC conflates the jus ad bellum and the jus in bello. Let us therefore turn to other issues.

Watkin writes that

the Updated Commentaries . . . significantly rais[e] 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.

Since I never claimed that “all cross border interventions create an occupation, or invoke the Geneva Conventions” it is not clear how challenging that claim “substantively undermines” my position. Indeed, the law of occupation requires a substantial threshold for its application because the occupier must be capable of fulfilling the affirmative duties that the law imposes. In contrast, the law governing the conduct of hostilities does not require a substantial threshold for its application because it generally imposes negative duties of restraint.

Watkin next writes that

Professor Haque suggests it is an “unattractive view” to wait to actually see what the intervening State is doing before categorizing the conflict.

The “unattractive view” to which I referred was Watkin’s view that we should wait to see what harm the intervening State inflicts before categorizing the conflict. To recall, the ICRC observes that the use of force against an armed group may kill or injure nearby civilians of the territorial State. Watkin responded that such harm to civilians “may be a mere possibility,” that the attack “may not even affect its population,” and that conflict categorization should be based on “an assessment of what actually happens.” On this view, as I noted, “we will not know which legal protections civilians enjoy until it is too late.”  If Watkin misstated his view then he is welcome to clarify or amend it. But the view, as stated, remains deeply unattractive.

Finally, Watkin writes that “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.” Indeed. In each case, we should determine whether the intervention amounts to a use of armed force against the territorial State. If it does, then the law of international armed conflict applies to and constrains that intervention. Other bodies of law, including the law of non-international armed conflict and international human rights law, may also apply and further constrain that intervention. The parallel application of different bodies of law raises important and difficult questions. We should face those questions squarely, and not pretend that they do not arise. The latter approach would be, as Watkin might say, “divorced from practical reality.” 

About the Author(s)

Adil Ahmad Haque

Professor of Law and Judge Jon O. Newman Scholar at Rutgers Law School, Author of Law and Morality at War Follow him on Twitter (@AdHaque110).