Reuters recently reported that “armed militia groups are preparing for the possibility of a stolen election on Nov. 8 and civil unrest in the days following a victory by Democrat Hillary Clinton.” According to the article, one of these groups, the Three Percent Security Force, has “mobilized for rifle practice [and] hand-to-hand combat training.”
With that unsettling image in mind, I wanted to express concern over Professor Adil Haque’s proposal for lowering the threshold for when States can (or should) apply the laws of war (or international humanitarian law, IHL) when engaged in hostilities with non-state armed groups.
The commonly understood test for determining whether IHL applies to a situation where a State is fighting a non-state armed group rests on two factors: organization and intensity. The non-state armed group must be sufficiently organized and the hostilities must reach a minimum level of intensity. If these requirements are met, then the violence rises to the level of a “non-international armed conflict” (NIAC) and, as a matter of international law, the relevant rules of IHL become fully applicable.
Adil proposes that we should retain the organizational element of the threshold test but eliminate the intensity part of the test. He explains, “if an organized armed group has the capacity to sustain military operations then any military operation by or against that group should be constrained by the law of armed conflict.” He also argues that “the organization and capacity of the group is sufficient to distinguish military operations by or against the group” from acts such as internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, all of which fall below the threshold test.
If we follow Adil’s proposal, the rules of IHL would apply to more situations—perhaps even to situations that might arise if local or federal US law enforcement agents engage in, as Adil puts it, “minor skirmishes” with the Three Percent Security Force. I contend that this is a dangerous proposition and is not the intent of IHL specifically or international law more generally.
IHL as a Trojan horse: IHL provides a restrictive set of rules that prohibit warring parties from committing intolerable acts, such as torture and murdering civilians. At the same time, IHL permits governments to use force in harsher ways compared to the law of human rights that governs situations that fall short of armed conflict. In other words, lowering the NIAC threshold triggers IHL’s important humanitarian prohibitions but it also opens the path for States to rely more regularly on IHL’s targeting and detention rules. These rules, when placed next to theories of total war, are nothing but restrictive. At their foundation, they place limits on how enemies can fight wars. But when compared to international human rights law (IHRL) as a baseline, IHL’s targeting and detention rules are clearly more permissive.
One of the most marked examples of this is IHL’s principle of proportionality, which permits incidental civilian harm in a manner that IHRL prohibits. IHL is also traditionally believed to permit a soldier to shoot the enemy as a means of first resort. Under IHRL, force should be applied in a graduated manner and lethal force can be used only as a means of last resort and only when necessary in the face of death or serious risk of injury. If we remove NIAC’s “intensity” requirement, after a little bit of gunfire between law enforcement officials and members of an organized armed group—perhaps of the ilk mentioned in the Reuters story, or well-organized and heavily armed criminal gangs—a State might think IHL entitles it to shoot dead, and on sight, a member of those groups who poses no immediate threat; and a State might think IHL entitles it to do so even if it knows with certainty that it will kill bystanders in the process. This would be a vast expansion of the State’s authority to kill.
In other words, a lot’s at stake when one proposes lowering the threshold for applying IHL. The updated ICRC Commentary rightly cautions that the application of IHL “must therefore be neither lightly asserted nor denied” and that “it is important that the rules applicable in armed conflicts apply only in the situations for which they were created.”
As Adil mentions, legal solutions may exist that allow the restrictive elements of IHL to apply to minor skirmishes while silencing or tempering some or all of IHL’s permissive rules. Even if true, history teaches that relying on such arguments is an overly idealistic safeguard. Once IHL applies, States will have more latitude to argue that they aren’t, or aren’t fully, bound by IHRL. From there, the concern is that States will—as they’ve done in the past—essentially make up their own rules or inappropriately borrow from other bodies of law to regulate issues that the IHL of NIAC doesn’t directly cover. In the United States, government lawyers have used this approach to structure nebulous internment procedures (which they go on to define as mere policy choices rather than legal responsibilities) and to justify the contentious legal concept of “associated forces” (which has helped the US justify its geographically unbound approach to NIACs). Professor Rebecca Ingber raises additional US domestic law consequences of lowering the NIAC threshold.
In short, however benign and well-intentioned proposals are to apply IHL’s prohibitive rules to a broader set of scenarios, IHL has the additional potential of being an unwitting Trojan Horse that allows IHL’s permissive rules (and misguided interpretations of those permissive rules) to quietly invade and tamper with other parts of international law.
Moreover, if the application of IHL is motivated by a need to apply a strong regulatory regime to minor skirmishes because they’re resulting in serious abuses, the problem likely isn’t that there exists a significant gap in international law. More likely, the problem is that the offending party isn’t following existing international law. Most of IHL’s prohibitions in NIAC are—either explicitly or implicitly—prohibited under applicable IHRL and domestic law. So, why let IHL through the gate when it gives a State that doesn’t respect its IHRL obligations in the first place a stronger (if even wrongheaded) justification to use force beyond what IHRL permits? The problem of putting the IHL genie back in the bottle is made all the worse by the fact that once a situation is classified as a NIAC it can also be difficult to know when the armed conflict, and by implication IHL’s rules, ends.
Exceptionalism and Redundancy: In certain situations, IHL is put forward as being important to apply whenever the military uses force abroad because—so the argument goes—unlike IHRL, IHL applies extraterritorially. If true, IHL would provide important rules that regulate minor overseas or cross-border skirmishes that otherwise exist in a legal vacuum because IHRL doesn’t apply to them.
This argument doesn’t carry the day. First, changing the threshold for when IHL applies to all NIACs shouldn’t be based on the circumstance of only extraterritorial or cross-border use of force. We should be sure then that it’s not an exception or highly exceptional situation that dictates the rule. Moreover, even if skeptics aren’t convinced that the US might brandish IHL’s rules irresponsibly when applying it to minor skirmishes—whether at home or abroad—we must take into account not only how the most restrained States might apply the law, but also how the more, and the most, unrestrained States might apply the law.
Second, the argument that IHL fills an extraterritorial gap in IHRL doesn’t account for the fact that certain rules of IHRL, including the prohibition on arbitrary deprivation of life, are part of customary international law, which apply without extraterritorial constraints. It also doesn’t account for the reality that IHRL treaty law applies extraterritorially in certain situations and, moreover, that list of situations appears to be expanding. These legal realities should be embraced, not shunned or undermined. Lowering the NIAC threshold would add IHL to situations where it doesn’t belong, confuse the law unnecessarily, and feed opponents of IHRL who wish to see it pushed aside by IHL. A better approach to dealing with extraterritorial or cross-border skirmishes is to build upon the already well-accepted extraterritorial application of IHRL.
Perhaps it could also be argued that when IHL’s rules for NIAC are applied to minor skirmishes, more accountability options exist such as through domestic legal systems that allow for universal jurisdiction for NIAC-related war crimes. Given the risks that arise when you apply IHL to minor skirmishes, these opportunities have to be weighed against that fact that IHRL similarly requires universal criminal prosecution for serious crimes, such as torture and enforced disappearances. Moreover, I would imagine that it’s often easier to pursue the normal domestic crime of murder compared to, as Adil points out, needing to take into account the principles of distinction, precaution, and proportionality. These principles carry with them their own complicating legal and evidentiary issues that in many ways limit, not expand, chances for greater accountability.
On a final note, IHL is often put forward as being important to apply because, in addition to domestic law, it binds non-State organized armed groups, whereas the traditional view is that IHRL doesn’t in many circumstances. I agree that there might be some benefit to this. Applying IHL to a broader set of situations where organized armed groups are involved in hostilities would provide important new legal protections with few drawbacks with regard to the behavior of those groups. Yet, I don’t think it’s a solution that outweighs all the major concerns I have with lowering the NIAC threshold. I do, however, strongly recommend that you read Dr. Daragh Murray’s great new book (and book discussion that I’m a part of) that explores ways in which IHRL might bind non-state organized armed groups.