The Continuing Importance of a Low Threshold for LOAC Application in International Armed Conflict

Reports yesterday from Ukraine include the news that at least one Ukrainian soldier at a military base in Crimea has been killed, most likely by Russian soldiers.  Furthermore, the Ukrainian government has authorized its soldiers to use force as needed in response to threats and hostile action from Russian forces.  These developments may unfortunately be the start of further hostilities between Russia and Ukraine, depending on what transpires over the next few days. There is little doubt that if Russian and Ukrainian forces engage in active hostilities, the law of armed conflict (LOAC) applies to any and all such actions.

It is essential to recognize, however, that LOAC has applied to the situation in Crimea since the moment Russian forces entered Ukrainian territory without the consent of the Ukrainian central government some three weeks ago.  This may seem counter-intuitive in the absence of any fighting and the regular reports that Ukrainian soldiers were in fact unarmed on most bases and in most confrontations.  Perhaps so, but the immediate application of LOAC upon any dispute between two states that leads to the engagement of their armed forces is a fundamental component of LOAC’s core purposes and effectiveness.

Common Article 2 to the four Geneva Conventions defines the application of the Geneva Conventions, stating that “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” Although Common Article 2 does not specifically define the term “armed conflict,” it is understood to apply to any situation in which the armed forces of two states engage with each other.  No matter how short-lived or minor, any hostilities between the armed forces of two or more states constitute an international armed conflict, even if one or both states deny the existence of an armed conflict.  Similarly, any partial or total occupation of the territory of a state by another triggers the Geneva Conventions, even if the occupation meets with no resistance and even if the occupying state denies any such occupation.  Arguments by the Axis powers during World War II regarding the inapplicability of LOAC highlighted the need to create a de facto law trigger so as to eliminate such law avoidance.

Furthermore, the threshold for the existence of an international armed conflict is deliberately set quite low in order to maximize LOAC’s protective purposes.  As the Commentary to the Geneva Conventions explains, “it makes no difference how long the conflict lasts, how much slaughter takes place or how numerous are the participating forces; it suffices for the armed forces of one Power to have captured adversaries falling within the scope of Article 4 [of the Third Geneva Convention].”

Once Russian forces were on Ukrainian territory without consent, the need for LOAC’s protective framework became evident.  If Russian forces detained one or more Ukrainian soldiers – or vice versa – those detained would need LOAC to provide the necessary protections in terms of treatment, repatriation or other rights. Thus, for example, the Iranian detention of fifteen British sailors in the Persian Gulf in March 2007 triggered the law of international armed conflict and the Third Geneva Convention governed the treatment of the detained sailors. The fact that neither the United Kingdom nor Iran recognized a state of war or the existence of an armed conflict — or even denied any such conflict — had no bearing on the application of LOAC to those detainees.  The Commentary clarifies that even if both states deny the existence of an armed conflict, the Geneva Conventions still apply based objectively on the de facto situation: “[e]ven in that event it would not appear that they could, by tacit agreement, prevent the Conventions from applying. It must not be forgotten that the Conventions have been drawn up first and foremost to protect individuals, and not to serve State interests.”

In recent years, the discourse regarding how to distinguish between times of conflict – when LOAC applies – and situations of non-conflict – when the human rights or law enforcement paradigm applies has centered on the perceived risks of an overly generous recognition of conflict and application of LOAC.  Without a doubt, applying LOAC is consequential: LOAC authorizes the use of lethal force against enemy personnel and objects as a first resort and the detention of enemy personnel without charge until the end of hostilities.  Such authority is fundamentally at odds with peacetime conceptions of appropriate state authority and, if applied in situations not rising to the level of armed conflict, highly problematic and dangerous.

Faced with these consequences of LOAC application and the different – and higher – threshold for application of LOAC in situations of non-international armed conflict (conflict between a state and non-state actors or between two or more non-state groups), some now argue that the definition of international armed conflict requires some level of intensity to trigger LOAC. Thus, low level encounters — “border incidents” or “skirmishes” — would not constitute international armed conflict.  However, nothing in the Geneva Conventions, the Commentary or the jurisprudence of the international criminal tribunals supports such an analysis.  In fact, such an enhanced requirement for state-on-state conflict actually reduces LOAC’s effectiveness and risks leaving individuals without legal protection, a result fundamentally at odds with the entire developmental thrust of international law over the past century and more.

Requiring an intensity threshold for international armed conflict — that is, precluding the application of LOAC in Ukraine, for example, until there is actual sustained fighting between Ukrainian and Russian forces —excludes situations where LOAC’s protective purposes are in demand.  Narrowing LOAC’s application in this way directly undermines the fulfillment of its goals. LOAC’s low threshold for international armed conflict stems directly from and fulfills LOAC’s core protective purposes: soldiers or civilians are or could be in the hands of an adverse party and the law mandates and is the key source for humane treatment and other protections.  The threshold for international armed conflict is deliberately low, precisely because the law mandates such protections regardless of any level of intensity, and specifically to ensure humane treatment when individuals are in the hands of another state.

Continuing concerns about the eagerness of states to pronounce the existence of an armed conflict with terrorist groups or other non-state actors so as to harness LOAC’s authorities with regard to the use of force and detention should not be discounted.  Indeed, the use of drones and other advanced technologies to launch targeted strikes against terrorist operatives certainly raise grave concerns about the parameters of armed conflict and the limits of wartime authority.  However, allowing those concerns to inappropriately constrain the application of LOAC in state on state conflict risks perverting LOAC’s core purposes and unduly limiting LOAC’s fundamental protections for all persons in conflict situations. 

About the Author(s)

Laurie Blank

Clinical Professor of Law and Director of the International Humanitarian Law Clinic at Emory Law School