Abstract
Identifying non-state parties to armed conflicts becomes increasingly complex. As seen in recent conflicts in Syria, Libya, Yemen, or the Central African Republic, turmoil or inter-communal tensions escalate into armed conflicts, armed groups fragment increasingly, and some armed groups operate transnationally. Over the past decade, international jurisprudence developed numerous indicative factors to identify organized armed groups. While recognizing their great value, this chapter proposes to take a step back from these concrete indicators in order to recall broad but fundamental characteristics that any party to non-international armed conflict needs to have under international humanitarian law. It is shown that every party to a non-international armed conflict has to fulfil three criteria: it has to be (1) a collective entity; (2) with capabilities to engage in sufficiently intense violence; and (3) internal structures sufficient to ensure respect for basic humanitarian norms. Building on this basic understanding, the chapter provides an analysis of two questions that are highly relevant in contemporary conflicts but understudied: First, what link needs to exist between different armed groups in order to be considered one party to a conflict? And second, at what point can two or more groups that operate in different states form one transnational party to conflict?
Dr. Tilman Rodenhäuser is Legal Adviser in the Legal Division of the ICRC. This chapter was written in the author’s personal capacity and does not necessarily reflect the views of the ICRC.
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Notes
- 1.
- 2.
For a description of today’s conflict environment, see ICRC 2015.
- 3.
Sivakumaran 2012a, p. 210.
- 4.
Arimatsu and Choudhury 2014, p. 40.
- 5.
Blank and Corn 2013, p. 746.
- 6.
Blank and Corn 2013.
- 7.
Ibid., p. 740. Going in a similar direction, others have argued that “it is of minor importance whether armed groups are ‘organized’ or not if they are able to conduct armed resistance to such a degree that governmental forces must use military means and methods to achieve their aims”. Dahl and Sandbu 2006, p. 376.
- 8.
As Garraway puts it, the result of such proposals “is not so much to increase protection but to widen the authority for armed forces to use lethal force”. Garraway 2015, p. 443. Indeed, under international law, a heavy-handed government response to violence by poorly organised armed elements falls into the category of severe human rights violations, or crimes against humanity, rather than into that of potentially lawful acts of warfare.
- 9.
ICC, Prosecutor v Thomas Lubanga Dyilo, Judgment, 14 March 2012, Case No. ICC-01/04-01/06-2842 (Lubanga Dyilo), para 536; ICC, Prosecutor v Jean-Pierre Bemba Gombo, Judgment, 21 March 2016, Case No. ICC-01/05-01/08-3343 (Bemba), para 134. Contrary to Trial Chamber II, Trial Chamber III considered the ability to impose discipline an indicative factor only and not a strict criterion.
- 10.
ICC, Prosecutor v Germain Katanga, Judgment, 7 March 2014, Case No. ICC-01/04-01/07-3436 (Katanga), para 1185.
- 11.
- 12.
As will be seen below, the definition found in Article 3 common to the four Geneva Conventions (Common Article 3) is rather ecliptic. Article 8(2) of the Rome Statute of the International Criminal Court does not provide a clear definition either. The criteria listed in Additional Protocol II apply under that treaty and are generally understood as setting out a threshold that is slightly higher than the lowest NIAC threshold as found in Common Article 3. See Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (ICC Statute); and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (Additional Protocol II).
- 13.
ICTY, Prosecutor v Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, Judgment, 3 April 2008, Case No. IT-04-84-T (Haradinaj et al. 2008), para 60; Lubanga Dyilo, above n 9, para 537.
- 14.
ICTY, Prosecutor v Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, Retrial Judgment, 29 November 2012, Case No. IT-04-84bis-T (Haradinaj et al. 2012), para 395; ICTY, Prosecutor v Ljube Boškoski and Johan Tarčulovski, Judgment, 10 July 2008, Case No. IT-04-82-T (Boškoski and Tarčulovski), paras 199–203.
- 15.
Lubanga Dyilo, above n 9, para 537. For establishing these factors, the Trial Chamber refers to ICTY jurisprudence. The same list was reproduced in Katanga, above n 10, para 1186; see also Bemba, above n 9, para 134.
- 16.
- 17.
- 18.
When the ICTY developed the first set of indicative factors in the Haradinaj case, it analysed non-state forces as examined in the Tadić case, the Celebici case, or the Halilovic case, which where highly organised forces linked to state-like entities.
- 19.
As, for example, the eminent Italian jurist Gentili emphasised in 1648, warring parties that are not sovereign states “are not properly enemies, even although they conduct themselves as soldiers and commanders and meet the attack of commanders of opposing legions. He is an enemy who has a state, a senate, a treasury, united and harmonious citizens, and some basis for a treaty of peace’. Gentili 1589, pp. 24–25. For further discussion, see Rodenhäuser 2018 (forthcoming).
- 20.
Vattel 1758, p. 293.
- 21.
For example, in some cases the U.S. Supreme Court directly cited de Vattel. See The Brig Amy Warwick; The Schooner Crenshaw; The Barque Hiawatha; The Schooner Brilliante (The United States Supreme Court, 1862), in Scott 1923, p. 1436. For in-depth discussion of relevant state-practice, see Rodenhäuser 2018 (forthcoming).
- 22.
- 23.
- 24.
Wheaton 1936, p. 30, n 15.
- 25.
Lauterpacht 2012, p. 176.
- 26.
If these requirements were not met, violence was sometimes referred to as “insurgency” or “rebellion”, which did not make the laws of war applicable. For some discussion on these concepts, see Moir 2002, p. 4.
- 27.
Beale 1896, p. 407.
- 28.
- 29.
Additional Protocol II, above n 12.
- 30.
- 31.
See Article 31(1) of the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).
- 32.
- 33.
Tadić 1995, above n 1, para 70.
- 34.
This notion can be traced back to the work of the Genevan philosopher Rousseau, who found already in 1762 that “[w]ar then is a relation, not between man and man, but between State and State, and individuals are enemies only accidentally, not as men, nor even as citizens, but as soldiers”. Rousseau 1762, p. 6. For further discussion, see Greenwood 2008, p. 20.
- 35.
- 36.
- 37.
What the term “command structure” may mean in organised armed groups is further discussed below and should not be understood narrowly. However, as Dinstein points out: “When divested of any command structure, an armed group will not count as organized.” Dinstein 2014, para 132.
- 38.
- 39.
- 40.
- 41.
For more detail, see Rodenhäuser 2018 (forthcoming).
- 42.
See ICTY, Prosecutor v Fatmir Limaj, Haradin Bala and Isak Musliu, Judgment, 30 November 2005, Case No. IT-06-66-T (Limaj et al.), para 112; ICC, Prosecutor v Callixte Mbarushimana, Decision on the Confirmation of Charges, 16 December 2011, Case No. ICC-01/04-01/10, para 104. For example, Macedonia’s National Liberation Army’s internal regulations are publicly available. See Sivakumaran 2012a, b, p. 171.
- 43.
Boškoski and Tarčulovski, above n 14, para 199; Haradinaj et al. 2008, above n 13, paras 64–65.
- 44.
See Limaj et al., above n 42, para 104. For example, the chairman of the Acheh-Sumatra National Liberation Front, Arif Fadhillah, emphasised this point to the author.
- 45.
This has been the case, for example, in Libya and Syria. See McQuinn 2012, pp. 41–42.
- 46.
See, for example, Katanga, above n 10, paras 679–681; Haradinaj et al. 2008, above n 13, para 65.
- 47.
See Boškoski and Tarčulovski, above n 14, para 203.
- 48.
See Haradinaj et al. 2008, above n 13, para 88.
- 49.
See Limaj et al., above n 42, para 125; ICTY, Prosecutor v Vlastimir Đorđević, Judgment, 23 February 2011, Case No. IT-05-87/1-T, para 1576.
- 50.
Based on its observations at the 1949 Conference, the ICRC commented: “Speaking generally, it must be recognized that the conflicts referred to in Article 3 are armed conflicts, with armed forces on either side engaged in hostilities – conflicts, in short, which are in many respects similar to an international war.” Pictet 1958, p. 36.
- 51.
See ICRC 2016, paras 431–437.
- 52.
Federal Political Department (Switzerland) 1949, p. 129. This idea is also found in Article 1(2) Additional Protocol II, above n 12, as well as in Articles (2)I and (e) ICC Statute, above n 12.
- 53.
See Boškoski and Tarčulovski, above n 14, para 200.
- 54.
For example, because of a general shortage of weapons, fighters of the Kosovo Liberation Army received weapons such as hunting rifles from the population. See Limaj et al., above n 42, para 122. Similarly, at the beginning of their struggle, the Forces de résistance patriotique en Ituri were only equipped with traditional hunting weapons. See Katanga, above n 10, para 530. In many cases, weapons are also obtained locally, in particular through raiding the opponent’s stocks. Reportedly, advances on military targets supplied armed groups in Syria with more weapons than had been previously available. See Human Rights Council 2012b, Annex III, para 14.
- 55.
Boškoski and Tarčulovski, above n 14, para 200.
- 56.
See, for example, Lubanga Dyilo, above n 9, paras 536–537; Katanga, above n 10, para 1186.
- 57.
Moir 2015, para 36.
- 58.
For a view looking primarily at a group’s ability to engage in armed violence, see Lubanga Dyilo, above n 9, para 536; Bemba, above n 9, para 134. For a view also requiring the ability to ensure respect for IHL, see Katanga, above n 10, para 1185. For diverging views in ICTY judgments, compare, for example, Haradinaj et al. 2008, above n 13, para 60 to Boškoski and Tarčulovski, above n 14, para 196. Views favoring a focus on primarily the capabilities to engage in armed violence are also found in UN reports. See, for example, Human Rights Council 2011, para 57; Human Rights Council 2012b, Annex III.
- 59.
Article 1 of the Regulations concerning the Laws and Customs of War on Land, Annex to Hague Convention (IV) respecting the Laws and Customs of War on Land, opened for signature 18 October 1907, 187 CTS 227 (entered into force 26 January 1910).
- 60.
Lauterpacht 2012, p. 176.
- 61.
Article 1 Additional Protocol II, above n 12.
- 62.
See Rule 139 of the ICRC Customary IHL Study, in Henckaerts and Doswald-Beck 2005.
- 63.
ICRC 2003, p. 232.
- 64.
ICRC 2014, p. 7.
- 65.
- 66.
For in depth discussion of the second question, see Rodenhäuser 2018 (forthcoming).
- 67.
For example, no tribunal requires an armed group to have the capacity to conduct fair trials in order to become party to a NIAC. What IHL requires, however, is that any party has the capacity to refrain from certain conduct unless it is also able to implement the corresponding limitations. See also Draper 1965, p. 91; Sivakumaran 2012a, b, p. 186.
- 68.
See Munoz-Rojas and Fresard 2004.
- 69.
- 70.
Ibid., p. 43.
- 71.
See Boškoski and Tarčulovski, above n 14, paras 204–205.
- 72.
See, for example, ibid., para 202.
- 73.
For example, at the height of the armed conflict in Kosovo, the KLA’s disciplinary system included different measures taken at different hierarchical levels of the group, such as subjecting soldiers to “an oral reprimand, a written critique, a short-term detention sentence, or a referral to the General Staff and to the Military Court”. Đorđević, above n 49, para 1575.
- 74.
See ICRC 1971, p. 17.
- 75.
Haradinaj et al. 2012, above n 14, para 393 (emphasis added).
- 76.
- 77.
- 78.
Human Rights Council 2012a, para 13.
- 79.
Ibid. Stated differently, a researcher pointed out that “FSA headquarters does not appear to exercise command over the autonomous groups that fight in its name; however, many of the most important groups who are fighting the regime acknowledge the FSA’s leadership, inasmuch as they are able to do so”. Holliday 2012, p. 17.
- 80.
Human Rights Council 2012c, paras 56–57.
- 81.
Ibid., Annex I, para 66.
- 82.
For a more detailed examination of how IHL would apply in such situations and how it could also apply to armed elements not identified as a sufficiently organised armed group, see Dörmann and Rodenhäuser 2017.
- 83.
Allegedly, this has been the case with the “Seleka” coalition in the Central African Republic, which shortly after its formation apparently operated under “a clear hierarchical military command structure”. ICC—The Office of the Prosecutor 2014, para 65.
- 84.
For a discussion of other possible approaches, see Radin 2013, pp. 723–734.
- 85.
de Preux 1960.
- 86.
Melzer 2014, p. 314 (emphasis added).
- 87.
Geneva Convention (III) relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950).
- 88.
- 89.
de Preux 1960, p. 57.
- 90.
- 91.
- 92.
Tadić 1999, above n 38, paras 88–123. The purpose of this chapter does not necessitate an engagement with the continuing discussion on whether the ICTY’s “overall control” or the ICJ’s “effective control” constitute the correct test for determining state responsibility for acts committed by armed groups. While the ICJ dismissed the overall control test with regard to state responsibility, it left open whether it serves its purpose with regard to conflict classification. See ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, [2007] ICJ Rep 43, para 404.
- 93.
For a recent concise summary of discussion on this issue, see ICRC 2016, paras 265–273.
- 94.
Note, in this context, that it is not clear whether the control criterion, as found in Article 7 of the Draft articles on the responsibility of international organisations, for the attribution of acts to international organizations, is to be interpreted similar as the control criterion for attributing acts to states. See International Law Commission 2011, pp. 19–26. For some discussion, see Palchetti 2013.
- 95.
Tadić 1999, above n 38, para 137 (emphasis in original).
- 96.
Ibid.
- 97.
For example, referring to Article 7 of the International Law Commission Draft articles on the responsibility of international organizations, it has been suggested that determining whether an international organisation or individual states are parties to a multinational armed conflict would depend on whether the multinational organisation exercises “overall control” over the forces on the ground. See Ferraro 2013, pp. 590–592.
- 98.
- 99.
Haradinaj et al. 2008, above n 13, para 89.
- 100.
Ibid., paras 67 and 89.
- 101.
Ibid., paras 89 and 76–82.
- 102.
Ibid., paras 89 and 86.
- 103.
See Limaj et al., above n 42, paras 95 and 108; Haradinaj et al. 2012, above n 14, paras 407 and 409; ICTY, Prosecutor v Slobodan Milošević, Decision on Motion for Judgment of Acquittal, 16 June 2004, Case No. IT-02-54-T, paras 24–25.
- 104.
Even if armed groups aim to introduce command and reporting structures, implementation can be challenging if means of communication are limited. See Haradinaj et al. 2008, above n 13, paras 63; 78–84; Limaj et al., above n 42, para 105.
- 105.
Katanga, above n 10, para 1209.
- 106.
Ibid.
- 107.
Ibid., paras 684 and 1359–1365.
- 108.
Ibid., para 1365.
- 109.
Ibid., paras 1342 and 1343.
- 110.
Ibid., para 1362.
- 111.
An element of “collective coordination […] as an indicator for the organizational criterion” also received support recently from IHL experts. Arimatsu and Choudhury 2014, p. 40. For example, in Misrata, a number of individuals formed the “Misratan Military Council” (MMC) as the central “military authority” of the opposition in that location, without, however, being able to exercise command-and-control functions. Under the overall coordination of the MMC, brigades active in Misrata set up “control rooms” in which military commanders would coordinate their action and share intelligence. Within the MMC and the control rooms, different commanders participated on a horizontal—not hierarchical—basis. McQuinn 2012, pp. 41–42.
- 112.
Ferraro 2015, p. 1237 and 1234. The ICRC clarifies, however, that “the concept of authority referred to is broader and more general than the issuing of orders, and refers rather to general direction and coordination”.
- 113.
See ICRC 2015, p. 6.
- 114.
- 115.
Reuters (2014) Islamic State leader urges attacks in Saudi Arabia: speech. http://www.reuters.com/article/us-mideast-crisis-baghdadi-idUSKCN0IX1Y120141114. Accessed 30 October 2016.
- 116.
UN Security Council 2016, para 8.
- 117.
Ibid., para 7.
- 118.
Preston 2014 (emphasis added).
- 119.
Ibid. Following a similar line, a U.S. district court considered co-belligerents interpreted “the term ‘associated forces’ to mean ‘co-belligerents’ as that term is understood under the law of war”. United States District Court for the District of Columbia, Adel Hamlily et al. v Barack Obama et al., 19 May 2009, Civil Action No. 05-0763 (JDB), p. 16.
- 120.
Preston 2014.
- 121.
See Rupar T (2015) Obama’s Request for Congressional Authorization to Fight the Islamic State: Full Text. https://www.washingtonpost.com/news/post-politics/wp/2015/02/11/obamas-request-for-congressional-authorization-to-fight-the-islamic-state-full-text/?utm_term=.28e78049cc72). Accessed 27 December 2016.
- 122.
For discussion, see Heller 2016.
- 123.
An alternative to applying the co-belligerency concept in NIAC could be the idea that states or non-state armed groups could become party to NIAC based on the so-called “support-based approach”. While this approach was developed to address situations in which, during multinational operations, a state provides support to a party in an on-going NIAC that makes a contribution to the collective conduct of hostilities but does not, in and of itself, render the laws of NIAC applicable between the supporting party and the adversary. This approach could, in certain circumstances, apply, mutatis mutandis, to armed groups supporting each other. For the original concept, see Ferraro 2013.
- 124.
For example, no one would claim that if a state becomes a co-belligerent in an international armed conflict, this state would become part of another state party to that conflict. Each state remains an independent entity and is an independent party to the conflict.
- 125.
Corn and Jensen 2009, p. 19.
- 126.
Corn 2015, p. 68.
- 127.
- 128.
- 129.
Paulus and Vashakmadze 2009, p. 117.
- 130.
Lubell 2015.
- 131.
Unspecified U.S. Department of Defence sources, cited in Chesney R (2015) The Global War on ISIL and Its Associated Forces. https://www.lawfareblog.com/global-war-isil-and-its-associated-forces. Accessed 30 October 2016.
- 132.
Ibid.
- 133.
Gambhir H (2016) ISIS’s Campaign in Libya: January 4–February 19. https://www.criticalthreats.org/analysis/isiss-campaign-in-libya-january-4-february-19-2016. Accessed 30 October 2016.
- 134.
See Ibid.
- 135.
See Ambos and Alkatout 2012, p. 347. Obviously, these authors were unable to find that Al Qaida met this criterion.
- 136.
See n 111 above.
- 137.
Pellerin C (2016) Official Says ISIL Contained, Taliban Fracturing in Afghanistan. http://www.defense.gov/News-Article-View/Article/690520/official-says-isil-contained-taliban-fracturing-in-afghanistan. Accessed 30 October 2016.
- 138.
Scarborough R (2015) Islamic State expands beyond Syria, Iraq as recruits create global network of terror cells. http://www.washingtontimes.com/news/2015/feb/22/islamic-state-expands-beyond-syria-iraq-as-recruit/. Accessed 30 October 2016.
- 139.
See Jones S (2015) Expanding the Caliphate—ISIS’ South Asia Strategy. https://www.foreignaffairs.com/articles/afghanistan/2015-06-11/expanding-caliphate. Accessed 30 October 2016.
- 140.
See Weiss C (2016) Philippines-based jihadist groups pledge allegiance to the Islamic State. http://www.longwarjournal.org/archives/2016/02/philippines-based-jihadist-groups-pledge-allegiance-to-the-islamic-state.php. Accessed 30 October 2016.
- 141.
For example, the perpetrators of a mass-killing in the U.S. in November 2015, the “San Bernardino Attack”, pledged allegiance to ISIS before the attack. See Schmitt M, Perez-Pena R (2015) F.B.I. Treating San Bernardino Attack as Terrorism Case. http://www.nytimes.com/2015/12/05/us/tashfeen-malik-islamic-state.html?_r=0. Accessed 30 October 2016.
- 142.
As the U.S. Department of Defense General Council remarked: “A group that simply embraces al-Qa’ida’s ideology is not an ‘associated force’.” U.S. Department of Defense 2015.
- 143.
- 144.
Margulies and Sinnot 2015, p. 336.
- 145.
Ibid., at 337.
- 146.
Ibid., at 336.
- 147.
Hoffman B (2008) The Myth of Grass-Roots Terrorism. https://www.foreignaffairs.com/reviews/review-essay/2008-05-03/myth-grass-roots-terrorism. Accessed 30 October 2016.
- 148.
Pejic 2007, p. 85.
- 149.
Margulies and Sinnot 2015, p. 340.
- 150.
ICRC 2007, p. 743.
- 151.
This suggestion is not too far away from Blank and Corn’s suggestion of an analysis of the circumstances as a whole, under which an overwhelming intensity of hostilities can offset the organization requirement. See Blank and Corn 2013. In contrast to Blank and Corn, however, the present suggestion does not offset the organization criterion but suggests a practical avenue of how it can be proved. Moreover, it is not the intensity of violence as a whole, factoring in the state’s response to acts committed by the armed group, but the groups’ ability to engage in intense hostilities, meaning to conduct itself intense military operations, that is decisive.
- 152.
As Bianchi and Naqvi put it, if “the group is able to conduct a campaign of [intense] armed violence”, “the lack of organisation on the part of the opposing party loses some of its significance”. Bianchi and Naqvi 2011, p. 129.
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Rodenhäuser, T. (2018). Armed Groups, Rebel Coalitions, and Transnational Groups: The Degree of Organization Required from Non-State Armed Groups to Become Party to a Non-International Armed Conflict. In: Gill, T., McCormack, T., Geiß, R., Krieger, H., Paulussen, C. (eds) Yearbook of International Humanitarian Law Volume 19, 2016. Yearbook of International Humanitarian Law, vol 19. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-213-2_1
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