The Impact of Control Over Armed Forces on Conflict Classification in War Crimes Cases

Abstract

This contribution analyses how the two different notions of control over armed forces that have been developed in the international case law (namely, “effective control”, as set out by the International Court of Justice, and the “overall control” standard, as set out by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY)) impact on the classification of a conflict by international criminal courts and tribunals as either an international or a non-international armed conflict; and concomitantly on the fair trial rights of the accused. The Taylor case at the Special Court for Sierra Leone is discussed as an example where application of the overall control standard—if correctly applied—would have impacted on the classification of the conflict, and thereby on the Special Court’s jurisdiction over the crimes committed by the accused. Subsequently, the practice of the International Criminal Court (ICC), where the overall control standard was adopted without any explicit consideration, is analysed, as well as the consequential impact of adopting this lower standard on rights of the accused. In the last section, the author discusses two recent developments in the international case law, namely, the ICTY’s ruling that effective control over (part of) a territory by an armed group under overall control amounts to occupation-by-proxy, and the ICC’s finding that control over territory by an organised armed group may fulfil the intensity requirement for the existence of a non-international armed conflict, even in the absence of any clashes or fighting between the parties.

The present contribution updates and supplements a discussion on the same topic contained in the author’s Ph.D. thesis and in Rogier Bartels, ‘The Classification of Armed Conflicts by International Criminal Courts and Tribunals’, 20 (2020). International Criminal Law Review. The views expressed in the present contribution are the author’s alone and do not necessarily represent the institutions he works for or is affiliated with.

12.1 Introduction

The application of international humanitarian law (IHL), also known as the law of armed conflict or jus in bello, depends on the existence of an international or non-international armed conflict.¹ Identifying when such situations exist is therefore of key importance. As not all IHL rules are applicable to both types of conflict, the difference between international and non-international armed conflicts remains relevant and one has to determine whether violence between two or more fighting entities qualifies one of the two types of armed conflict.² The scope and classification of armed conflict are also important for international criminal law, because the existence of an armed conflict is required for atrocities to qualify as war crimes. The distinction between international and non-international armed conflicts is of key importance during (international) criminal trials.³ The Rome Statute of the International Criminal Court (Rome Statute), for example, preserves the separation between the two types, and for certain war crimes and the International Criminal Court (ICC) only has jurisdiction if they are committed as part of international armed conflicts.

An aspect of conflict classification by international courts and tribunals is the questions whether a situation in which a third State supports an armed group fighting a government amounts to an international armed conflict. When the third State controls the armed group to a certain level, the group’s actions may be attributed to the State and as such, two States are pitted against each other, thereby leading to a classification of the fighting as an international armed conflict. The approach by international criminal courts and tribunals when assessing whether such control exists forms part of my Ph.D. research conducted under the supervision of Terry Gill. It is a privilege to contribute (and edit) a book honouring Terry’s career and achievements. Terry taught the IHL course during my law studies at Utrecht University. I fondly recall his inspiring lectures.⁴ In this regard, it is appropriate to quote one of Terry’s favourite movie directors, Stanley Kubrick, who stated that “[i]nterest can produce learning on a scale compared to fear as a nuclear explosion to a firecracker.” To stay with this metaphor, in his many years of teaching IHL, Terry has ignited the interest of many in this field of law. In my case, I made my career out of it.

If one deals with IHL in the Netherlands, one cannot ‘escape’ Terry Gill. After having started to work in IHL, Terry became my Ph.D. supervisor (together with Jann Kleffner), and as such also came to be a mentor. Conflict classification under IHL is something we actually have rather different views on, especially when it concerns conflicts that involve multiple armed groups, such as in Syria.⁵ When discussing conflict classification during international criminal trials, in the context of my Ph.D. research, there was luckily much agreement. One aspect of conflict classification in international criminal law that we discussed is the approach taken when an otherwise non-international situation potentially internationalises due to third State involvement on the side of an armed group, whereby the relevant court or tribunal has to analyse whether the third State exercises overall, or instead effective, control over the non-State actor. The oldest of the two test, i.e. effective control test, was set out by the International Court of Justice (ICJ) in the Nicaragua case. It was this famous case that Terry scrutinised for his Ph.D. research, and that ‘launched’ his career in international law. The topic is therefore worth discussing in the present liber amicorum.

In this contribution, I first set out the two tests, developed by the ICJ and International Criminal Tribunal for the former Yugoslavia (ICTY), respectively. It then discusses the impact the approach taken by the relevant institution to potential internationalisation of the conflict has on the rights of the accused, starting with the ICTY, followed the Special Court of Sierra Leone (SCSL or Special Court), and, finally, the ICC. At the end of this contribution, two recent developments in the international case law that concern control exercised by organised armed groups are discussed. First, the ICTY judgments in which the Tribunal found that effective control over (part of) a territory by an armed group under overall control amounts to occupation-by-proxy; and, second, the ICC’s recent findings that control over territory by an organised armed group may fulfil the intensity requirement for the existence of a non-international armed conflict, even in the absence of any clashes or fighting between the parties. The last section contains some concluding observations.

12.2 Effective Control Versus Overall Control

12.2.1 Effective Control

In the 1980s, the United States provided extensive support to rebel forces opposing socialist or communist governments in Central America. As a result from the support for one such armed opposition group, the “Contras” who fought the Nicaraguan government forces, a case was brought before the ICJ by Nicaragua against the United States.

As part of the litigation, the Court had to determine the “crucial question”⁶ as to “whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other side that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government.”⁷ After reviewing the evidence placed before it by Nicaragua, the Court found that

United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. Al1 the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.⁸

The Court therefore considered that legal responsibility for a third State for violations of human rights law and IHL by an armed group only arises if it is proven that the third State exercised effective control over the military operations of the armed group.

12.2.2 Overall Control

In its first case, many aspects of the ICTY’s jurisdiction over war crimes allegedly committed during the Balkan war were challenged by the defence for Mr Tadić. One type of war crimes over which the Tribunal had jurisdiction was the grave breaches of the four Geneva Conventions of 1949.⁹ As the Appeals Chamber had decided early on in the Tadić case, in its seminal ruling on jurisdiction, that the grave breaches regime only applied during international armed conflicts.¹⁰ The Tadić Trial Chamber was therefore called upon to decide whether the situation at hand, namely the situation in Bosnia and Herzegovina, qualified as an international armed conflict. The Trial Chamber assessment of the impact of the involvement of the Federal Republic of Yugoslavia (FYROM, i.e. Serbia) in the conflict in Bosnia and Herzegovina, and—not unreasonably, given that this standard had been set out some years before by the world court—applied the ICJ’s effective control standard to determine the relationship between Serbia (and Serbian armed forces, the VJ) and the armed group made up of Bosnian Serbs (VRS).

The Trial Chamber found that Serbia did not exercise effective control over the VRS and consequently classified the conflict, at the time relevant to the charges, as non-international.¹¹ It therefore acquitted Mr Tadić for the grave breaches charges.¹² The Prosecution contested its findings on appeal, arguing that and when considering the Trial Chamber’s the Appeals Chamber found that

the Trial Chamber erred by relying exclusively upon the ‘effective control’ test derived from the Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) in order to determine the applicability of the grave breach provisions of the relevant Geneva Convention. The Prosecution submits that the Chamber should have instead applied the provisions of the Geneva Conventions and the relevant principles and authorities of international humanitarian law which, in its view, apply a ‘demonstrable link’ test.¹³

The Appeals Chamber considered the nature of the conflict and held that a non-international armed conflict may become international: (i) if another State intervenes through its troops, or (ii) if some of the parties act on behalf of that State.¹⁴ It then had to consider “on what legal conditions armed forces fighting in a prima facie internal armed conflict may be regarded as acting on behalf of a foreign Power”.¹⁵

The Appeals Chamber agreed with the Prosecution that the answer to this question should be found in IHL, not in the law of State responsibility or general public international law.¹⁶ Therefore, in “discuss[ing] the question at issue first from the viewpoint of international humanitarian law”,¹⁷ the Appeals Chamber found that IHL, by providing the requirement of “belonging to a Party to the conflict” in the Third Geneva Convention of 1949, “implicitly refers to a test of control”.¹⁸ Accordingly, it follows that IHL “holds accountable not only those having formal positions of authority but also those who wield de facto power as well as those who exercise control over perpetrators of serious violations of international humanitarian law.”¹⁹ “[S]ome measure of control by a Party to the conflict over the perpetrators” is therefore required for individual criminal responsibility to arise.²⁰

Yet, the Appeals Chamber then found that IHL “does not include legal criteria regarding imputability specific to this body of law and that “[r]eliance must therefore be had upon the criteria established by general rules on State responsibility”. By moving away from IHL, into the law of State responsibility, the Appeals Chamber took the ICJ’s test ‘head on’. Whereas the Prosecution had argued that the ICJ’s test was correct to determine State responsibility and the ICTY should use a different test for criminal responsibility, the Appeals Chamber, in describing the Nicaragua Judgment as “somewhat unclear” on the issue, explained that the ICJ, in its view, was unpersuasive.²¹

The Appeals Chamber, having reviewed—what it referred to as—judicial and State practice, set out its own test. It found that

[i]n order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity. Only then can the State be held internationally accountable for any misconduct of the group. However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law.²²

It further clarified that “control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training)”;²³ and that such overall control

may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts.²⁴

In summarising its test, the Appeals Chamber concluded that the control of a third State over an armed group fighting another government “required by international law for considering the armed conflict to be international was overall control going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations.”²⁵

12.2.3 Two Tests

The ICJ reaffirmed its version of the control test in Bosnia Genocide case, but noted that in the context of the ICTY, when “the sole question” to decide is “whether or not a conflict is international”, “it may well be that the test is applicable and suitable”.²⁶ In its last judgment, the ICTY Appeals Chamber noted “that the ICJ refrained from taking a position on whether the Overall Control Test employed by the Appeals Chamber in the Tadić case was correct”,²⁷ and went on to apply the overall control test to the case.²⁸

As the ICTY has applied the principle of stare decisis rather strictly,²⁹ it is not surprising the Tribunal has since Tadić consistently applied the overall control test. In fact, as will be seen below, international criminal courts and tribunals have all adopted the overall control standard. It therefore appears relatively uncontested in international criminal law that the Tadić test is to applied when considering possible internationalisation of a prima facie non-international armed conflict. Yet, which standard ought to be used for conflict classification under IHL is less certain. The recently published Law of Armed Conflict Manual of New Zealand, for example, relies on the effective control standard,³⁰ and the scholarly discussion on the correct test is still alive.

12.2.4 Lower Threshold of Control for “Overall Control”

In the Nicaragua case, the ICJ was “not satisfied that all the operations launched by the contra force, at every stage of the conflict, reflected strategy and tactics wholly devised by the United States.”³¹ It further held that there was “no clear evidence” of the United States having exercised effective control “in all fields as to justify treating the contras as acting on its behalf”.³² However, the Court did find it to be “clear that a number of military and paramilitary operations by [the Contras] were decided and planned, if not actually by United States advisers, then at least in close collaboration”.³³ Although the Court could not establish with certainty that these operations were in fact decided on and planned by American State agents, what is important is that effective control requires all operations to be devised by the intervening third State.

The ICTY Appeals Chamber, for its part, went through great lengths to explain that for its overall control test, the third State only has to play “a role” in the organisation, coordination, or planning of the armed groups’ military operations.³⁴ Notwithstanding the ICJ’s ruling, it stressed that “under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law”.³⁵ It further considered that under the overall control test, “[a]cts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts.”³⁶

Overall control therefore clearly requires a lower level of control.³⁷ Indeed, in the ICTY Appeals Chambers own words, this test it is “less rigorous” than the ICJ’s effective control standard.³⁸ With ICTY test is easier satisfied, it also means that less evidence has to be presented to prove that control to the required standard existed. The party desiring to prove the existence of an international armed conflict through third State intervention, thus benefits from the standard being lower.

The next section considers the manner in which the ICTY, SCSL, and ICC have applied the overall control test and how this has impacted on the rights of the accused.

12.3 Impact on the Rights of the Accused

12.3.1 ICTY

In its early years, the ICTY displayed a tendency to facilitate classification of a situation as international.³⁹ It may have done so, at least in part, to guarantee the application of the grave breaches regime, which is only applicable to international armed conflicts.⁴⁰ When dealing with the conduct of the Hrvatsko Vijeće Obrane (HVO),⁴¹ the ICTY generally found the relevant (part of the) conflict to be international in character.⁴² Yet, in Aleksovski, the majority of the trial chamber found, shortly before the Appeals Chamber rendered its judgments on the merits in appeal in the Tadić case, that the armed conflict was non-international in nature, because the Prosecution had “failed to discharge its burden of proving that, during the time-period and in the place of the indictment, the HVO was in fact acting under the overall control of the HV in carrying out the armed conflict against Bosnia and Herzegovina”;⁴³ and had therefore “failed to establish the internationality of the conflict”.⁴⁴

However, after those first cases, most ICTY trial chambers declined to explicitly classify the situation before it as either an international or a non-international armed conflict.⁴⁵ Instead, those chambers simply held that the (jurisdictional) requirement of “existence of an armed conflict” was satisfied, because in their view “[w]hen an accused is charged with violation of Article 3 of the Statute, based on a violation of Common Article 3, it is immaterial whether the armed conflict was international or non-international in nature”. In such a case, “there is no need for the Trial Chamber to define the nature of the conflict”.⁴⁶

The finding in the Aleksovski case, discussed above, is a “telling” example of how the truth can be distorted as a result of the different evaluations of evidence by the various chambers of the same institution.⁴⁷ At the ICTY, the application of the overall control standard could lead to more findings that an international armed conflict existed at the time of the alleged crimes, and thus to the application of the grave breaches war crimes. However, the ICTY had found in Tadić “[w]hat is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife”.⁴⁸ Any conduct that could not qualify as a grave breach, merely because of the situation having been determined to be a non-international armed conflict, would therefore also result in individual criminal responsibility in times of non-international armed conflict. Prosecution of the conduct as a war crime would thus be possible.

While at the ICTY the difference for an accused was therefore mostly the difference in stigma between a conviction for grave breaches of the Geneva Conventions of 1949 and ‘regular’ war crimes, at another ad hoc tribunal the difference would be between a conviction and an acquittal—at least for war crimes. This situation, as it arose at the Special Court for Sierra Leone is discussed next.

12.3.2 Special Court for Sierra Leone

The drafters of the Statute of the Special Court for Sierra Leone (SCSL) had viewed the conflict as non-international and only given it jurisdiction over violations of Common Article 3 and Additional Protocol II, as well as three types of “[o]ther serious violations of international humanitarian law”.⁴⁹ As the former can only be committed during non-international armed conflict,⁵⁰ and the list of other serious violations was—as opposed to a comparable provision in the ICTY Statute—limited to three specific crimes, the defence teams of several accused before the Special Court understandably challenged the Prosecution’s classification of the armed conflict in Sierra Leone as being non-international.⁵¹

According to the defence team for Mr Fofana, for example, the facts of the case “undoubtedly show[ed] that the conflict was of an international nature”.⁵² It argued that “the jurisdiction of the Special Court under Articles 3 and 4 is limited to internal armed conflicts” and therefore, if the conflict was indeed found to be international, the Special Court would lack jurisdiction ratione materiae over certain of the crimes charged.⁵³ In light of the UN Security Council’s statement that it was “deeply concerned” by “the unequivocal and overwhelming evidence presented by the report of the Panel of Experts that the Government of Liberia is actively supporting the RUF at all levels”,⁵⁴ the Defence’s argument should have been given some prima facie weight. Yet, notwithstanding the explicit reference in the chapeau of Article 3 of the Statute of the SCSL to Common Article 3 and Additional Protocol II, the Special Court’s Appeals Chamber decided that the nature of the armed conflict in Sierra Leone did not have any bearing on the Court’s jurisdiction over the (alleged) war crimes.⁵⁵ As the Norman, Fofana and Kondewa Trial Chamber subsequently took judicial notice of “the fact that the ‘armed conflict in Sierra Leone occurred from March 1991 until January 2002’”,⁵⁶ it and did not really discuss the classification of the conflict in its judgment. Be that as it may, the references in the judgment to the application of Additional Protocol II and to the criteria of organisation and intensity make clear that the bench had considered the fighting to constitute a non-international armed conflict.⁵⁷

In the next case, the Sesay et al. Trial Chamber also took judicial notice of “the armed conflict in Sierra Leone”, thereby summarily dismissing the submission by the Kallon Defence that no armed conflict existed at the time part of the alleged crimes took place.⁵⁸ Even though the judicial notice taken was of the existence of an “armed conflict”, it is evident that in fact notice was taken of the existence of a non-international armed conflict. The defence teams for Mr Kallon and Mr Sesay had argued that the conflict was international in nature, either through overall control by Liberia or the involvement of ECOWAS forces,⁵⁹ but the Trial Chamber dismissed these submissions. Instead, it held that “therefore […] the armed conflict in Sierra Leone was of a non-international character”.⁶⁰

Remarkably, the Sesay et al. Trial Chamber had dismissed the Defence’s arguments on internationalisation of the non-international armed conflict, because in the Chamber’s view “the evidence does not establish beyond reasonable doubt that Taylors [sic] interactions with the RUF leadership were such that he was in a position to exercise overall control over the RUF as an organization”.⁶¹ However, the findings on the classification of the conflict in the aforementioned cases were questionable, if one considers what the Special Court established with respect to Liberia’s involvement in its last case. In the judgment in the Taylor trial, the findings on the role of the accused, who at the time of the crimes was the head of State of neighbouring Liberia, and on the assistance Mr Taylor provided to the rebel forces in Sierra Leone, show a significant level of control. The Taylor Trial Chamber found, as summarised by the Appeals Chamber, that the accused had

provided arms and ammunition, operational support and military personnel to the RUF/AFRC that were critical in enabling the RUF/AFRC‘s Operational Strategy. Similarly, the Trial Chamber found that Taylor and Sam Bockarie planned an attack on Freetown and thereby had a substantial effect on the crimes committed during and after the Freetown Invasion. Both of them identified the targets, goals and modus operandi of the campaign.⁶²

Comparing this finding to the ICTY’s Appeals Chamber’s ruling that a State exercises overall control when it has “a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group”,⁶³ it appears that Mr Taylor, and therefore Liberia, exercised overall control over the rebels who were fighting the Sierra Leonean government. Especially since “it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law”.⁶⁴ Moreover, “international rules do not require that such [overall] control should extend to the issuance of specific orders or instructions relating to single military actions”.⁶⁵

The reluctance of the Special Court’s chambers to seriously consider the Defence’s submissions on overall control is therefore problematic. The findings as to Mr Taylor’s role made by the Taylor Trial Chamber are particularly striking in light of an earlier finding by the Sesay et al. Trial Chamber. When the Kallon and Sesay Defence, “[r]elying on the second requirement for internationalisation”, had submitted that the Taylor’s support of the RUF “was such that the RUF were in fact acting on behalf of, or belonging to, the Republic of Liberia”, the Sesay et al. Trial Chamber “observe[d] that the Defence did not at any stage adduce evidence to establish this theory.”⁶⁶

Because judicial notice had been taken of the existence of an “armed conflict in Sierra Leone […] from March 1991 until January 2002”, the Taylor Trial Judgment did not contain any discussion on the type of armed conflict either.⁶⁷ As Mr Taylor was found guilty of having committed violations of Common Article 3 and Additional Protocol II,⁶⁸ this necessarily means that the Trial Chamber characterised the situation as a non-international armed conflict. Given the subject-matter jurisdiction of the Special Court and the express submissions on this issue by some of the accused, the legality of the Special Court’s convictions for violations of Common Article 3 and Additional Protocol II may thus be questioned.⁶⁹ This is especially so, since one of the members of the bench, namely Judge Sebutinde, specifically questioned the Special Court’s prosecution during the closing arguments in Taylor on the nature of the armed conflict. She asked whether Mr Taylor’s involvement and control over the RUF amounted to “overall control” and the conflict therefore had been international in nature.⁷⁰ In response to Judge Sebutinde’s questions, the Prosecution had submitted that even though it alleged that Mr Taylor exercised effective control over the members of the RUF who had committed crimes in Sierra Leone, “the conflict in Sierra Leone was not of an international character because Mr Taylor was acting independently and in violation of his duties as President of Liberia.”⁷¹ It argued that it was not the Liberian government, but Mr Taylor, in a private capacity, who controlled the RUF.⁷²

This argument is unconvincing, as the conduct of a democratically elected president, who used State organs and State resources,⁷³ could surely be ascribed to State of Liberia. Moreover, the Prosecution’s contention implies that overall control could only exist if some form of constitutional process were to be followed, for example, with parliament approval of the support of an armed group. Not only would such a requirement politicise conflict classification, while the purpose of introducing of the concept of “armed conflict” in the 1949 Geneva Convention had aimed to prevent this, the argument also foregoes that overall control is generally not be achieved through public acts but instead by way of covert action, such as the United States’ support to the Contras that was subject to ICJ’s consideration in the Nicaragua case.

Irrespective of how one views the Prosecution’s submission, the fact that the issue of possible overall control and resulting internationalisation of the conflict was clearly on the radar of the Taylor Trial Chamber, makes the judgment’s silence on the classification of the conflict all the more puzzling; and indeed, all the more problematic from a fair trial rights perspective.

12.3.3 International Criminal Court

At the ICC, without providing much explanation, the Trial Chamber in the ICC’s first case embraced the overall control standard as being the “correct approach”. The Lubanga Trial Chamber merely stated: “As regards the necessary degree of control of another State over an armed group acting on its behalf, the Trial Chamber has concluded that the ‘overall control’ test is the correct approach.”⁷⁴ During the confirmation stage, Pre-Trial Chamber I had similarly also adopted the overall control standard without the slightest explanation.⁷⁵

The present contribution does not take a position on which standard ought to be applied, but given that the debate as to best manner to assess attributability of the actions of an armed group for the purposes of conflict classification is still alive in the academic literature⁷⁶ and in practice,⁷⁷ the lack of reasoning provided by the ICC is notable. Indeed, it was met with surprise and the lack of explanation attracted widespread academic criticism.⁷⁸

In Katanga, the ICC’s second case, the overall control standard was also accepted by the majority without discussion or explanation.⁷⁹ However, Judge Van den Wyngaert, who was in the minority, considered in her dissenting opinion that the question of overall versus effective control “is far from settled”. With respect to this issue and conflict classification generally, she noted that “the facts of this case are particularly complex on this point” and the evidence “not sufficient to arrive at any conclusions beyond reasonable doubt”.⁸⁰

A scholar observes about the Katanga judgment that

[w]hile the result may be defendable, the methodology of the judgment requires critical scrutiny [,as] the Katanga majority fails to engage with two disputed questions, namely (i) to what extent the internationalization of internal armed conflict depends on formal attribution under the law of state responsibility (i.e. agency or control), rather than on criteria relating to non-intervention and use of force; and (ii) on what grounds the ‘overall control’ test remains the correct test after the International Court of Justice ruling in Bosnia v. Serbia.⁸¹

It has been emphasised that “[f]uture decisions should engage more deeply with this justification, before this reasoning becomes standard vocabulary in ICC jurisprudence”.⁸² However, in the next cases, no such justification was provided. In the Bemba case, the overall control standard was applied without explanation.⁸³ In the next judgment concerning alleged war crimes, it was no different.

With regards to possible internationalisation, the Trial Chamber in Ntaganda, like its ICC predecessors, applied the overall control test.⁸⁴ The Trial Chamber acknowledged the existence of the ICJ’s effective control test, but other than noting that three other Trial Chambers of the ICC also applied the overall control test, it did not explain why it chose the ICTY test over the one adopted by the ICJ. Importantly, despite finding that a third State (Rwanda) had assisted Mr Ntaganda’s organised armed group, inter alia, by supplying it with weapons and ammunition, and had been “involved in its activities to a certain level”, the trial chamber held that on the basis of the evidence on the record it could not “conclude beyond reasonable doubt that the involvement of Rwanda with the UPC/FPLC rose to the level of overall control”.⁸⁵ As a result, it found that the fighting in which the accused’s armed group had been involved “must be classified as a non-international armed conflict”.⁸⁶

One may wonder whether requiring overall control to be established beyond reasonable doubt is appropriate. The Ntaganda Trial Chamber found that while there was some evidence pointing at possible overall control by Rwanda over the UPC/FPLC, it could not conclude beyond reasonable doubt that such overall control indeed existed.⁸⁷ As such, the Trial Chamber concluded, “the fighting that the UPC/FPLC was engaged in during the temporal scope of the charges must be classified as a non-international armed conflict.”⁸⁸

As an armed conflict is either an international or non-international armed conflict, and given that—as correctly noted by the Ntaganda Trial Chamber⁸⁹—each of the two types of conflict requires a different set of factors to be proven, the very fact that overall control could not be proven beyond reasonable doubt, even though there was evidence that pointed towards such third State control, actually indicates that there was in fact doubt. That would mean that a non-international armed conflict was not proven to the requisite standard.⁹⁰ The Ntaganda Trial Chamber must therefore have considered that the evidence on Rwanda’s involvement did not rise to the level of reasonable doubt.

Nevertheless, one may wonder whether a finding that is reached as a result from the insufficiency, or limited credibility thereof, of the evidence presented by the Prosecution on third State involvement is compatible with the accused’s right to fair trial. Moreover, if the Prosecution does not lead the evidence on overall control, for example, or on other factors that may impact on the classification, and the accused would wish to argue that the conflict should be characterized differently, his or her defence team would have to present evidence to convince the relevant chamber. This arguably amounts to a reversal of the burden of proof.

At the Special Court, as discussed above, the Sesay et al. Trial Chamber did in fact reverse the burden of proof as regards the nature of the armed conflict when it placed the duty to proof the existence of an international armed conflict on the accused, rather than on the prosecution. In Sesay et al. Trial Judgment, the chamber found that the defence teams had not presented evidence to establish that Liberia (in the person of its president Charles Taylor) had overall control over the RUF and that consequently there was no reason to classify the conflict other than as a non-international armed conflict.⁹¹

Given that the overall control standard requires less third State involvement than effective control, less evidence has to be presented to prove said control to the relevant standard. As regards fair trial rights, the other way around, namely if classification of the conflict as and international armed conflict is more beneficial to the Prosecution than to the accused, also raises interesting questions about the test used to determine the character of the conflict and its consequential impact on the rights of the accused. Conflict classification is a primary aspect of IHL, but the concept of overall control was created to determine the nature of armed conflict for the purposes of international criminal proceedings. Since criminal law generally requires the law, or—as the case may be—standard, to be applied that is most beneficial to the accused, the following finding of the ICTY Appeals Chamber in Aleksovski may come as a surprise. In considering whether the armed conflict at the time of the charged conduct was international or non-international, the Appeals Chamber held:

The ‘overall control’ test calls for an assessment of all the elements of control taken as a whole, and a determination to be made on that basis as to whether there was the required degree of control. Bearing in mind that the Appeals Chamber in the Tadić Judgement arrived at this test against the background of the ‘effective control’ test set out by the decision of the ICJ in Nicaragua, and the ‘specific instructions’ test used by the Trial Chamber in Tadić, the Appeals Chamber considers it appropriate to say that the standard established by the ‘overall control’ test is not as rigorous as those tests. To the extent that it provides for greater protection of civilian victims of armed conflicts, this different and less rigorous standard is wholly consistent with the fundamental purpose of Geneva Convention IV, which is to ensure ‘protection of civilians to the maximum extent possible’.⁹²

This consideration by the ICTY Appeals Chamber shows the clash between the different principles and presumptions that govern IHL and (international) criminal law, namely the presumption of protection and the presumption of innocence, respectively. The ICTY Appeals Chamber focused on the humanitarian goals of IHL and its purpose to protect those affected by armed conflict. However, it did so in the context of a criminal trial. Whereas international criminal courts and tribunals must not lose sight of IHL as the basis for war crimes, and the plight of victims of war is an important reason for the prosecution of atrocities, it must not be forgotten that international cases are in their very essence criminal trials; trial during which the rights of the accused persons must be safeguarded. The core element of any criminal process must be the presumption of innocence. A corollary of the criminal law presumption of innocence is the principle of in dubio pro reo, which requires that in case of doubt as to what the evidence establishes, a determination shall favour the accused.⁹³ Naturally, the legality principle also applies. This includes the concept of favor rei, according to which criminal rules have to be interpreted in favour of the accused. In light of these principles, international courts and tribunals should perhaps be more restrictive in their determinations that a certain type of armed conflict existed.⁹⁴

12.4 Two Interesting Developments with Regard to Armed Groups Exercising Control and Conflict Classification

12.4.1 Occupation by Proxy

In the very last judgment of the ICTY before the Tribunal morphed into a residual mechanism, the appeal judgment in Prlić et al., the Appeals Chamber made some interesting clarifications on the concept of occupation by proxy—a topic that had been touched upon by the Prlić et al. in its judgment.

Pursuant to Article 2 of the ICTY Statute, the Prosecution had charged grave breaches of the 1949 Geneva Conventions.⁹⁵ As noted above, in its first case, and consistently thereafter, the ICTY had found that for the grave breaches regime to be applicable, an international armed conflict must have existed at the time of the alleged conduct.⁹⁶ In the trial judgment, the Prlić et al. Trial Chamber had to consider whether an international armed conflict existed at the relevant time. The territorial scope of any IHL applicable during an international armed conflict is, at a minimum, the entire territory of the belligerent States. However, in a rather peculiar manner, the Trial Chamber had considered for each of the municipalities where crimes allegedly had been committed, whether an international armed conflict existed in the relevant municipality—even though all the villages and towns were located within one and the same State, namely Bosnia-Herzegovina.

When called upon to clarify this aspect of the trial judgment, the Appeals Chamber recalled that “an armed conflict is not limited to the specific geographical municipalities where acts of violence and actual fighting occur, or to the specific periods of actual combat.”⁹⁷ It explained that the question whether a specific situation constitutes an “armed conflict” for the purposes of the ICTY Statute requires a holistic evaluation of the parameters of the alleged conflict.⁹⁸ The Appeals Chamber therefore reversed the Trial Chamber’s “erroneous” conclusions that no international armed conflict existed in some of the charged municipalities, namely those where no active combat was taking place.⁹⁹

As the state of occupation was thus not required for the conflict to have been international in nature at the relevant place and time, the question of occupation by proxy actually had become moot. As the ground of appeal included an alleged legal error of the Trial Chamber’s legal findings on occupation, the question whether a state of occupation could exist if the entity carrying out the effective control over the territory was a non-State actors under overall control by a third State, the Appeals Chamber nevertheless discussed the matter.

The Trial Chamber, after having recalled the criteria for occupation as set out by the ICTY in Natelilić and Martinović, had stated that “if the Prosecution proves that the party to the armed conflict under the overall control of a foreign State fulfils the criteria for control of a territory as identified above, a state of occupation of that part of the territory is proven.”¹⁰⁰ On appeal, two of the accused argued that the Trial Chamber had “erred in law in failing to find that it was Croatia, rather than the HVO, that occupied the relevant municipalities.”¹⁰¹

The Appeals Chamber first recalled Article 42 of the Hague Regulations and ICTY’s case law setting out the requirements for the establishment and exercise of authority by the occupying power.¹⁰² Then, the Appeals Chamber considered that “States should not be allowed to evade their obligations under the law of occupation through the use of proxies”.¹⁰³ While observing that thus far the Tribunal, as well as the ICJ, had only implicitly accepted this to be the case, the Appeals Chamber held that the authority of an Occupying Power “may be exercised by proxy through de facto organised and hierarchically structured groups”.¹⁰⁴

The ICTY Appeals Chamber’s explicit recognition of the occupation by proxy is an interesting contribution to the development of the IHL. Following this finding, the law of occupation applies when an armed group under overall control of a third State exercises effective control over a territory.¹⁰⁵ Making such a determination requires a two-staged assessment of the control exercised. However, it appears that in order to exercise effective control over the occupied territory and its population, the third State would need to have effective control, rather than merely overall control, over the armed group. If not, it would be the armed group, rather than the third State, being the occupier. However, non-State actors cannot be Occupying Powers. Nonetheless, an organised armed group may exercise such a level of control over (part of) a territory that an occupation-like situation arises. Two recent considerations of such a situation by the ICC are discussed next.

12.4.2 ‘Occupation’ by Organised Armed Groups

At the ICC, in the Al Mahdi case, which concerned the destruction of the mausoleums in Timbuktu, another “occupation”-like control over territory by an armed group came up. As a result of the guilty plea, the Trial Chamber only had to verify whether “the admission of guilt [was] supported by the facts of the case”.¹⁰⁶ The information before the Chamber in relation to the contextual elements of war crimes was therefore very limited.¹⁰⁷ Based on the limited facts, the Chamber was nonetheless satisfied that the alleged acts occurred in the context of and were associated with a non-international armed conflict between the Malian government forces and organised armed groups, including Ansar Dine and Al-Qaeda in the Islamic Maghreb (AQIM).¹⁰⁸

Faced with a situation where the (limited) facts did not establish that any actual hostilities were taking place at the time relevant to the charges, the Al Mahdi Trial Chamber made a rather novel finding on the intensity criterion.¹⁰⁹ It noted “that the fact that these groups exercised control over such a large part of Mali for such a protracted period—with the resulting effect on the civilian population concerned—clearly demonstrates a sufficient degree of intensity of the conflict.”¹¹⁰

More recently, the Ntaganda Trial Chamber expanded on this idea. The Ntaganda Trial Chamber, while recalling that exercise of control over a part of the territory is not required to fulfil the organisation requirement, held that in the absence of active hostilities, such control “may be a determinative factor in assessing whether the intensity threshold is fulfilled.”¹¹¹ It clarified that “in the absence of any direct clashes during certain periods”, control by an organised armed group indicates that the government or any other opposing armed groups “were either unable or unwilling to challenge the [group]’s control over the areas concerned”.¹¹² IHL must indeed continue to apply to situations that would amount to occupation if the belligerent party exercising effective control would be a State instead of a non-State actor. Although the concept of occupation does not exist in non-international armed conflict, precisely because States do not want bestow on non-State actors the authority and recognition that comes with being an Occupying Power, by controlling part of a State’s territory to the detriment of the governmental authorities in such a manner that the government could only regain its authority, and thereby effective control, over that territory through the use of armed force, the intensity requirement ought to be considered as being fulfilled, also if no armed confrontations take place for a prolonged period.¹¹³ This is so, because “the absence of armed clashes between government forces and the armed group are likely to be due to the government’s inability to challenge the armed group’s control over part of its territory, for example, because the armed group is considered too strong to be ousted militarily.”¹¹⁴

The continued application of IHL during such periods of effective control by an organised armed group is important to ensure that the population that lives under the said control continues to benefit from the protective regime of IHL. Especially since the rules that govern the behaviour of the government cannot be effectuated in such situations, and because the question whether international human rights law binds organised armed groups is still very much debated.¹¹⁵

12.5 Concluding Remarks

The ICJ considered that acts by an armed group could only be seen as having been committed on behalf of a State, if the State had effective control over the group. The ICTY, when faced with support of armed groups and questions of conflict classification, developed a different, lower standard of control to assess the impact of third State involvement. Since then, the ICTY’s overall control test has been applied by international criminal courts and tribunals to determine whether State support for an armed group fighting a government internationalises a situation so as to amount to an international armed conflict.

The cases discussed in this contribution show that the adoption of the lower standard may raise fair trial rights questions. The standard is easier to be satisfied and thus easier to prove, requiring less or different evidence. If classification of the conflict as international is not beneficial for the accused, what then justifies applying the lower standard? If, however, a finding that the conflict was international in nature benefits the accused, and his or her defence team argues that an international armed conflict existed, can the accused then be made to prove that a third State exercised the required level of control, especially when such third State actions are generally done in a covert manner? The present contribution shows that one has to be mindful that the methodology for conflict classification under IHL may impact on the rights of the accused if that methodology is applied in the same way during international criminal trials.

As regards conflict classification, besides previously having significantly assisted IHL by clarifying what factors and indicators may be looked at the determine whether the organisation and intensity requirements for the existence of a non-international armed conflict are fulfilled,¹¹⁶ the international criminal case law has recently provided to welcome developments. The ICTY recognised that occupation by proxy is possible if a State exercises effective control over a territory through an armed group that is under its overall control.

At the ICC, the idea that an organised armed group can exercise an occupation-like form of control over a territory and that thereby the intensity requirement for the existence of a non-international armed conflict may be fulfilled, has been accepted and explained. In academic scholarship similar proposals have been made.¹¹⁷ The ICC’s recognition that a non-international armed conflict does not require constant fighting, so long as an organised armed group exercises effective control of a certain territory, is a welcome development, as it means that IHL continues to govern the acts of this group vis-à-vis the population that lives under its control during such time.