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Losing the forest for the trees: Syria, law, and the pragmatics of conflict recognition.

ABSTRACT

The situation in Syria has the potential to become a pivotal moment in the development of the law of armed conflict (LOAC). The ongoing brutality serves as a reminder of the importance of extending international humanitarian regulation into the realm of non-international armed hostilities; however, the very chaos those hostilities produce reveals critical fault lines in the current approach to determining the existence of an armed conflict. The international community's year-long reluctance to characterize the situation in Syria as an armed conflict highlights a clear disparity between the object and purpose of the LOAC and the increasingly formalistic interpretation of the law's triggering provisions. Focusing on Syria, this Article critiques the overly technical approach to the definition of non-international conflict currently in vogue--based on Prosecutor v. Tadic's framework of intensity and organization--and how this approach undermines the original objectives of Common Article 3 of the Geneva

Conventions. This overly legalistic focus on an elements test, rather than the totality of the circumstances, means that the world has witnessed a retrograde of international humanitarian efficacy: Syria appears to be a lawless conflict like those that inspired Common Article 3--the regime employs its full combat capability to shell entire cities, block humanitarian assistance, and target journalists and medical personnel directly. The LOAC is specifically designed to address exactly this type of conduct, and yet the discourse on Syria highlights the dangers of allowing over-legalization to override--and undermine--logic, resulting in a deleterious impact on human life.

TABLE OF CONTENTS
I.   WHY THE LAW OF ARMED CONFLICT (LOAC)
     REGULATES NON-INTERNATIONAL ARMED
     CONFLICTS
     A. Containing Brutality
     B. What Role for the Government's Response?

II.  THE EVOLUTION OF NON-INTERNATIONAL
     ARMED CONFLICT RECOGNITION
     A. Tadic and Its Framework
     B. The Strict Elements Test Takes Hold
     C. Conflict Recognition in Syria

III. TOTALITY OF THE CIRCUMSTANCES: TO BETTER
     SERVE THE LOAC'S OBJECT AND PURPOSE
     A. Analogy to U.S. Constitutional Criminal
        Jurisprudence
     B. Understanding Intensity and Organization
        as a Framework

IV.  CONCLUDING THOUGHTS


In a war zone, some buildings are obvious targets--command centers, weapons depots, enemy hideouts--and some are not, like schools, hospitals, media centers. But in the battle for Syria, where rules of war do not apply and where civilians are facing a savage massacre, the house that served as a makeshift press center in the rebel district of Bab Amr is ground zero. Destroying that target would go a long way toward allowing the regime of Bashar Assad to flatten the entire enclave without the whole world watching.

Vivienne Walt, Escape from Syria, TIME INT'L, Mar. 19, 2012.

The world has watched for over a year as President Bashar al-Assad's armed forces have employed unrestrained and overwhelming combat power against the most recent uprising of the Arab Spring. (1) What began as tens of thousands of unarmed protesters marching in the face of bullets and artillery shells has turned into a seemingly unending struggle between the regime's opponents--protesters, dissident army units, and other fighters--and the military forces loyal to the regime. (2) The unavoidable conclusion to be drawn from reports emanating from Syria is that the government's tactic of choice has been to indiscriminately and relentlessly attack entire towns, villages, and cities in an attempt to terrorize opponents and thereby repress the uprising once and for all.

Massive human suffering associated with heavy-handed government response to internal dissident threats is nothing new; indeed, the images coming from Syria are unfortunately reminiscent of many previous "internal" armed conflicts. From the Spanish Civil War to Sierra Leone to Rwanda to Sudan, internal wars have showcased the most heinous acts humans can commit. The brutality and human suffering associated with these conflicts spurred one of the most important evolutions in international law during the twentieth century: the extension of international humanitarian regulation into this realm of sovereign authority. Since the advent of the 1949 Geneva Conventions, the international community has steadily expanded and reinforced the application of the law of armed conflict (LOAC) to situations of internal armed violence to regulate state and opposition conduct for the clear and imperative purpose of mitigating the suffering inevitably associated with these situations, especially suffering inflicted on innocent civilians and opposition forces who have been rendered hors de combat. (3) Today, it is simply axiomatic that the LOAC regulates the conduct of hostilities and the protection of persons during all armed conflicts, whether inter- or intra-state.

As important as this development has been for limiting the suffering associated with war, it is equally axiomatic that the LOAC does not apply unless a situation rises to the level of armed conflict. (4) Accordingly, the increasingly robust package of international humanitarian protections the law mandates is not triggered if the facts on the ground do not support an objective, fact-based determination of armed conflict. Furthermore, because of its treaty foundation and the relatively recent role of international criminal jurisprudence assessing when this law applies, the meaning of armed conflict has become increasingly legalistic. Indeed, this shift in emphasis from a practical and pragmatic factual assessment to a legalistic "test" is reflected in what many today apply as an "elements" test: unless certain proposed elements are independently satisfied, a situation cannot be designated an armed conflict, even when the totality of the facts and circumstances cry out for international humanitarian legal regulation. The unfortunate effect of this evolution from practical to legal is that the international community seems incapable of seeing the humanitarian forest for the trees.

The current situation in Syria has the potential to become a pivotal moment in the development of the law of conflict recognition. The ongoing brutality reminds the world of the importance of extending international humanitarian regulation into the realm of non-international armed hostilities; however, the very chaos produced by those hostilities reveals critical fault lines in the current elements approach to determining the existence of an armed conflict. From almost the very inception of the government response to the Syrian opposition, most people, if asked to describe what was happening in Syria, would have used terms such as war, conflict, hostilities, or something comparable. Indeed, it is almost incomprehensible that those caught up in the chaos and violence--government soldiers, dissident fighters, innocent civilians, journalists, foreign observers--would seriously question the assertion that they were involved in a "war." And yet the international legal discourse evinced a clear reluctance to acknowledge the existence of armed conflict until the legalistic elements test was apparently objectively satisfied, in the summer of 2012, at least fifteen months after the violence erupted. (5) Prior to this point in time, the international community spoke of massive human rights violations, repression, even massacres--but not of war or armed conflict. (6) This reluctance highlights a clear disparity between the object and purpose of the LOAC and the increasingly legalized and formalistic interpretation of the law's triggering provisions in relation to non-international hostilities. This is especially discouraging in light of the motivation for adopting the armed conflict trigger: to mitigate the impact of technical legal formulas when determining the applicability of humanitarian protections. (7)

Before 1949 and the drafting of the Geneva Conventions (the Conventions), international law contained no positive law applicable to internal conflicts, and as these conflicts were perceived as occurring within the zone of state sovereignty, minimal authority existed for the applicability of customary regulatory norms. (8) The inclusion of Common Article 3 in those Conventions, which imposed limited but critically important standards of conduct on participants in internal conflicts, was revolutionary. This unprecedented intrusion into state sovereignty was motivated by the recognition that the brutality associated with internal conflict necessitated the imposition of an international obligation to respect, at a bare minimum, fundamental humanitarian principles at the core of the laws and customs of war. (9) The need for respect for these principles--focused principally on protecting individuals who never took or are no longer taking an active role in hostilities (10)--was equally logical regardless of whether the conflict was internal or interstate in nature. (11) Accordingly, Common Article 3 reflected a simple premise: armed conflict, whether internal or international, triggers international legal regulation. (12) As the states that adopted the 1949 Conventions understood so well, any other approach would leave the protection of individuals detrimentally impacted by the brutality of internal armed violence to the whims of the state, a situation already considered untenable by 1949. (13)

In 1949, the drafters of the Conventions sought to have the law apply as broadly as possible to conflicts occurring between states and nonstate entities in order to maximize its effectiveness and reach. (14) In 1994, the first case before the International Criminal Tribunal for the former Yugoslavia (ICTY) set forth a comprehensive definition of armed conflict, specifically defining non-international armed conflict as "protracted armed violence between governmental authorities and organized armed groups or between such groups within a State." (15) At the time, the ICTY emphasized again the need for a broad and comprehensive application of the LOAC in order to fulfill the object and purpose of the law. (16) Over time, the two key factors that the ICTY identified--the intensity of the fighting and the organization of the parties--have morphed into a highly technical test for the definition of non-international armed conflict, a test ostensibly requiring independent satisfaction of both elements before a situation of armed conflict may properly be recognized. (17) This "elements test," which has gained substantial momentum in international legal discourse, requires satisfaction of each element as an independent requirement, instead of understanding them as factors in a totality assessment. (18) This development undermines the original objective of Common Article 3. Focusing on the events in Syria, this Article critiques how what was originally conceived as an analytical framework morphed into an overly legalistic elements test for the recognition of the existence of non-international conflict and how this evolution undermines the original concept and purpose for recognizing the existence of non-international armed conflicts.

The impact of this strict elements test was apparent in an early report by the UN Commission of Inquiry for Syria. In stating that the situation in Syria did not constitute an armed conflict, the Commission of Inquiry explained that the opposition parties in Syria were not sufficiently organized to satisfy this test. (19) The effect was that the world witnessed a retrograde of international humanitarian efficacy: Syria appeared objectively to be a lawless conflict like those that inspired the adoption of Common Article 3--one in which the regime employed its full arsenal of combat capability to shell entire cities and neighborhoods at will, block the provision of humanitarian assistance, and target journalists and medical personnel directly. The LOAC is specifically designed to address exactly this type of situation. Core LOAC principles related to both the conduct of hostilities and humanitarian protections developed over time to mitigate the suffering inherent in situations involving widespread and intense hostilities. (20) Human rights law--the exclusive source of international legal regulation applicable in the absence of an armed conflict--simply does not contemplate massive uses of military power and therefore does not provide an effective regulatory framework for such use. For example, human rights law does not seek to balance the need to utilize deadly combat power with humanitarian concerns inherent in the principle of military necessity, nor does it include obligations for "parties to a conflict" to facilitate humanitarian relief organization access to areas engulfed in hostilities or respect those exclusively engaged in the collection and care of the wounded and sick. (21) Equally significant are the increasingly robust mechanisms for imposing international criminal responsibility for violations of international humanitarian law during non-international armed conflicts that have resulted in, at least in practical terms, a more effective accountability regime for war crimes than for human rights violations. (22)

Syria is therefore a symbolic and painful reminder of why the drafters of the Conventions recognized a need to distinguish internal disturbances resulting in an exclusively government law enforcement response from situations that necessitate a government response with military force utilizing tactics and weaponry inconsistent with a law enforcement characterization--namely armed conflict. (23) This dividing line is inherent in Common Article 3. Although this provision imposes only humanitarian protections and does not address regulation of the means and methods of warfare (military tactics and weaponry), the dividing line it establishes demonstrated a recognition that these protections are essential to offset the humanitarian consequences attendant to the employment of a state's combat capabilities to repress an internal threat. Quite simply, Common Article 3 evinced the recognition that states need no "test" to decide to employ a heavy-handed military response to internal challenges. Instead, what was needed was an international standard to ensure that when such force is unleashed, the participants in the hostilities become bound to respect the most fundamental norms of international humanitarian law. (24)

Indeed, the most obvious distinction between peacetime and wartime (armed conflict) is the legal authority to employ deadly force. During war, armed forces employ lethal force against enemy personnel and objects as a first resort. (25) In contrast, the peacetime authority to use force--regulated by international human rights principles--restricts lethal force to a measure of last resort permitted only based on individualized threat determinations. (26) In theory, therefore, the absence of armed conflict obligates governments to limit security response to internal threats to the more restrictive parameters of constabulary use of force authority consistent with international human rights law, which would therefore provide greater protection to civilians from government violence. It is an unfortunate reality, however, that an overly restrictive interpretation of when armed conflict arises results in a different demarcation line: one not between the application of human rights law and the LOAC, but between the LOAC and no law at all. As highlighted by the opening quote, the primary concern generated by the early phases of the current Syrian civil war was not "peacetime vs. wartime," but "wartime vs. totally unrestrained brutality."

Acknowledging this reality necessitates a reconsideration of how armed conflict recognition has evolved in recent years, and whether this evolution is inconsistent with the type of pragmatic trigger for application of the LOAC's regulatory framework that is essential for balancing military reality and humanitarian protections. If this evolution provides the legal space for the type of paralysis that marked the initial international legal reaction to the violent government response to Syrian opposition, it is ultimately inconsistent with the primary objective of Common Article 3 and the broader corpus of today's law applicable to non-international armed conflicts: aligning the reality of armed hostilities with humanitarian protections developed to apply in such situations. As we explain, Syria therefore reinforces exactly why this is so and why the strict elements test increasingly relied on for recognition of armed conflict detracts from the law's applicability precisely when it is most needed.

In Part I, this Article analyzes the LOAC's object and purpose with respect to non-international armed conflicts and highlights the goals of the drafters of the Geneva Conventions in establishing a pragmatic triggering mechanism for the application of the law. In particular, this Part demonstrates why a broad conception of noninternational conflict is essential to contain the brutality historically endemic during these conflicts and why the nature of the government response to an internal challenge has always been and must remain a key indicator of the existence of armed conflict. This analysis highlights and helps recall what the framers of Common Article 3 contemplated when they created this extraordinarily important treaty provision.

Part II traces the evolution of non-international armed conflict "recognition," specifically focusing on the ICTY Appeals Chamber opinion in Prosecutor v. Tadic, and how that opinion evolved into an elements test as the result of subsequent ICTY and other jurisprudence and scholarly interpretation. The rigidity of what is today known as the elements test fails to effectuate the underlying objective of conflict identification, especially in the internal hostilities context. The story of conflict recognition--or lack thereof--in Syria provides a compelling example of the consequences of this rigidity.

Finally, Part III demonstrates how a totality of the circumstances approach better serves core LOAC objectives of humanitarian protection. Rather than inflexible independent requirements, the Tadic factors should serve as a conceptual guidepost for a totality approach to assessing the existence of noninternational armed conflict and how to distinguish such conflicts from lower level types of internal violence insufficient to trigger the LOAC, such as civil disobedience, riots, and other types of internal disturbances. In support of this argument, an analogy to U.S. constitutional criminal jurisprudence offers an intriguing insight into the very different outcomes of these two approaches to conflict identification.

This Article proceeds on the belief that the LOAC's object and purpose provide the essential foundation for properly understanding the intensity and organization factors, how they relate to each other and combine to indicate existence of armed conflict, and for recognizing how other factors, such as the government's response, affect the analytical impact of these factors. Together, these layers of analysis demonstrate the need for a conceptual--rather than technical--framework guided by the object and purpose of the law. The current discourse on Syria highlights the dangers of allowing an overly technical test to override--and undermine--logic, with an obviously deleterious impact on human life. A more flexible totality of the circumstances approach to conflict identification--one that relies heavily on the Tadic factors but utilizes them to guide a much more pragmatic factual assessment--will contribute to fulfilling the humanitarian goals so central to the original inclusion of Common Article 3 in the 1949 Conventions.

I. WHY THE LAW OF ARMED CONFLICT (LOAC) REGULATES NON-INTERNATIONAL ARMED CONFLICTS

In the aftermath of World War II, the international community aimed to enhance humanitarian protections for war victims by revising the Geneva Conventions. (27) Three Geneva Conventions that had been in force during the war were updated, and one entirely new Convention was created. (28) The states that came together for this important revision process shared a collective motivation: to close the numerous gaps and loopholes exposed during the cataclysmic events of World War II in order to better achieve the humanitarian objectives of international law. (29) These efforts culminated in the four 1949 Geneva Conventions, each of which addressed the plight of a distinct category of war victims (the wounded and sick in the field; the wounded, sick, and shipwrecked at sea; prisoners of war; and civilians). (30) These four treaties have since earned the distinct status of universal ratification and unquestionably form the very foundation of international humanitarian law. (31)

Of the many lessons learned in the "battle laboratory" of twentieth century conflicts culminating with World War II--lessons that inspired the revisions to the Conventions--two were especially significant. First, human suffering associated with armed hostilities, or de facto war, is not limited to conflicts between states, but is often even more pervasive during civil war and other intrastate hostilities. (32 Second, without a clear and pragmatic trigger for) application of treaty provisions developed to provide humanitarian protection to war victims, even the most comprehensive treaty regime is functionally meaningless. (33)

Each of these lessons reflected the delta between de facto war and de jure war. While it may seem axiomatic that international legal regulation of war is applicable to any situation that manifests the obvious indicia of war--armed hostilities between belligerent groups seeking to impose their will on each other--in reality, no such pragmatic synchronization existed prior to 1949. (34) Civil wars were not considered wars in the international legal sense because of the absence of an interstate contest. (35) Accordingly, the law developed to regulate war was inapplicable to these intrastate, or internal, hostilities. This was in large measure a consequence of the dormancy of the historically effective concept of belligerency, a concept that extended international legal regulation to belligerent parties in civil war. (36) In those situations, belligerent recognition of a dissident group resulted in the imposition of international rights and obligations as if the entity were a state. (37) However, the recognition of belligerent status fell victim to an increasingly bipolar world, resulting in the politicization of what had previously been a predominantly de facto doctrine. (38) Failing to acknowledge belligerent status resulted in a troubling lacuna in international legal regulation of large-scale internal conflicts, such as the one in Spain that claimed upwards of 500,000 lives. (39) Conflicts such as the Spanish Civil War unquestionably satisfied any pragmatic definition of war--widespread and intense hostilities between belligerent groups. However, the political hobbling of the doctrine of belligerency coupled with the absence of an internationally defined and binding standard for determining compulsory applicability of the law of war (a term that is today synonymous with humanitarian law or the LOAC) left this category of hostilities immune from international legal regulation. (40)

In response, the drafters of the Geneva Conventions included in each of the four treaties articles dictating situations of treaty applicability. (41) The undisputed purpose was to create a de facto standard for determining the applicability of Geneva law, a standard that would more effectively protect victims of war by preventing definitional law avoidance and hopefully nullify the corrosive effect of political agendas in assessing law applicability. As a result, the focal point for determining applicability would no longer be war--a term susceptible to interpretive avoidance--but instead armed conflict. (42) Accordingly, Article 2 common to the four treaties (Common Article 2) required application of the full corpus of the treaties to any international (interstate) armed conflict. (43) And, in response to the humanitarian risk associated with armed hostilities in the purely intrastate context, all four treaties also included an article imposing limited international humanitarian obligations on parties engaged in non-international armed conflicts: Common Article 3. (44) While the textual effect of each of these treaty provisions only related to the Conventions themselves, they evolved over time to represent the definitive standard for assessing LOAC applicability to these two categories of armed conflict (and indeed ushered in the concept of non-international armed conflict as a distinct type of conflict). (45)

This did not, however, eliminate all uncertainty from law applicability analysis. Instead, the focal point of that uncertainty shifted from the meaning of the term war to the meaning of the term armed conflict. (46) Determining that meaning was never particularly complicated in the context of interstate hostilities, or international armed conflicts. Relying principally on the International Committee of the Red Cross (ICRC) Commentary to Common Article 2, any hostilities between the regular armed forces of two or more states resulting from an interstate dispute qualified as an international armed conflict, triggering the full corpus of the Conventions and, by implication, the LOAC writ large. (47) The non-international context, however, proved far more complex.

Extending international humanitarian regulation to situations of internal hostilities certainly seemed justified by the brutality that defined those struggles. However, it also represented an intrusion into an area until then considered to be the exclusive domestic sovereignty of the state. Precisely when this intrusion becomes justified may be obvious at the extreme--e.g., the types of civil war like the one in Spain, involving widespread and large-scale "force on force" battles between two traditional armies. But as the nature of the internal violence moves down the scale of intensity and involves opposition forces lacking the type of traditional military organization typical of the classic civil war, the line between armed conflict and civil disturbance becomes uncertain. Because internal civil disturbances below the threshold of armed conflict were viewed as matters of domestic sovereignty, (48) identifying this demarcation point was in 1949, and remains today, a key source of uncertainty--a reality painfully illustrated by the recent brutal events in Syria. (49)

A. Containing Brutality

It is, of course, self-evident that one way to contain or limit the brutality of warfare is to prevent warfare itself. Efforts to achieve this important humanitarian goal have and must continue to be a central focus of much of international law and diplomacy, irrespective of the "character" of the potential conflict. (50) However, over time the branch of the law intended to mitigate the risks associated with the inevitable failure of these efforts--the jus in bello or the LOAC--has also become an important source of law that contributes to this purpose. At its most basic conception, applying a strict and oftentimes difficult legal equation to determine the existence of armed conflict enables international disavowal of the denial of humanitarian protections in those situations even when the pragmatic metrics "on the ground" indicate otherwise. (51) The motivation for this approach is almost certainly a desire to limit the consequences of armed hostilities by preventing states or nonstate groups from legitimately claiming the broad powers associated with armed conflict. (52) As laudable as this may be, it is both inconsistent with the underlying rationale of the Geneva Convention conflict recognition framework and produces a negative operational and humanitarian impact. (53)

Nothing in the Commentary to Common Article 3 suggested that a primary or even secondary function of this landmark development was to limit resort to armed hostilities. (54) Instead, the Commentary confirms that the drafters intended the article to be a highly pragmatic humanitarian remedy to the reality that armed conflicts, especially in the intrastate context, would manifest themselves in diverse and often unpredictable permutations, more amenable to a totality of the circumstances assessment than a technical legal assessment. (55) The goal was clear: maximize applicability of international humanitarian protection for victims of these historically brutal conflicts. (56)

The current discourse, which considers the applicability of the LOAC solely as a distinguishing line from the peacetime regime of human rights law and domestic law enforcement mechanisms, simply fails to account for the LOAC's historic purpose of mitigating the humanitarian suffering inherent in warfare, especially internal warfare. As far back as the Old Testament, leaders and societies imposed some limitation on the conduct of hostilities; these early regulations were directed at reducing the violence visited on certain groups, such as women and children, or prisoners. (57) The founding of the ICRC itself was a response to the horrors of war and an effort to introduce a measure of humanity into the brutality of combat and to mitigate wartime suffering. (58) Throughout this long stretch of history, international human rights law did not exist, of course. The LOAC thus functioned as the primary--in fact, the exclusive--restraint on the imposition of violence as a tool of policy.

Today, sixty-plus years after the modern human rights movement began with the Universal Declaration of Human Rights, this historic and central purpose of the LOAC has faded from the discourse, overtaken by concerns about identifying the demarcation line between the peacetime regime of law enforcement regulation pursuant to human rights norms and the regulation of hostilities pursuant to the LOAC. (59) Unfortunately, however, Syria demonstrates all too tragically that the potential for unmitigated cruelty and brutality has not faded commensurately. The result is a failure to use the tool of LOAC for one of its key purposes. Thus, the international community must not forget that just as LOAC's applicability threshold identifies the dividing line between peacetime law and wartime law, so the application of LOAC equally represents the even more fundamental demarcation between law and no law at all, between a measure of humanity and wholly unmitigated brutality. Ignoring this reality has too high a price in human suffering.

Furthermore, this reluctance to identify armed conflict in the context of a situation in which peacetime paradigms are insufficient produces a gap in legal protection and obligation: in essence, an invitation to unrestricted warfare. The LOAC is historically adamant in its rejection of gaps in the law, for the basic reason that gaps inherently undermine LOAC's central goals of protecting civilians during hostilities and minimizing the suffering inherent in war. (60) Allowing a situation that produces a consequential gap in legal protection and regulation simply runs counter to LOAC's very object and purpose. Equally problematic is the loss of a fairly well-established regime of international criminal accountability for violations of these core norms of armed conflict. (61) While it is not inconceivable that widespread human rights violations may result in international criminal responsibility, (62) it remains a reality that the accountability structure associated with violations of international humanitarian law is much more predictable--a factor that must inevitably impact deterrence in those situations.

It may be true that the international community should be reluctant to acknowledge situations of armed conflict if and when that reluctance serves as a deterrent to a heavy-handed government response to internal oppositions threats. Unfortunately, there seems to be little evidence indicating such an impact. Instead, state forces exploit the legal uncertainty of these situations in their attempts to deal decisive blows to emerging threats. (63) Common Article 3's drafters seemed to recognize this risk, leaving the definition of armed conflict to the pragmatic metrics of each situation. (64) Unless and until it is established that linking conflict regulation to the strict elements approach currently in vogue actually inhibits resort to combat power by governments responding to internal threats, the underlying totality approach reflected in the Commentary should prevail. The goal must be constant: synchronize the applicability of conflict regulation with the reality of armed conflict and actively avoid any law-based disavowal of those realities.

B. What Role for the Government's Response?

This reminder of the LOAC's core purpose highlights the need to allocate substantial weight to the nature of the state response to emerging internal opposition threats when assessing LOAC applicability. As Syria demonstrates, failing to account for a state's wholly unrestrained use of force as the method of repressing internal opposition creates a genuine risk of legal uncertainty and humanitarian catastrophe, precisely when such certainty is most needed. The Geneva Conventions' trigger for LOAC application rests on an objective and pragmatic framework, seeking to divorce applicability from the rhetoric of states. (65) Just as Common Article 2's paradigm for international armed conflict eliminates the opportunity for states to engage in law avoidance by creating an objective trigger untethered to declarations of war or other public pronouncements, so Common Article 3 also introduced the same objective approach to internal armed conflict. (66) Internal violence is fundamentally a threat to the government's authority; therefore, analyzing how the government responds to that violence must be a major component of any objective determination. (67) At the same time, the nature of the government's actions cannot be the determinative or exclusive component, for the very reason that the Conventions substituted the term armed conflict for war: any trigger for the law that rests solely on governmental rhetoric or action will lose that essential objectivity. (68) To better understand how and when to incorporate the nature of the government's response into the conflict recognition analysis, it is important to examine how this consideration was viewed at the time Common Article 3 was drafted.

The ICRC Commentaries to the Conventions offered what has always been understood as a series of important factors to guide non-international armed conflict identification--the critical distinction between civil disturbance below the threshold of armed conflict and the type of internal violence that crosses that threshold and triggers humanitarian regulation. (69) The Commentary to Common Article 3 emphasized that no factor or combination of factors should be considered dispositive. Instead, it seems apparent that a totality of the circumstances analytical approach was proposed, requiring a true case-by-case analysis of each individual situation. (70) Perhaps more importantly, this assessment was to be guided by the very motivational purpose of establishing international humanitarian regulation for non-international armed conflicts: maximizing application of Common Article 3. (71) Why, the Commentary queried, would anyone object to its application? "What Government would dare to claim before the world, in a case of civil disturbances which could justly be described as mere acts of banditry, that, Article 3 not being applicable, it was entitled to leave the wounded uncared for, to torture and mutilate prisoners and take hostages?" (72) Even in the "close call" situation, the result of recognizing the existence of an armed conflict merely required the humane treatment of individuals who no longer posed a threat to the state--an obligation equally applicable in peacetime. (73)

What the Commentary failed to recognize when it posed this question, however, was that crossing the threshold from peacetime civil disturbance to internal armed conflict triggers not only the humanitarian protections of Common Article 3, but also a range of robust state powers justified only in the context of an armed conflict, most significantly the power to kill as a first resort based on status presumptions. (74) Perhaps this was implicitly recognized by the

Commentary's emphasis on the significance of state resort to regular armed forces as a factor indicating the existence of armed conflict. If it is assumed that the use of the armed forces will involve the employment of combat power normally associated with war, then it does indeed suggest the existence of armed conflict, for the simple reason that the armed forces called upon to respond to the internal opposition threat would implicitly invoke LOAC authority in the execution of their operations. (75)

This is not, however, a universally valid assumption. States routinely utilize regular armed forces to augment law enforcement efforts, and many states maintain permanent national military police, or gendarmerie. (76) Thus, the answer to the Commentary question is clear: objection to an expansive application of Common Article 3 does not necessarily reflect opposition to imposing an international legal obligation on the state to ensure the humane treatment of inoffensive individuals; it reflects opposition to the premature and unjustified use of LOAC powers by a state to address an internal crisis. (77) This is certainly a legitimate concern. However, what does not seem to have been adequately considered in contemporary conflict recognition discourse is whether a strict legal test for the existence of armed conflict--a test substantially more demanding than the totality approach proposed by the Commentary to Common Article 3--achieves this objective.

Perhaps if it could be established that states are increasingly hesitant to unleash the full force and effect of their military capabilities to respond to nascent internal opposition threats because they do not believe the elements of armed conflict are satisfied, this shift from a totality to a more juridical approach would have merit. This, however, is a highly dubious proposition. Instead, limiting recognition of armed conflict through a strict elements test may produce the exact opposite effect of exposing victims of hostilities to increased brutality as the result of the legal regulatory uncertainty-- if not paralysis--generated by this approach. In these situations, it should come as no surprise that a government determined to extinguish a nascent opposition would seek to exploit this regulatory uncertainty to maximum advantage. Nothing could be more inconsistent with the original motivation for Common Article 3.

II. THE EVOLUTION OF NON-INTERNATIONAL ARMED CONFLICT RECOGNITION

As noted above, there is no dispute that Common Article 3 was included in the 1949 Geneva Conventions for the specific purpose of mitigating the humanitarian suffering associated with brutal internal armed struggles. Indeed, the original proposal by the ICRC went much further, suggesting that no distinction should be made between types of armed conflicts, for the simple reason that human suffering was simply not contingent on whether an armed conflict was international or internal. (78) Although ultimately rejected by the states party to the treaties, this original proposal remains a powerful reminder of the underlying goal of the compromise that evolved into Common Article 3: to prevent the type of humanitarian suffering international law had been incapable of addressing prior to 1949.

Naturally, a key question associated with the new article was determining exactly when internal disturbances crossed the triggering threshold from a domestic criminal law problem to an international humanitarian law problem, precisely because states remain reluctant to countenance international intrusions into what they view as domestic matters. (79) Although Common Article 3's black letter text does not provide further clarification as to when a given situation constitutes an armed conflict so as to trigger LOAC, its objective was abundantly clear: to implement the post-World War II focus on the need to extend LOAC applicability to internal conflicts. (80)

Common Article 3's text emphasizes the provision's goal of ensuring minimum humanitarian protections in all situations of armed conflict, but offers little guidance with regard to what constitutes an armed conflict. (81) The applicability threshold was, however, a major focus of the associated Commentary. According to the Commentary, it was both impossible and ill-advised to attempt to identify a specific test for determining the applicability of Common Article 3; rather, the Commentary proposed what is best understood as a totality of the circumstances analysis intended to effectuate the underlying humanitarian objectives of the new article: to interpret Common Article 3 as broadly as possible. (82)

The Commentary offers critical insight into the intent of the drafters in the form of indicative--but not dispositive--factors or characteristics of a Common Article 3 conflict, based on the nature and behavior of both state and nonstate parties. For example, the response of the state is a critical component, (83) in particular whether it employs its regular armed forces in combating the nonstate actor and whether it has recognized the nonstate actor as a belligerent. (84) As noted above, ignoring the nature of the government's response in pursuit of conflict recognition is a serious shortcoming and fails to take into account the practicalities of the situation. In addition, several considerations can provide useful guidance for understanding whether violence or hostilities have progressed beyond internal disturbances, such as whether the nonstate actor (1) has an organized military force; (2) has an authority responsible for its acts; (3) acts within a determinate territory, having the means of ensuring respect for the Geneva Conventions; and (4) acts as a de facto governing entity, and its armed forces are prepared to obey the laws of war. (85) These factors or considerations are just that: factors and considerations. The Commentary explains that the idea of defining the term conflict was abandoned after some debate, as was the inclusion of a list of "a certain number of conditions on which the application of the Convention would depend." (86) Rather, as explained above, the drafters intended Common Article 3 to have as broad a scope as possible. (87) Nor can it be ignored that the drafters of both Common Article 3 and the Commentary were, by necessity, basing their catalogue of factors on their collective experiences, indicating that as the nature of conflict evolves, so must the relevance of other potential conflict identification indicators.

In 1992, the importance of Common Article 3's objective--to mitigate the brutality of internal wars and mandate a minimum level of humane treatment--was elevated to unprecedented international attention when the break-up of the former Yugoslavia rapidly devolved into widespread armed violence. A new front in the regulation of intrastate hostilities emerged: the extension of international criminal responsibility for violations of the laws and customs of war to situations of internal armed conflict. (88) This important development necessitated, however, identification of the armed conflict demarcation point not as a matter of policy or theory, but as a jurisdictional predicate to the imposition of this criminal responsibility. (89) The conflict in the former Yugoslavia, and the international decision to impose criminal responsibility on the participants of that conflict, generated the first, and by any measure, seminal, international judicial opinion analyzing the existence of an internal armed conflict: Prosecutor v. Tadic. (90) The methodology utilized by the ICTY to assess the situation in Bosnia evolved into what is often characterized as the elements test, an approach to conflict analysis that is potentially undermining the objectives that originally motivated the adoption of Common Article 3.

A. Tadic and Its Framework

In Tadic, the first case heard by the ICTY, the Tribunal immediately faced the question of whether the situation in the former Yugoslavia was an armed conflict. (91) In particular, charges brought under Article 2 (grave breaches of the Geneva Conventions) and Article 3 (violations of the laws and customs of war) of the Statute of the ICTY applied only to situations of armed conflict, (92) rendering this determination a jurisdictional predicate to any criminal responsibility for the alleged violation of these provisions. In a decision on interlocutory appeal, the Appeals Chamber of the ICTY set forth the modern definition of armed conflict: "[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State." (93) In the context of examining the broader purposes and goals of Common Article 3 and understanding its application, it is important to note that the Appeals Chamber emphasized that the notion of armed conflict has a broad geographical and temporal scope. (94) This broad scope is directly related to the protective purposes of the Geneva Conventions; the ICTY specified that "the rules contained in Article 3 also apply outside the narrow geographical context of the actual theatre of combat operations" and that "the temporal scope of the applicable rules clearly reaches beyond the actual hostilities." (95) As such, the ICTY looked to the object and purpose of the LOAC as a guide in understanding the reach and parameters of the law's application. (96) This definition has not only been the driving factor in the ICTY's jurisprudence, but was also adopted by the drafters of the Rome Statute establishing the International Criminal Court (ICC) (97) and by the International Criminal Tribunal for Rwanda (ICTR). (98) It continues to be the most common and oft-cited contemporary definition of armed conflict. (99)

In its decision on the merits, the Tadic Trial Chamber took this definition and the Commentary's broad-stroke guidelines and expounded on the meaning and parameters of non-international armed conflict under Common Article 3. Fleshing out the definition, the ICTY thus laid the foundation for what was to become the two-prong elements test--the ultimate legacy of Tadic. (100) According to the Tribunal:
   The test applied by the Appeals Chamber to the existence of an
   armed conflict for the purposes of the rules contained in Common
   Article 3 focuses on two aspects of a conflict; the intensity of
   the conflict and the organization of the parties to the conflict.
   In an armed conflict of an internal or mixed character, these
   closely related criteria are used solely for the purpose, as a
   minimum, of distinguishing an armed conflict from banditry,
   unorganized and short-lived insurrections, or terrorist activities,
   which are not subject to international humanitarian law. (101)


Importantly, the Trial Chamber further noted that factors relevant to identifying the threshold between armed conflict and lower level types of violence--e.g., riots, terrorist activities, etc.--are discussed in the Commentary. (102) In a brief analysis, the Trial Chamber then concluded that given the ongoing hostilities and the nature of the parties to the conflict in Bosnia
   at all relevant times, an armed conflict was taking place between
   the parties to the conflict in the Republic of Bosnia and
   Herzegovina of sufficient scope and intensity for the purposes of
   the application of the law or customs of war embodied in Article 3
   common to the four Geneva Conventions. (103)


The Tadic definition quickly became the determinative statement on what constitutes armed conflict. Subsequent cases at the ICTY and the ICTR relied on the definition of armed conflict as protracted violence between the government and organized armed groups or between two or more armed groups as the paradigm for identifying the existence of an armed conflict. (104) In most of these cases, the Tribunal examined the nature of the fighting and the relevant parties in some fashion in order to determine if the facts of the situation objectively fit within the definition as set forth in Tadic. However, the Tadic definition and the reference to intensity and organization as useful considerations were not applied as a test of factors. Rather, the tribunals noted the relevance of intensity and organization and used the two considerations as guides to understanding the evidence presented regarding the situation at hand. Thus, even in many of the cases routinely cited for the proposition that Tadic established a two-part test of factors, the terms intensity and organization do not appear as identifiable factors, or--in some cases--even at all.

In Prosecutor v. Delalic and Prosecutor v. Kordic, for example, decided in the first few years after Tadic, neither the Trial Chamber nor the Appeals Chamber set forth intensity and organization as distinct factors that were required to be independently satisfied in assessing the existence of a conflict. (105) Even later, nearly ten years after Tadic, the ICTY continued to explore the existence of armed conflict as a predicate for the imposition of criminal responsibility using the foundational Tadic definition without the further step of a test of elements or factors. Prosecutor v. Halilovic, decided in 2005, does not mention the words intensity or organization; the Tribunal assessed the nature of the hostilities and military operations and concluded that an armed conflict existed at the relevant time. (106) One year later, the ICTY took a similar approach in Prosecutor v. Hadzihasanovic, looking at the escalation and continuation of the hostilities and the efforts to broker a deal between the two different sides to the conflict, again without reference to specific factors of intensity and organization. (107) Finally, in Prosecutor v. Martic, decided in 2007, the Trial Chamber again provided the definition of armed conflict without any further breakdown into specific factors or elements to be satisfied, (l08) The ICTR generally followed the same approach, helping to establish the Tadic definition of armed conflict as the definitive modern definition for use not only by the ICTY, but also by a variety of national and international courts and tribunals around the world. (109) It is, however, important to note that the conflicts in both the former Yugoslavia and Rwanda overwhelmingly satisfied both elements of intensity and organization, rendering assessment of the relationship between these two factors unnecessary for either tribunal as each analyzed the existence of non-international armed conflict.
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Title Annotation:I. Why The Law Of Armed Conflict (LOAC) Regulates Non-International Armed Conflicts through II. The Evolution of Non-International Armed Conflict Recognition A. Tadic and Its Framework, p. 693-720
Author:Blank, Laurie R.; Corn, Geoffrey S.
Publication:Vanderbilt Journal of Transnational Law
Date:May 1, 2013
Words:7668
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