Confuse the law, protect the aggressor: lex ferenda and the ICRC’s (mis)definition of “international armed conflict”

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In this post, Professor Alexander Orakhelashvili critiques the ICRC’s approach on international armed conflicts

Photo of Dr Alexander Orakhelashvili

Professor Alexander Orakhelashvili


A flawed interpretation

Commentary to the Third Geneva Convention, prepared by the International Committee of the Red Cross (ICRC), proposes a rather novel approach to international humanitarian law. It adopts an expansive concept of “international armed conflict” so that it includes not only armed confrontation between armed forces of two or more States, but also situations involving one State’s armed operation in the territory of another State without confronting armed forces of the latter State (for instance because the target State does not respond to the invader’s operations either out of its choice or lack of an adequate military power). The commentary asserts that “The unilateral use of armed force presupposes a plurality of actors and still reflects an armed confrontation involving two or more States, the attacking State and the State(s) subject to the attack, therefore satisfying the requirement of Article 2(1)” (paragraph 256). The commentary claims that the position “that for an armed conflict to exist in the sense of Article 2(1) [GC3], the simultaneous involvement of at least two opposing States through their armed forces is required … is too narrow” because that position “would in fact exclude from the scope of armed conflict the unilateral use of force by one State against another” (paragraphs 255-256). On this reading of the Convention, it looks as though an international armed conflict could materialise solely upon the confrontation between the attacking State and persons or groups present on the target State’s territory (other than those belonging to that State’s armed forces).

On its face at least, this thesis conveys little more than a mere assertion that unilateral uses of force cannot be excluded from the definition of an international armed conflict because they must be included in that definition. The ICRC tries to fortify its case by restating the well-known Montevideo criteria that a State has three elements such as territory, population, and government and hence the involvement of some (even if not all) those elements in the relevant situation could qualify that situation as an international armed conflict (paragraph 257). However, the ordinary meaning of a State is not the same as that of one or more of its particular elements. Instead a State is a legal person and political entity operating through the combination of all Montevideo elements, and if Article 2(1) refers to an armed conflict between States, then it has to be one in which two or more States as a whole, as legal persons and political entities, are involved. This situation cannot materialise without a confrontation between two or more States’ governments and armed forces.

Therefore, ICRC’s above attitude defies the analysis of the text of Article 2(1) which also mentions one case which does not involve active military confrontation between States, yet it “also” falls within the scope of the Geneva Convention. This is belligerent occupation even if it “meets with no armed resistance”. The Convention uses here the word “also” and thus refuses to treat occupation as one of the sub-species of an armed conflict. If yet another instance not involving armed resistance such as “unilateral use of force by one State against another”, or one State’s military presence on another State’s territory short of belligerent occupation or without the armed confrontation between the two States’s armed forces, or blockade (on which see below) had been intended to be subsumed within the Convention’s scope, would the Convention not include an express statement to that effect, similar to the one it includes with regard to belligerent occupation?

The ICRC’s interpretation of Article 2(1) on the basis of its plain and ordinary meaning is therefore flawed. And then the commentary proceeds to suggest that the above “narrow” reading of Article 2(1) “would be at odds with the object and purpose of the Geneva Conventions, which is to regulate any kind of use of armed force involving two or more States.” Here the commentary speaks in the language of treaty interpretation which is a rather complex process consisting of multiple interdependent elements. What is the evidence that the object and purpose of the Geneva Conventions requires the construction of the scope of Article 2(1) as broadly as the ICRC suggests it should be construed? How could the object and purpose of the Third Geneva Convention whose nearly every provision is about protecting persons belonging to a State’s armed forces be so wide as to require the expansive interpretation of Article 2 to make the Convention applicable to armed conflicts not involving a confrontation between two or more States’ armed forces? Furthermore, of what use would the Convention’s provisions be in cases when the invading State’s military personnel are captured by local NSAs? How and through which of its provisions would the Convention’s provisions protect those personnel? Alternatively, if the invading State’s armed forces captured fighters not belonging to the local State’s armed forces, on what basis would those fighters become prisoners of war and stop being civilians (in the sense of IHL at least)? In essence, thus, the ICRC commentary asserts that, simply and without more, Geneva Conventions must apply to situations which are by and large unregulated by their specific provisions – ones that rather importantly form the context of Article 2(1) for the purposes of treaty interpretation under Article 31(1) VCLT.

Furthermore, if two States are not in confrontation through their governments and militaries, the issue of targeting would not arise either, and hence the distinction or proportionality principles under I Additional Protocol (applicable to same situations as the Geneva Conventions) would not be relevant because, quite simply, there would be nothing to be distinguished from anything. If State apparatus is not involved in fighting or targeted, then there would be no feasible normative criteria to limit attacks to objects used for military purposes by that State, and hence no feasible distinction between objects that could be lawfully attacked and ones that could not be so attacked. It would be a crude extension analogy driven by natural lawyering to suggest that NSAs in the target State become combatants and valid targets just because a foreign State chooses to operate on the territory of a foreign State (with or without the latter’s consent) on which those NSAs are active. (It should be noted, for the sake of avoiding confusion, that the Convention does apply to levée en masse units as well, but that is obviously not the main phenomenon that occurs in the warfare of modern or addressed as such main phenomenon in the ICRC’s commentary.)

Indequate evidence

Therefore, the Commentary adduces no evidence to show that the use of force in the material sense is the same as an armed conflict in the legal sense; it simply states that Article 2(1) has to be construed broadly because it should not be construed narrowly. The evidence invoked in support of the ICRC’s position is also problematic. The commentary relies only on writers’ statements to support a rather sweeping statement that “The existence of an international armed conflict presupposes the involvement of the armed forces of at least one of the opposing States” (paragraph 258/footnote 55). A similar problem recurs in paragraph 256/footnote 51 where the commentary refers to Heintschel von Heinegg’s views in support of another sweeping statement that the establishment of a blockade against a State initiates an armed conflict between the blockading and target States. Apart from the problem attendant to this assertion made on the authority of an academic commentary alone, the effect of the ICRC’s position evades would be to consider blockade imposed in situations outside a pre-existing international armed conflict which is an aggression as a lawful measure and then proceed with figuring out which of the implications of that blockade are (un)lawful under IHL. Similarly, the ICRC’s reference (at paragraph 294/footnote 106 of the Commentary) to paragraphs 108, 146 and 208 of the 2006 DRC-Uganda Judgment is also inaccurate and does not corroborate the point that the ICRC tries to make. In the situation delt with in that case, Rwanda’s forces were involved, and this is what made the relevant confrontation an international armed conflict. A similar distortion underlies the ICRC’s treatment of the Lebanon inquiry commission report (cited in the same place), in which report Hezbollah was found to be integrated with Lebanon’s military, not simply a non-State actor that could be party to an international conflict. An “armed attacks on [Lebanon’s] Armed Forces” by Israel were also expressly mentioned in para. 58 of that Report. And then, as though looking past the evidentiary problem, at paragraphs 262-263 the commentary cites the ICC’s Bemba decision to the effect that “an international armed conflict exists in case of armed hostilities between States through their respective armed forces or other actors acting on behalf of the State” (Bemba, para. 223), i.e., on terms and conditions endorsed under the “narrow” approach to which the ICRC is opposed.

Unstated policy

The ICRC commentary goes on to State that “the intervening State may claim that the violence [it is engaging in] is not directed against the government or the State’s infrastructure but, for instance, only at another Party it is fighting within the framework of a transnational, cross-border or spillover non-international armed conflict” (paragraph 294). If a State were to make such a claim, then it would expressly evade becoming part to an armed conflict that are regulated by Geneva Conventions. Hence, the conflict in question would not be one between two States, but a simple forcible intervention, invasion, or act of aggression against the territorial State. The underlying situation would be transboundary or international in the sense of not being an internal conflict and governed by rules of NIAC, but it would not be one falling within the scope of Geneva Conventions. In a situation of armed aggression against the State that does not lead to an international armed conflict, there can, quite simply, be no legitimate targets at the aggressor’s disposal. Instead, all military activities conducted by the foreign State are illegal, being part of aggression. This applies, for instance, to US or US-led strikes in Syria or Pakistan over past two decades. In such situations IHL has no real role to play because, in the absence of confrontation between a two or more two States’ armed forces, it would not provide for the criteria to distinguish between combatants and civilians, military targets and civilian targets, and so on. Such situations involve simple acts of aggression that fully qualify under GA resolution 3314, and responsibility for such acts of aggression, whether one-off or ongoing and continuous, must be determined under areas of international law other than IHL. Otherwise, any act of aggression – think of 2017 US attack on Syria – could be excused as far as it targets military objects facilities only. The IHL would then be used to turn the bulk of such aggressive operations into lawful attacks. This outcome would be facilitated even more given the recurring statement across the ICRC commentary that that the existence of an armed conflict does not turn on its duration and intensity (e.g., paragraph 252). On combination of these factors, any unilateral act of aggression on a State could be classed as an armed conflict and then the aggressor State be excused from liability because it has attacked military targets only. It remains a mystery how all that purported re-classification of acts of aggression illegal under jus ad bellum into lawful combat activities under jus in bello fits within the scope of the Geneva Conventions, or their object and purpose, as discussed above. One may retort that Geneva Conventions regulate armed activities independently of the latter’s legality under jus ad bellum. Even if one shares this point of view (and I do not share it, though I am aware that others may have a different view on this matter), the effect of the ICRC’s proposed re-interpretation of the law would be that Geneva Conventions excuse liability for activities which are not themselves regulated by those Conventions.

Another policy rationale the ICC invokes is the alleged weakness or inadequacy of other relevant areas of international law, such as human rights law and jus ad bellum. The commentary claims that IHL should apply in relevant situations because “humanitarian law provides a recognized framework to protect all those who are affected” (a rather inaccurate statement, as we saw above), and therefore “Human rights law … [does] not seem to be equipped to deal fully with inter-State violence.” And that “the jus ad bellum provides a general framework on the lawfulness of the recourse to the use of force but contains only very general rules on the way force may be used” (paragraph 276). This statement contains a genuine degree of pure prejudice. There is no reason, for instance, why areas of international law such as jus ad bellum or human rights law cannot apply to an invasion or a blockade (whether or not undertaken as part of an antecedent armed conflict); and why the law of State responsibility could not be used to figure out the consequences. Regarding jus ad bellum specifically, this has already found some practical application in the DRC/Uganda litigation before the ICJ and in jurisprudence of the Ethiopia Eritrea Claims Commission. And most importantly, these areas of law would help determining State responsibility for illegal uses of force without endowing the aggressor State with combatant privileges that ordinarily apply under IHL when the latter’s applicability is warranted.


The rationale of the ICRC’s approach is essentially based on the natural law reasoning: IHL has to apply, it must be applicable because a particular level of protection is required and would be better in relevant conflict situations. The Commentary explains the proposed or putative legal regime it upholds the ends it would pursue, as opposed to its antecedent legal basis, especially when one speaks of the interpretation of a treaty which is a source of positive international law. Use of force by one State against another State and armed conflict between the two States are two different legal concepts relying on different factual constituents and elaborated upon different legal frameworks (jus ad bellum and jus in bello respectively). ICRC commentary effectively, if to some extent impliedly, purports to amalgamate the two and create a new cluster-concept that has no foundation in positive international law.

It is not immediately obvious whether due and proper reflection of all relevant factors was carried out, or evidence was properly addressed at the time of drafting and preparation of the 2020 commentary, or what policy considerations drove the minds of the commentary’s authors. Apart from the evidentiary and conceptual inadequacy of the ICRC’s approach, policy implications of that approach ought not to be underestimated either. On this front the main and adverse effect of the ICRC’s lex ferenda purporting to expand the concept of “international armed conflict” would be to target the relevance jus ad bellum by purporting to legitimise a host of armed operations that form part of aggressive war, as opposed to increasing anyone’s protection under jus in bello. If the ICRC view is carried to its logical conclusion, then persons counting under IHL as civilians could count as prisoners and targets who are never military objects could count as military objects; and objects counting as civilian objects (defined along with the residual test applicable under API 1977 as objects not belonging to or used by armed forces of a State) could be treated similar to military objects. The commentary thus endorses extending legal concepts by analogy to situations in relation to which they have never been designed, and thereby in effect approves the impunity for forcible violations of territorial sovereignty, illegal uses of force under Article 2(4) of the UN Charter, enabling the aggressor State to benefit from the combatant privilege, and the overall increasing of legal protection for the aggressor State. One wonders how different or similar in nature and effect (if not invariably in its exact content) that is to manipulated legal concepts that were proposed two decades ago regarding “war on terror” (such as preventive war, hybrid conflict or unprivileged combatant), and have inundated the legal debate in this area for decades. What can be said with certainty is, however, that there is one significant difference: lex ferenda focused upon here comes from a different source, one that would not ordinarily be expected to advocate such point of view or even impliedly endorse such policies.

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