Chapter 3: Triggering the LOAC
Historical Background Prior to 1949, the laws and customs of war
applied to ‘war’ War was (and remains) an international
legal term of art Because it was assumed war would be self-
evident, law of war treaties (like Hague IV) did not define situations of applicability
Historical Background War required a contention between states in
which one state sought to overwhelm another an impose its will
This resulted in a potential conflict regulation lacunae:– Military actions not motivated by a desire to
impose a state’s will on another state– Conflict between a state and a non-state entity
Historical Background
WW II exposed the risk of ‘law avoidance’ resulting from the absence of a law application trigger
Spanish Civil War exposed the need to regulate intra-state hostilities (especially due to the failure of the belligerency concept)
Historical Background
Inclusion of law application triggers was a major advancement in the 1949 Geneva Conventions
These law triggering articles have since evolved into the CIL trigger for all LOAC regulation (not just the Geneva Conventions)
The CA2/CA3 Equation
1949 Geneva Conventions substituted ‘armed conflict’ for war as the trigger for treaty applicability
This was a deliberate effort to ensure law applicability based on the de facto existence of situations mandating humanitarian protections
THE “TRIGGERING” MECHANISM
Common Article 2/Common Article 3– The conflict classification mechanisms of
the 4 Geneva Conventions
– The international law standard for when the law of war applies
THE “TRIGGERING” MECHANISM
Common Article 2: The “international armed conflict” standard
Any dispute between states leading to the intervention of armed forces (to include an uncontested belligerent occupation) = an
international armed conflict TRIGGERING THE FULL CORPUS OF THE LAW OF WAR
THE “TRIGGERING” MECHANISM
CA 2 is triggered only when hostilities result between two states– CA 2 Commentary:
Focus on de facto situation Focus on de facto authority of state
In some situations, a state may still contend that an intervention into another state’s territory is not the result of a genuine dispute– Cross border ‘hot pursuit’ operation– No legitimate government to dispute intervention
THE “TRIGGERING” MECHANISM
Intervention of Armed Forces: CA 2 Commentary:
– Duration of hostilities irrelevant– Intensity of hostilities irrelevant
Some scholars assert that armed conflict requires:– Organized armed groups– A certain level of significant intensity
THE “TRIGGERING” MECHANISM
Common Article 3: The “non-international armed conflict” standard
Any armed conflict not involving a contest between two states:– state v. non-state group– non-state v. non-state group
TRIGGERS ARTICLE 3 HUMANITARIAN PROTECTIONS
UNDERSTANDING COMMON ARTICLE 3
A “mini convention” within each treaty Looked to for two distinct purposes
– Procedural Component: Conflict Classification: non-international armed conflict
– Substantive Component: Humane treatment obligation applicable to any person not actively participating in hostilities
WHAT IS NON-INTERNATIONAL ARMED CONFLICT?
More than riots or isolated acts of banditry– Pictet’s non-binding criteria:
Organization Authority Territory Respect for Law of War Government responds with regular armed forces
WHAT IS NON-INTERNATIONAL ARMED CONFLICT
Originally NIAC was synonymous with ‘internal’ armed conflict:– Civil Wars– Internal Dissident Uprisings
Many experts believe it now extends to ‘transnational’ armed conflicts:– Hostilities between a state and non-state group– Transcending the national borders of the state
Hamdan v. Rumsfeld: CA 3 applies to any armed conflict not covered by CA 2
WHAT IS NON-INTERNATIONAL ARMED CONFLICT?
The 1977 Protocol II Additional Triggering Requirements:– Responsible Command– Control Territory Enabling:
sustained and concerted mil ops implementation of Protocol provisions
US Position: apply AP II to any armed conflict that triggers CA 3
THE LOAC TRIGGER
P oss ib le In tru s ion o fIn te rn a tion a l H u m an R ig h ts
L aw
A p p ly D om es tic L aw
N o L aw o f W arTrig g ered
B an d itry/C ivil S trife
D om es tic L aw C on tin u esto D om in a te
N O C O M B A TA N T IM M U N ITY
A p p ly O N L Y th eS u b s tan tive P ro tec tion s
o f C A 3
M im in a l L O W In tru s ionin to S ta te S overe ig n ty
In te rn a l C on flic t IA WC lass ifica tion P ortion
o f C A 3
A p p ly th e E N TIR EB od y o f th e L O W
M axim u m L O W In tru s ionin to S ta te S overe ig n ty
In te rn a tion a l C on flic t IA WC A 2
A rm ed C on flic t
N atu re o f H os tilit ies
Intruding on State Sovereignty
When triggered, the LOAC imposes obligations on states
This limits the discretion a state may exercise in responding to a threat– CA 2: Maximum intrusion (because the hostilities
are inter-state)– CA 3: More restrictive intrusion (because states
sought to preserve discretion to deal with internal dissident threats)
WHAT LAW APPLIES?
The Essence of Sovereignty
DomesticLawInternational
Law
Piercing the Shield of Sovereignty
Human Rights
InternationalArmed Conflict/CA 2
Internal ArmedConflict/CA 3 State
Sovereignty
WHAT ABOUT THAT “HUMAN RIGHTS” ARROW?
International Law that applies at ALL times to protect individuals from their governments
NOT a component of the LOAC, although core protections are often synonymous
While fundamental principles may overlap, TRIGGERING MECHANISMS ARE TOTALLY DISTINCT
HOW DO THE “PROTOCOLS” FIT IN?
1977 Supplements to the Geneva Conventions of 1949
An intersection of the Hague and Geneva traditions– Both treaties include additional humanitarian
protections– Both treaties include provisions regulating the
means and methods of warfare
HOW DO THE “PROTOCOLS” FIT IN?
AP I: A supplement to rules related to international armed conflict
When you think CA2 international armed conflict, think Hague, Geneva, and
Customary Provisions of AP I
HOW DO THE “PROTOCOLS” FIT IN?
AP II: A supplement to the CA 3“mini convention” applicable to non-international
armed conflicts
When you think CA 3 NIAC, think CA 3, plus Protocol II
Status of AP I and II in US Practice
Never ratified by US because of controversial provisions– US rejected AP I– US has indicated a willingness to enter into AP II
(although still no advice and consent from Senate) US considers most articles to reflect customary
international law Steadily growing case for overall customary
international law status
Customary International Law and IAC
CIL regulatory norms apply to both CA 2 IAC and CA 3 NIAC
Role of CIL is less significant for IAC because conventional law is more developed
However, CIL plays an important role for US practice because it often results in applicability of AP I provisions
Customary International Law and NIAC
Many of the norms developed for IAC have ‘migrated’ to the realm of NIAC since 1949:– IAC/NIAC distinction almost irrelevant for targeting
– LOAC treaties increasingly apply to both types of armed conflict
– Humane treatment is a constant obligation in any armed conflict
– Key remaining distinction: inapplicability of lawful combatant status for non-state belligerents A state cannot be subject to the law of occupation in its own territory
Questions?