Authored by: Anjana Dhital
Background
Djemila Carron’s article titled ‘When is a conflict international? Time for new control tests in IHL’[1] has been extracted from her doctoral thesis on the triggering act of an International Armed Conflict (IAC). This article proposes innovative control tests to be applied for determining the extent of control a state must have over an armed force to initiate an IAC or internationalize an already existing Non-International Armed Conflict (NIAC) thereby rejecting effective and overall control tests instrumentalized by the International Court of Justice[2] and International Criminal Tribunal for Former Yugoslavia[3] respectively.
Analysis
The author begins with a hypothetical situation of conflict between an armed group C and State B within the territory of the state B. She presents two premises here, i) wherein state A endorses the actions of armed group C with arms supplies, finances and military advisers (in the pre-existence of a NIAC between armed group C and state B) and ii) wherein armed group C starts hostilities against State B with the support of State A (in the absence of a pre-existing NIAC between armed group C and state B). The first premise hints towards the internationalization of a NIAC while the second premise alludes the triggering of an IAC.
Although this hypothetical situation could be easier for the readers to grasp the understanding of the internationalization of a NIAC or initiation of an independent IAC, the author has failed to shed light on a rather complicated scenario of parallel armed conflicts[4] within a state and between states as such situations often pose practical difficulties in assessment of nature of an armed conflict. For an instance: a situation of armed conflict between an armed group C and State B followed by hostilities between State A and State B independently further corroborated by an armed conflict between an armed group C and state A. The author has left this area of discussion unaddressed.
Before elaborating on the degree of a state’s control over an armed force, the author has succinctly clarified about the distinction between a control in context of attribution of an armed group’s actions to a state for state responsibility and a state’s control over an armed group for triggering an IAC or internationalizing a NIAC. She has underlined this demarcation in order to explain that the control for triggering or internationalizing need not be in alignment with the control test for state responsibility. This is to be highly noted given that many scholarly debates have emerged out of this underlying distinction.[5]
However, the existence of such distinction is not commonly agreed to, as some scholars claim that ‘determination of attribution affects the classification of conflict.’[6] Thus, they do not support the idea of distinction between the two.
The author while elucidating on the overall control test propounded by ICTY, has pointed out that, according to the ICTY, attributions for responsibility and for internationalization must obey the same criteria and be based on Articles on Responsibility of States For Internationally Wrongful Acts (ARSIWA)[7], which she preliminarily contests. Also, the author emphasizes on how ICTY questioned effective control yardstick propounded by ICJ without an accurate reading of its judgment. Thus, she prefers an effective control test to an overall control test when attributing the action/inaction of an armed group to the state for holding the state responsible under international law.
In explaining why effective control test under state responsibility need not be adopted for establishing the existence of an IAC, she presents two reasons[8]:
The rules on responsibility are secondary rules of international law whereas rules under international humanitarian law (IHL) are primary rules of international law.
The establishments of a state’s control for state responsibility and for triggering or internationalizing a NIAC are two different issues given that the former aims to hold a state responsible for actions and omissions of the armed group while the latter intends to make the State a party to an IAC based on the actions of the armed group.
Proceeding further, she explains the nature of control that a state must have over an armed force for triggering an IAC in the first half of her article. Here she highlights how an assessment of such control without a pre-existing NIAC stands as a seriously neglected question in IHL.[9] She states that the control test for triggering an IAC is slightly different from control test for internationalizing a NIAC. To support this, she explains that in triggering an IAC without a pre-existing NIAC, a state must be behind the armed group for the particular use of force that will lead to the emergence of an IAC. This is absent in the case of internationalization since internationalization requires a general relationship between the armed group and the supporting State[10] and therefore does not require the control of a State over an armed group for a specific act.
Referring to the proposed control test by the author, for the existence of an independent IAC between two states through an armed group, a state must have specific (scope) and strict (intensity) control over the group. Regarding specificity, the state should have control over an armed group for a specific act and regarding strictness, a state must closely control the armed group that is using force against the other state.[11] However, this approach does not appear novel. In fact, it seems to be a revised version of effective control test[12] expounded by ICJ.
In relation to the internationalization of an already existing NIAC, the author holds that a state must have general (scope) and strict (intensity) control over an armed group.[13] As to generality, State A need not exercise its control over armed group C for a specific action. In fact, the focus must be on the overall/general relationship between State A and armed group C. Regarding strictness, a state must conduct rigorous scrutiny over an armed group.
Here, the author rejects the overall control test followed by ICTY for two reasons:
i) ICTY has intermingled the tests for responsibility and internationalization which are completely different concepts.
ii) ICTY has developed the control test to address a question of criminal law not the classification of conflict.
Although the general and strict control test seems similar to the overall control approach adopted by ICTY, it is novel in the sense that it requires the state to have a crucial and leading role in organizing, coordinating and planning military actions of armed group C[14] which is not necessary in an overall control test.
If we are to evaluate the control tests proposed by the author, the control for triggering an IAC has a comparatively higher threshold than the control to be sufficed for internationalization of a NIAC. This is because the specific and strict control test demands a tight control of the state over an armed group for the commission of the specific alleged action which triggers the armed conflict.
Notably, the author also addresses the issue of direct intervention in case of a NIAC in the final sections. She maintains that in situations of direct intervention by State A against State B amid an ongoing NIAC between State B and armed group C too, the same criteria of indirect intervention elaborated above, should be applied.
The author has also tested the effectiveness of the internationalization test she propounded in certain dilemmatic circumstances. Firstly, she presents a situation wherein there is a very low level of violence between State B and armed group C followed by State A providing support to armed group C at the same time. Given the less intensity[15] of the confrontation, the criterion of a NIAC is not met. This would be a confusing circumstance. However, she asserts that the specific and strict control test can address the scenario. As soon as State A specifically and strictly controls armed group C and this armed group uses force against State B, an IAC exists between States A and B and no threshold of violence is required precisely because the situation is an IAC.[16]
Secondly, she describes a premise wherein State A massively attacks State B without having a general and strict control over C in a situation already characterized by a NIAC between state B and armed force C. Here, she maintains that by applying the general and strict control test for internationalization of a NIAC, if State A generally and strictly controls armed group C, the IAC-NIAC becomes a single IAC.
Thirdly, she also addresses the issue of occupation[17]. She presents a scenario of an occupation of State B by State A during a NIAC between armed group C and State B. For this situation to qualify as a single IAC, mere occupation does not suffice and a general and strict control by State A over armed group C is rather required. Here, the author has overshadowed a possible fact that occupation could be a part of campaign of State A to weaken State B by occupying its territory in line with control on armed group C gradually.
Concluding remarks
The author has attempted to explain the distinction between controls applicable in state responsibility as a part of Public International Law and attribution in an armed conflict as a part of IHL, which is a debatable issue currently. One of the strongest contentions put forth by the author is the fact that rules of attribution in state responsibility are secondary rules. Thus, their application in laws of armed conflict could be misleading given that IHL rules are primary rules of international law. This is definitely a significant area to be discussed on.
Similarly, the author has developed the control tests being confined to a single hypothetical situation. However, given the fact that armed conflict is a broader area with numerous practical difficulties[18] on the field, the control tests cannot be clearly resorted to, as a part of solving the issue. It is to be noted that in cases of parallel armed conflicts encompassing more than two parties, determining the very character of the conflict would be challenging. Thus, the article is innovative in that it has proposed new dimensions to be applied by courts/tribunals in assessing the nature of an armed conflict. However, this cannot be a conclusive solution as the author has not addressed the multi-dimensional facets of armed conflicts in a single situation.
References
[1] Djemila Carron, 'When is a conflict international? Time for new control tests in IHL' (2016) 98(3) International Review of the Red Cross <http://dx.doi.org/10.1017/S1816383117000698> accessed 19 December 2019.
[2] Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, [1986] ICJ Rep 64, 115; Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, [2007] ICJ Rep 43, 399.
[3] The Prosecutor v. Duško Tadić (Judgment in sentencing Appeals) ICTY-1994-1-T (15 July 1999).
[4] The Prosecutor v. Lubanga Dyilo, ICC-01/04-01/06-2842, 14 March 2012, 540; Sandesh Sivakumaran, The Law of Non-International Armed Conflict (Oxford University Press, 2012) 224.
[5] Remy jorritsma, 'Emerging Voices: The Role of Attribution Rules Under the Law of State Responsibility in Classifying Situations of Armed Conflict' (Opinio Juris, 17 August 2015) <https://tinyurl.com/uhw25r5> accessed 21 December 2019.
[6] Jonathan Somer, ‘Acts of Non-State Armed Groups and the Law Governing Armed Conflict’, American Society Of International Law (2006) <https://www.asil.org/insights/volume/10/issue/21/acts-non-state-armed-groups-and-law-governing-armed-conflict> accessed 21 December 2019.
[7] International Law Commission (ILC), Articles on Responsibility of States for Internationally Wrongful Acts, GA Res 56/83, UN Doc. A/RES/56/83, 28 January 2002.
[8] Carron (n1) 1026-1027.
[9] Carron (n1) 1028.
[10] Marko milanovic, 'State Responsibility for Genocide' (2006) 17(3) European Journal of International Law 581.
[11] Carron (n1) 1030.
[12] Nicaragua v. United States Case (n 2).
[13] Carron (n1)1034-1035.
[14] Carron (n1)1035.
[15] The Prosecutor v. Ramush Haradinaj, Idriz Balaj & Lahi Brahimaj, ICTY-2004-84-T (3 April 2008) 49. Marco Sassoli et al, How Does Law Protect in War? (Vol.1, 3rd edition, ICRC 2011) 324.
[16] Carron (n1)1039.
[17] ICRC Official Commentary, 2016, common article 2 of the Geneva Conventions, 304, <https://tinyurl.com/udn9qgy> accessed 21 December 2019.
[18] Jed Odermatt, ‘Between Law and Reality: ‘New Wars’ and Internationalized Armed Conflict’ (2013) 5(19) ALF 19-32.
Author Description
Anjana Dhital is currently a fifth year student pursuing a B.A.L.L.B. degree with two years specialization in Criminal Law at Kathmandu School of Law.
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