Transnational Conflicts and International Law

Constantin von der Groeben, Claus Kreß

• Publisher: Books on Demand
• Year: 2014
• Print ISBN:
  9783735759269
• Edition: 1
• eBook ISBN:
  9783738683646
• Topic: Law
• Subtopic: International Law
• Index: Law

Ever since 9/11 the legal classification of transnational conflicts between states and non-state armed groups, such as Al Qaeda, has become a highly debated topic. While repeatedly referred to as the War on Terror, the legal qualification of the conflict between the US and Al Qaeda remains controversial: US military operations in Afghanistan against Al Qaeda and the use of drones against alleged terrorists in Pakistan, Yemen and other states pose the question as to whether this conflict truly qualifies as one single global war. Similarly, transnational conflicts such as the Colombian operation against a FARC base in Ecuador, Israel's fight against Hezbollah in Lebanon, and Turkish operations against the PKK in northern Iraq pose difficulties as they transcend individual nations? political systems and geographical borders. Whether the law of war (i.e. humanitarian law) is applicable to such conflicts and to what extent human rights law binds the states involved is debated.This work aims to provide structure to the current debate and analyzes the applicability of both humanitarian law and human rights law. Furthermore, it examines and explores approaches to enhance and develop the existing legal framework, including proposed new legal regimes for transnational conflicts. The author argues against the strict separation of international humanitarian law and human rights law and instead borrows from Colombian authorities' experience in their struggle with the FARC to develop an alternate solution, combining both legal regimes in an integrated approach.

C. International Humanitarian Law

This chapter analyzes if and how transnational conflicts are regulated through IHL. Transnational conflicts cannot easily be categorized as IACs or NIACs. They do not qualify as IACs as they do not occur between two state parties, as per the requirement of Art. 2 GC. Additionally, they cannot be classified as NIACs as they are not limited solely to one state’s territory, but rather cross the national border, thus exceeding the scope of Art. 3 GC, which requires that the conflict occur “in the territory of one of the High Contracting Parties”.⁵¹

The main issue with the classic method of categorizing conflicts into IACs or NIACs is that two criteria are used to distinguish conflicts in IHL, namely the conflict party and the geographical scope of the conflict.⁵² If, for example, two state parties are confronted with each other, the conflict is an IAC, whereas the conflict is a NIAC if only one or no state parties participate. Simultaneously, it is imperative to define whether the conflict crosses state borders, in which case it would be considered an IAC, or takes place within the borders of one state, and therefore would be considered a NIAC. Generally, the application of this two-criteria-distinction does not cause problems, as conflicts that cross state borders usually occur between states. Conflicts that involve one or no state parties are normally restricted to the territory of a single state. Particular to transnational conflicts is that the hostilities involve territories of two or more states. However, they do not occur between the states whose territories are affected. Classifying the nature of the conflict based on the conflict parties rather than the geographical scope of the conflict yields differing results. As a result, characterizing transnational conflicts is particularly difficult. However, despite the aforementioned difficulties, Greenwood claims that, “the existing legal framework is perfectly capable of accommodating the use of force against terrorist groups”.⁵³ Similarly, the ICRC argues that each transnational conflict must be individually categorized by considering its particular context. The established IHL would then be able to provide adequate legal guidance on all conflicts that qualify as an armed conflict.⁵⁴

The following section will examine Greenwood’s and the ICRC’s assumptions by analyzing the applicability of the laws of IAC (Section I) and the laws of NIAC to transnational conflicts (Section II). Subsequently, suggestions for a new IHL regime will be discussed (Section III).

I. International Armed Conflicts

The laws of IACs can be applied to transnational conflicts as a legal framework. The following section will analyze the categorization of transnational conflicts as IACs and examine the resulting legal consequences.

1. Transnational Conflicts as Conflicts between States

IACs are generally regarded as inter-state conflicts.⁵⁵ Art. 2 GC describes them as

“cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties”.

Although the term state is not explicitly mentioned, it is evident that only states can be High Contracting Parties and that an IAC can only occur between states. A conflict that occurs between states and non-state actors can therefore not be classified as an IAC. Simultaneously, however, a non-state actor may, under specific circumstances, act on behalf of another state. In such instances, the hostile action of the non-state actor can be attributed to that other state. The non-state actor will then be regarded as a de-facto organ of that other state.⁵⁶ The other state then becomes a party in the armed conflict, which would then turn the conflict into a state versus state conflict, i.e. an IAC. Therefore, the key question lies in whether the act of a non-state actor can be attributed to a state.

a) Attributability of Non-State Actors’ Actions to a State

The circumstances under which an action of a person or a group is attributable to a state continue to be debated.⁵⁷ The following remarks serve as a brief overview of the existing debate. In general, attributability requires sufficient state control over the respective person or group.⁵⁸ The amount of required control remains controversial. The ICJ requires “effective control”⁵⁹ whereas the ICTY requires “overall control”⁶⁰ to prove sufficient involvement of a state in the activities of non-state actors.

The ICJ assumes that the non-state actor’s dependence on the state requires a high degree of control, such that the non-state actor may be regarded as a state organ de facto.⁶¹ The relationship of dependence and control exists when the state exercises effective control, which requires that the state has “directed or enforced the perpetration of the acts”.⁶² In this case, the state must have influence on the non-state actor throughout the actual execution of operations. The financing, organizing, training, equipping of non-state actors, and planning of an operation, are not sufficient to yield effective control.⁶³ As a result, the requirement of effective control establishes a high threshold for attributability.

The ICTY argues that the high general threshold posed by the ICJ is incorrect.⁶⁴ The ICTY states that the ICJ threshold deviates from the principle of the rules of state responsibility,⁶⁵ and is also contrary to state practice as well as judicial practice.⁶⁶ The ICTY’s approach is to differentiate between cases of involvement by militarily organized groups, and individuals and groups without clear organizational structure.⁶⁷ The ICTY specifically argues that the ICJ’s requirement of effective control is too high, and perhaps unnecessary, for militarily organized groups. In cases involving militarily organized groups, overall control, rather than effective control, suffices. A state’s involvement in planning operations, even if not directly in its actual execution, is sufficient to have overall control over a militarily organized group. Hence, overall control does not require control over all actions at all times. Therefore, the threshold of overall control is not as high as that for effective control.⁶⁸ However, in cases of single persons or groups without a clear organizational structure, the ICTY does apply the ICJ’s standard of effective control.⁶⁹

While both the ICTY’s and ICJ’s approaches on overall and effective control are argued to be imprecise and requiring of furthering clarification,⁷⁰ the German Federal Court of Justice [Bundesgerichtshof] has elected to follow that of the ICTY.⁷¹ Several arguments work in favor of the ICTY’s approach. First, militarily organized groups have their own command structure, therefore making it sufficient to control this command structure to control the group, i.e. overall control. Second, a state cannot evade responsibility by claiming that it only exercised overall control and not effective control over a militarily organized group. Third, the ICTY approach takes into account that control by the state over unorganized groups cannot be inferred from overall control over a group’s command structure. In such cases, it appears most appropriate to require effective control, i.e. control over every action performed by the unorganized non-state actor.

Recently, the ICJ has considered the inclusion of the overall control criterion,⁷² but has rejected it due to issues related to state responsibility.⁷³ However, the ICJ has also opined that the ICTY threshold of overall control may be appropriate to assess the internationality of a conflict within jus in bello.⁷⁴ Further justifications are not provided. The ICJ may assume that attributability in IHL follows its own distinct criteria. It is plausible that the ICJ applies different criteria to determine the involvement of a state in an armed conflict and to assess a state’s responsibility for specific actions committed by non-state actors on the state’s behalf.⁷⁵ Ultimately, an in-depth understanding of the context and situation in question is essential in determining which approach is most appropriate.

b) States Fighting alongside Non-State Actors

It is argued that the participation of a state’s military units alongside terrorists or non-state actors ultimately leads to an IAC, irrespective of the attributability of the non-state actors’ actions to the state.⁷⁶ Adherents of this position argue that, when fighting against a common enemy, it is not feasible to distinguish between the state and the non-state units.⁷⁷ However, this approach lacks legal foundation. While IAC rules apply to both state parties involved, the same rules do not apply to the non-state actors, assuming a sufficient connection to a state party does not exist. However, if the state were to adopt the actions of the non-state group, IAC rules would be applied.⁷⁸ Parallel acting of the state and non-state actors is not sufficient to convert non-state armed groups in to de-facto agents of the state. In conclusion, legal attributability of the actions of non-state actors to a state is an essential requirement to apply IAC rules to non-state actors.

c) The War on Terror as a Conflict between States

The following section addresses attributability of specific actions of non-state groups during transnational conflicts and the application of IAC rules. In the case of the conflict between the U.S. and Al Qaeda, for example, the possibility that Al Qaeda’s actions are attributable to Afghanistan must be considered. Until at least December 2001, a stabilized de-fa...

Table of contents

• Dedication
• Preface
• Contents Summary
• Table of Contents
• List of Abbreviations
• A. Introduction
• B. Relevant International Law
• C. International Humanitarian Law
• D. Transnational Law Enforcement
• E. Prospects on the Regulation of Transnational Conflicts
• F. Conclusion
• Summary of the Main Findings
• Bibliography
• Index
• Copyright