Defining Armed Conflict in International Humanitarian Law
Changing Dynamics of Conflict
Modern conflicts have drastically changed over the last few years with the introduction of new actors in conflict zones such as private military companies, multinational corporations, and transnational armed groups such as Al Qaeda and drug cartels. The main challenge has been that international humanitarian law has not yet evolved to comprehensively adapt to these new dynamics.
War on Terror
After the September 11 attacks, United States declared a war on terror on transnational organizations more specifically Al Qaeda (Sassoli, 2006, p 5). In political terms, the war on terror is correct but there have been controversies as to whether international law recognizes it as an armed conflict. As stated earlier, international humanitarian law comes into force when a situation is classified as an armed conflict, but the modern dynamics of differentiating terrorism and an armed conflict is vague. Secondly, the status of the individual is complex as it is hard to differentiate a terrorist from a freedom fighter.
There is no clear definition of what terrorism is exactly, the definitions that are in existent are based on a state’s interest. For example, the American definition of terrorism is; ‘premeditated, politically motivated violence perpetrated against noncombatant targets by sub national groups or clandestine agents while a terrorist group is defined as any group, or which has significant subgroups which practice international terrorism (international terrorism being terrorism involving citizens or the territory of more than one country’ (U.S. Code Title 22, Ch.38, Para. 2656f (d)).
The most controversial definition is the UN definition that states that terrorism is attempting to bring about political and/or social change by deliberately attacking civilians. This definition has made it difficult especially in trying to differentiate resistance movements that oppose forms of occupation and a terrorist organization that both often use violence to obtain a political change. For example, during the colonial period in Kenya, the Mau Mau fighters attacked Europeans in their farms and stole their goods (Davies, 1953, p 224), if the same situation was to be replayed in the 21st century then many scholars would consider the Mau Mau as a terrorist organization.
However, in international law, ‘acts of terrorism are clearly defined’, according to the Geneva Convention (1937), an act of terrorism is defined as “criminal acts directed against a State or intended to create a state of terror in the minds of particular persons, or a group of persons, or the general public” (Article 1, para. 1) “any willful act calculated to endanger the lives of members of the public” (Article 2, para. 3), “willful destruction of or damage to public property” (Article 2, para. 2), and “manufacture, obtaining, possession or supplying of arms or ammunition, explosives or harmful substances with a view to the commission in any country whatsoever” (Article 2, para. 5).
Terrorism in international law is also seen as a form of aggression, aggression is defined as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State”, (United Nations General Assembly Resolution 3314), more specifically in article 3(g) it states that aggression can be “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.”
The UN resolution (Resolution 3314) does give justification for an armed attack to be pursued against the state; however, the issue is that modern international terrorism does not involve the direct participation of state (Sassoli, p 4). As reiterated earlier, international humanitarian law recognizes only three forms of armed conflict, an international armed conflict where it involves the belligerents being two legal armed forces of two different states (Geneva Convention, common article 2). International terrorism seems to have a different dynamics as a government is fighting against a transnational group that does not have any links with a state (Sassoli, p 4), according to the ICRC commentary, humanitarian law does not recognize an international armed conflict between states and non state actors as this would accord armed groups the same privileges enjoyed by members of regular armed forces (p 7).
International humanitarian law’s main challenge has been the legal status of an individual as to whether he is a terrorist or a combatant especially in non-international armed conflicts (ICRC, 2007, p 6) and in situations of self-determination (Chadwick, 1996). According to the ICRC, states engaged in non-international armed conflicts have, with increasing frequency, labeled any act committed by domestic insurgents an act of “terrorism” even though, under IHL, such an act might not have been unlawful (e.g. attacks against military personnel or installations).
For example, the Hamdan case shows how the status of a combatant is confusing in the ‘war on terror’. Salim Ahmed Hamdan, a Yemeni citizen was arrested on charges on “attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged belligerent’’ (court for the District of Columbia,) and was tried in a military commission. During the case, Hamdan pleaded habeas corpus and that he could not be tried by a military commission until his status as a prisoner of war was determined by a competent tribunal as required by Geneva Convention 3 (Duxbury, 2007 p 2). The US government replied that the Geneva conventions did not apply to him as the conflict was not in accordance with the classifications of armed conflict (Duxbury, p 2).
The Supreme Court stated that an international armed conflict was a conflict between states, whereas the aim of Common Article 3 was to provide minimum protections in situations involving rebels in conflicts not of an international nature but the Court took a broad approach to Common Article 3 and came to the conclusion that it operated in Hamdan’s circumstances (Duxbury, p 3). The two different views on the ‘war on terror’ show how it is difficulty in determining the dynamics of the situation.
Importance of Classifying Armed Conflicts
The classification of a situation to be an armed conflict means that international humanitarian law comes into force immediately; this means that it provides a framework for the behavior of belligerent parties and the protection of non-combatants and the respect of the environment and the property of civilians.
The failure to classify a state of affairs as an ‘armed conflict’ has grave legal and humanitarian consequences (Duxbury, p 10). This is because, International humanitarian law has a close relationship with human rights law that aims to protect the rights and dignity of civilians during peace and armed conflict with parties of the conflict having legally binding obligations concerning the rights of persons not involved in the conflict (United Nations, 2010). The main principles of international humanitarian law includes: principle of distinction where a combatant should distinguish a non combatant (including a soldier) who has surrendered from a soldier and the distinguishing of military targets from civilian territories, the limited use of certain weapons such as biological weapons, and the protection of the environment (Dinstein, 2004, p 55). Therefore, if it is not in force, belligerent parties will have an extent of freedom in carrying out there activities without checks.
However, there are still situations that are recognized as armed conflicts but there are still breaches of international humanitarian law. In such situations, the role of the Security Council comes in to play in its role of promoting international peace and security according to the UN Charter (Chapter 7, 1945). In the recent times, the Security Council has been more proactive in promoting human rights especially in situations of armed conflicts by imposing economic and political sanctions and more specifically in the establishment of tribunals as is the case of Yugoslavia, Sierra Leone (Fleck, 2008, p 275).Continued on Next Page »