Over the years, the responsibilities and tasks assigned to multinational forces have transcended their traditional duties of monitoring ceasefires and observation of fragile peace settlements. Indeed, the spectrum of operations in which multinational forces participate (hereinafter ‘peace operations’ or ‘multinational operations’)Footnote 1, be they conducted under United Nations (UN) auspices or under UN command and control, has steadily widened to embrace such diverse aspects as conflict prevention, peacekeeping, peacemaking, peace enforcement and peacebuilding. The mission of the multinational forces in Afghanistan, the Democratic Republic of the Congo (DRC), Somalia, Libya or Mali are no longer confined to ensuring ceasefires or monitoring buffer zones but are characterised by their involvement in military operations aimed at eradicating threats from various quarters, especially from non-state armed groups engaged in a non-international armed conflict (NIAC).
Today, the multifaceted nature of these peace missions and the increasingly difficult and violent environments in which their personnel operate make it all the more necessary to develop a coherent framework, including a legal dimension, that takes account of their complexity. Since these new aspects of multinational forces' operations increase the likelihood of their being called upon to use force, the question of when and how international humanitarian law (IHL) applies to their action becomes all the more relevant. Although, at first sight, it might seem that everything that could be said on this issue has been said, a number of unresolved legal questions pertaining to peace operations warrant close examination owing to their significance and potential consequences.
After drawing attention to the essential distinction between jus ad bellum and jus in bello, this article attempts to clarify the conditions under which IHL becomes applicable to multinational forces and to identify the extent to which this body of law will apply to peace operations. It then addresses the thorny issue of determining which of the international organisations and/or states participating in a peace operation should be regarded as parties to an armed conflict. It also discusses the classification of conflicts involving multinational forces and identifies the pertinent parts of IHL that apply in such situations. Lastly, it tackles the important question of the personal, temporal and geographical scope of IHL in peace operations.
The relevance of the distinction between jus in bello and jus ad bellum to peace operations
Rationale and legal basis of the distinction
Whether multinational forces can be engaged in armed conflict is a matter of much debate. In the past, states and international organisations engaged in peace operations have often been reluctant to consider IHL applicable to their action.
In many peace operations (past and present), it has been argued that multinational forces cannot be a party to an armed conflict and consequently cannot be bound by IHL. This position is based on the premise that peace forces generally operate on behalf of the international community as a whole, thus precluding them from being qualified as either a ‘party’ to an armed conflict or a ‘power’ within the meaning of the Geneva Conventions of 1949 and, hence, from being termed a belligerent under IHL. It has been claimed that, for the sake of their international legitimacy, multinational forces have to be impartial, objective, neutral and concerned only with the restoration and preservation of international peace and security.Footnote 2 This position was adopted for instance by some troop-contributing countries (TCCs) participating in NATO operations in AfghanistanFootnote 3 and Libya.Footnote 4 The UN Secretary-General seemed to have expressed a similar view with regard to the UN forces' action in Côte d'Ivoire in 2011.Footnote 5
Recent peace operations have also been accompanied by the development of legal constructs suggesting that the conditions triggering IHL applicability might differ when armed forces intervene on the behalf the international community.Footnote 6 According to these theories, IHL would not apply, would apply differently, or would apply only as policy, to certain peace operations conducted by TCCs and/or international organisations.
Regardless of these arguments, however, no IHL provisions preclude multinational forces from becoming a party to an armed conflict if the conditions for IHL applicability are met.Footnote 7 The argument that IHL cannot apply to multinational forces' military operations must be rejected, as it erases the long-standing distinction established in public international law between jus in bello and jus ad bellum. Indeed, by virtue of this distinction, the applicability of IHL to multinational forces, as to any other actors, depends exclusively on the circumstances prevailing in the field, irrespective of the international mandate assigned to these forces by the Security Council, or of the term used for their potential opponents. This determination will depend on the fulfilment of certain legal conditions stemming from the relevant norms of IHL, in particular Common Articles 2 and 3 of the Geneva Conventions of 1949. The mandate and legitimacy of the mission entrusted to a multinational force are issues which fall within the province of jus ad bellum and they have no bearing on the applicability of IHL to peace operations. The legitimacy, or illegitimacy, of the use of force cannot absolve any of the parties, including multinational forces, of their obligations under IHL, or deprive anyone of the protection afforded by this body of law. States or international organisations engaged in peace operations cannot simply decide that they are not participating in an armed conflict if an objective assessment of the situation proves otherwise.
The new features of peace operations tend to call into question the previous dichotomy between peacekeeping operations conducted under Chapter VI of the UN Charter and peace-enforcement operations carried out under Chapter VII thereof. Consequently, the mandate assigned to multinational forces by the Security Council shall not be regarded as a condition determining IHL applicability, but must be seen as one indicator among others.Footnote 8 While it is true that peace forces deployed under Chapter VII are more likely to resort to force than those acting under Chapter VI, this is not necessarily always the case; a Chapter VII resolution does not per se turn the multinational forces in question into a party to an armed conflict.Footnote 9 Similarly, over time, multinational forces initially operating under Chapter VI may well be drawn into the hostilities and may become bound by IHL as the result of these new circumstances, of hybrid mandates including action under both Chapter VI and Chapter VII, or of ‘mission-creep’ that transforms a ‘purely’ peacekeeping operation into one of peace enforcement.
The volatile environment in which multinational forces are more frequently operating means that less emphasis must be placed on the label given to the mission and that, in line with IHL, rather than focusing on whether the nature of the mission comes under Chapter VI or Chapter VII, an analysis must be made of the actual circumstances prevailing on the ground.
The very object and purpose of IHL, i.e. to protect those who are not, or no longer, taking part in hostilities in an armed conflict, would be defeated were the application of IHL to be made dependent on the lawfulness of the use of force triggering the armed conflict, or on the subjective perception of the legitimacy of the cause pursued by a belligerent. To conclude that IHL does not apply, or applies differently, to a belligerent waging an armed conflict that it deems ‘just’ would arbitrarily deprive the victims of such a conflict of the protection to which they are entitled under IHL. It would also make it possible for parties to armed conflicts to deny their legal obligations under IHL, either by branding the enemy's use of force as unlawful, or by underscoring the international legitimacy of their own action. Finally, the position according to which IHL would not govern military operations conducted by multinational forces would also create a legal vacuum: if IHL does not apply to such a situation, then which body of law does?
The strict separation between jus in bello and jus ad bellum is firmly anchored in treaty law, as well as in domestic law and international case law.
While it has been argued that references in treaty law to this distinction are surprisingly scant, implicit or soft,Footnote 10 this differentiation is indisputably reflected in the wording of Article 1 common to the four 1949 Geneva Conventions, according to which ‘The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances’ (emphasis added).Footnote 11
Similarly, in the context of international armed conflicts, Common Article 2 of the Geneva Conventions specifies that IHL ‘shall apply to all cases of declared war or of any other armed conflict’. This shows that neither the applicability nor the application of IHL may be made subject to an assessment of the legality or legitimacy of multinational forces' military operations.
The distinction between jus in bello and jus ad bellum has also been explicitly confirmed by the preamble to the 1977 First Additional Protocol:Footnote 12
Reaffirming further that the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict.
The application of these provisions in the context of peace operations means that multinational forces operating under a mandate assigned by the UN Security Council cannot plead their specific status in order to argue that IHL does not apply, or applies differently, to them.
In addition to treaty law, international and domestic courts, numerous academic writers and many military manuals confirm the validity and relevance not only of the strict separation between jus in bello and jus ad bellum, but also of its corollary, the principle of equality between belligerents before IHL.
In particular, the Hostage case at the US Military Tribunal at Nuremberg forms a landmark decision with regard to the strict separation between jus ad bellum and jus in bello.Footnote 13 Other judgments related to war crimes in the Second World War have also followed the same approach and confirmed the importance of maintaining this separation.Footnote 14 Following the precedents set by this consistent case law, academic writers have likewise been overwhelmingly supportive of it and have confirmed that the legal status of belligerents under jus ad bellum does not affect the applicability or application of IHL.Footnote 15
The distinction drawn between jus in bello and jus ad bellum is also expressly reflected in some military manuals.Footnote 16
All this is evidence that the operation of jus in bello does not depend upon jus ad bellum and that neither law nor practice justify making an exception for multinational forces. The distinction between jus ad bellum and jus in bello must be maintainedFootnote 17 – even when multinational forces are involved – in order to preserve the integrity of IHL and the humanitarian objectives pursued by this body of law.Footnote 18
The consequence of the strict separation: the application of principle of equality between belligerents to peace operations
Equality between belligerents relates specifically to peace operations, as in the past international organisations and states have tried to apply IHL selectively to such operations, particularly when UN forces are concerned, since their objective is to restore and preserve international peace and security. Some writers have gone so far as to argue that, even if drawn into hostilities, multinational forces operating under Chapters VI or VII of the UN Charter should have a general immunity from attack, thus challenging the basic premises upon which IHL is built.Footnote 19
However, in practice, neither the Security Council nor TCCs have tried as a matter of general principle to apply IHL unequally in recent peace operations. Although some have disputed the fact that conditions for IHL applicability were met, once these criteria were deemed to be fulfilled, no state argued that IHL would apply differently owing to the multinational forces' specific nature and mandate. For instance, during the NATO operation in Libya in 2011, legal adviser to the US Department of State Harold Koh stated that:
For purposes of international law, U.S. and NATO forces are engaged in an armed conflict in Libya. We are committed to complying with the laws of armed conflict, and we hold other belligerents in the conflict, including the Qaddafi regime, to the same standards.Footnote 20
This position is also reflected in the military manual of New Zealand's armed forces, which expressly recognises the application of the principle of equality between belligerents under IHL, even when one of the belligerents is a peace force engaged in armed conflict in pursuance of a UN Security Council resolution.Footnote 21 An analysis of the military manuals of other states which have recently participated in peace operations reveals that none of them exclude the application of the principle of equality between belligerents when peace forces are involved in international or non-international armed conflicts. There is therefore a general assumption that multinational forces are bound by IHL rules in the same manner as their adversaries and that the principle of equality between belligerents remains valid in the armed conflicts in which they are engaged.Footnote 22
Abandoning the principle of equality between belligerents, or nuancing it, would have adverse effects on parties' respect for IHL, since non-state armed groups would have little incentive to comply with IHL if all attacks on peace forces were deemed unlawful. Failure to apply the principle of equality might also be detrimental to the protection of peace operations' personnel, in that it might disincline their opponents to comply with IHL. Why should non-state actors respect IHL rules on the conduct of hostilities if any attack against multinational forces would be deemed illegal even though, under IHL, when such forces are engaged in an armed conflict they are legitimate military targets? Why should non-state armed groups make an effort to capture opponents if they are required immediately to release them under the 1994 Convention on the Safety of United Nations and Associated Personnel (hereinafter the 1994 Safety Convention)? The principle of equality between belligerents must therefore be upheld, as it is the strongest practical basis that exists for maintaining certain elements of moderation in the conduct of armed conflict.
Despite the practical necessity of the principle of equality between belligerents, the 1994 Safety Convention raises a problem in relation to the application of the principle when forces under UN command and control are involved in a NIAC. This instrument, which is not strictly speaking an IHL document, provides that UN personnel (in particular UN military personnel) on certain UN operations have immunity from attack and thus criminalises attacks on them.
The 1994 Safety Convention would not conflict with IHL if it were applicable only in situations where UN forces were not a party to an armed conflict, in which case it would simply reaffirm one of the main objectives of IHL, namely the protection of civilians from the effects of hostilities. As long as UN forces are not engaged in an armed conflict, they are considered civilians for the purposes of IHLFootnote 23 and benefit from the protection inherent to this status.
Unfortunately, the terms of the 1994 Safety Convention are not as clear as they might seem at first sight. Indeed, the negotiating history of this instrument shows that another narrative emerged indicating that, in the words of Adam Roberts, ‘in all the treaties with a bearing on the conduct of war, [the 1994 Safety Convention] is the one which might seem to come closest to privileging one particular group of soldiers over others’.Footnote 24
It would appear from the (unclear) terms of this instrument (in particular Article 2(2) governing its relationship with IHL, the so-called ‘switch clause’)Footnote 25 that, in the event of NIACs, the application of the 1994 Safety Convention and that of the relevant IHL provisions is unfortunately not mutually exclusive.Footnote 26 In this regard, some experts have argued – on the basis of the ordinary meaning to be given to the terms of the 1994 Safety Convention – that the protection afforded by the 1994 Safety Convention to UN forces and associated personnel continues to apply when these troops are engaged in NIACs. This would parallel the relationship already existing between domestic criminal law and IHL rules in the sphere of NIACs.Footnote 27 Consequently, the 1994 Safety Convention would criminalise acts against UN forces and other peace forces (who may be qualified as ‘associated personnel’ under the Convention if they provide some form of support to the UN mission)Footnote 28 that would otherwise be lawful under IHL.
The simultaneous application of the 1994 Safety Convention and IHL seems at first sight to erode the strict separation between jus ad bellum and jus in bello. It also undermines the principle of equality between belligerents, in that it leads to a lack of balance in the treatment of UN forces and other peace forces qualifying as ‘associated personnel’ on the one hand and non-state armed groups on the other.
A stark contrast therefore exists between the 1994 Safety Convention and IHL. However, the former's influence on the legal framework governing peace operations should not be overestimated. First, the Convention's impact is mitigated by the fact that it does not apply to any peace operations, since no state in the territory of which peace operations have been or are being carried out has yet become a party to it.Footnote 29 Secondly, the interplay between the ‘switch clause’ contained in Article 2(2) of the 1994 Safety Convention and the saving clause set forth in Article 20 thereofFootnote 30 is significant. If the purpose of this saving clause is effectively to preserve the integrity of IHL,Footnote 31 this should include the underlying principles of this body of law, in particular the separation between jus ad bellum and jus in bello and its corollary, the principle of equality between belligerents.
Lastly, Article 8 of the Rome Statute of the International Criminal Court (ICC) considerably limits the application of the 1994 Safety Convention's rationale in situations of NIAC. Indeed, this provision stipulates that attacks intentionally directed against peacekeeping missions constitute a special category of war crimes in both international and non-international armed conflicts but only ‘as long as [their personnel, installations, material, units or vehicles] are entitled to the protection given to civilians or civilian objects under the international law of armed conflict’. In other words, while an intentional attack against UN forces (and other associated personnel) that have become party to a NIAC is a crime under the 1994 Safety Convention and under domestic law, it is not considered a crime under the Rome Statute (Article 8(2)(e)(iii)) or under IHL, since once these forces participate in a NIAC, they do not enjoy the protection afforded to civilians under IHL.Footnote 32 The 1994 Safety Convention's ambiguity should not have any bearing on the applicability and application of IHL to multinational forces when the latter are party to an armed conflict, be it international or non-international in nature.
The conditions determining IHL applicability to multinational forces
A question of facts
Whether or not multinational forces are engaged in an armed conflict must be determined solely on the basis of the prevailing facts. This view, besides being widely held by academic writers,Footnote 33 is also reflected in recent international judicial bodies' decisions and in certain military manuals.
Numerous international tribunal decisions confirm the applicability of IHL on the basis of the prevailing facts. For instance, the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY) and the United Nations International Criminal Tribunal for Rwanda (ICTR) have handed down many decisions in which they have stressed that IHL applicability should be determined according to the prevailing circumstancesFootnote 34 and not to the subjective views of the parties to the armed conflict. For instance, the Trial Chamber of the ICTY stated in Boškovski that ‘the question of whether there was an armed conflict at the relevant time is a factual determination to be made by the Trial Chamber upon hearing and reviewing the evidence admitted at trial’.Footnote 35 In a similar vein, the ICTY underlined in Milutinović that ‘the existence of an armed conflict does not depend upon the views of the parties to the conflict’.Footnote 36
Some military manuals also make it clear that the existence of an armed conflict depends on the circumstances of the particular case. In this regard, the 2006 Australian Law of Armed Conflict Manual stresses that ‘whether any particular fact situation meets the threshold so as to become an armed conflict will depend on all circumstances surrounding a particular event’.Footnote 37
The legal classification of a situation involving multinational forces therefore depends on the facts on the ground and on the fulfilment of criteria stemming from the relevant provisions of IHL, in particular Common Article 2 of the Geneva Conventions in the case of international armed conflicts and Common Article 3 in the case of NIACs.
The conditions for IHL applicability to multinational forces
Nowadays, as multinational forces are frequently deployed in conflict zones during peace operations, the likelihood of their involvement in hostilities has increased. For this reason, it has become essential to determine the conditions under which these situations constitute an armed conflict within the meaning of IHL, especially as it is still hard to fix the precise moment at which multinational forces become a party to an armed conflict.Footnote 38
This is all the more important given attempts to up the threshold of IHL applicability.Footnote 39
The application of the classic conditions in order to determine when multinational forces become a party to an armed conflict
The limited scope of this contribution does not permit a lengthy analysis of the classic conditions triggering IHL applicability. These have been discussed in an earlier ICRC publicationFootnote 40 and they form the subject of some fairly detailed academic work.Footnote 41 However, it is important to recall briefly the essential aspects of this issue, since the vague definition of armed conflict in IHL also affects peace operations.
First, deployment in a conflict zone does not necessarily mean that multinational forces become a party to the armed conflict affecting the area in question.Footnote 42 Multinational forces will not become a party to an armed conflict of either an international or a non-international character and will not be bound by the applicable IHL norms in the course of their operations unless the following conditions for IHL applicability are met.Footnote 43
According to Common Article 2 of the 1949 Geneva Conventions, an international armed conflict exists whenever there is recourse to armed force between two or more states. An evolving interpretation of the law could be employed to contend that an international armed conflict exists whenever two or more entities possessing international legal personality resort to armed force in relations between them. Such an interpretation would make it possible to bring within the scope of IHL military action undertaken by international organisations, provided it reaches the threshold for the application of that body of law.Footnote 44
The threshold for determining the existence of an international armed conflict is very low, and factors such as duration and intensity do not enter into the equation; the mere capture of a soldier, or minor skirmishes between the forces of two or more states, or with the forces of an international organisation, may spark off an international armed conflict and lead to the applicability of IHL, insofar as such acts evidence a genuine belligerent intent.
Belligerent intent may be deemed to exist when it can be objectively observed that international organisations and/or TCCs are effectively involved in military operations or any other hostile action aimed at neutralising the enemy's military personnel and resources, hampering its military operations, subduing it or inducing it to change its course of action. Belligerent intent must therefore be deduced from the facts. Existence of such belligerent intent is very important since it permits to rule out the possibility of including in the scope of application of IHL situations that arise as a result of a mistake or of individual acts not endorsed by the TCCs or the international organisation involved in the peace operation.Footnote 45
Even if NATO's action in Libya in 2011 is a prime example of international organisations' and/or TCCs' involvement in an international armed conflict, the reality of contemporary peace operations is that, in most cases, the usual question is whether the international organisations and/or TCCs involved in these operations have actually become parties to a NIAC.
The classification of a NIAC under IHL can be a more complex issue.
Despite the absence of a clear definition of a NIAC in the Geneva Conventions, it is widely accepted that two conditions must be fulfilled before it can be said that, for the purpose of IHL, such a conflict exists:
• The fighting must oppose two or more parties demonstrating a certain level of organisation;
• The armed opposition must have reached a certain threshold of intensity.
In this regard, various probative factors which might be of relevance have been identified in order to assess whether these criteria are met.
To evaluate ‘intensity’, the following elements, inter alia, can be taken into account: the number, duration and intensity of individual confrontations; the types of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces participating in the fighting; the number of casualties; the extent of material destruction; the number of civilians fleeing combat zones; and whether the fighting is widespread.Footnote 46
Four groups of factors have been identified as criteria for assessing the level of organisation of non-state armed groups: the existence of a command structure; the ability of the armed group to conduct coordinated military operations; evidence of a certain level of logistics; and, lastly, the ability of the group to respect and ensure respect for IHL.Footnote 47
In order to ascertain whether a NIAC exists, one must look at the organisation of each party, in particular that of non-state armed groups, and the intensity of the armed violence. Given the structure of multinational forces, they inherently fulfil the first requirement. However, it will be essential to verify whether the armed groups opposing them have the requisite level of organisation.Footnote 48
The frequent deployment of multinational forces in NIACs has also raised the question of the use of force for self-defence purposes and its impact on the applicability of IHL to peace operations. In recent peace operations, non-state armed groups have sometimes attacked multinational forces, even when the multinational forces were not initially parties to the pre-existing NIAC in the territory in which they were deployed. What legal framework governing the use of force would apply in such situations? Is IHL applicable to the sporadic use of force by multinational forces for the purpose of self-defence? What if the resort to force in self-defence becomes more and more frequent?
The issue of the legal framework governing the use of force in self-defence by multinational forces was raised in particular on the occasion of the entry into force of the UN Secretary-General's 1999 Bulletin entitled ‘Observance by United Nations Forces of International Humanitarian Law’ (hereinafter the Secretary-General's Bulletin or the Bulletin).Footnote 49 This document specifies in its section 1.1 that IHL is applicable ‘in peacekeeping operations when the use of force is permitted in self-defence’. A strict interpretation of the Bulletin's wording might result in the application of IHL as soon as UN forces use force in self-defence, irrespective of the fulfilment of the abovementioned criteria of applicability. However, the use of force in self-defence during peace operations does not always give rise to the applicability of IHL. The use of force in self-defence during peace operations will not be governed by IHL when the conditions for this body of law's applicability are not met by the multinational forces. For this reason, the inference in section 1.1 of the Secretary-General's Bulletin that IHL applies whenever force is used in self-defence is misleading as it could be interpreted as triggering IHL application as soon as force is used in self-defence.Footnote 50 Such an interpretation is not reflected in the practice of TCCs.Footnote 51 Self-defence is a notion that falls within the province of law enforcement and, with a different meaning, of jus ad bellum, and does not per se influence the conditions for the applicability of IHL.
Nevertheless, it is possible that, in certain specific situations, the use of force in self-defence during peace operations might give rise to the application of IHL, in which case it implies multinational forces' involvement in a NIAC.
In this context, a distinction must be drawn between two situations.
First, it is clear that the use of force in self-defence by multinational forces will have no impact on the applicability of IHL when these forces are already party to a NIAC, since IHL already applies and governs any use of force against military objectives, members of non-state organised armed groups performing continuous combat functions or civilians directly participating in the hostilities. Consequently, in this situation, any use of armed force by multinational forces in connection with hostilities occurring during the armed conflict will be subject to IHL requirements, whether these forces act in self-defence or otherwise.
Second, the repeated use of force in self-defence by multinational forces (who were not initially party to the armed conflict) may at some point reach the threshold required by IHL for them to be considered a party to a NIAC. Indeed, in cases where the multinational forces are regularly attacked by non-state organised armed groups, counterattacks carried out in self-defence may over time rise above the threshold of intensity required by IHL, thus making it possible to assert that the multinational forces are party to the NIAC.Footnote 52 Such a position is bolstered by the interpretation of the notion of ‘protracted armed violence’ referred to in the ICTY's Tadić decision.Footnote 53 Indeed, this notion has been construed as covering acts of violence repeated over time, but which are nevertheless not continuous.Footnote 54 It is therefore submitted that repeated but not necessarily continuous military operations conducted in self-defence may potentially lead to the involvement of multinational forces in a NIAC (if the classic criteria for this type of conflict are met) even though they are only retaliating against attacks.Footnote 55
Are the conditions for determining the existence of an armed conflict different when multinational forces participate therein?
Some scholars argue that when multinational forces are involved, a higher degree of intensity should be needed for the situation to constitute an armed conflict for the purposes of IHL. In this regard Christopher Greenwood has underlined that ‘there is a tendency to treat the threshold for determining whether a force has become a party to an armed conflict as being somewhat higher in the case of United Nations and associated forces engaged in a mission which has a primarily peace-keeping or humanitarian character than in a normal case of conflicts between states'.Footnote 56 These arguments have been essentially made in relation to UN forces and this tendency has been reinforced by the adoption of the 1994 Safety Convention.Footnote 57
In the light of Article 2(2) of this instrument, which clarifies its relationship with IHL,Footnote 58 and given the risk that the 1994 Safety Convention might have ceased to apply by the time the UN forces have become a belligerent, there might be a temptation to raise the threshold of armed conflict required by IHL before recognising that they have become involved therein.Footnote 59
A decision by a Belgian Military Court in 1997 reflects this tendency to apply a higher threshold of armed conflict when UN forces are involved. This judicial body held that UN forces can be qualified as a party to an armed conflict only once they are involved in combat operations of a permanent, widespread and structured character against organised armed groups.Footnote 60
In addition, the Secretary-General's Bulletin appears to be quite vague about the conditions for the applicability of IHL to UN forces. Section 1.1 describing the Bulletin's field of application might also be interpreted as upping the threshold of IHL applicability. It establishes that the fundamental principles and rules of IHL would apply to UN forces ‘when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement. They are accordingly applicable in enforcement actions or in peacekeeping operations when the use of force is permitted in self-defence.’
Although the Bulletin is important and useful (notably because it reaffirms the fact that UN forces are bound by IHL even though the UN cannot ratify IHL treaties as it is not a state), its field of application is not entirely clear. It would have been useful if it had specified the criteria for deciding when UN forces are ‘actively engaged in armed conflict as combatants’. The wording of the phrase leaves a number of unanswered questions. In particular, how does this phrase mesh with the classic conditions under IHL derived from Common Articles 2 and 3 of the Geneva Conventions? How should the adverb ‘actively’ be interpreted in relation to the notion of intensity for the purposes of determining the existence of an armed conflict under IHL?
The terms of the Bulletin do not answer these questions. However, the legal literature on the Bulletin is a bit more explicit. Daphna Shraga, a former senior legal adviser at the UN Office of Legal Affairs who was involved in drafting the Bulletin, has interpreted section 1.1 as introducing what she has referred to as a ‘double key’ test. According to her, ‘two cumulative conditions – a so-called “double key” test – must therefore be met for international humanitarian law to apply to UN forces in the theatre of war: (i) the existence of an armed conflict in the area and time of their deployment, and (ii) the engagement of members of the Force in the conflict as combatants – whether in a Chapter VII enforcement action or in a Chapter VI operation in self-defence’.Footnote 61
While the second condition, which is not contained in the Geneva Conventions or their Protocols, provides no further guidance to section 1.1 of the Bulletin,Footnote 62 the first condition spells out in more explicit terms what appeared to be implicit in the Bulletin: the necessity for the UN forces to be involved in ‘a conflict within the conflict’ in order for IHL rules to apply. This additional requirement cannot be interpreted otherwise than as raising the threshold of armed conflict for determining the applicability of IHL to UN forces, since it adds a new condition for deciding whether they have become a party to an armed conflict, namely that the conflict had to be ongoing prior to their deployment.Footnote 63 This would not permit the application of IHL rules to a potential armed confrontation between UN forces and a state's armed forces or non-state armed groups, even if the classic criteria for an armed conflict were met, if prior to this confrontation the situation in which the UN forces were deployed did not amount to an armed conflict for the purposes of IHL. This theory therefore introduces a condition foreign to the relevant IHL norms.Footnote 64
Nothing under IHL provides that conditions for IHL applicability differ when UN and other peace forces are involved in armed conflict. Under lex lata, the criteria used to establish the existence of an armed conflict involving multinational forces do not differ from those applicable to more ‘classic’ forms of armed conflicts. Any other position would lack a legal basis under IHL as the ‘higher threshold approach’ does not rest on general practice, nor is it confirmed by any opinio juris. The criterion for determining whether multinational forces are involved in armed conflict is strictly identical to that applying to any other armed conflict situation.Footnote 65
In this regard, some states' legal advisers attending the 2009 Congress of the International Society for Military Law and the Law of War (ISMLLW) embraced the classic IHL conditions for conflict determination, even when UN forces are involved. The Congress report summarising the responses of some states to a questionnaire relating to the UN Secretary-General's 1999 Bulletin indicated that ‘responding states do not necessarily consent with the 1999 UN Secretary General's Bulletin because they consider themselves bound by IHL only if there exists a situation of armed conflict in the sense of either common Article 2 or of common Article 3 of the 1949 Geneva Conventions' (emphasis added).Footnote 66 The last part of this quotation shows that the some advisers clearly rejected the conditions set forth in section 1.1 of the Bulletin and reaffirmed that the classic conditions for determining the existence of an armed conflict (derived from the relevant IHL provisions) remained the legal benchmark against which the participation of multinational forces, including UN forces, in an armed conflict must be analysed.
Lastly, it has been argued that IHL should be applied to multinational forces mutatis mutandis, taking into consideration the special legal status of the international organisation under whose auspices they operate.Footnote 67 It is submitted here that the mutatis mutandis argument can in no way justify a pick-and-choose approach to the application of IHL to multinational forces. The argument simply means that the limited juridical, administrative and operational capacities of international organisations should be taken into account in order to identify exactly which IHL norms apply, or do not apply, to them.Footnote 68 Indeed, some IHL norms require means that can be deployed only by states parties to the Geneva Conventions. For example, the obligation to provide effective penal sanctions for persons who have committed war crimes and other grave breaches can be enforced only by states. This obligation cannot be discharged by international organisations, as they generally do not have their own judicial systems. Other IHL obligations can be respected only by states (for example, Article 49(6) of the Fourth Geneva Convention requires an occupying power not to transfer parts of its own population into territory it occupies), and while international organisations can be an occupying power for the purposes of IHL, they do not have their own population. The mutatis mutandis argument is useful only for distinguishing the vast majority of IHL rules that can be applied by international organisations from the few that cannot be applied by them because of their intrinsic characteristics. The mutatis mutandis argument cannot be used in relation to IHL norms establishing the conditions under which an armed conflict may be said to exist.
The relevance of a complementary approach when multinational forces intervene in a pre-existing NIAC: the ‘support-based approach’
The new features of peace operations are such that multinational forces often intervene in a pre-existing NIAC by providing support for the armed forces of the state in the territory of which the conflict occurs. This support for government armed forces fighting against non-state organised armed groups is sometimes expressly requested by Security Council resolutions. This was the case with the UN forces deployed in the Democratic Republic of the CongoFootnote 69 and the NATO troops in Afghanistan.Footnote 70
In recent peace operations, multinational forces' involvement in pre-existing NIACs has often taken the form not of kinetic operations against a clearly identified enemy, but of logistical support, intelligence activities for the benefit of the territorial state, or participation in the planning and coordination of military operations carried out by the armed forces of the territorial state.
Such circumstances give rise to some difficult questions. What is the legal status under IHL of multinational forces not engaged in ‘front-line’ operations, but which still play what is sometimes a fundamental role in military operations alongside the host state's armed forces? Is the multinational forces' action covered by IHL in this situation? These questions are especially difficult to answer, because often the support given by the multinational forces to the armed forces of the host state does not by itself meet the threshold of intensity required for a NIAC.
This situation has led to an examination of whether the classic criteria for defining the existence of a NIAC involving multinational forces should be complemented by an approach taking account of this support in order to ascertain whether IHL should apply to multinational forces intervening in a pre-existing NIAC (hereinafter the ‘support-based approach’).
It is important to underline that such an approach complements, but does not replace, the determination of IHL applicability on the basis of the classic criteria discussed above. It simply establishes a link between IHL and certain types of action undertaken by multinational forces in support of a party to a pre-existing NIAC, and it draws the legal consequences of this connection in terms of IHL applicability. This approach also makes it possible to avoid an illogical situation where multinational forces making an effective and significant contribution to military operations and participating in the collective conduct of hostilities in a pre-existing NIAC would not be considered belligerents and could still claim protection against direct attacks. This support-based approach is therefore consistent with IHL logic and in line with the imperative of not blurring the distinction between combatants (in the technical meaning of the term) and civilians not directly participating in hostilities.
Accordingly, even if multinational forces' involvement does not per se meet the criterion of intensity deriving from Common Article 3 of the Geneva Conventions, the nature of their engagement in the pre-existing NIAC could turn them into a party to it. The rationale of this support-based approach is to link to IHL multinational forces' actions that form an integral part of that pre-existing conflict. Multinational forces' support should not be interpreted as a constitutive element of a potential new and independent NIAC. Therefore, because of the nexus with the pre-existing NIAC, the support provided by multinational forces must be distinguished from what is required to establish that they are party to a distinct NIAC. In grafting their military action onto a pre-existing NIAC, multinational forces in fact act as a co-belligerent assisting one of the parties to that armed conflict. In such cases, they must be considered a party to the pre-existing NIAC.
In such a situation, it is not necessary to assess whether multinational forces per se fulfil the classic criteria for determining the existence of a NIAC, since they have already been fulfilled during the pre-existing one. The support functions performed by multinational forces in the pre-existing conflict determine whether IHL governs their operations in this specific situation.
Under the support-based approach, it is submitted that IHL applies to multinational forces when the following conditions are met:
• There is a pre-existing NIAC ongoing in the territory where multinational forces intervene;
• Actions related to the conduct of hostilities are undertaken by multinational forces in the context of that pre-existing conflict;
• The multinational forces' military operations are carried out in support of a party to that pre-existing conflict;
• The action in question is undertaken pursuant to an official decision by the TCC or international organisation in question to support a party involved in that pre-existing conflict.
All four conditions must be fulfilled in order to render IHL applicable to the multinational forces' action in the context of a pre-existing NIAC.
The first condition is self-explanatory. If it is not met, the only way in which multinational forces could become a party to a NIAC would be to fulfil the classic criteria derived from Common Article 3 of the Geneva Conventions. The support-based approach is therefore irrelevant in the absence of a pre-existing NIAC. The territorial reference included in the first condition reflects the fact that, in most cases, the multinational forces' intervention takes place in the territory where the conflict originated. However, it does not restrict the geographical scope of the application of IHL to that territory. IHL would continue to regulate the multinational forces' action related to the armed conflict but carried out, for example, in international airspace or on the high seas. Similarly, IHL could also apply to multinational forces' action undertaken when the pre-existing conflict spills over into neighbouring states.Footnote 71
The second criterion is of great importance. For IHL to become applicable to multinational forces in the context of a pre-existing NIAC, these forces must perform action of a nature that would make them qualify as a party to that conflict.
For the purposes of the support-based approach, the decisive element is the contribution made by this action to the collective conduct of hostilities. A general contribution to the war effort would not be sufficient, as it amounts to no more than loose, indirect involvement in the pre-existing armed conflict. War-sustaining activities such as financial support, or the delivery of weapons/ammunition to a party to the conflict, should be regarded as a form of indirect involvement in hostilities that has no effect on the multinational forces' status under IHL.Footnote 72 A distinction must therefore be drawn between the provision of support that would have a direct impact on the opposing party's ability to conduct hostilities and more indirect forms of support which would allow the beneficiary only to build up its military capabilities.
In this regard, multinational forces' military operations which directly damage the party opposing the armed forces whom they support, or which are designed to directly undermine its military capabilities, are definitely included in the type of action covered by the second criterion. However, it is not necessary for the action carried out by the multinational forces per se to cause direct harm to the opposing party. Direct support also encompasses action that has an impact on the enemy only in conjunction with other acts undertaken by the supported party. In that case, the multinational forces' action should be considered an integral part of specific, coordinated military operations carried out by the supported party which directly inflict harm on the enemy.
In other words, there must be a close link between the action undertaken by multinational forces and the harm caused to one of the belligerents by specific military operations undertaken by the opponent. For example, transporting the supported state's armed forces to the front line or providing planes for refuelling jet fighters involved in aerial operations carried out by the supported state do implicate multinational forces in the collective conduct of hostilitiesFootnote 73 and make them a party to the pre-existing NIAC.
With regard to the second condition, it is still a moot question whether there should always be evidence of recurrent action before multinational forces may be considered a party to a pre-existing NIAC on the basis of their support to the territorial state's armed forces. Recent peace operations have shown that, to a large extent, the support provided by multinational forces within the framework of a pre-existing NIAC was not limited to one or two acts, but was generally made up of multiple actions conducted on a regular basis over a significant period of time. Although the all-important factor in the support-based approach is generally whether action in support of a party to a pre-existing NIAC is repeated, in some circumstances a single act could turn the multinational forces into a party to the armed conflict. This would be the case, for example, when the act in question plays a fundamental role in the supported party's capability to carry out military operations with the view to eradicating the threat posed by the enemy.Footnote 74
The third criterion refers to the nexus between the action undertaken by multinational forces and the pre-existing NIAC. This requirement is met when the multinational forces' action is undertaken in support of a party to the pre-existing conflict.
If some action might appear at first sight to pursue the same goal (e.g. to suppress a threat from a non-state organised armed group), this may not necessarily mean that the multinational forces' operations are carried out in support of one of the parties to the pre-existing NIAC. A fortiori, shared political views are not sufficient grounds for concluding that multinational forces' action is conducted on behalf the territorial state.
For this reason, determining the existence of such a nexus might prove difficult. The key issue will be that of identifying whether the action carried out by multinational forces in the prevailing circumstances can reasonably be interpreted as action designed to support a party to the pre-existing NIAC, in that it directly affects the adversary's military capabilities or hampers its military operations. In other words, it must be evident from the action undertaken by multinational forces that two or more states or international organisations are pooling or marshalling military resources in order to fight a common enemy. This cooperation or coordination among the participants in hostilities would be sufficient proof of the collective nature of operations that is required by the support-based approach.
This condition therefore implies an objective analysis of the purpose of the action carried out by the multinational forces in the context of the pre-existing NIAC. Setting up ad hoc joint military mechanisms or signing an agreement designed to enhance cooperation between the multinational forces and the armed forces of the territorial state in respect of the pre-existing conflict would certainly tend to suggest some form of support and therefore the existence of the required nexus. If there is any doubt, the multinational forces should not be regarded as belligerents and they would not be bound by IHL.Footnote 75
However, support does not need to be the prime objective of the multinational forces. What is important under the third condition is that it is plain from the situation that the multinational forces are not acting solely for their own interests or benefit. Support for the armed forces of the territorial state is expressly listed among the tasks assigned to multinational forces in an increasing number of Security Council resolutions providing the legal basis of multinational forces' intervention. This makes it easier to determine the existence of this nexus.
Lastly, the support-based approach demands that the provision of support to the territorial state's armed forces has been decided by the appropriate authorities of the TCC or organs of the international organisation. This criterion is important insofar as it evidences the willingness of the TCCs and international organisation to intervene on behalf of the supported party and avoids including acts that are the result of a mistake or that appear to be ultra vires.Footnote 76
When fulfilled, these criteria testify beyond reasonable doubt to the existence of belligerent intent on the part of the multinational forces, since the situation is objective evidence of their effective involvement in military operations, or in other hostile action, aimed at neutralising the enemy's military personnel and assets and/or hampering its military operations.
On the basis of this approach, multinational forces are considered to be a party to a pre-existing NIAC. Since modern armed conflicts are increasingly being fought through coalitions and alliances of several states and/or international organisations whose involvement in the hostilities may vary, this approach is particularly relevant, as it would make it possible to ascertain when these stakeholders are bound by IHL.
Who should be considered a party to an armed conflict when multinational forces are involved?
Once it has been determined that multinational forces have become a party to an armed conflict in accordance with the conditions set out above, several important questions still have to be answered. Who among the participants in a peace operation should be considered a party to an armed conflict? Should it be held that only TCCs are a party to it? What about the international organisationFootnote 77 under whose command and control the multinational forces operate? Could the international organisation and the TCCs be jointly regarded as parties to the armed conflict?
Little attention seems to have been paid to these questions so far.Footnote 78 Nonetheless, the issues are important in light of their legal consequences and need to be examined in more depth.
International organisations involved in peace operations all share one characteristic: they do not have armed forces of their own. In order to carry out peace operations, an international organisation must rely on its member states to place armed forces at its disposal. When they put troops at an international organisation's disposal for peace operations, the TCCs never transfer full authority over them to the organisation. TCCs always retain some form of authority and control over the armed forces they lend to the international organisation so that, even when they are operating on behalf the organisation, these troops still continue to act simultaneously as organs of their respective states. This dual status of the armed forces involved in peace operations conducted under international organisations' control, as organs of both TCCs and international organisations, considerably complicates the determination of who should be considered a party to an armed conflict in the context of a peace operation conducted under the auspices of an international organisation.
In order to answer this complex question, one has to address the command and control (‘C2’ in military parlance) arrangements in force in peace operations.Footnote 79 A grasp of the C2 structure and corresponding levels of authority are essential in order to understand how peace operations function and accurately identify who has control over the military operations and, in fine, which of the peace operation's partners should be considered a party to the armed conflict.
There is no ‘one size fits all’ approach to C2 in the context of peace operations. The C2 structure varies from one operation to another and from one international organisation to another. This is not the place to conduct a thorough analysis of the C2 arrangements in the context of each peace operation past and present.Footnote 80 However, there is no disputing the fact that TCCs never delegate ‘full command’Footnote 81 to the international organisations involved in peace operations but generally transfer only ‘operational command’Footnote 82 or ‘operational control’ to them.Footnote 83 However, what do these notions mean in legal terms?
By identifying where control lies during peace operations, one can in turn determine to which entity – the international organisation and/or TCCs – the military operations undertaken by multinational forces should be attributed.Footnote 84 In other words, determining the parties to an armed conflict in the context of multinational operations comes down to the question of the level of control or authority exerted by the international organisation over the troops put at its disposal.
In order to answer this question, it is first necessary to ascertain whether the multinational forces' military operations are to be considered those of the international organisation, the TCCs or both. To that end, one has to establish a link between the conduct of the multinational forces and a holder of international obligations, be it the international organisation and/or the TCCs. In this regard, the notion of attributionFootnote 85 will play a central role, as it can be employed to establish whether multinational forces' action is that of the international organisation and/or the TCCs. Indeed, in order to determine the parties to an armed conflict among participants in a peace operation, one has to identify to which entity – the international organisation and/or the TCCs – all the acts of war accomplished by multinational forces during the operations can be attributed.
IHL is silent on the issue of attribution. It does not contain any specific criteria making it possible to ascertain that action carried out by multinational forces can be attributed to a particular holder of international obligations. In the absence of specific criteria in IHL, one has to rely on the general rules of public international law for determining under which conditions multinational forces' action can be attributed to international organisations and/or TCCs.
International law concerning the responsibility of international organisations for internationally wrongful acts and its provisions regarding attribution offer a solution that can be used in the case at hand. As rightly observed by Marten Zwanenburg, determining who is a party to an armed conflict during peace operations is similar to determining to which entity conduct must be attributed for the purposes of international responsibility:
in both cases what is at issue is linking the conduct of physical persons to a holder of international obligations … if we consider international law as one system, it is logical to answer similar questions in a similar way … If this logic is accepted, this would mean that the test to determine who [among participants of a peace operation] is a party to the conflict is the same as the test for determining to which entity conduct must be attributed.Footnote 86
The work carried out by the International Law Commission in this field of the law has made it possible to establish a direct connection between the notions of control and attribution. The question of whether or not multinational forces' action can be attributed to the international organisation and/or the TCCs therefore becomes a question of how one defines the notion of control.
Article 7 of the draft articles on the responsibility of international organisations, which was drafted with peace operations in mind, uses the test of ‘effective control’ in order to attribute the conduct of multinational forces to an international organisation.Footnote 87 Unfortunately, the International Law Commission does not define the notion of ‘effective control’. This provides an opportunity for further refining the test. As Paolo Palchetti holds:
The application of such a test would significantly complicate attribution, as in many cases it would be extremely difficult to prove the existence of an ‘effective control’ of this kind. However, it does not seem that Article 7 requires such a high level of control for the purposes of attribution of acts of lent organs. As the Commentary to this provision makes clear, the notion of ‘effective control’ within the context of the responsibility of international organisations does not play the same role as in the context of the law on state responsibility.
Palchetti adds that:
Article 7 is to be applied in a more flexible way than for the attribution to a state of a conduct performed by de facto organs. In particular, attribution – to the organisation or to the sending state – does not necessarily depend on whether it is demonstrated that the conduct was taken as a result of a specific instruction.Footnote 88
Therefore, the issue of attribution in the context of peace operations leaves room for interpretation.Footnote 89 One question which might be asked is whether the notion of ‘effective control’ within the meaning of the law governing international organisations' international responsibility and its apparent flexibility might in fact square with the interpretation of the ‘overall control’ test developed by the ICTY in the Tadić case,Footnote 90 in particular when the notion of control is used to determine the parties to an armed conflict in the context of peace operations.
Indeed, the International Court of Justice (ICJ) recognised in the Genocide case that the notion of control, when used for the classification of a situation under IHL, could be less rigorous than the one used for the purposes of establishing responsibility for a violation of international law.Footnote 91 Determining who is a party to an armed conflict during peace operations is inherently bound up with the question of the classification of armed conflict and would therefore justify a less strict interpretation of the notion of control based on the ‘overall control’ test.Footnote 92 This test might also prove particularly useful in the context of peace operations as it would be more likely to lead to the attribution of a sum of actions to an entity (as opposed to the attribution of one specific act), an operation which is consonant with the rationale of classification under IHL, which presupposes an objective analysis of the whole gamut of military action undertaken by those involved in armed violence.
However, in light of recent peace operations, such as those conducted by the UN in the DRC, by the African Union in Somalia and Mali and by NATO in Afghanistan and Libya, in fact the application of the ‘overall control’ or ‘effective control’ test would not have changed the determination of who among the participants in the peace operations ought to be considered a party to the armed conflict.
Indeed, a careful examination of the C2 structure of peace operations under UN command and control shows that the TCCs generally transfer a substantial part of their authority over the troops they put at the UN's disposal. An analysis of the UN doctrine on C2 issueFootnote 93 combined with a review of its practical application in a context such as the DRC clearly demonstrate that, despite the multiplicity of caveats put in place by TCCsFootnote 94 and the potential for TCCs' (limited) interference, the UN generally exerts ‘operational control’. Legally speaking this means that it has ‘effective control’ (and a fortiori ‘overall control’) over military operations conducted by the troops lent by the TCCs.Footnote 95
In view of the above considerations, it is submitted that in the case of peace operations under UN command and control, there is a presumption that only the UN mission, and not the TCCs (and still less the member states of the UN), should be considered a party to the armed conflict when UN forces are drawn into hostilities reaching the threshold of armed conflict.Footnote 96 In other words, the formal authority vested in the organisation combined with the C2 structure effectively in force generate a presumption that only the UN mission, as a subsidiary organ of the UN, should be deemed party to the armed conflict.Footnote 97 The situation would be identical, for example, for the African Union (AU) insofar as its C2 structure appears to be similar to that of UN-run peace operations. Hence, if AU peace forces became involved in armed violence reaching the level of an armed conflict, only the AU mission, as a subsidiary organ of the AU, should be deemed party to the armed conflict.Footnote 98
The situation as regards peace operations conducted by NATO is more complex and differs from that of UN operations. Owing to the very intricate, specific nature of the C2 architecture of NATO operations (in particular the role played by TCCs within the C2 structure), it is submitted that, in principle, when NATO troops are engaged in peace operations reaching the threshold of armed conflict, it is not only the organisation which is a party thereto. Indeed, a close look at NATO C2 doctrine and its implementation in recent peace operations in Libya and Afghanistan reveals that the TCCs' representation at the strategic, operational and tactical level is such that these states clearly have the power to influence and the capacity to intervene at all levels and stages of NATO military operations. TCCs are so closely associated in the NATO C2 structure that it is almost impossible to discern whether it is NATO itself, or the TCCs, which have effective or overall control over the armed forces operating during a NATO-run peace operation. In light of this situation, NATO operations should be attributed simultaneously to the international organisation and the TCCs.Footnote 99 The logical legal consequence in terms of IHL is that both NATO and the TCCs (but not all NATO member states) should be considered parties to the armed conflict.Footnote 100
Indeed, despite the fact that the NATO C2 doctrine provides that TCCs transfer ‘operational control’ to the NATO Force Commander,Footnote 101 Peter Olson, former legal adviser to the NATO Secretary-General, recognises in this issue of the Review that ‘actions taken by NATO in conducting military operations are, with only a few exceptions for assets owned by the Alliance collectively, carried out by contingents provided by and under the command of, the participating individual Allies or NATO operational partners – and over which those states retain ultimate, and often substantial daily, control’ (emphasis added).
The difficulty of distinguishing between TCCs and NATO itself for the purposes of determining which should qualify as a party to the armed conflict also arises in respect of the allocation of operational activities. A NATO Force Commander has no authority whatsoever over detention during NATO operations, since it is a purely national issue determined by each TCC and over which NATO has no say.Footnote 102 On the contrary, when it comes to kinetic operations, in particular air operations, the identification of targets and the military planning of air operations fall within the remit of the NATO Force Commander and NATO multinational staff, while the strikes themselves are carried out by units under national command within the overall NATO operational context.Footnote 103 However, the detention and killing of enemy fighters are both activities that are normally carried out by the parties to an armed conflict. Therefore, the fact that detention activities remain under the exclusive authority of the TCCs, while the conduct of kinetic operations is the responsibility of the NATO Force Commander, further demonstrates the dual nature of NATO-run operations and buttresses the conclusion that both NATO and TCCs must be considered parties to an armed conflict in the context of a NATO-run peace operation.Footnote 104
In order to avoid being considered parties to an armed conflict during NATO operations, some TCCs may be tempted to make use of sophisticated legal constructs and to argue that they could be militarily involved in NATO operations reaching the threshold of armed conflict without being a party to the latter within the meaning of IHL.Footnote 105 However, in practice and in law it is difficult to draw distinctions in the legal status under IHL of the states participating in such operations. Carrying out some military activities within the framework of such NATO operations, in particular if they form an integral part of the collective conduct of hostilities, would confer the status of belligerent on those TCCs. Such involvement would be clear evidence of a belligerent intent on the part of the TCCs involved. In these circumstances, a presumption, albeit a rebuttable one, exists that states participating in a NATO operation reaching the threshold of armed conflict have the status of a party to the armed conflict. As Ola Engdahl has rightly held with regard to NATO operations in Afghanistan, ‘ISAF [i.e. the NATO forces operating in Afghanistan] is a multinational force under unified command and it may in fact not be possible to compartmentalise such a force into participating and non-participating forces.’Footnote 106 The opposing party will certainly not make such a distinction and will consider all the TCCs as belligerents and therefore as military objectives that can be lawfully attacked under IHL.
IHL application to multinational forces: the material scope
It has sometimes been argued that the mere involvement of multinational forces in an armed conflict is sufficient to make it an international armed conflict and to trigger the application of the law governing international armed conflicts irrespective of the legal status of the belligerents (i.e. states, international organisations or non-state armed groups).Footnote 107 However, this view is far from widely accepted.Footnote 108
The question of whether the legal framework of reference should be the law governing international armed conflicts or that applicable to NIACs is still debated. While in practice there is probably no difference in the rules regulating the conduct of hostilities, because most treaty-based rules applicable in international armed conflict are also generally applicable in NIAC as customary law, the issue is important for example when it comes to the status of persons deprived of liberty, the legal basis for ICRC activities or the geographical scope of application of IHL.
In order to answer questions pertaining to the classification of situations, the ICRC has followed a fragmented approach to the relationship between belligerents, similar to that adopted by the ICJ in the decision which it rendered on 27 June 1986 in the case Military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America).Footnote 109 This approach is shared by the ICTYFootnote 110 and the ICC.Footnote 111 It involves examining and defining every bilateral relationship between belligerents in terms of IHL: if the multinational forces are fighting against the forces of a state, it is the rules governing international armed conflict which will apply, since the conflict is between two entities endowed with international legal personality (multinational forces being considered here as a subsidiary organ of the international organisation or states to which they answer). On the other hand, if the multinational forces are combating a non-state organised armed group, it is the rules governing NIAC which will apply. They will also apply when, in the context of a pre-existing NIAC, multinational forces intervene in support of the armed forces of a state against non-state armed group(s). This situation has been referred to as a ‘multinational NIAC’. The latter is defined as an armed conflict in which multinational armed forces are fighting alongside the armed forces of a ‘host’ state, in its territory, against one or more organised armed groups. As the armed conflict is not between two or more opposing states, i.e. as all the state actors are on the same side, the conflict must be classified as non-international, regardless of the international component, which can at times be significant.Footnote 112
It is submitted here that the fragmented approach is equally relevant for situations involving multinational forces. The fact that multinational forces are involved in an armed conflict and generally operate under an international mandate or authorisation can in no way affect the operation of the fragmented approach. This remains the most appropriate rule for determining the material scope of application of IHL.
As mentioned above, the ICRC's current position is not shared by some academic writers.Footnote 113 Indeed, the latter favour the option of the internationalisation of a conflict by the mere presence of international forces. From this viewpoint, whenever international forces are involved in an armed conflict the latter necessarily becomes international and therefore calls for the application of IHL in its entirety. This position is attractive in terms of protection, since it means that victims and persons hors de combat would benefit from the more numerous and detailed protective provisions of IHL. It is inconsistent, however, with certain operational and legal realities.
Indeed, the position that the law governing international armed conflict applies as soon as multinational forces are involved in armed conflict runs up against some fairly insurmountable objections.
First of all, the travaux préparatoires of the 1949 Geneva Conventions show that the delegates viewed the law of NIAC as a residual body of law which would apply only when armed violence did not involve two or more states. From that viewpoint, it may be concluded that when a conflict sets an entity possessing international legal personality against a non-state armed group, such as a rebel group, the law of NIAC applies. It is difficult to locate the precise legal basis of the position adopted by legal writers who support the application of the law governing international armed conflict to the context of multinational NIACs. This uncertainty is also confirmed in practice, as it cannot be claimed that the doctrine advocated by some scholars is borne out by operational realities. Indeed, the prevailing view of the ongoing peace operation in Afghanistan against the Afghan armed opposition is that it constitutes a NIAC.Footnote 114
Indeed, ‘it takes two to tango’ for IHL classification purposes. This idiomatic expression well reflects the link existing between the parties to an armed conflict. When determining how to classify an armed conflict involving multinational forces, one should not look at only one of the belligerents and should not deduce from its international status that the conflict is necessarily international in nature. Armed conflict is a belligerent relationship involving at least two opposing parties which are inextricably related, with the result that the classification process must take into account the nature of both belligerents, and not just one of them, in order to determine whether the armed conflict is international or non-international.Footnote 115
Secondly, the position favouring the internationalisation of the conflict is probably unacceptable to host states, TCCs and the organisations under whose responsibility these troops are operating. This is because the application of the law of international armed conflict would mean granting combatant and prisoner-of-war status (insofar as the relevant criteria are fulfilled) to the members of armed groups fighting against the international forces, and that in itself would make it impossible to prosecute them for the mere fact of having taken up arms. It is quite inconceivable that the states concerned would give up the possibility offered by the law of NIAC to prosecute rebels under national law on the sole grounds of their having taken up arms against the government.
Thirdly, some academic writers have relied on Article 2(2) of the 1994 Safety Convention in order to contend that an armed conflict involving UN forces is international in nature.Footnote 116 This position was based on an erroneous perception that IHL and the 1994 Convention were mutually exclusive, combined with a literal interpretation of the terms ‘to which the law of international armed conflict applies’ contained in the aforementioned paragraph. However, the negotiating history of this instrument shows that some states’ representatives expressly wished to include NIACs in the Convention's field of application. Some delegates clearly stated that, when UN forces were involved in a NIAC, the 1994 Convention continued to apply and the forces in question continued to enjoy the protection provided by that instrument.
Fourthly, the application of the law of international armed conflict means that the relevant obligations under IHL will apply not only to multinational forces but also to the other belligerent parties, in other words to non-state armed groups. IHL is meant to be a realistic and pragmatic body of law based on the principle of effectiveness. It is pointless to impose on one party to a conflict obligations which it cannot fulfil owing to a lack of sufficient means to do so. The law of international armed conflict was intended to be applied by states possessing logistic means which the vast majority of non-state armed groups do not have. To make IHL in its entirety applicable de jure to non-state armed groups incapable of complying with its provisions would deprive these provisions of any sense and, in particular, prevent them from fulfilling the purposes for which they were drawn up. A law that is not systematically respected is a law at risk, a risk that we cannot afford to take when it comes to a corpus juris as fundamental as the rules regulating armed conflict. It is therefore much more realistic to require non-state armed groups to apply the more basic provisions of the law governing NIAC.
Finally, it has been argued that the obligations incumbent upon the parties to a NIAC are limited by the sovereignty of the state affected by the insurrection. As Marten Zwanenburg points out:
Another perspective has its starting point in the reason behind the international-non-international armed conflict dichotomy that is state sovereignty. A majority of states are unwilling to subject what they consider their internal affairs to international scrutiny and are therefore unwilling to accept detailed regulation of non-international conflicts. Schindler states that a Norwegian proposal at the conference of experts in 1971 and 1972 to adopt one uniform protocol for all armed conflicts did not find much approval because “international law has to take into account that the world is divided into sovereign states, and that these states keep to their sovereignty. They are not willing to put insurgents within their territory on equal terms with the armed forces of enemy states or members thereof”. The UN and NATO, in contrast to States, do not have territorial sovereignty, and as a consequence sovereignty is not a reason for them not to apply the regime which offers the highest level of protection.Footnote 117
The rationale underlying this interpretation of the application of the law of NIAC cannot, however, be fully transposed to the case of an armed conflict involving multinational forces. In the great majority of cases, these forces take action in support of a state affected by the presence of non-state armed groups and, when all is said and done, they therefore fight on the side of the government troops. From this viewpoint, it is entirely valid and appropriate to restrict the application of IHL on the grounds of sovereignty when international forces come to the aid of a government in order to counter an insurrection.
IHL application to multinational forces: the personal scopeFootnote 118
The issue of the personal scope of application of IHL is particularly important for ‘multidimensional’ or ‘integrated’ peace operations whose tasks may consist not only in carrying out military operations against designated enemies, but also in engaging in economic governance, civil administration, rule of law, disarmament-demobilisation-reintegration (DDR) and political processes, promotion/protection of human rights and humanitarian assistance, to name the more significant ones.Footnote 119 In order to perform these tasks, ‘integrated’ peace operations employ a mix of military, police and civilian personnel. The implementation of various objectives set for a peace mission that has become party to an armed conflict definitely raises some questions concerning the legal status of these different categories of personnel under IHL.Footnote 120
In this context, the peace mission's personnel must be divided into different categories, as far as integrated peace operations are concerned, in order to evaluate the extent of the protection accorded to each of them by IHL. To this end, the situation of military, civilian and police personnel must be analysed separately.
Members of the military component of a peace mission involved in an armed conflict must be distinguished from the rest of the mission's personnel. Once the military personnel of a peace operation become engaged in the armed conflict, they become combatants for the purposes of the principle of distinction and, irrespective of their function within the military component, they lose their protection against attacks as long as the peace mission is party to the armed conflict. All peace forces placed in this situation would become lawful targets under IHL, from the private soldier up to the Force Commander (and others who decide on military operations). Their status as lawful targets under IHL applies across the board to the entire military contingent, even if the peace forces are made up of different units coming from different TCCs and if the military units forming the peace forces are assigned different tasks within the peace mission.Footnote 121 Their status under IHL and that of all the peace forces is therefore determined on the basis of the classification of the situation and the applicable legal framework.
Civilian personnel involved in the economic/political governance, promotion/protection of human rights or humanitarian assistance must be regarded as civilians for the purposes of IHL, irrespective of the fact that the peace mission qualifies as a party to the armed conflict. The civilian component of a peace mission must be distinguished from its military component, whose task, among others, is to eradicate the threat from the organised armed groups opposing it. Civilian personnel will therefore remain protected from direct attacks and benefit from the protection which IHL confers on civilians unless and for such time as they directly participate in the hostilities.
Indeed, the possibility should not be discounted that civilian personnel of a peace mission might carry out activities which are closely connected with the military operations undertaken by the peace forces. But in which circumstances would the conduct of civilian personnel amount to direct participation in hostilities within the meaning of IHL?
The answer to this question determines when the individual conduct of a peace mission's civilian personnel leads to the suspension of a civilian's protection against direct attack. The notion of direct participation in hostilities refers to specific hostile acts carried out by individuals (who are not members of the military component of the peace mission) in the course of hostilities between the parties to either an international or a non-international armed conflict.
In the ICRC's view, in order to qualify as direct participation in hostilities, a specific act carried out by a civilian member of a peace mission must fulfil all the following criteria:
• The act must be likely to adversely affect the military operations or military capacity of a party opposed to the peace forces or, alternatively, to inflict death, injury or destruction on persons or objects protected against direct attack (threshold of harm), and
• There must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and
• The act must be specifically designed to directly cause the required threshold of harm in support of the military component of the peace mission to the conflict and to the detriment of the party opposing the peace forces (belligerent nexus).
Applied together, the three requirements of threshold of harm, direct causation and belligerent nexus make it possible to draw a reliable distinction between activities amounting to direct participation in hostilities and activities which, although occurring in the context of an armed conflict, are not part of the conduct of hostilities and therefore do not entail loss of protection against direct attack.
In addition, measures preparatory to the execution of a specific act of direct participation in hostilities, as well as deployment to and return from the location of its execution, constitute an integral part of that act.
On this basis, the members of a peace mission's civilian personnel who directly participate in hostilities lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities. Once they no longer participate directly in hostilities, they regain full civilian protection against direct attack, but they are not exempt from prosecution for any violations of domestic and international law that might have been committed.Footnote 122
The situation with regard to the police component of the peace mission might vary according to its use by the peace operation's command. Indeed, in accordance with the mandate assigned to them by the Security Council, members of the peace mission's police personnel are generally employed to advise and train the local police force and other domestic law enforcement agencies and/or to carry out law enforcement operations – most of the time alongside the police of the host state. In the vast majority of cases their tasks are therefore confined to classic law enforcement activities and have no direct connection with the military operations that might be undertaken by the military component of the peace mission.
While performing tasks related to law enforcement, police personnel must be regarded as civilians for the purposes of IHL and will benefit from the protection afforded by this body of law to this category of persons.
However, the volatile, difficult context in which the police component of the peace mission operates might well bring it face to face with members of organised armed groups opposing the peace forces, and it could be drawn into the hostilities. In this case a distinction must be drawn between two situations.Footnote 123
Firstly, if police officers participate directly in the armed conflict on a sporadic or spontaneous basis, they should be regarded as civilians directly participating in the hostilities. The ‘revolving door theory’Footnote 124 would therefore apply to them in the same way as it does to civilians as outlined above.
Secondly, in some exceptional circumstances, police personnel of the peace mission (more likely parts thereof, for instance anti-terrorism police units) may be required through either a formal or an informal decision taken by the peace mission's command to provide military support for the military component of the mission during operations against organised armed groups. If this situation arises, the members of these units supporting the military personnel do, in fact, assume the functions of the armed forces under the command of one of the parties to the armed conflict. As a result, all the police personnel forming part of the police units which have been instructed to undertake combat action, but only these officers, would lose their immunity against direct attacks right up until the moment that they leave these units, or are lastingly discharged from the military operations undertaken by the military component of the mission.
Lastly, recent practice has showed that private military and security companies (PMSCs) are increasingly hired to carry out tasks on behalf of TCCs or international organisations involved in peace operations.Footnote 125 The UN currently awards PMSCs contracts for services such as guarding civilian compounds and logistical support.Footnote 126 In general, activities performed by PMSCs on behalf a peace mission, in particular when the latter is under UN command and control, are not connected with the collective conduct of hostilities and do not encompass traditional functions of the armed forces. However, one cannot rule out the possibility that PMSCs might be or have been used for combat purposes during peace operations. In this regard, a distinction must be drawn between situations where PMSCs are involved in combat action on a sporadic, unsystematic or spontaneous basis and those where they are repeatedly involved as a result of a decision taken by the peace mission's command.
In the first scenario, i.e. an involvement in military operations without the authorisation of the party to the armed conflict on whose behalf they act, members of PMSCs should still be considered to be civilians under IHL and would lose protection from direct attacks only for such time as they directly participate in the hostilities. Their situation would be the same as that of police personnel sporadically or spontaneously involved in hostilities. The criteria for deciding whether or not they are directly participating in hostilities are the same as those which would apply to any other civilian. However, because of the role played by these companies, due heed must be paid to the organisational closeness of the PMSCs to the peace mission's military personnel and operations.
However, in the second scenario (i.e. PMSCs participating in combat operations on a regular basis, usually with the express or tacit authorisation of the peace mission), it is plain that to all intents and purposes PMSCs are effectively incorporated into the peace forces, whether through a formal procedure or on a de facto basis, by being given a continuous combat function. Their personnel then become members of an organised armed force, group or unit under the command responsibility of a party to an armed conflict.Footnote 127 For this reason, they can no longer be qualified as civilians and become lawful targets under IHL for the duration of their combat function.
IHL application to multinational forces: the temporal scope
Determining the duration of IHL application once multinational forces have become a party to an armed conflict and the consequences thereof on the temporal scope of their loss of protection against direct attacks is another important issue.
It has been argued that multinational forces drawn into an armed conflict would be bound by IHL only for such time as they are directly participating in hostilities,Footnote 128 thereby limiting the period during which IHL would govern their actions and during which they could be subject to direct attacks under IHL. The supporters of this narrow approach initially took the view that the UN Secretary-General's 1999 Bulletin formed the legal basis justifying this restrictive interpretation of the temporal scope of application of IHL when multinational forces have become party to an armed conflict.Footnote 129
Daphna Shraga has subsequently held that the application of IHL to UN forces would be limited to ‘combat missions’ and would end as soon as the ‘combat mission ends regardless of whether or not the situation as a whole still qualifies as an armed conflict’.Footnote 130 The supporters of this argument consider that when UN forces, and multinational forces in general, become party to an armed conflict they should not be considered combatants (in the technical meaning of the term) under IHL but rather civilians directly participating in hostilities.Footnote 131 This position would have a direct impact on the duration of the application of IHL to the multinational forces’ action.
Recent decisions of the ICCFootnote 132 and the Special Court for Sierra Leone (SCSL)Footnote 133 have also followed the same reasoning vis-à-vis UN forces and have considered that their loss of protection from direct attacks would be limited to such time as they play a direct part in the hostilities.
While some may find this argument interesting insofar as it enhances the protection from direct attacks afforded by IHL to UN peacekeepers by limiting their time exposure to such attacks, this reasoning reflects a very narrow (and flawed) interpretation of IHL applicability to multinational forces from a rationae temporis perspective.
The position adopted by the ICC and the SCSL in the cases mentioned reveals a misconception of IHL's structure. The international tribunals’ analysis is erroneous, as they have confused two quite separate notions under IHL: that of a civilian ‘directly participating in hostilities’ and that of combatant. IHL draws a clear distinction between the two notions and does not justify applying to combatants as defined under this body of law the loss of protection against direct attacks attached to the notion of civilian directly participating in the hostilities.
Indeed, the concept of direct participation under IHL has been crafted exclusively to cover acts carried out by individuals not affiliated to a state's armed forces or the military wing of a non-state armed group. For the purposes of IHL, loss of protection restricted to the duration of specific acts is intended to apply only to spontaneous, sporadic or unorganised action carried out by civilians and not by armed forces.
Extending the concept of direct participation in hostilities beyond individual acts carried out on a sporadic, spontaneous or unorganised basis, as was done in the aforementioned cases, would blur the distinction made by IHL between civilians’ temporary and activity-based loss of protection and the continuous and status-based or function-based loss of protection that occurs when armed forces and other organised armed groups are parties to an armed conflict. Under IHL, the duration of armed forces’ loss of protection depends on criteria unrelated to the notion of direct participation in hostilities. All members of organised armed forces that have become party to an armed conflict – irrespective of their affiliation to TCCs or international organisations acting for the restoration of international peace and security – can be targeted by virtue of their membership.
It is therefore submitted that the concept of combatant ‘directly participating in hostilities’ as reflected in the recent decisions taken by the ICC and the SCSL does not exist under IHL. This paradigm would deny the mutual exclusiveness of the concepts of civilians and combatants under IHLFootnote 134 and would undermine the conceptual integrity of the categorisation of persons underlying the principle of distinction.
The fact that the temporal scope of loss of protection is broader for armed forces, including multinational forces, is due to the existence of a reliable, reasonable presumption that they will be involved in future military operations against the enemy. Applying the ‘direct participation in hostilities’ approach to multinational forces would increase the risk of confusing belligerents and civilians and thus undermine the principle of distinction under IHL. It would also create an illogical disparity between them and their opponents and would give an operational advantage to the multinational forces, because the opposing party in the armed conflict would continue to be subject to lawful direct attack at any time. This would undermine the principle of equality between belligerents, as the party opposing UN forces would not be placed on an equal footing and it might thus adversely affect respect for IHL by the parties to the armed conflict. As far as the author knows, peace forces, such as the NATO forces deployed in Libya or Afghanistan or the AU forces fighting in Somalia, have never used any similar argument to claim that their loss of protection against direct attack as the result of their engagement in the armed conflict was not continuous and status-based.
A closer look at the decisions handed down by the ICC and the SCSL shows that they seem to have been influenced by the 1998 Rome Statute according to which intentionally directing attacks against peacekeeping operations’ personnel is a war crime as long as they are entitled to the protection given to civilians by IHL. In this regard, the drafters of the UN Secretary-General's Bulletin and the judges of the ICC and the SCSL might well have misconstrued the phrase contained in Article 8(2)(b)(iii) and (e)(iii) of the Rome Statute and might have stretched the reference made to ‘civilian’ status under these provisions.
The fact that multinational forces not engaged in armed conflict are entitled to civilian statusFootnote 135 (by default as the IHL binary approach of combatant vs. civilians does not allow for an intermediary status) for the purposes of protection against direct attack does not mean that, if they were to become a party to an armed conflict, they should be treated as civilians directly participating in hostilities and would lose their protection against direct attack on the basis of the ‘revolving door’ theory.
If multinational forces can be regarded as civilians when they are not a party to the armed conflict, the consequences of their involvement therein in terms of loss of protection against direct attack are different to those affecting civilians. One should not confuse the legal status of the multinational forces when not belligerent (i.e. when they benefit by default from the protection granted to civilians) and the consequences of their involvement in armed conflict in terms of loss of protection against direct attack when they have become a party to the armed conflict (i.e. the military contingents of the peace mission can be targeted at all times as long as they are a party to the armed conflict).
In other words, when engaged in an armed conflict, the multinational armed forces’ loss of protection against direct attack can in no way be modelled on that applicable to civilians.
The implications of the option chosen are of fundamental importance, because if it is agreed that multinational forces’ loss of protection against direct attack is continuous and status-based, this means that, under IHL, peace missions’ military personnel can be targeted at any time (and can be detained) until the peace forces cease to be deemed a party to the armed conflict.
From a rationae temporis perspective, IHL therefore applies to multinational forces and uninterruptedly governs their actionFootnote 136 as long as they are a party to an international or non-international armed conflict. IHL will cease to apply to multinational forces only once they can no longer be deemed a party to the armed conflict in which they were previously engaged.Footnote 137
When multinational forces have been involved in an international armed conflict, the latter would be terminated when the armed confrontation between the multinational forces and the state(s) opposing them has ceased to such an extent that the situation may reasonably be interpreted as a general close of military operations.Footnote 138
In a NIAC, where IHL applies to multinational forces on the basis of the classic criteria, they will cease to be considered a party to the conflict at the end of the latter. It is important to specify that a mere lull in the fighting or low in hostilities will not suffice to end the application of IHL to multinational forces’ actions. A NIAC involving multinational forces can therefore be said to have terminated when:
• The non-state armed group opposing the multinational forces has disappeared or otherwise no longer meets the level of organisation required by IHL;
• Or, where the hostilities have ceased and there is no risk of their resumption, with the result that the situation amounts to a general close of the military operations involving multinational forces against a particular opposing party.
When IHL applies to multinational forces involved in a pre-existing NIAC by virtue of the support-based approach,Footnote 139 IHL will no longer bind these forces after their lasting disengagement from the collective conduct of hostilities. A prolonged cessation of the support previously given to one of the belligerents engaged in the pre-existing conflict would therefore be sufficient to determine that the multinational forces are no longer a party to that conflict.
IHL application to multinational forces: the geographical scope
This paper would be incomplete if it did not address the question of the geographical scope of IHL in the context of peace operations. Defining the geographical scope of IHL is an important but difficult task, mainly because contemporary armed conflicts are increasingly characterised by the absence of clear front lines and by the fluidity of combat zones. This task is rendered even more complex when armed conflicts involve multinational forces, as the latter inherently bring with them an extraterritorial component and often operate from military bases located in third countries, factors which have a bearing on the determination of the geographical scope of IHL.
Recent peace operations have made it plain that addressing the territorial reach of IHL encompasses an operational dimension. Important questions must be answered in order to arrive at a more precise definition of the legal framework governing armed conflicts involving multinational forces. Is IHL applicable only to the battlefield? Does it extend to the whole territory subject to multinational forces’ intervention? Does IHL apply even beyond the confines of the territory in which multinational forces intervene (i.e. in the intervening states’ own territory or in the territory of non-belligerent states from which the belligerents may operate)?
It has been argued that IHL would not apply outside the strict boundaries of the battlefield.Footnote 140 These arguments were put forward mainly in the context of multinational NIACs.Footnote 141 The rationale behind them seems to be twofold. First, limiting IHL application to battlefield areas would make it possible to maintain that TCCs outside the areas of combat could not be considered parties to the NIAC. Second, the argument would also ensure that multinational forces involved in an armed conflict but outside the battlefield would regain or continue to enjoy the protection afforded to civilians under IHL.
A less restrictive, albeit still narrow, view has also taken shape in some academic writingsFootnote 142 and judicial decisions.Footnote 143 Based on the plain language of the ‘chapeau’ of Common Article 3 of the Geneva Conventions, it holds that the territorial reach of the law governing NIAC is limited to the territory of the state in which the armed conflict originated and mainly takes place.
It is submitted here that none of these arguments is supported by IHL. There is nothing in the drafting history of IHL from which it may be concluded that a territorial clause was deliberately formulated to link the geographical scope of IHL to the battlefield or to the territory of a single state.Footnote 144 In this regard, Common Article 3 could be read as applying to all conflicts other than those between states, so long as the NIAC originated in the territory of one of the High Contracting Parties to the Geneva Conventions.Footnote 145
Even if treaty law is almost silent on the geographical scope of IHL, a careful examination of the provisions applicable to NIAC proves that they are drafted in a way that justifies the application of IHL beyond the limits of the battlefield.Footnote 146
Further research shows that the geographical scope of IHL is a matter of well-settled precedent in the case law of international tribunals.Footnote 147 These tribunals have all used a broader interpretation of geographical scope to find that IHL applies to the whole territory of the state affected by the NIAC and cannot be limited to the battlefield. For example, the ICTR decided in 2003 that once the conditions for applicability of Common Article 3 and Additional Protocol II are satisfied, their scope ‘extends throughout the territory of the State where the hostilities are taking place without limitation to the “war front” or to the “narrow geographical context of the actual theatre of combat operation”’.Footnote 148
Today, the ongoing legal discourse on the geographical scope of IHL in the context of a multinational NIAC seems no longer to be whether IHL applies only throughout the territory of the ‘host state’ but whether it applies beyond the confines of the territory of the state in which the conflict commenced. In the context of this discussion, the question of IHL application in the territories of the ‘intervening’ states must be posed.
To limit the territorial reach of IHL solely to the territory of the state in which the NIAC originated is too narrow an interpretation of the geographical scope of the application of IHLFootnote 149 and ignores the new features of contemporary NIACs. Indeed, the latter are tending to expand beyond the boundaries of one single state. The increasingly widely accepted concepts of spillover NIACs, multinational NIACs or cross-border NIACs are cases in point.Footnote 150 Jelena Pejic has stated:
it is submitted … that the text [of Common Article 3] can also be given a different interpretation and that, in any event, its provisions may nowadays be evolutively interpreted to apply to any situation of organised armed violence that has been classified as a non-international armed conflict based on the criteria of organisation and intensity, therefore also to a NIAC that exceeds the boundaries of one state.Footnote 151
Some legal literature follows the same expansive view and supports the position that, in a situation of NIAC, IHL is applicable not only in the limited theatre of combat but also throughout the territory of the states engaged in the NIAC.Footnote 152 It has been rightly contended that ‘the common thread … is the widely accepted territorial interpretation of the scope of IHL that is independent from the concept of hostilities and extends to the geographical borders of the relevant state(s)’.Footnote 153 In the context of multinational NIACs, states making a military contribution to the operation should be included within the category of ‘relevant states’ in the territory of which IHL will govern actions having a nexus with the ongoing conflict.
Indeed, it is submitted that in cases of operations where multinational forces fight alongside the armed forces of a host state in its territory against one or more organised armed groups, IHL extends and applies to the territories of the ‘intervening’ states as well (provided the control over their troops has not been handed over to the international organisation under the auspices of which the military operations are carried out). In other words, the geographical scope of IHL in the context of peace operations covers the whole territory of the states involved in the multinational NIAC. Hostilities between the parties to the conflict are governed by IHL wherever they occur in the affected states. For example, persons deprived of their liberty in relation to a multinational NIAC must be afforded protection even if the place of detention is located not in the territory of the state in which the conflict commenced, but within the intervening states’ own territory. Individuals captured in relation to a multinational NIAC but detained far away from the combat areas would still need legal protection and will benefit from that afforded by IHL. Any other interpretation would defeat the protective purpose of IHL provisions.
This position is also justified by the fact that states intervening in a multinational NIAC should not be able to evade the operation of the principle of equality between belligerents under IHL once they have become a party to the conflict. As a result, acts possibly undertaken as part of the hostilities by a non-state armed group in the territory of a state contributing to the multinational operation must be considered to fall within the territorial scope of IHL and may, under some circumstances, be considered lawful under IHL.Footnote 154 This would be the case if an attack by the relevant non-state actor were, for example, directed at a military objective in the intervening state's territory.
This position is particularly relevant since some states involved in multinational operations often operate weapons systems such as Remotely Piloted Aircraft (i.e. drones) directly from their own territory and/or use operational centres located therein. Maintaining that IHL would not apply to the territory of the intervening states would in fact create incentives for the parties which have the means and logistic capabilities to ‘delocalise’ their military assets and render them immune from direct attack under IHL by simply transferring them to a place located beyond the geographical scope of IHL. This would defy the logic of IHL and could in a way be interpreted as conflicting with the principle of equality between belligerents that underpins this body of law. The only way to avoid this situation is to accept that, in the context of multinational NIACs, the geographical scope of IHL encompasses the territory of the states making a military contribution to the peace operation.
Lastly, ongoing peace operations such as those in Afghanistan or the DRC have raised the question of whether IHL applies to the territory of non-belligerent states affected by the multinational NIAC. A growing number of fighters of non-state armed groups opposing multinational forces are tending to take refuge in, or even operate from, the territory of a non-belligerent state, generally a neighbouring country. Similarly, states involved in a multinational NIAC often install and use for combat purposes military bases located in the territory of non-belligerent states.
As mentioned earlier, the concept of a spillover NIAC, allowing the application of IHL to military operations spilling over into a neighbouring non-belligerent state, is no longer disputed. This being so, the application of IHL to spillover multinational NIACs raises other issues in relation to its territorial reach: does the contiguity of the neighbouring state into which the conflict spills constitute a prerequisite for the extraterritorial application of IHL? Does IHL apply to the whole territory of that state or would it be restricted to combat areas or to areas located in the vicinity of the border? Where do we draw the line of the geographical scope of IHL in such circumstances? Some people might possibly argue that if one accepts that IHL applies extraterritorially to spillover NIACs, why should it not apply to the territory of other non-belligerent states if fighters or military objectives belonging to the parties to the multinational NIAC are located therein? For example, would IHL govern the bombing of a non-state actors’ training camp or a multinational military base established in a non-belligerent state but used to support military operations conducted within the framework of a multinational NIAC?
These are still unanswered questions deserving further analysis on account of their operational, humanitarian and legal consequences.
