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How might time matter when it comes to the legal aspects of armed conflict? Does, and should, international humanitarian law (IHL) treat relatively longer armed conflicts differently than their shorter counterparts? Might some armed conflicts come into existence only once hostilities have existed for a sufficiently long period? In respect of conflicts extending over relatively long periods, should the legal framework be adjusted with a view to enhancing and expanding the scale and scope of protective commitments, perhaps by shifting from IHL-based norms to norms rooted in other fields, such as international human rights law (IHRL)? Who would benefit, and who would lose, from such an approach, and who should be in a position to determine whether or not it is adopted?
This issue of the Review, which focuses on “Protracted Armed Conflict”, examines such topics as the impacts of long-duration armed conflicts on affected populations and strategies for humanitarian action in respect of such contexts.Footnote 1 At the outset, it bears emphasizing that, at least from this author's perspective, the long duration of an armed conflict – including a military occupation – may not be invoked as a legal basis to exclude the application of IHL.Footnote 2 Yet that contention only begins to bring into view the array of pressing concerns and associated legal dimensions regarding the duration of contemporary wars.
In this article, I seek to help inform discussions around “protracted armed conflict” by exploring two sets of legal questions concerning the timing and duration of contemporary wars. In doing so, I do not attempt to exhaustively canvass the vast range of potential legal issues that might arise in relation to armed conflicts of a long duration, however “long” might be defined. Instead, I zoom in on two sets of what might be characterized as somewhat technical legal issues. Firstly, I examine whether – under IHL and, especially, international criminal law (ICL) of war crimes – only non-international armed conflicts whose hostilities have taken place over a sufficiently long period may be characterized as “protracted armed conflict” in the sense of a provision of the Rome Statute of the International Criminal Court (ICC). I focus on such non-international armed conflicts because, so far as I am aware, it is only in relation to those conflicts that the term “protracted armed conflict” has been laid down in an IHL-related treaty. Moreover, I am not aware of the term having (purportedly) crystallized into a (separate) notion under customary international law. Secondly, I evaluate whether IHL and ICL of war crimes lay down sufficiently clear rules, principles and standards to discern when contemporary armed conflicts have come to an end – in other words, whether the law allows us to reliably detect when conflicts, including relatively long-duration conflicts, have ended. These two sets of questions are connected in various ways. Perhaps most obviously, discerning the end of an armed conflict that is deemed to be “protracted” turns – as with all armed conflicts – on an assessment of the international legal framework applicable in relation to the end of the conflict. To help flesh out why this all matters, at various points in the article I attempt to draw attention to some legal interests that might be at stake in the continuing applicability (or not) of IHL. I conclude by highlighting several challenging questions that arise when assessing whether or not “protracted armed conflict” should be developed into a (sub)category of armed conflict under international law.
“Protracted armed conflict”
In respect of war but also more broadly, time matters in no small part because humans’ experiences and understandings of the world are fundamentally structured, organized and conceived through notions of temporality. For example, to help comprehend our experiences, we often divide periods into discrete temporal units such as minutes, days, months, years or decades. Yet despite the centrality of time, its flow and its delineation, and despite some apparent recent headway by scientists into better understanding its nature and its workings,Footnote 3 we still grasp remarkably little about the foundational properties and conceptual frameworks that pertain to time.
International humanitarian law and temporality
Irrespective of our individual and collective deficiencies in understanding temporality more broadly, it seems indisputable that time matters in many diverse and impactful respects concerning war and the law that seeks to govern it. Indeed, in many ways, international law structures and organizes our experiences and understandings of armed conflict, not least regarding what periods we do and do not consider to validly count as “wartime”.Footnote 4
In turn, with a legally recognized period of armed conflict come (it has been argued) not only the constraints but also the “enabling arrangements”Footnote 5 of IHL and, as applicable, other relevant fields of international law.Footnote 6 For its part, IHL is somewhat frequently characterized as seeking to infuse at least a modicum of humanitarian concern into the cruelties of war. Yet in several respects IHL might also be seen as legitimizing certain presumptions of dangerousness of perceived adversaries and perhaps even of perceived adversary populations. Those presumptions help lay the normative groundwork for IHL to be interpreted and applied in ways that, it might be said, at least tolerate certain manifestations of often extensive violence and other coercive measures that may result in levels of death, destruction and suffering which, while not unlimited, would nevertheless be impermissible under other potentially relevant fields of international law.Footnote 7 Meanwhile, as it does in respect of time, the formulation, interpretation and application of IHL also helps delineate other connected dimensions of war: what situations amount to armed conflicts in the first place, how far wars extend spatially, and which individuals, entities and objects merit, or do not merit, various kinds and degrees of legal protection, as well as which individuals and entities are responsible for respecting which legal norms.
Unfortunately, the incarnadine spectacle of many contemporary armed conflicts – so often marked as they are by extensive death, destruction, upheaval, austerity, subjugation and despair – extends for years, even decades.Footnote 8 The War Report: Armed Conflicts in 2017, edited by Annyssa Bellal, identifies fifty-five armed conflicts that occurred, in the view of the authors, at least at some point in 2017. The vast majority of the eleven listed military occupations have apparently existed for decades, including occupations of Azerbaijan by Armenia, of Cyprus by Turkey, of Lebanon by Israel, of Moldova by Russia, of Palestine by Israel, of Syria by Israel, and of Western Sahara by Morocco.Footnote 9 Several of the thirty-eight non-international armed conflicts that Bellal characterizes as having occurred in 2017 are of what might be characterized as a long duration.Footnote 10 For instance, at least two of those conflicts – Colombia versus the National Liberation Army and the Philippines versus the New People's Army – apparently extend back to the 1960s. Certain others – including, under their currently listed configurations, Afghanistan and the United States versus the Quetta Shura Taliban, and the Democratic Republic of the Congo with the support of the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo versus the Democratic Forces for the Liberation of Rwanda – are seemingly at least a decade and a half old. Among the six situations characterized in The War Report as “active” international armed conflicts, three are said to have existed since at least 2014: India versus Pakistan; an international coalition (Belgium, Canada, Denmark, France, Germany, Italy, Jordan, Morocco, the Netherlands, Saudi Arabia, Turkey, the United Arab Emirates, the United Kingdom and the United States) versus Syria; and Ukraine versus Russia.Footnote 11
International criminal law of war crimes in respect of non-international armed conflict: Delineating “protracted armed violence” and “protracted armed conflict”
Close observers of the cascade of recent jurisprudence flowing from international criminal tribunals may have spotted a particular area in which time might matter in respect of war – namely, the provision concerning “protracted armed conflict” laid down in the 1998 Rome Statute of the ICC.Footnote 12 That provision concerns twelve sets of war crimes in respect of non-international armed conflict. (There are two main general categories, or classifications, of armed conflict broadly recognized in contemporary IHL: international armed conflict and non-international armed conflict.Footnote 13) Since coming into force, that provision has been addressed, somewhat unevenly, by certain ICC chambers as well as by commentators.Footnote 14
Stepping back for a moment, it might be useful to observe that the adjective “protracted” means – in its everyday usage – lengthened, extended or prolonged in time.Footnote 15 The basic notion is, at least in certain key respects, relative and subjective, raising questions as to what durations, and in relation to what types of contexts, the label should or should not attach.
Perhaps the best legal starting point is not necessarily the relevant text of the Rome Statute itself but rather the International Criminal Tribunal for the former Yugoslavia (ICTY) jurisprudence from which the notion of “protracted armed conflict” in Article 8(2)(f) of the Rome Statute has been said to be “derived”.Footnote 16 To situate that jurisprudence, however, a quick overview of the underlying treaty provisions concerning the concept of non-international armed conflict might be of value. For its part, Article 3 common to the four 1949 Geneva Conventions expressly applies “[i]n the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties”.Footnote 17 This negative formulation – phrased as applying in the case of armed conflict not of an international character – represents something of a compromise text that covered a division of opinions at the time of drafting.Footnote 18 On its terms, the 1977 Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (AP II) “develops and supplements [Common Article 3] without modifying its existing conditions of application”.Footnote 19 Under Article 1(1), AP II shall expressly
apply to all armed conflicts which are not covered by Article 1 of [Additional Protocol I (AP I); that is, all international armed conflicts as recognized at least under AP I] and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement [AP II].Footnote 20
Article 1(2) of AP II provides that the “Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”
From some of the Tribunal's earliest jurisprudence onwards, ICTY chambers have held that a non-international (or “internal”) “armed conflict exists whenever there is … protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”.Footnote 21 To make that determination and thus to establish that a non-international armed conflict subject to the Tribunal's relevant war crimes jurisdiction exists (or existed), ICTY chambers have held that it is necessary to establish two constitutive elements: (1) that hostilities are (or were) sufficiently intense, and (2) that a non-State party is (or was) sufficiently organized.Footnote 22 The emphasis on “protracted armed violence” in the ICTY jurisprudence was meant in part, at least initially, to help distinguish a situation of armed conflict of an “internal” or non-international character – or of a “mixed” character – from situations such as “banditry, unorganized and short-lived insurrections, or terrorist activities, which” – it was held – “are not subject to [IHL]”.Footnote 23 This approach seems to track in general the aim of Article 1(2) of AP II to distinguish between certain situations of violence which may be characterized as non-international armed conflicts falling under that instrument, and others which may not. For their part, ICTY chambers generally have not further required that the other material conditions listed in Article 1(1) of AP II must also be established in order for the Tribunal to exercise war crimes jurisdiction over a non-international armed conflict.Footnote 24 Recall that this provision of AP II concerns the capacity of a non-State party to exercise such control over a part of the contracting State's territory so as to enable that non-State party to carry out sustained and concerted military operations and to implement AP II. In summary, relevant ICTY jurisprudence arguably folds the “protracted armed violence” dimension into the assessment concerning the intensity of hostilities as a constitutive element of a non-international armed conflict.Footnote 25
Thus, the “protracted armed violence” aspect – as elaborated in ICTY jurisprudence – might entail countervailing dimensions. The thumbnail version is that on its face the key textual formulation requires armed violence to be sufficiently long, but in jurisprudence that duration dimension is often incorporated into a broader analysis of the intensity of hostilities as but one criterion concerning the existence (or not) of a non-international armed conflict.
Scholars Marco Sassòli and Julia Grignon have critiqued the part of the ICTY's formulation which – at least on its terms – requires that armed violence must be of a minimally long duration before the hostilities may give rise to categorization as a non-international armed conflict that is capable of falling within part of the Tribunal's war crimes jurisdiction. Their critiques concern several overlapping sets of issues. For example, this “protracted” dimension is said to be subjective in nature.Footnote 26 This contention seemingly implies that, at least from a legal policy perspective, it would be imprudent to make the existence of a non-international armed conflict dependent on such an unverifiable abstraction. Perhaps from this perspective, it might be far from clear whether, for instance, the thirty-hour period of violent clashes at the La Tablada military base in Argentina on 23–24 January 1989 – clashes that the Inter-American Commission of Human Rights considered to have “triggered application of the provisions of Common Article 3, as well as other rules relevant to the conduct of internal hostilities”Footnote 27 – would qualify (assuming that the other conditions of jurisdiction were satisfied) as sufficiently “protracted” to fall under the ICTY's war crimes jurisdiction. Moreover, in light of the retrospective nature of criminal prosecutions, the “protracted armed violence” formulation has been said to raise a concern as to whether or not an individual accused of a war crime may validly be held to have been operating under an understanding that an armed conflict falling within the ICTY's war crimes jurisdiction existed on, say, the first – or the second, or the thirtieth – day of the armed violence.Footnote 28 This line of criticism thus concerns the principle of legality. In addition, at least from the viewpoint of certain victims of armed conflict, a requirement that armed violence be “protracted” may raise a concern that victims of the first acts of violence might not be fully protected, at least in the sense of international criminal responsibility for war crimes.Footnote 29 Furthermore, outside the context of implementing IHL through ICL, the introduction of the notion of “protracted” armed violence has been said to pose a similar problem at least in respect of victims and of humanitarian organizations: it is unimaginable, it has been argued, not only that those victims have to wait a certain amount of time before they can know if they are or are not protected by IHL, but also that those humanitarian organizations may not know if they can invoke IHL, for example to obtain humanitarian access.Footnote 30 Having elaborated these considerations, Sassòli and Grignon have identified at least some benefits to the approach whereby “protracted armed violence” is evaluated by ICTY chambers – even if somewhat counter-textually – primarily in terms of an intensity-of-hostilities criterion, not (or at least not primarily) in terms of a standalone duration-of-armed-violence criterion.Footnote 31
Moving on to the ICC, Article 8 of the Rome Statute concerns war crimes falling within the Court's jurisdiction.Footnote 32 Article 8(2)(a–b) of the Rome Statute concerns such war crimes in respect of international armed conflict, while Article 8(2)(c–f) concerns such war crimes in respect of non-international armed conflict.Footnote 33 Article 8(2)(c) lays down – in its sub-provisions, (i–iv) – four sets of war crimes concerning “serious violations” of Common Article 3 that fall under the Court's jurisdiction “[i]n the case of an armed conflict not of an international character”.Footnote 34 Similar to the distinguishing effect of Article 1(2) of AP II concerning which situations do not fall under that Protocol, Article 8(2)(d) of the Rome Statute provides that Article 8(2)(c) “applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature”. For its part, Article 8(2)(e) concerns twelve sets of “[o]ther serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law”Footnote 35 – other, that is, than the four sets of “serious violations” of Common Article 3 laid down in Article 8(2)(c)(i–iv). Under Article 8(2)(f) of the Rome Statute:
Paragraph 2 (e) [of the Statute] applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups [emphasis added].
Thus, whereas ICTY jurisprudence concerns protracted armed violence,Footnote 36 this provision of the Rome Statute concerns protracted armed conflict. Alongside the English, the other five equally authentic textsFootnote 37 of the Rome Statute – the Arabic, Chinese, French, Russian and Spanish texts – seem to support the contention that this provision in the second sentence of Article 8(2)(f) may be interpreted, at least on a plain reading of the text, as imposing a requirement that a non-international armed conflict must, for Article 8(2)(f) of the Statute to be applicable, be protracted in the sense of (prolonged) duration.Footnote 38
In the abstract, three potential conceptual approaches concerning “protracted armed conflict” – as formulated in the Rome Statute – might be drawn. Under the first, the insertion of this notion in the Statute might be considered to give rise to a (sub)category of non-international armed conflict. Under the second, it might be considered that a non-international armed conflict as a whole – not (merely) one or more of its constituent elements – must be of a sufficiently long duration, or else the ICC may not exercise jurisdiction over relevant war crimes; pursuant to that approach, the formulation would establish a threshold requiring a minimum duration.Footnote 39 Finally, under the third approach, the “protracted armed conflict” notion might be considered to be incorporated into the analysis concerning one or both of the elements deemed necessary to establish the existence of a non-international armed conflict subject to the relevant war crimes jurisdiction of the Court. As noted above, those elements are (1) the intensity of hostilities and (2) the organization of the non-State party (or parties).
At the time of writing,Footnote 40 ICC jurisprudence concerning the “protracted armed conflict” provision in Article 8(2)(f) points in somewhat different, or at least not entirely coherent, directions. On the one hand, an ICC chamber has at least taken judicial cognisance of the phrase, holding that – unlike Article 8(2)(d) – Article 8(2)(f) requires the existence of a “protracted armed conflict”, which, it was said, “may be seen to require a higher or additional threshold to be met”.Footnote 41 Yet on the other hand, when evaluating whether a non-international armed conflict exists such that a war crime laid down in Article 8(2)(e) of the Rome Statute falls within the jurisdiction of the Court, it is not necessarily clear that certain ICC chambers have considered that a specific duration of a relevant non-international armed conflict writ large must be established, in some or all cases, as an indispensable condition to exercise such jurisdiction.Footnote 42 Recall that Article 8(2)(e), which lays down certain war crimes, is directly linked to Article 8(2)(f), which concerns the situations of non-international armed conflict in which those war crimes may have been committed. ICC chambers have seemed to align more or less with the third approach, though it is not necessarily clear that they have also excluded the second approach. In other words, much of the relevant ICC jurisprudence seems to criss-cross – or at least not to be at pains to distinguish – between (aspects of) an approach whereby the non-international armed conflict as a whole must be of a sufficiently long character, and an approach whereby the “protracted armed conflict” notion is folded into the analysis concerning one or both of the constituent elements considered necessary to establish the existence of a non-international armed conflict in the first place.Footnote 43 So far as I am aware, no chamber of the ICC has adopted the first, abstract approach mentioned above, according to which the reference to “protracted armed conflict” in Article 8(2)(f) of the Rome Statute would give rise to a subcategory of protracted non-international armed conflict. In any event, in ICC jurisprudence as of 2018, the minimum length of a non-international armed conflict found to have fallen under Article 8(2)(e) – and thus to be considered, at least implicitly, to constitute a “protracted armed conflict” in respect of the second sentence of Article 8(2)(f) – is apparently five months.Footnote 44
For their part, ICC chambers appear to have adopted the ICTY's general conceptual approach (requiring two constitutive elements – namely, intensity of hostilities and organization of the non-State party or parties) to the establishment of the existence of a non-international armed conflict subject to the relevant war crimes jurisdiction.Footnote 45 The jurisprudence of the ICC is not uniform, however, in respect of the level and type of control (if any) that a non-State party must exercise – and for what duration – in order for a situation to qualify as a non-international armed conflict subject to the Court's relevant war crimes jurisdiction. Some ICC chambers seem, for example, to require the level and type of control (or at least the capacity to exercise such control) by a non-State party laid down in Article 1(1) of AP II, while certain other chambers seem not to have adopted that approach; moreover, the Court's jurisprudence does not appear to establish whether – and if so, to what extent – the duration of such control (or at least the capacity to exercise such control) does or does not matter in this context.Footnote 46
It would seem to be unfair to lay whatever blame is due for today's somewhat confusing, criss-crossing jurisprudential approach at the ICC concerning the phrase “protracted armed conflict” solely at the feet of the Court's judges. The States which drafted that provision in the Rome Statute should not escape their due measure of responsibility.Footnote 47 Regardless, it appears that many (perhaps all) of the criticisms raised by Sassòli and Grignon concerning the notion of “protracted armed violence” in respect of the ICTY jurisprudence may apply just as strongly, if not more so, in respect of the “protracted armed conflict” provision of the Rome Statute.Footnote 48
IHL concerning the end of armed conflict: Key tests, interests and concerns
Broader debates around “protracted armed conflict” might benefit from stepping back to evaluate whether international law supplies sufficient guidance to discern the end of an armed conflict – whether that end is analyzed as a factual matter (when does the armed conflict end?), as a legal matter (when does a relevant portion of the international legal framework of armed conflict cease to be applicable?) or as a normative matter (when should the war end?).Footnote 49 There are areas of overlap as well as of disjuncture between the “protractedness” of armed conflict and the end of armed conflict, and examining those areas may be informative for thinking about questions related to wars spanning a long duration. Perhaps the most obvious connection is that for a “protracted armed conflict” to be terminated, it is necessary (as with any armed conflict) to discern which end-of-armed-conflict test is applicable in relation to it. Thus, the actual length of time of a “protracted armed conflict” necessarily turns in part on interpreting and applying international law pertaining to the end of armed conflict. Moreover, connecting the question of “protractedness” with the question of when armed conflicts end may help to reveal whether arguments in favour of a (sub)category of “protracted armed conflict” – and with it the continuing applicability of IHL – might ultimately lead to a legal situation that gives an illusion of more protection but that, in practice, leads to more death, destruction and suffering that are not unlawful under IHL, in comparison to international human rights law. Finally, a certain lack of connection between these two areas may be illuminating: namely that, to date, States and courts have not, so far as I know, invoked the “protracted” character of an armed conflict as a legal element, standard or threshold to discern the end of an armed conflict – or at least the end of applicability of the legal framework of armed conflict to the situation. Rather, as noted above, some international tribunals have discussed “protractedness” in relation to the onset of an armed conflict – but only then with respect to certain non-international armed conflicts, and in doing so, more often than not, by collapsing the “extended in time” everyday meaning of “protracted” into one of several factors to establish the element of sufficiently intense hostilities.
In 2017, together with two colleagues, I argued that by and large, international law does not provide enough such guidance concerning the end of war, or at least not in several important respects.Footnote 50 In this section, I highlight select issues pertaining to the termination of an armed conflict under existing international law.Footnote 51 I focus on IHL tests and other aspects of the guidance that might be necessary to discern the end of armed conflict, alongside relevant legal interests and concerns from various perspectives.
Different tests, interests and stakes
At the outset, two broad, interconnected points might help frame this part of the analysis. First, there is no single, comprehensive test to discern the end of an armed conflict and the applicability of the relevant international legal framework writ large to that conflict. Whether this is seen as more or less beneficial or as more or less detrimental may largely turn on one's perspective. That is in part because, secondly, as elaborated below, at various points and across varying contexts, different sets of actors may disagree as to whether (to seek to continue) to recognize or to terminate a situation of armed conflict – and, correspondingly, whether (to continue) to recognize or to terminate the applicability of (a portion of) the international legal framework of armed conflict in relation to it.Footnote 52
As to the first point, the contemporary international legal framework pertaining to armed conflict has often been formulated, interpreted and applied in ways that typically focus on different sets of concerns at different levels affecting different sets of actors and interests at different points in an armed conflict. For instance, at what might be termed a macro level, the legal framework focuses in part on general categories – that is, on when either an international armed conflict (including a military occupation) or a non-international armed conflict, considered as a whole, terminates. In respect of international armed conflict, for example, different general sets of conflict-terminating temporal formulations have arisen:
• in the territory of the parties to the armed conflict, the application of Geneva Convention IV (GC IV) of 1949 concerning the protection of civilian victims of war – as well as the application of relevant provisions of AP I, at least for contracting States thereto – shall cease “on the general close of military operations”;Footnote 53 and
• in the whole territory of the warring States, IHL more broadly, at least according to ICTY jurisprudence, shall continue to apply “until a general conclusion of peace is reached”.Footnote 54
Different formulations have also been crafted in respect of military occupations:Footnote 55
• with respect to the application of relevant provisions of GC IV, the third paragraph of Article 6 of that instrument provides that in the case of occupied territory, “the application of [GC IV] shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of [GC IV]: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143”; and
• with respect to the application of GC IV and AP I, at least for High Contracting Parties to AP I, Article 3(b) of AP I lays down that both GC IV and AP I “shall cease, … in the case of occupied territories, on the termination of the occupation”.
In respect of non-international armed conflicts, no treaty provision establishes a general test or sets out another type of temporal formulation pertaining to when the conflict as a whole may terminate and when the applicable legal framework writ large may cease to be applicable in relation to it.Footnote 56 For its part, jurisprudence of the ICTY (and more recently, emerging jurisprudence of the ICCFootnote 57) holds that IHL of non-international armed conflict “applies … and extends beyond the cessation of hostilities until …, in the case of internal [or non-international armed] conflicts, a peaceful settlement is achieved”.Footnote 58 Thus, at least under that jurisprudence, until such “a peaceful settlement is achieved”, the legal framework applicable in relation to non-international armed conflict – both in its so-called protective and enabling dimensions – continues to be applicable.
On balance, that “peaceful settlement” test is arguably impracticable at least in respect of several variants of contemporary non-international armed conflicts, perhaps not least those involving non-State parties that are (also) treated as terrorist entities.Footnote 59 Moreover, in demanding a “peaceful settlement”, the test also seems at variance with a contemporary turn – going back at least to the adoption of Common Articles 2 and 3 of the 1949 Geneva Conventions – toward more factually oriented determinations of the existence (or not) of an armed conflict irrespective of whether a formal (in the sense of political) recognition of the conflict has or has not (also) been made.Footnote 60
At what might be termed a micro level, the international legal framework of armed conflict lays down certain tests and other formulations that concern specific obligations, rights, permissions and other legal interests pertaining to particular sets of individuals, communities, entities and the like at points leading up to, at, or after the end of an armed conflict. Such formulations have arisen, for instance, in respect of:
• certain categories of individuals deprived of liberty;Footnote 61
• certain measures in relation to minefields, mined areas, mines, booby traps and certain other devicesFootnote 62 as well as to explosive remnants of war;Footnote 63 and
• at least in respect of military occupations, the restoration and the fixing of compensation both for seized or destroyed submarine cablesFootnote 64 and for seized private munitions de guerre.Footnote 65
As to the second framing point for this section (that is, that different actors may not agree on whether to argue for or against the continued existence of an armed conflict), consider just a few of the many examples. Humanitarian actors in general may have stronger bases in IHL than other fields of international law (such as IHRL) to make claims for obtaining and maintaining access to populations in need.Footnote 66 Those actors might therefore be more prone to err on the side of not prematurely terminating an armed conflict, even though not only the protective aspects but also the “enabling” aspects of IHL would continue to be applicable.Footnote 67 Furthermore, to adjudicate war crimes (which, at least by most definitions, may be committed only with a sufficient connection to an armed conflict), courts need to determine the existence of a relevant armed conflict to establish jurisdiction. Those courts might therefore have an institutional interest in holding that a particular situation constituted an uninterrupted period of armed conflict.Footnote 68 Such an approach might help to avoid a purported “revolving door between [IHL] applicability and non-applicability” – a “revolving door” that, according to an ICTY chamber discussing international armed conflict, might lead “to a considerable degree of legal uncertainty and confusion”.Footnote 69 Certainty may come at a cost, however, of presuming the applicability of relatively more permissive IHL rules instead of more restrictive provisions established in other international legal frameworks and (corresponding) domestic regimes.Footnote 70 Meanwhile, claims for asylum may, in respect of certain contexts, pivot at least in part on the existence or not of a relevant armed conflict.Footnote 71 In addition, neutral States or States otherwise not party to an armed conflict may have several interests in the continued existence, or not, of an armed conflict that gives rise to the application of the law of neutrality.Footnote 72
Furthermore, the approaches that individual civilians and civilian populations might adopt may be difficult to anticipate. On the one hand, it seems clear that civilians would prefer for a war to end as quickly as possible so that the regime of IHL – more tolerant as it is in general (compared to IHRL and domestic law enforcement regimes regulating “peacetime” measures) of “incidental” civilian death and injury and destruction or other harm to civilian objectsFootnote 73 – ceases to be applicable. On the other hand, and perhaps somewhat paradoxically, the civilian population or individual members of it may, depending on the circumstances, prefer to argue in favour of extending the application of relevant IHL provisions. For instance, IHL – unlike IHRLFootnote 74 – is generally recognized as binding on all parties to armed conflict, including States and, where relevant, non-State parties. Moreover, the scope of some IHL norms might be more protective than analogous provisions established in IHRL or domestic law. One example of seemingly more protective IHL norms concerns IHL treaty provisions that prohibit punishment of those who provide ethically sound medical care, irrespective of who benefits therefrom.Footnote 75
In addition, armed forces may also have interests in the termination or the continuation of the applicability of the legal framework of armed conflict.Footnote 76 Perhaps most importantly in this context, in general, conduct-of-hostilities rules under IHL are often conceptualized as permitting – or at least tolerating – more extensive (though not unlimited) lawful death, injury, destruction, damage and other harm compared to the rules governing the use of lethal force against persons under IHRL or domestic law enforcement frameworks.Footnote 77 In addition, certain other measures that armed forces might take in attempting to secure victory might be considered lawful in respect of war but not in respect of other situations. Such measures might include capturing and detaining enemy forces, seizing or destroying property, or controlling territory and populations. Further, discerning a fighter's status under IHL might also be important with respect to conferring (or not) prisoner-of-war status on that fighter upon capture, as well as in respect of the operation (or not) of the so-called “belligerent's privilege”.Footnote 78
For their part, political leaders may have their own (perhaps also often mixed) sets of incentives concerning the continued existence or termination of an armed conflict. Adopting a war footing – and thus an IHL framework – may allow them to fight with access to more permissive powers and greater resources.Footnote 79 That might be because, for example, the recognition of an armed conflict may make the invocation of emergency powers more palatable to their constituencies. Yet political leaders might seek to evade recognition that an armed conflict exists because, for example, doing so might be interpreted as conferring legitimacy on the adversary.
Finally, while not the focus here, legal concerns regarding the end of armed conflict might also arise in respect of domestic law. For example, the existence of an armed conflict may (also) implicate diverse domestic laws concerning such issues as compensation, insurance, frustrations of contracts, and trade restrictions.Footnote 80
Over all, it seems that contemporary international law does not provide a single comprehensive normative theory concerning the end of armed conflicts, including those of a relatively long duration.Footnote 81 Nor, in turn, does international law arguably provide a sufficient basis from which to understand what connections, if any, can – and should – be drawn between the legal thresholds for the initiation of an armed conflict, the political and strategic articulation of the aims of a war, and the criteria by which we should determine that an armed conflict has ended.Footnote 82 Fleshing out these criteria might help strengthen international law's claim to guide behaviour in relation to war.
Conclusion
Having analyzed the emerging ICC jurisprudence concerning the notion of “protracted armed conflict” and having raised several issues regarding the end of armed conflicts under IHL, it might be useful to conclude by briefly exploring whether or not “protracted armed conflict” ought to be developed into a (sub)category of armed conflict under IHL and ICL of war crimes. In short, should it move from a single war-crimes-related provision of the Rome Statute to a standalone category of armed conflict? In evaluating that question, three sets of preliminary considerations, some with at least seemingly conflicting pulls, might be borne in mind (among no doubt many others): (1) how long a conflict should be in order to count as “protracted”; (2) marking long-term conflicts as differently important; and (3) calibrating legal norms as more or less restrictive or permissive.
Perhaps the initial consideration might be that it is not clear that a principled line is (or lines are) capable of being drawn – with sufficient specificity – concerning what constitutes the particular period(s) that should merit a “protracted armed conflict” designation.
Furthermore, a legal (sub)category propelled by the (relatively) long-duration character of an armed conflict might highlight that time matters differently – and, perhaps, more significantly – than certain other dimensions of an armed conflict, such as geography. Such a (sub)category might (also) mark relatively long conflicts and the suffering associated with them as differently important. The (sub)category might therefore more accurately capture part of the reality – including the long-term suffering – of many existing contemporary armed conflicts, extending as they do into many years, even decades. Yet it ought to be kept in mind that such a (sub)category might thereby function in ways that could make non-protracted wars seem less – not just differently – important. In any event, for those in favour of conceiving of IHL as a single normative system of protection, perhaps especially one that can easily be made known to those who are making difficult life-and-death decisions amid the turmoil of hostilities, the establishment of another (sub)category of armed conflict might weaken that system's claims to universality, coherence and discernibility.
Finally, at least in relation to some long-running contemporary armed conflicts, the current legal framework is considered by some to be difficult to discern, interpret or apply. Perhaps from their perspective, a (sub)category of “protracted armed conflict” might have a stabilizing effect concerning those situations, at least in terms of more clearly delineating applicable legal norms – and their accompanying principles, rules and standards – in respect of relevant periods and situations.
Yet concerns may arise here as well. In designing a (sub)category of “protracted armed conflict”, it seems likely that a key fulcrum will concern how to calibrate the tension between the more or less “protective” and the more or less “enabling” aspects of relevant legal norms. Not taking sufficient cognisance of the concerns entailed in adjusting that balance poses several risks, including the potential to effectively extend the “enabling arrangements”Footnote 83 of IHL without also making sufficient coinciding (or even countervailing) adjustments from a “protection” standpoint. For example, an effort to encompass and address “the humanitarian–development–peace nexus” within a legal (sub)category of “protracted armed conflict” might operate in a way that unintentionally and/or unknowingly extends the applicability of IHL, including its “enabling arrangements”, in lieu of other frameworks – such as IHRL – that might, on the whole, be considered to be more protective of, or otherwise beneficial to, affected populations. Against that backdrop, pursuing a (sub)category of “protracted armed conflict” might present a legal situation that gives an illusion of more protection but which, in practice, leads to more death, destruction and suffering that are not unlawful under IHL.
Thus, in evaluating whether to pursue a (sub)category of “protracted armed conflict”, due consideration should be given to assessing which legal norms should be adjusted – together with the time point(s), if any, at which they should be adjusted – and which legal norms should remain constant irrespective of the length of the conflict. Such a determination, if conducted from as wide, principled and realistic a perspective as possible, would seem to entail a large undertaking, including an overarching assessment of which normative commitments that are entailed in the existing legal framework should matter, and which should not, in respect of the duration of armed conflict (assuming that any such distinction may be drawn in the first place). Moreover, it is not necessarily obvious that utilizing an approach based on the normative “balance” which is often characterized as being at the root of contemporary IHLFootnote 84 – sometimes framed, for instance, as resulting in a “parallelogram of forces” that moulds every norm by working out a compromise between the demands of military necessity and humanitarian considerationsFootnote 85 – will necessarily yield results that are more protective of the civilian population; far from it. For example, scholar Vaios Koutroulis demonstrates in respect of occupation that adopting the justificatory framework and normative rationales underlying the contemporary international law of military occupations might give rise to a result that is more protective of civilians. But doing so might alternatively result in an approach that instead weighs more heavily (perhaps, at times, much more heavily) in favour of the security interests of the Occupying Power.Footnote 86
Prudently calibrating the normative content pertaining to a (sub)category of “protracted armed conflict” would thus also necessitate assessments of the relationships of other fields of law – not least IHRL – to that (sub)category. This is because, at least in line with the jurisprudence of the International Court of Justice, at a minimum two branches of law – IHL and IHRL – must be taken into consideration in respect of situations of armed conflict.Footnote 87 In turn, determining where the normative line(s) will and should be drawn in respect of a (sub)category of “protracted armed conflict” seems likely to pivot in no small part on which set(s) of background assumptions will be adopted concerning such matters as:
• the scale, scope, feasibility and desirability of IHRL norms compared to their IHL counterparts;
• the extent to which those IHRL and IHL norms are considered binding not only in relation to a relevant State but also in relation to a non-State party to an armed conflict; and
• the geographic scope of applicability of those IHRL and IHL norms.
In addition, the legal framework pertaining to a (sub)category of “protracted armed conflict” might also implicate ICL of war crimes. For example, an assessment might be undertaken as to whether at least certain violations of IHL – including those violations characterized as war crimes – may be committed in respect of an armed conflict of any duration, or whether those violations may be committed only in respect of an armed conflict lasting at least a certain minimal duration.Footnote 88
In sum, it is submitted that under existing international law there is no standalone category of “protracted armed conflict”, that whether to pursue such a category poses numerous challenging questions, and that several dimensions of the law concerning the end of armed conflict are currently unsettled. Whether this situation is ultimately deemed satisfactory or not may depend in no small part on one's perspective as to what are, and ought to be, the objectives, norms and parameters of the legal framework applicable to armed conflict. In the meantime, numerous long-running wars continue to devastate populations.
