By Letsiwe Portia Rodah Magongo & Ruei-Lin Yu

In modern historical events, more practices challenged the adequacy of contemporary international legal system in armed conflicts. Among those, three stands out for their significance of representing in categories in their times: the 9/11 case in 2001, Israel 2006 the Israeli military operation against the Shia Islamist political party Hezbollah in Lebanon and, Kenya’s “Operation Linda Nchi” (Protect the Country) to Somalia in 2011. To well elaborate, this article aims to discuss the international legal framework governing transnational armed conflicts, and further explore how the contemporary law deal with cross border invasions by non-state groups from another state.

International Humanitarian Law (IHL) distinguishes between international armed conflicts (IAC) and non-international armed conflicts (NIAC). In terms of Common Article 2,[1] the scope of application of IHL is extended to all cases of declared war or of any armed conflict which may arise between two or more of the high contracting parties. According to Article 2, IHL is therefore applicable to inter-state armed conflicts. The Third Geneva Conventions makes IHL applicable to all cases of partial or total occupation of the territory of a high contracting party. Moreover, Protocol I introduced an international armed conflict in which people are fighting against colonial domination and alien occupation.[2] The Common Article 3 to the Geneva Conventions codifies rules of human treatment in non-international armed conflicts. In terms of the International Court of Justice (ICJ) in Nicaragua v United States, the principles enshrined in Article 3 constitute elementary considerations of humanity and are applicable to all situations of armed conflict.[3]

The scope of NIAC in terms of Additional Protocol II (AP II) of 1977, requires that non-state groups engaged in armed violence against a state satisfy certain strict requirements of organization. That is, non-state groups need to be 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 this protocol. According to AP II, such NIAC do not include internal disturbances and tensions, like riots, isolated and sporadic acts of violence and other acts of a similar nature. Article 1.1 emphasize that AP II does not affect the scope of Common Article 3. Instead, it develops and supplements Common Article 3 without modifying its existing conditions of applications.

IHL does not define the concept of armed conflict. The Appeals Chamber of the International Criminal Tribunal of the former Yugoslavia (ICTY) emphasised that “an armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organised armed groups or between such groups within a state.”[4] The International Committee of the Red Cross (ICRC) endorsed the ICTY test in the ICRC Opinion Paper.[5] The Rome Statute of the International Criminal Court (ICC) also endorsed the ICTY test with the definition of “war crimes” in its Article 8.2.[6] Though the ICTY makes it clear that non-state groups may be parties to the conflict, however, it does not specify the characteristics of such armed groups.

It is important to state that there are certain possible combinations of actors involving a transborder conflict. Firstly, a conflict may be categorized as an international conflict between two states. Secondly, a non-international conflict between a state and a non-state group on more than one state territory, and thirdly, conflicts between non-state actors.

Unfortunately, Common Article 3 does not provide details for the transnational conflict between state and non-state groups. Instead, its territorial scope is limited to conflicts taking place on the territory which ought to be a state party. According to scholar Mindia Vashakmadze who is well-known for his International Peace and the Rule of Law, the omission of the transnational conflict may be due to the obscurity of such conflicts in 1949.[7] It wasn’t until the tragedy of September 11, 2001 that such armed conflicts had started to attract more international debates. For instance, after the September 11, 2001, terrorist attacks, the Bush Administration declared that the United States was engaged in a global “war on terror”.[8]

The initial made by the Bush Administration was that the United States was engaged in an international armed conflict, against a nonstate actor, namely Al Qaeda and its associates. The Bush Administration seemed to imply that transnational armed conflicts could amount to armed conflicts, but that IHL was not applicable to them.[9] The Obama Administration abandoned the terms “war on terror” and “unlawful combatants”. In its June 2011 National Strategy for Counterterrorism, the Obama Administration argued that an armed conflict exists and that the laws of armed conflict apply between the United States and the Al Qaeda, as well as the Taliban and associated forces.[10] In October 2018, President Trump issued the National Strategy for Counterterrorism of the United States of America, which adopted a strategy that pursues most of the policies of the Obama Administration to prevent and counter the terrorist threat.[11]

However, the European Court of Human Rights deny that transnational conflicts are armed conflicts and conclude that international human rights law applies to the use of force against suspected terrorists.[12] Human rights norms cannot provide adequate protection during hostilities, because those norms follow a different goal of protecting the individual primarily in peacetime. In contrast, the essence of IHL is to provide protection to civilians and persons hors de combat, and to minimize unnecessary harm during armed conflict. The main disadvantage of applying human rights norms during armed conflicts, is that they lack precision with regard to the conduct of hostilities, and their reliance on the indeterminate standard of proportionality. There is, however, a criteria under Principle 9 of the United Nations Basic Principles on the Use of Force and Firearms, determining proportionality in human rights law that are applicable to armed forces while carrying out law enforcement duties.

In response to the 9/11 attacks that killed approximately 3,000 people, then-President Bush ordered an invasion of Afghanistan.[13] During the summer of 2006, the Israel military operation against the Shia Islamist political party Hezbollah in Lebanon was launched and it involved the state and non-state actors.[14] Furthermore, on the 16th October 2011, Kenyan troops entered Somalia to launch a military offensive against al-Shabaab under the name “Operation Linda Nchi” (Protect the Country).[15] To justify the invasion, Kenya stated varying reasons, like insecurity caused by al-Shabaab in the Horn of Africa, as well as concerns over border security.

Common article 2 to the Geneva Conventions extends the action of IAC to the High Contracting Parties, that is, states only. The Law of Armed Conflict (LOAC) is not directly applicable to non-state actors. However, if the military actions undertaken by armed groups are attributable to a state, this therefore, results in the applicability of the LOAC. The legal situation gets more complicated when there is no indication that the action of a non-state armed group can be attributable to the respective state.

With regards to the Israel conflict, against Hezbollah in Lebanon, the Commission of Inquiry set up by the United Nations Human Rights Council, considered that an international armed conflict had taken place, although in its view, the Lebanese armed forces had never taken part in the fighting. In its November 2006 report, the Commission held that the Hezbollah should be considered a militia belonging to a Party to the conflict, within the meaning of Article 4 (A) (2) of the Third Geneva Convention. The Commission supported its position by stating that Hezbollah, as a legally established political party, was represented in parliament and in the Lebanese government.

The Commission indicated that, the conflict in 2006 assumed an international character by virtue of the existing link between Hezbollah and the state of Lebanon at that time. According to the legal advisor in the Legal Division of the International Committee of the Red Cross, Sylvain Vite, the Commission’s arguments were not enough to show a sufficient narrow link between Hezbollah combatants and the Lebanese government. For that link to exist, the ICTY, in the Tadic case, held that in order for irregularities to qualify as lawful combatants, international rules and state practice requires control over them by a Party to an international armed conflict and, by the same token, a relationship of dependence and allegiance of those irregulars vis-à-vis that Party to the conflict. The ICTY’s emphasises on paragraph 4, is that, this is how the expression ‘belonging to a Party to the conflict’ must be understood in Article 4 A (2) of the Third Geneva Convention.

Legal challenges arise in cases of occupation, that is, when the occupying state conducts military operations against non-state actors as part of the existing armed conflict. This is the issue in the Horn of Africa. For instance, in October 2011, Kenyan troops occupied Somalia by launching a military offensive against al-Shabaab, in an on-going armed conflict in Somalia between Somalia and al-Shabaab. According to the ICTY in the Tadic case, this is a case of an armed conflict.[16]

Article 5 of the Fourth Geneva Convention allows some limitations on the rights of individuals in an occupied territory who are definitely suspected or engaged in activities hostile to the Security of the state. However, this provision, is intended for a limited number of persons.[17] Thus it may not be used in hot conflicts between the occupier and organized armed groups of the occupied state. For example, in the case of Israel, Israel claimed to be in a hot conflict with armed groups in the occupied territories like Fatah or Hamas. The Israel Supreme Court based its judgment on the premise that a situation of continuous armed conflict existed between Israel and the various terrorist organizations active in Judea, Samaria and the Gaza strip.[18]

Among the various possible qualifications of the armed conflict with terrorist groups, the court decided to characterize this situation as international. It further held that, even those who are of the opinion that the armed conflict between Israel and the terrorist organizations is not of international character, think that IHL or international human rights law applies to it. The court moreover referred to the ICTY case law, and the U.S. Supreme Court in the case of Hamdam v Rumsfeld,[19] to the effect that minimum rules apply to both categories of conflict. Hence, when the occupier itself is involved, the law of international armed conflict should apply. Furthermore, Common Article 3 is applicable to any armed conflict. Thus, there will be a situation where the rules on international armed conflict and Common Article 3 apply concurrently. This would be the position in the 2006 Lebanese case, in as far as the Hezbollah military actions are not attributable to Lebanon, as well as Israel and Lebanon.

With regards to the issue of jurisdiction, the application of the Tadic criteria to transnational armed conflicts seems to be defensible. Furthermore, the minimum rules of Common Article 3, Article 75 of AP I and customary law may be considered under any circumstances including transnational armed conflicts.[20] Moreover, the ICJ in the Democratic Republic of Congo case, held that the provisions of Article 3 constitute an emanation of general principles of law, namely, elementary considerations of humanity.

On the strict criteria, Article 1 of the AP II requires non-state actors to be objectively identifiable and sufficiently organised to carry out sustained and concerted military operations in the territory of a High Contracting Party. Moreover, the cross-border violence must reach a certain level of intensity.[21] This is known as the quantitative threshold. Thus, AP II does not apply to situations of internal disturbances and tensions, like riots, isolated and sporadic acts of violence and other acts of similar nature, as not being armed conflicts. The threshold requirement reflects the fact that self-defence action on the territory of another State which has not launched an attack, is of an extraordinary nature and it ensures that the consequences for public order that flow from such military response are not promptly triggered. However, Article 1 cannot cover certain terrorist armed groups who are loosely organized and internationally dispersed. Thus Article 1 is not effective in counter terrorist combat. Furthermore, Article 1 paragraph 2 specifies that AP II shall not apply to situations of internal disturbances and tensions, like riots, isolated and sporadic acts of violence and other acts of similar nature, as not being armed conflicts. Therefore, in line with the ICTY case law, parties to the armed conflict should possess a minimum degree of organization to ensure the application of basic humanitarian protections guaranteed by Common Article 3.[22]

Thus, the Tadic criteria should apply to transnational conflicts between states and non-states actors rather than the strict requirement of Article 1. To ensure the applicability of IHL to each case of an armed force, the degree of organization required to engage in protracted violence should be lower than the degree of organization required to carry out sustained and concerted military operation.

n conclusion, a finding is drawn that the international legal framework, namely LOAC, does not embrace the prevalent issue of cross-border armed conflicts. IHL distinguishes between two types of armed conflicts, namely IACs and NIACs. Moreover, IHL further establishes a distinction between NIACs in the meaning of Common Article 3 and NIACs falling within the definition provided in Article 1 of AP II. Therefore, legally there is no other type of armed conflict that exist beyond the scope of the Geneva Conventions. Furthermore, Common Article 3 refers to conflicts occurring in the territory of one of the High Contracting Parties. Article 1 of AP II refers to conflicts which take place in the territory of a High Contracting Party. According to the aim and purpose of IHL, the wording in the above articles must be understood to mean that treaties apply only to their state parties. This imply that conflicts that oppose states and organised armed groups and spreading over the territory of other states are non-international armed conflicts, thus opening a gap in protection. This gap could not be explained by states’ concerns about their sovereignty. Thus, these concerns make the contemporary law more rudimentary.

With regard to human rights rules, they are not precise as compared to IHL norms which are objective on armed conflicts. The most favourable legal approach on the prevalent issues of cross-border armed conflicts and jurisdiction is the application of the Tadic criteria to transnational armed conflicts because it is defensible.

It is evident from the above analysis that IHL has as its aim the limitation of the effects of armed conflicts, thus not being an effective instrument to solve transnational conflicts. It unfortunately does not include a full definition of situations that fall within its material field of application, thus creating confusion to readers as it might not be able to solve transnational conflicts. IHL also refer to various types of armed conflicts and further afford a glimpse of the legal outlines of the multifaceted concept. Therefore, further research is needed to express the multifaceted concepts in concrete terms.

Letsiwe Portia Rodah Magongo is an Attorney at the Kingdom of Eswatini. Masters of Law in Strategic Studies and International Affairs from the Graduate Institute of Strategic Studies, War College, ROC (Taiwan) National Defence University.

Ruei-Lin Yu, Associate Professor of Graduate Institute of Strategic Studies, National Defence University, ROC (Taiwan). PhD of Graduate Institute of National Development, National Taiwan University. Study Field: International Relations Theory, International Law and Politics of the Sea, Area Security.