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The first chapter of this book examines how the traditional legal distinction between international and non-international armed conflict has become, in practice, increasingly blurred through the last century, to the point where it seems specious to continue to assert the primacy of the distinction. A number of factors, both legal and practical, have contributed to this change in the status quo. The first chapter of this book establishes that the law of armed conflict has converged to the point where there is a substantial body of law equally applicable in both international and non-international armed conflicts.

International law governing international armed conflict has grown since 1945 to include many crimes for which individuals may be held criminally liable. The ICTY and its supporters claim that much of this law has been extended to non-international armed conflict. This chapter argues that the rapid growth of internal-armed-conflict law at the ICTY has been accomplished by an ICTY moral philosophy masquerading as method. The tribunal's judges were well aware that the majority of states were, as late as 1977, opposed to, or had doubts about, such expansionism. Under a veneer of legality, a humanitarian sentiment that had been blocked by states at the diplomatic conferences convened by the ICRC found an opening with the establishment of the ICTY. Can the ICTY's law survive in the long term against the power of sovereign interest? The chapter considers this question in the light of the United States' critique of the ICRC's 2005 customary-law study.

This chapter introduces the central aim of this book: to provide a comprehensive examination of the notion, process, and effects of internationalization of armed conflicts in international law. It presents a brief research overview, outlining the scope of the enquiry, the research methodology, and the structure of the book. It then lays out the conceptual and normative framework for the rest of the book. To that end, it first justifies the need for the present study by confirming the continuing distinction between international and non-international armed conflicts in international law. Then, it puts forward a conception of internationalization that expresses the legal transformation from a non-international to an international armed conflict.

The chapter delivers a detailed analysis of the geographical scope of application of the laws of armed conflict in non-international armed conflict. Particular attention is devoted to the challenges raised by multinational military operations. It addresses both the internal geographical scope (i.e. the applicability of IHL within a country to which multinational military operations may be deployed) and the external geographical scope (i.e. the applicability of IHL outside the territory of a state involved in armed conflict). The chapter thus discusses, for example, whether the laws of armed conflict are also applicable within the territories of (troop) contributing states and of states serving as an operational basis.

The conflicts in eastern Ukraine and Crimea are not the first time sovereign States have clashed under murky and confused circumstances. The law governing international armed conflict, i.e. the law regulating war between States, has long recognized this fact; the threshold to trigger it is a very low one, and it applies “even if the state of war is not recognized by one of them.” Nevertheless, some perceive Ukraine as a case of “hybrid war” for which the old rules are ill-fitting at best, and no longer capable of regulation or restraint. What happens to international humanitarian law (IHL) when, according to Russian General Valériy Gerasimov, the hybrid nature of recent conflicts produces a “tendency to erase differences between the states of war and peace?” This chapter argues that there are in fact two distinct armed conflicts ongoing in eastern Ukraine. First, there is an ongoing but unacknowledged international armed conflict (IAC) in eastern Ukraine between Ukraine and Russia. Second, there is also fighting sufficiently intense and involving sufficiently organized non-State actors to be considered a non-international armed conflict (NIAC) between the Ukrainian State and rebel forces in Donetsk and Luhansk. Adding another layer of complexity, at certain times and places, it may be that this NIAC might have transformed into an IAC because of Russia’s overall control of these non-State actors.

The chapter provides an analysis of the various dimensions and implications of asymmetry in armed conflicts. Multinational military operations are typically—albeit not necessarily—made up of states with significant military capabilities, and they often operate in asymmetric contexts. Against this backdrop, the author differentiates between legal, factual, and methodological asymmetries. On this basis, he identifies areas in which asymmetric conflict structures pose significant problems in the context of multinational military operations. In doing so and in view of actors such as the Islamic State that deliberately disrespect even the most fundamental rules of IHL, the author also explores the limits of such approaches. Nevertheless, he argues that for a multinational military, there is a strong strategic (policy) incentive to adhere to and implement all feasible precautions and human rights law.

Chapter 5 first assesses the extent to which the law of international armed conflict engages individuals directly and the impact of the different conceptions of international legal personality on the formation and application of the relevant treaty norms. Sections 5.1 and 5.2 study both provisions that do regulate the conduct of individuals directly, and provisions where such direct regulation was discussed but ultimately discarded in favour of an inter-State model. Turning to non-international armed conflict, Section 5.3 outlines the development of the doctrine of ‘recognition of belligerency’ between the late eighteenth century and the Second World War. Subsequently, Section 5.4 examines the role of the concept of international legal personality in the post-Second World War formation of treaty norms governing non-international armed conflicts. The chapter ends with a discussion of the diverging jurisprudential explanations in the current academic debate for the bindingness of international law on armed opposition groups.

This chapter examines who may be targeted in non-international armed conflicts (NIAC) in the context of contemporary counterinsurgency operations against non-state belligerents. It analyzes the International Committee of the Red Cross's (ICRC) study called Interpretative Guidance on the Meaning of Direct Participation in Hostilities (DPH Study), which endorses the concept of “continuous combat function” (CCF) as a means of establishing direct participation in hostilities. The chapter first considers the law of armed conflict's categorization of civilians and belligerents before turning to a discussion of organizational membership and the implications of subordination to command and control for belligerents and civilians in any armed conflict. It then explains the difference between status- and conduct-based targeting and why the use of conduct undermines the extension of the DPH rule to define enemy belligerent forces. It presents a proposal of how to reconcile the DPH Study with status-based targeting presumptions to maintain the distinction between civilians and belligerents.

The chapter zooms in on the specific issue of detention in the context of multinational military operations. The Serdar Mohammed case (UK), the Hassan case (ECtHR), as well as the ICRC’s ongoing project to strengthen the legal protections in relation to detention in times of non-international armed conflict, have unearthed various loopholes and legal challenges in the contemporary humanitarian legal framework. What is more, even when multinational military operations operate outside the context of an armed conflict, the legal basis and applicable legal constraints with regard to detention are often unclear. The ECtHR’s Medvedyev case as well as discussions in the context of the Copenhagen process on the handling of detainees in international military operations are relevant cases in point. It is against this background that the chapter analyses applicable legal bases, procedures and constraints with regard to detention in the context of multinational military operations.

wThis chapter contrasts the mechanism of internationalization of armed conflicts with the reverse process of de-internationalization. It argues that de-internationalization is not simply a matter of the conflict ‘losing’ its international character. Instead, for a conflict to be de-internationalized, it must fulfil the independent criteria for the existence of a non-international armed conflict, while maintaining the identity of the conflict parties and the continuity of the hostilities in question. The chapter highlights that not all modalities of internationalization have a corresponding modality of de-internationalization available in law. However, it interprets this as a strength rather than as a flaw of the existing legal framework.

This chapter proposes a sovereign agency theory for reunifying the law of armed conflict (LOAC) in counterinsurgency operations. It begins with an overview of the current paradigm of LOAC applicability based on conflict characterization, including a historical background on the bifurcation of the LOAC into provisions regulating international armed conflicts (IAC) and non-international armed conflicts (NIAC). More specifically, it considers whether such bifurcation has been effective in curbing either the violence against victims of armed conflict or in promoting LOAC compliance by participants in armed conflict. It argues that states should apply the LOAC to their use of armed forces to apply sovereign force and outlines some benefits of the sovereign agency theory, including historical examples. Finally, the chapter suggests that the traditional international humanitarian law (IHL) dichotomy between IAC and NIAC causes confusion and, at times, a failure to apply core IHL protections to armed conflict.

This chapter analyses the legal qualification of complex conflict situations that feature more than two conflict parties. It examines whether such situations qualify as a single internationalized armed conflict or a number of independent international and non-international armed conflicts. With this in mind, this chapter puts forward a model based on the retention of autonomy of the allied conflict parties. It argues that once the autonomy is foregone and replaced with a single use of force by the parties, the law of international armed conflict applies ‘globally’ to the situation at hand. However, until that moment, the situation should be seen as ‘mixed’; in other words, as a set of mutually independent conflict pairs.

The use of force against armed groups located in other States is not new, but began receiving heightened attention as a result of U.S. operations in Afghanistan following the attacks of September 11, 2001. The high-profile nature of these events, the resoluteness with which the United States asserted its right to self-defense against an armed group, and the international support that it received all led to increased attention to the surrounding legal matters. Much of the debate centered upon the basic question of whether a State has a right to self-defense in response to attacks perpetrated by a non-State actor located in the territory of another State, absent attribution of the attack to the other State. Other important issues included the classification of hostilities between the State and such a group, and rules governing the conduct of the parties. This chapter sets out to draw together the threads of these debates from the last fifteen years, to analyze new questions that have emerged, examine how they impact upon each other, and suggest a way forward for overcoming legal challenges.

It is almost trivial to observe that the law applying to modern armed conflicts is full of complexities. Such complexities are, after all, the bread and butter of legal academics, who have produced mountains of books and articles on the various relevant topics, but the extent of these complexities can be overstated. While legal academics debate the finer points of the interaction between international humanitarian law (IHL) and international human rights law (IHRL), in the majority of today’s armed conflicts the law is reasonably practical and clear. It might not be complied with, but that is not because of its supposed complexity or lack of clarity. If, for example, the parties to armed conflicts with the highest cost in human lives and property (e.g., in Syria or Yemen) observed only the bare fundamentals of the principle of distinction, the world would be spared much suffering. Noncompliance has little to do with the law’s complexity. But complexity is nonetheless a major feature of a subset of modern armed conflicts, especially those involving foreign intervention by Western powers. The purpose of this chapter is to clarify our understanding of how complexity works, where it comes from, and how it is managed. To do so, this chapter first develops two themes: the multiple causes of complexity and the decentralized system for managing this complexity. These themes are then explored in more detail in the context of the law on the use of force, or jus ad bellum, IHL, and IHRL.

This chapter examines the ramifications of asymmetric warfare for traditional international humanitarian law by focusing on the “Gaza Freedom Flotilla” incident. On May 31, 2010, Israel launched a military operation against six civilian ships of the “Gaza Freedom Flotilla” in international waters off the Mediterranean Sea, resulting in the death of nine passengers aboard MV Mavi Marmara—the only vessel that did not practice passive resistance. The chapter analyzes the politicization of the incident and highlights how the legal and policy shortcomings of postmodern warfare are especially attenuated when conflicts take place in a maritime environment. It also discusses the limits of the law of naval warfare, counterinsurgency and non-international armed conflicts, and the San Remo Manual on International Law Applicable to Armed Conflict at Sea.