|Cours||International humanitarian law|
This is a very important chapter, because before applying the law, it is necessary to know to which situation it is applicable. Applicability is therefore a subject that logically preceded any application. The lawyer never forgets to give it the importance it deserves. Regrettably, the General Observer and among these, journalists in the first place almost always fail to consider this point and pretend that all the Geneva Conventions, this or that Convention applies simply because there is an armed conflict. Obviously, this is not serious, first of all, we must meticulously analyze the applicability. We see relatively quickly that the subject is unfortunately extremely complicated. Regrettably, not because it would be wrong to do a little intellectual gymnastics in the classroom, but regrettably for substantive reasons because IHL, in journalistic terms, is the "last bastion against barbarism". On a more serious level in the vocabulary, it is a matter of protecting people, it is a minimum of protecting people and we would still like to guarantee protected people this minimum of protection under simple and clear conditions. If a right must be applied under simple and clear conditions, it is still this one, unfortunately, the opposite is true.
It is obviously not an invention of the lawyers to have wanted to complicate the applicability of this right. In this case, they must be completely absolved. On the contrary, lawyers have tried each time to simplify and increase legal certainty. Those who did not want it were the States, in other words, the politicians. And for good reason, because it is sensitive that the period of armed conflict and especially the civil war, when one is exacerbated in one's almost paranoid sensitivity, one sees enemies everywhere and one does not necessarily want to apply generous rules to one's enemies.
The States have therefore not wanted more generous rules and we can only bow to them since we are here as lawyers to expose the law in force as it is made by the legislator while criticizing it, but we must take it as it is, we cannot invent a better law on applicability than the one we find on the ground.
Applicability is always a question of material applicability or ratione materiae, it means to which situation does a body of law apply, to which these rules are applied, in this case, those of IHL. There are then considerations of personal applicability, namely ratione personae, in the plural, ratione personarum, to which specific rules apply, in this case those of IHL. Then there are questions of temporal applicability, i.e. from when these rules apply and until when. There are also questions of spatial applicability, to which spaces or in other words where a specific set of rules applies, namely IHL.
The applicability ratione materiae
Material applicability refers to the situation to which the rules or laws of armed conflict apply.
To which situation, then, does IHL apply? It applies differently according to two types of conflict, which are the two types of bases that IHL distinguishes as a result of the will of States, namely, on the one hand, situations of international armed conflict, which are roughly armed conflicts between States; and on the other hand, non-international armed conflicts. These are typically, but not exclusively, conflicts in which a government fights against either dissident factions in its own army or insurgents or rebels, the latter being civilians who have taken up arms to fight the central government and who normally clash with the regular troops of that state. There are sometimes dissident factions in armed factions that can fight on the rebel side or can fight alone without rebels against loyalist army factions. In all these cases, there is a non-international armed conflict.
These are the two main situations, and the substantive applicability of the law differs according to these two situations with some common rules, but with many different rules. We are therefore obliged to make this distinction if we want to apply the law correctly. Even the concept of armed conflict, which is one of the situations to which the law of armed conflict applies, the very concept of armed conflict is not at all identical in international armed conflict (IAC) and non-international armed conflict (NIAC).
The major difference between the IAC and NIAC is that there is a much more generous material application in the IAC, that is, the law of armed conflict applies much more quickly under much easier conditions in a situation such as we will see it for the IAC because here, States have to deal with their peers and on an equal footing, it is easier to agree to apply rules quickly, there is no reason to make difficulties when there are wounded, a small confrontation such as a border incident between armed forces of States, there is one wounded, it is much easier to say to apply the first Geneva Convention and to ensure that the necessary care is provided for the wounded and sick.
In a NIAC, on the other hand, the situation is very different, i.e. the threshold of applicability is much higher and the very notion of armed conflict is much more restricted. The law of non-international armed conflicts therefore applies to fewer situations or at least with greater difficulty, it takes almost an initiation process to get to the door, whereas international armed conflict is a door open to all winds.
International armed conflicts
The IAC is the main category that has existed for centuries, the NIAC is an intruder that humanitarians have wanted to place with a different strong fortune, because after all, the law of armed conflict has never really been applied properly in the NIACs.
With regard to IACs, there are five situations of applicability, in other words, there are five situations in which all or part of the IHL applicable to international armed conflicts applies. :
- The first situation is common to both types of conflicts, IAC and NIAC. This situation is perhaps the most surprising, which is peacetime. IHL also applies already in peacetime, simply, there are not all the provisions that apply, but some.
- For the IAC only, there is an application in the event of armed conflict which means "de facto armed confrontation" and therefore "hostility". In NIAC, there is also armed conflict, but that does not mean the same thing.
- Thirdly, there is the situation of a declared war. It is surprising that we distinguish between an armed conflict and a war, it shows once again how much more precise the legal vocabulary is than the everyday vocabulary.
- There is the fourth threshold for the applicability of territories that would be occupied without armed resistance.
- A particularly historical category, the wars of national liberation. The national liberation war, at least according to Additional Protocol I, Article 1§4, is an international armed conflict and not a non-international armed conflict.
These are the five situations, and we will only comment on four of them: peace, armed conflict as de facto hostility, declared war and war situation, occupied territory without armed resistance. These are four alternative gateways to IHL, in the application of certain IHL rules, but care must be taken that each of these gateways does not lead to the application of the same rules in the law of international armed conflict. The last three situations mentioned, war, armed conflict and occupied territory without resistance, give rise in principle to the application of all the rules of the law of armed conflict except in the case of occupied territory, it is above all the rules on the occupation of the territory that apply by force of circumstance because that is what it is all about, there is no longer hostility, there is an occupied territory, there is no fighting because there has been no resistance, so it is in reality only the right of occupation that will apply. If there were ever to be hostility, acts of hostility, struggles, attacks, defensive operations, which is compatible with occupied territories, in occupied territories there may be skirmishes, in which case other IHL rules would also be applied. On the other hand, in the peace situation, the first threshold mentioned, there are only a few, but not very many, rules of the law of armed conflict that apply. The others are dormant since the others are intended for situations where there is a situation of belligerency and in times of peace, by definition, there is no such thing as a situation of belligerency.
The peace situation
Contrary to what some believe, the law of armed conflict already applies in peacetime through some of its provisions. These are provisions which, in their very text, specify that they already apply in peacetime. Or, then, provisions which by interpretation must already apply in peacetime with regard to their object and purpose. In other words, these provisions would miss their purpose and purpose if they were applied only when armed conflict has already broken out.
There is Article 14 of the Fourth Geneva Convention, which applies to civilians, and in this provision, "general protection of populations against certain effects of war", this provision which concerns health locality areas, it is stated, "From peacetime, the High Contracting Parties and, after the outbreak of hostilities, the Parties to the conflict, may establish on their own territory and, if necessary, on the occupied territories, health and safety zones and localities organised in such a way as to protect the wounded and sick, the infirm, the elderly, children under fifteen years of age, pregnant women and mothers of children under seven years of age from the effects of war....". In peacetime, it makes sense, we will not wait until the armed conflict to start organizing the health forces, because if we did, it would be a little too late.
The same is true of a whole series of other provisions found in the Geneva Convention. If we take the question of the training of military forces or what is called the dissemination of IHL, sometimes it is also called dissemination in English. Contracting parties have an obligation when ratifying or acceding to an IHL convention to provide for the training of their armed forces, in particular at the level of commanders and senior officers, to ensure that, in the event of armed conflict, the armed forces are aware of the applicable rules. The State also undertakes to disseminate IHL, including in civilian terms because civilians may be confronted with IHL rules in the event of armed conflict. These obligations of dissemination and training must obviously apply immediately, as soon as the convention is in force for a State, there is no reason to say that we would wait for an armed conflict to begin before starting to train the military in their duties, because once again, it would be too late.
Article 58 of Additional Protocol I contains a provision concerning spatial planning. What is planned is that military objectives must be separated as much as possible from areas of civilian concentration and civilian objects, they must be physically separated because in the event of armed conflict, a belligerent is always within his right to attack a military objective and if that military objective is in the middle of civilian concentrations, there will be greater collateral damage. By asking States to make an effort, it is not an absolute obligation because, depending on the territory, it is not possible to separate military objectives and civilians much more difficult in a case like this, as Switzerland is a densely populated territory with an army that is not by profession.
That being said, we understand that this provision and it is also in the commentary on the additional protocol, so it was accepted during the negotiation that this provision does not apply only in time of armed conflict, we do not wait for armed conflict to separate military objectives and civilian areas, but we try to take it into account already in land use planning, i.e. already in time of peace we will try not to build munitions depots in a school for example to make an absurd example.
These provisions apply from peacetime onwards by their express wording or by their interpretation according to their object and purpose.
Situations of belligerence
A more serious case is situations of belligerence. They are of three types and, in addition, this applicability that we are now discussing is regulated in common Article 2 of the 1949 Geneva Conventions. Article 2 is therefore a common article, found in each of the Geneva Conventions with the same text.
It is considered that this common article 2 of the Geneva Conventions sets out the customary principles of applicability of IHL, so that this provision applies not only to the Geneva Conventions, but also applies not as a conventional norm, but also to the principles it indicates as customary law for other IHL conventions. Not only for those concluded after 1949, but even for those concluded before 1949, the 1907 Hague Regulations, which do not provide for this kind of situation of armed conflict and war, an occupied territory without resistance, the 1907 Hague Regulations being 1907, are considered to be classic, i. e. applicable to war situations, it is nevertheless considered that this provision of Article 2 also modifies the Hague Convention on this point by subsequent practice for the simple reason that States now accept that the applicability of IHL is determined according to the criteria indicated in modern law, namely Geneva of 1949, and that old law is no longer fully applicable on the issue, because it is outdated.
There are these three situations here. The first two, namely armed conflict and declared war, in the first paragraph of Article 2 and the occupied territory without resistance in the second paragraph of Article 2.
What about armed conflict, namely de facto confrontations, de facto hostilities that may take place and give rise to the applicability of IHL? It is the terms of Article 2 which stipulate that "Apart from the provisions which must enter into force in time of peace, this Convention shall apply in the event of declared war or any other armed conflict arising between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them". The text of the provision states that these principles apply to "High Contracting Parties". This is obviously quite logical because Article 2 is a conventional article which as such can only apply to the parts of the Geneva Convention. But since principles are also principles of customary law, they are also applied outside the Geneva Convention. Simply, Article 2 is not applied, but the customary principles on the material applicability of IHL, in this case, the principle on armed conflict as a de facto armed confrontation.
This is therefore a criterion that has emerged from pure and simple effectiveness. It must be noted that there are hostilities somewhere between the armed forces of two or more States. This is what distinguishes armed conflict within the meaning of the first paragraph of the war, a term also contained in the first paragraph of Article 2.
War, contrary to popular belief, is from a legal point of view only a situation normally triggered by a declaration. War is declared and when war is declared by one State against another State or several States, a situation of war between the two States is legally established. This war situation has legal consequences. One of them is that acts of violence that may be committed between States where war has been declared are now generally lawful, but can only be measured in the law of armed conflict, otherwise it would be a violation of the other State's sovereignty. But, following the declaration of war, this is no longer the case.
War is purely a legal state because we can have situations of war without hostility of any kind, and there have been some historically. Here, in armed conflict, on the contrary, it is the fact of hostilities that counts and only him, not the label or qualification. It goes without saying that it is not necessary for a war to have been declared. In this case, there is a situation where there is no war because it has not been declared, but where there are de facto hostilities and therefore an armed conflict.
What do we gain from this whole operation? This is very simple: we ensure the applicability of IHL in a situation where otherwise there would be a gap, as was often the case in the 1920s and 1930s. If we did not have the provision on armed conflict, but only the provision on war, it would be enough not to declare war and to carry out acts of hostility, and to bombard, for example, and to say that there is no war and therefore there is no need to apply the law of armed conflict, namely the law of war. This was done in the 1920s. The bombing of Corfu by Mussolini in 1923 was a bombing outside a state of war, war had not been declared and IHL could therefore not be applied. It is a serious flaw at the bottom. The Japanese tried again to argue in such a way when they invaded Manchuria, they called it a police operation and did not declare war. Serious gaps in the applicability of the IHL of the time were opened by this capacity for manipulation since the right was attached to the label.
This gap is filled in the Geneva Conventions because, whether it is a war or not, from the point of view of de facto confrontation, it plays no role. It is an armed conflict as long as there is violence between belligerents. And the characterization of this violence, is it a war, is it a police action, is it an armed reprisal, is it something else, has no impact?
However, in order to have an armed conflict within the meaning of the Geneva Conventions of customary law for the CAI, it must take place between States, which means between military forces of States. We could have an exception to this rule, which is not a real exception, moreover, if certain armed factions are effectively controlled by a foreign state, then, at that point, we would remain in a confrontation between states. Effective control is the responsibility of the State and we find them here.
It should be noted that there is no intensity threshold required. It is sufficient that there is violence between state military forces, but a particular intensity, a threshold defined in any way does not exist. Therefore, violence must not reach a certain level. Any situation of violence between State military forces is covered, so a border incident, a border skirmish with a few shots and perhaps a wounded person gives rise to the applicability of the Geneva Conventions under the aspect of "armed conflict".
Armed conflict is such a legal term here that we cannot have situations where violence is even more diffuse and yet there is an armed conflict within the meaning of the conventions. Let us take an example in which military forces of a State would capture with hostile intent, and therefore military personnel of a foreign State and detain them without a shot having been fired. From the point of view of the logic of the Geneva Conventions, this is an armed conflict. Persons thus detained shall be entitled to prisoner of war status for as long as they are detained.
Basically, it makes sense that there should be no minimum threshold. In non-international armed conflict, there is such a threshold, but not here. Basically, it is logical that there should not be such a minimum threshold because the purpose of protecting the Geneva Conventions is certainly better served by regulation as we have it today.
If, for example, there is only one dead, one injured, it would be too little, we are not going to deal with the Geneva Conventions, let us wait until it becomes more intense, then maybe a hundred dead, a hundred injured and then we will start rescuing them. That obviously makes no sense. The Geneva Convention I, namely the protection of the wounded and sick among armed forces in the field, must obviously apply from the first wounded. We are not going to start saying that there are not enough people injured and that we are not taking care of it. Similarly, if we capture only a soldier from another state and detain him, there is no reason not to grant him a status under Convention III and therefore to treat him badly and say that when we have 50 prisoners we will start applying the convention; that makes no sense in the systematic nature of these protective conventions.
It should be noted, however, that as a result of this particularity of the conventions and IHL, which implies a very low threshold for the entry of armed conflict, the term "armed conflict" has been altered to some extent. In the legal vocabulary, an armed conflict can be something very light and in the political vocabulary, we will avoid talking about armed conflict because foreign ministers will not sit in front of the press to make a joint press release and say that a small incident was an armed conflict. We are obviously not going to put fuel on the fire and we are absolutely right to de-escalate. From a legal point of view, however, this is an armed conflict within the meaning of the Geneva Conventions in the sense that these Conventions are applicable to the title mentioned.
There is one final point to be made, namely whether hostile intent is necessary for there to be an armed conflict. Things have to happen between state armed forces, we have seen that these things can be quite general such as the capture of a few people and not necessarily shots fired; but do we need hostility in any case?
In the cases mentioned, hostility was there. In a border skirmish, we don't love each other, we shoot each other, so the hostile element is visible. In the capture of soldiers from another state, there is the element of hostility in capturing and detaining them. But what about other situations?
We can think of the one of mistakes. Guns are fired in foreign territory because they were mistaken, it was a military exercise, they thought they were firing on their territory and in reality they crossed a border; or a military detachment is walking, like an exercise in the mountains, they get lost and go down the wrong side of the border and in the neighbouring state they see a column advancing.
In the vast majority of cases, there will be no need to apply the law of armed conflict in any case and therefore the question will not arise. This is the case when the Swiss soldiers, it happened sometimes, not very often, but nevertheless, they made a mistake and went down to Italy, sometimes also due to bad weather. It is hard to believe that the Italians took this as an invasion and apart from that, even if they had taken this as an invasion, nothing else would have happened, there is no need to apply IHL, there would not have been anyone injured, there would not have been any hostilities, so nothing at all, we would simply have taken these people away and made them go to Switzerland.
In the case of cannon fire, this is a little more delicate. Here too, Switzerland has practice, we have already fired a few cannon shots in the surrounding areas. A famous incident and the one in 1968 when we fired several cannon shots into Liechtenstein territory, these cannonballs crashed into a forest, so there was nothing special, at most damage liquidated by the responsibility of the State if ever, but not by IHL.
It should be noted that in a case like this one, depending on the case, this can have other consequences. Between Switzerland and Liechtenstein it becomes almost a little funny, but if Pakistan fires cannonballs on the Indian side or aims at it, there will probably be a situation of armed conflict, even if only through reaction.
This can immediately follow a sequence and if it is really a mistake, the State which has made a mistake insofar as it has obviously understood that it has made a mistake, it is really in its interest to notify the opposing party as soon as possible so that we do not inadvertently enter an armed conflict there too. If this is the case, i.e. the other State reacts and hostilities follow, IHL applies even if everything was a mistake at the beginning and there was no hostile intent.
In other words, intentions do not count in IHL, but can probably be defused by very rapid communication when it is sensitive. In the case of Liechtenstein, there was nothing sensitive, there were not even wounded or sick and there was therefore no need to apply anything of IHL.
The declared war
War is a legal act, a reichtgesaft as German-speaking lawyers would say, i.e. a state of war is brought about by a state's declaration of will. It is sufficient for one State to declare war on another to force the other into a state of war, it is not a treaty, contract or agreement the state of war, it is a situation, legal triggered by a unilateral act.
As long as there is this declaration of war, from the moment of the declaration of war, IHL applies by virtue of what is provided for in Article 2 § 1 and also in customary law. It does not matter whether the declaration of war is a lawful or unlawful declaration in jus ad bellum. The ad bellum juice remains separated from the juice in bello. Therefore, whether the rule is declared unlawfully, declaration of war as aggression or lawful declaration of war, declaration of war as self-defence, has no impact, it will each time be a declaration of war. From the point of view of IHL, this is still sufficient.
The declaration of war provides us with a broader applicability of the law of armed conflict for the time between the declaration and the outbreak of hostilities, if any. If we had only armed conflict and not declared war as a category of applicability, we would have situations where war had already been declared, but hostilities had not already begun, and during that period IHL would not apply, there would be a gap and this gap is filled by the alternative gateway of the declaration of war.
Sometimes war is declared, but there is never any de facto hostility. The most famous situations are the declarations of war by a whole series of Central and Latin American states to the Axis powers and in particular to Germany in the Second World War. Declaration of war which resulted in a state of war between Germany and these states respectively as, for example, Guatemala among others, but there was no hostility between the two, Germany was already relatively desperate, and in any case, the geographical distance between the two continents was such that there was no reason to consider that it could have fighting.
Why these states have declared war on Germany if not to do so; there are several reasons for this, one of which is quite predominant over others. Some states declared war on Germany because it allowed them to seize certain enemy properties. It was possible at the time to confiscate enemy property when war was declared, there were some fairly wealthy Germans there, but that was a rather secondary reason. The main reason is that, except for Denmark, which was in a situation of occupation, it was a condition for being invited to the United Nations San Francisco conference to have declared war on Germany or the other Axis powers until a certain date. You had to have declared war on Germany, so some states did it at the very last moment to be inevitable in San Francisco.
In the law of armed conflict, there is not only the conduct of hostilities and the rules governing them, but also the protection of persons. From the moment of the declaration of war, civilians who are on the territory of the two or more States concerned automatically become enemy civilians. These enemy civilians are protected by the Fourth Geneva Convention. It is therefore necessary to protect them from the moment when a hostile relationship is created and this moment of hostility is that of the declaration of war.
The occupation of a territory without resistance
This is the purpose of Article 2§2 of the Second Geneva Convention. Here again, the Convention strives to fill a gap that would otherwise have remained gaping.
There may be cases that are easy to imagine even when the imagination is not overwhelming. It is possible to easily imagine cases in which there is a hostile relationship between armies of two States and yet there has been no declaration of war and there is no hostilities either, and at that time IHL could not be applied to a situation that would deserve it. This situation includes the occupation of a territory without armed resistance against this occupation. Either one state invaded another and the other state decides not to resist or because it has no army like Costa Rica and no one comes to its aid and therefore it cannot resist, or it has an army and believes that we are weak enough compared to the invader and that there is no point in sending men to the coal mines to be killed like the situation in Denmark in 1940. In addition, Denmark does not even have a mountain, unlike Switzerland, which offers conditions of resistance. It is a choice that a state can make. At that time, there may be no declared war and no hostility either, since you give up defending yourself. It would still be odd if a State were to force a State to engage in hostile acts in order to be able to apply the conventions.
There are also other situations where paragraph 2 could apply, such as cases where there are troops of a State abroad who are there with the consent of the local sovereign, that consent is withdrawn at some point and that foreign troops do not leave. This is the kind of situation that the International Court of Justice believed it could see for Ugandan troops in the DRC in the case of the 1997 DRC v. Uganda armed activities case and the judgment is from 2005.
In short, in these situations too, it is possible to apply IHL even if there is no declared war and even if there is no de facto hostility. What will obviously be applied is above all the law of belligerent occupation, namely the rules relating to occupation and in particular those relating to the Fourth Geneva Convention in Article 47 et seq.
With regard to this second paragraph, when a territory is occupied and the occupation is the result of an armed conflict, i.e. hostility, at that time, international practice including the International Court of Justice as in the 2004 Wall case, these authorities therefore rightly consider that in this case, the first paragraph of Article 2 applies, i.e. that we are in a situation of armed conflict. The occupied Palestinian territories, for example, are not territories under Article 2§2, they are territories under Article 2 § 1 because the territories were occupied following the 1967 war and the 1967 war saw not very long, but rather hot hostilities. So, in paragraph 1, the occupation is just a result of the armed conflict, it continues the 1967 armed conflict, they are not occupied territories without resistance, they have been occupied as a result of resistance that has been broken.
One could say to oneself that all this is of little importance because IHL still applies and that is true; it would normally be of little importance, but the problem is simply that Israel has tried to argue and has remained totally alone with this argument that everyone has rejected and even the United States of America and that is saying. Israel argued with the text of the second paragraph by suggesting that the Geneva Convention would not apply to the 1967 occupied territories following the 1967 war because, says Israel, it is not clear that these territories belong to a High Contracting Party to the Geneva Conventions since their status was controversial, there were several States potentially claiming membership of these territories, they are not territories belonging to a High Contracting Party, but they are territories with a contested status and therefore the Geneva Convention does not apply according to paragraph 2, the Convention will also apply in all cases of occupation of all or part of the territory of a High Contracting Party even if such occupation does not meet any military resistance from a High Contracting Party. In the first paragraph, the wording is slightly different and therefore this argument could not be taken so easily. That is precisely why Israel has tried to make an argument with the second paragraph, but it does not apply to these territories and even if it did, the meaning of the phrase "High Contracting Party" is obviously not at all that at all, but rather to simply recall that the Convention applies only to the contracting parties, which is normal because it is a convention; in customary law, in any event we would have the applicability of the rules according to an occupation, whatever its title. So, even if the territory is contested, it is enough for it not to be its territory and it is an occupied territory from the point of view of customary IHL.
Israel's argument was not accepted by anyone, it is considered that the first paragraph applies and that these territories are therefore occupied so that the Geneva Convention IV also applies. This is also the conclusion of the International Court of Justice in the 2004 Wall case.
Summary of the material applicability of the law of international armed conflicts
We have found that the applicability of the law of international armed conflict is at a very low threshold and is facilitated by law, the applicability of the IAC is quickly entered into and the fundamental criterion for entry is functional, which is essential to enter IHL under the guise of armed conflict, which is by far the most important category statistically and legally. It is a functional perspective in the sense that as soon as there is a need to apply the conventions because one of the situations provided for in the conventions is carried out in a context of hostility between military forces, the conventions are applied.
As soon as there is, in the context of military forces of different States, a hostile context, an injured person, a sick person, a situation provided for in the first convention is set in motion, and from there, automatically, comes the idea that the convention must be applied.
By "functional", we must see the situations covered by the various conventions and whenever we find ourselves in such a situation following a hostile relationship between the military forces of two States, we are in the field of IHL even if sometimes only a few IHL rules will apply to the exclusion of others that they will not find applicable. If there is occupied territory, only the right of occupation is applied, the rules on the conduct of hostilities are not used and so on.
Non-international armed conflicts
With non-international armed conflicts, it becomes significantly more complicated. There is a complication from the outset on four levels, complications that disturb the waters in a very considerable way.
First, there is a problem with the quality of the belligerents. In an international armed conflict, there is none because it is the military forces of two States that confront each other and military forces are relatively visible things, it is an organ of the State, it is quite organized, we know what we are talking about, it even wears uniforms.
In a non-international armed conflict, this is not at all the case because if on the one hand there are military forces from one State, on the other hand, there are sometimes very poorly identified entities of a quite different nature. There are armed groups, and the full range of armed groups is possible and this range can go from the top of the armed groups' range, i.e. rebels organized a little like soldiers, but when you go down the range, it becomes very elusive. What about criminal gangs in Africa and elsewhere, the "war lords" whose interest is not political, but generally economic, exploiting parts of the country to get rich, this maintains some private armies, the central government is too weak to do anything about it. A situation of belligerence or rather a situation of fighting crime? We are in poorly defined areas. We have also talked a lot about Mexico, a little bit like that, whereas there, it is more like that, it is drug gangs that make the law in certain parts of the country and fight Mexican armed forces, not just the police, so that we are in a situation of quasi-conflict, but is it an armed conflict, are they criminal gangs, are they belligerents too or not, not necessarily, because the traditional belligerent has a political motivation and not a private criminal motivation. The classic political motivation is to secede and form an independent state or to seize the government, the place of the government, which is not the case with these cartels.
This is more complicated, because there is an unidentifiable object on one side, at least difficult to identify.
The second difficulty is that, unlike international armed conflicts, in non-international armed conflicts, the intensity of the armed conflict is a criterion for the material applicability of the law. In other words, the situation of hostilities must be such that the armed conflict must pass a certain threshold of intensity before there is an armed conflict. Below, we talk about a situation of internal unrest and tensions. At the ICRC, the vocabulary is "other situation of violence". In Additional Protocol II, the terms are "disturbances" and "internal tensions". These are conventional terms.
It is unfortunate to have this intensity criterion because it produces significant legal uncertainty. In the IAC, if we can say that from the first shot there is applicability of the law, we are well off. When in non-international armed conflict it is said that for a certain intensity, this means that we are in many situations in a grey transition and that we do not know exactly from which date IHL applies and that very different arguments can be made in this regard. The government will generally say that there is no armed conflict and that it controls absolutely everything, they are just brawls, but that we should not worry about them. That is the government's logic. Others will say, however, that of course there is an armed conflict, especially those who support the rebels, and this legal uncertainty cannot be fully resolved. Syria still shows very well this kind of escalation, where it is not known exactly when the armed conflict began until today, since it has been a progressive escalation that is very typical of this kind of situation. So, when there is fighting like in Donetsk, we are certainly in an armed conflict, but from exactly when did it start, we do not know that. This is not very good from the point of view of legal certainty for provisions that must be applied to protect people.
Thirdly, there is not a single type of non-international armed conflict, there are several, so we will admit that when we have a single type of armed conflict such as international armed conflict, which is basically always the same through different gates, but still more or less the same, in a non-international armed conflict, there are several types and this complicates matters.
There are certain non-international armed conflicts in which common article 3 of the Geneva Conventions applies. There are then other non-international armed conflicts in which common Article 3 and Additional Protocol 2 of 1977 also apply, which is therefore the protocol provided for non-international armed conflicts. The two do not apply to the same situations, the criteria are not identical so that there are two types of armed conflicts and, in addition, in addition to pure non-international armed conflicts, namely government against rebels on their territory, there are others where non-international armed conflicts are internationalized by foreign interventions. So that we end up with the category of mixed armed conflicts, or as we sometimes say because it is more precise, but also much less elegant, we sometimes say that there are non-internationalized armed conflicts, namely internationalized NIAC, in English, internationalized non-international armed conflicts. It's the height of inelegance, but at least it's accurate. We have to see what applies in these conflicts and it becomes very complicated.
Internationalized non international armed conflicts (mixed armed conflicts)
Qualification for situations involving non-international armed conflicts is more complicated than for international armed conflicts. This is because States more easily accept obligations in international armed conflict while they are significantly more defensive in non-international armed conflicts.
We will begin by identifying the minimum threshold to which the law of non-international armed conflict applies in order to see what specifications should be given in order to have an overall picture.
The minimum threshold for the applicability of the law of non-international armed conflicts is linked to the common article 3 of the Geneva Conventions. The only difference is that in this important provision, the content of the guarantees granted is set out with talent, but not the threshold of applicability. The only thing that is said to us in Article 3 is of a negative nature in the event of armed conflict by not having an international character. It is therefore a residual category that the non-international armed conflict referred to in article 3 residual category in the sense that everything that is not an international armed conflict automatically falls within the framework of a non-international armed conflict.
But then, what is a non-international armed conflict?
Defining negatively is obviously not defining at all, we simply know that there are two categories and that there is no third category for armed conflicts. To know what a non-international armed conflict is and how it differs from peacetime, from situations of internal unrest and tension that may exist within a State, this is not specified in Article 3. It is through practice that these clarifications have gradually crystallized. The content of this practice is expressed in fairly clear, if not very clear, terms in a 1962 ICRC expert report. This practice was continued after this expert report and its crystallization is now found in the case law of international criminal tribunals, including the Yugoslavia Tribunal, among others.
The criteria on which the practice was based in order to determine a NIAC are twofold, two cumulative conditions. These are the two conditions that distinguish an armed conflict in the non-international sense of the term from so-called internal unrest and tensions as in Article 1§2 of Additional Protocol II, or from the ICRC's vocabulary from "other situations of violence". On the one hand, there are internal unrest and tensions, situations of riots, internal violence; on the other hand, there are NIACs within the meaning of Article 3. What we need to determine is where the dividing line lies, to have when we enter situations of unrest and armed conflict. There are two criteria for this. First of all, the practice requires a minimum organization of armed groups, rebel forces.
What distinguishes a situation of unrest from a situation of armed conflict is first of all that the factions fighting the government appear as an armed force and not as sporadic acephalic rioters. This implies that these armed groups must be led by a responsible command that can issue orders and be obeyed, in other words that there is discipline and that in this way the armed group in question can comply with the rules of the law of armed conflict. In other words, the actors who fight each other must appear to be belligerents to some extent. They will not be States in this case on both sides, there will normally be the State army on one side only, but the non-state belligerents must appear a little bit like a State armed force, we must at least take back the degree of organization in an analogous way so that by discipline, it can make sense to try to apply the rules of the law of armed conflict to these people.
Consider the justification for this criterion. If there are sporadic rioters with people at their head, simply more or less excited citizens running through the streets and looting what they find. Such a situation can lead to extremely intense violence, but it would be completely superfluous, even far-fetched, to try to apply the law of armed conflict to these people, in other words a whole series of rules because we have no interlocutor and there is no internal decision-making channel that can enforce compliance with these rules. The only thing that can be done in this case is to demand respect for human rights rules applicable in the territory with a rather murky aim of tensions. Of course, the law of armed conflict cannot be applied in this kind of situation because it is a right of belligerency, we need interlocutors and we need groups that resemble an armed force.
The second cumulative and necessary criterion for identifying a non-international armed conflict is more problematic. The second is a criterion that States like, but lawyers do not like. There must be a minimum intensity of conflict. That is to say, the struggle must appear to be a struggle that has taken hold of society as a whole, it is a collective character that we have to face here, that the number of victims is generally considerable although it is not a strict criterion - in the Swiss civil war, the Sonderbund, there were about a hundred deaths -. It is a criterion of intensity, sometimes even over time, but the criterion of duration is also not so sure. There is a famous Latin American case of the Inter-American Commission on Human Rights, the 1997 La Tablada case, in which an armed group attacked a military barracks with very violent means, that is, with means of war. The fight lasted for a very short period of time, thirty hours or so just about a day, and the Commission concluded that there was a non-international armed conflict within the meaning of Article 3 by considering the intensity of the fighting more than the number of victims, the way in which the fighting was conducted, they were conducted in the same way as armed forces with weapons of war.
What we already see with these summary explanations is that the question of intensity gives rise to uncertainties. As far as organization is concerned, there may not be enough factual information to decide easily and quickly whether the rebel armed forces are sufficiently organized, but it is clear relatively quickly if they are. The intensity of the conflict, on the other hand, is a rather uncertain criterion. In many cases, this leads to legal uncertainty, especially since there is often a continuity between internal unrest and tensions and the crystallization of an armed conflict. It is not uncommon for all these phases of gradual consolidation of the conflict, which begins with riots and ends with armed conflict, to be passed. This is almost emblematic in Syria, where it was difficult to say exactly when this non-international armed conflict began, it was probably a little easier in Ukraine in 2014 because events followed one another faster than in Syria. We remember that in April 2014 we were probably still in the phase of post-Meiden internal tensions and unrest and that certainly in May 2014 we had moved on to non-international armed conflict. What makes it possible to say is that we had moved on to the combat phase, there had been fighting at Donetsk airport, fighting like a military operation, and it would therefore be difficult to conclude that there was no armed conflict at that time. Between April and May, there was not a huge phase and we know that is where things turned out. For Syria, everything was more gradual, it took longer.
This legal uncertainty was acceptable to the States. It is not the lawyers who want it, it is the States who cherish it. The reason is quite simple: it gives a considerable margin for argument. There will therefore very often be a situation in which the local government denies that it is in the presence of a non-international armed conflict, says that there is some unrest, some riots, a small insurrection, some noisy assholes, and that everything is under control and that we have to move because there is nothing particular to see, but in any case no non-international armed conflict. Other States, especially if they sympathize with the cause of the rebels, will consider much more quickly that there is a non-international armed conflict and the ICRC will probably fall between the two, but each will probably have its own qualification and therefore, it will often be impossible to say with certainty from when the law of non-international armed conflict applies. If we want to overcome this unfortunate legal obstacle, there is nothing left but to go through, as is very often the case, special agreements by putting the question of principle in brackets. It is thus perfectly possible to negotiate with a government that is reluctant to recognize a situation of armed conflict, but by telling it that this is not a non-international armed conflict, what interests IARC is that the content of Article 3 be respected, that it is "applied because the government itself, the rebels who seek international respectability, will not say that they wish to harm people. Normally, in the political struggle, no one claims to want to infringe Article 3. A rebel group that wants to become a government tomorrow knows that international respectability is important. At that time, there will be a special agreement to apply the content of Article 3 by putting the question of the qualification of the conflict in brackets. This is the pragmatic side with which IHL is very often dealt with, but it is unfortunate that from a legal point of view we do not have clearer regulations.
When we have these two criteria, organization and intensity, we have a non-international armed conflict and we can apply common Article 3. These two criteria constitute the line. Internal unrest and tensions are not specifically defined in the law of armed conflict because it does not concern us directly and we do not need to define them because by defining one of the branches, NIAC according to Article 3 according to the two criteria, we can say that everything that is not NIAC, Article 3, and which is not international conflict either, is automatically TTI. It is therefore sufficient to define one of the branches by letting all the other situations in the residual domain fall. Purists make a distinction between unrest on the one hand, internal tensions, riots on the other hand, structural political violence on the other hand, such as, for example, imprisoning many people, we can read in the commentary on Additional Protocol II to Article 1§2 to find out more.
So that is the applicability of the minimum threshold of the law of non-international armed conflict. In other words, by "minimum threshold" we mean that if we are no longer in internal tensions or unrest and we move into a non-international conflict according to the two criteria we are automatically in common Article 3, we apply it according to the two criteria we have just seen.
The situation in non-international armed conflicts is a little more complicated in the sense that we also have an Additional Protocol II that is supposed to apply more specifically to non-international armed conflicts. What complicates the matter is that the applicability threshold of Additional Protocol II is not in the same place as the applicability threshold of Common Article 3. There are additional requirements to be able to apply the rules contained in Protocol II to a situation of non-international armed conflict. In other words, as soon as there is a non-international armed conflict, we are in Article 3, automatically it is always possible to apply it; any non-international armed conflict gives rise to the applicability of common Article 3 either as a treaty for the parties to the Geneva Conventions or as customary law for any other States and movements. A number of these non-international armed conflicts are also non-international armed conflicts that give rise to the applicability of Additional Protocol II of 1977.
Therefore, any non-international armed conflict falls under common Article 3, but not all non-international armed conflicts necessarily fall under Protocol II. Conversely, any non-international armed conflict or armed conflict to which Protocol II applies also gives, in parallel to the applicability of Article 3. These two always apply together, but there are cases where Article 3 applies alone as a minimum threshold and Additional Protocol II does not apply. We note that there is no case of a Protocol II conflict that goes beyond the circle of Article 3.
Why did you make a convoluted regulation of the type? Would it not have been smarter to apply Protocol II to exactly the same conflicts that were covered by Article 3. The answer is "yes" and "no". Yes, undoubtedly, and this was provided for in the ICRC's draft, it was a question of developing common Article 3, which was a little too brief, so we wanted to give it more substance, but it was logical from this point of view to try to maintain the same conditions of applicability. But not also for two reasons: the first is political and the second is legal. The political reason is that States do not like the law of non-international armed conflict and they immediately took the opportunity at the 1977 Geneva Conference to restrict the conditions for the applicability of Protocol II to ensure that less law of non-international armed conflict applies to conflicts with which these States may be confronted. States are very sensitive to foreign powers and even organizations such as the ICRC coming into their internal affairs when a government is fighting for its survival against rebels whom it considers criminals on its own territory. He considers this to be an internal issue par excellence of vital interest and accepts broad and bold international rules with the powers of third powers who can then come forward to make complaints. States do not want someone to come to this sensitive moment to hold them to account. This is evident at the conference, the applicability of Protocol II is repressed as much as possible, it is an old atavistic reflex of States, it shows that humanitarian aid is really only an argument for non-international armed conflicts. However, there is also a legal reason for this difference in the applicability threshold and it is more serious. This is because Additional Protocol II developed, it is true, common Article 3, and the strictly humanitarian guarantees that this common Article 3 contains, but Additional Protocol II also developed the Hague law which was absolutely not in common Article 3, there was nothing on means and methods of combat, common Article 3 only deals with persons in a non-combat situation.
When rules are introduced in Article 13 et seq. of Protocol II concerning means and methods of combat, it is nevertheless normal to have a threshold of applicability at least for these slightly higher rules because for rebels to be able to adhere to this type of rule, they must sometimes be a little more organised or more firmly established in the territory than in the very evanescent threshold of common Article 3. The problem is that if rules applicable in a non-international armed conflict are already sufficiently stringent and cumbersome and there are rebel movements that are sufficiently poorly organized just to fall within Article 3, but without territorial control, without anything, asking them to subsequently apply certain rules classified as "strong" may result in a material impossibility so that these rules would not be taken seriously afterwards because there are things that rebel movements when there is no territorial base, for example, cannot do. If there is a land base, there is control over one part of the territory, there are things that can be done.
What are these conditions of restricted applicability? First of all, it should be noted that Protocol II also presupposes that both conditions are met, namely those of Article 3. That is what makes us in this kind of configuration, namely that there are no cases that go beyond that. The two criteria in Article 3, namely "organisation" and "intensity", apply to Protocol II. Nothing is changed. Rather, what is being modified is that two additional requirements are now being added, the first in particular. This additional requirement is the territorial control that armed groups must have. Protocol II therefore applies only in the situation where the rebels control part of the territory even if it is small, but who control it like the government, excluding government forces and who are thus able to conduct concerted and continuous military operations. This is the purpose of Article 1 § 1 of Additional Protocol II.
"This Protocol, which develops and supplements common Article 3 of the Geneva Conventions of 12 August 1949 without modifying its current conditions of application, shall apply to all armed conflicts not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 2 August 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol I), and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or organized armed groups which, under the leadership of a responsible command, exercise such control over part of its territory as to enable them to conduct continuous and concerted military operations and to apply this Protocol".
The very last words have a certain importance: "and to apply this Protocol". The legislator indicates here one of the fundamental reasons for this rule. Its concern is that these armed groups should be able to apply this protocol with these different contents. Territorial control must therefore be interpreted in the light of this criterion. Territorial control is not a separate requirement. Obviously, territorial control is required, since this is stated in full, but from which entity should this control be exercised? This is a specific issue that is linked to the ability of these armed groups to implement the protocol.
If it appears that this territorial control is such that they can apply these rules, then the protocol applies and the territorial control may be relatively weak if in this situation this control nevertheless allows the group to apply the rules of the protocol. It is therefore a case in point so that there are also some uncertainties. Nevertheless, the criterion of territorial control is generally interpreted very broadly. All that is required is a minimum of territorial control and it is assumed that in this case the rebels, armed groups have the possibility to apply the rules of the protocol.
There is a second restriction in relation to common Article 3, which is that this Protocol is applicable to conflicts which "take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or organised armed groups. This means that the protocol applies to bilateral relations between loyalist government forces on the one hand and rebels, rebel forces and even, depending on the case, dissident and therefore non-loyalist state armed forces on the other. This means, on the other hand, that the protocol does not apply in relations between rebel groups or dissident armed forces. It happens in some non-international armed conflicts more and more frequently, moreover, formerly the DRC, Lebanon and Colombia have provided very good examples, but now there are even more. Rebel factions of armed groups sometimes fought each other on the territory of a State facing armed conflict. In Africa, it is the rule to have such groups that also fight horizontally. Protocol II does not apply to these armed conflict relationships. Common Article 3 applies to it because it does not have this restriction, but not Protocol II. There is a twofold restriction so that an armed conflict under Article 3 can also be subject to the rules of Additional Protocol II, it must be subject to territorial control, and in addition, it must be a conflict between government forces, dissident forces or rebel armed groups.
It should also be noted in passing that in the statutes of criminal courts, and in particular in the Rome statutes in Article 8 of the International Criminal Court, this criterion of territorial control has been completely removed. This means that the Rome Statute criminalises and penalises rules arising from Additional Protocol II, but without taking over the threshold of applicability of territorial control or relations between governments and rebel groups. These rules are therefore generally applied as obligations that all parties to an international armed conflict would have.
It is not entirely clear what the state of customary law is. Perhaps customary law, the ICRC study, would seem to militate in this direction. Either to no longer have this criterion of territorial control as well as the limitation to the type of relationship between government - dissident or rebel group. What is certain is that for Additional Protocol II, on the other hand, these criteria apply, so that if you are a party to Additional Protocol II, you may have to apply fewer rules of customary law. This should at least basically stimulate a few States perhaps to ratify Protocol II, but Professor Kolb doubts that they are thinking as well in legal technique. In case of uncertainty, special agreements will have to be used each time, so agree to apply this or that rule, including Protocol II, with the question of its formal legal applicability in brackets.
We have seen the conditions under which the law of non-international armed conflict applies, with regard to Article 3 on the one hand and Additional Protocol II on the other. What about the other texts?
There are a number of texts that apply to any armed conflict, such as, for example, the 1993 Paris Convention on Chemical Weapons, which already applies in peacetime, or Protocol II to the 1980 Convention on Certain Conventional Weapons on Mines and Booby Traps, which is the second version of Protocol II, in other words. So now, these texts, what thresholds do they apply to? On the threshold of Article 3 or on the threshold of Protocol II?
First of all, it is necessary to look in the texts themselves to see if they specify. If in such a text there is a regulation referring to Article 1 of Additional Protocol II, we are set, these are the conditions of Additional Protocol II. In the absence of such regulation, i.e. in cases of silence and doubt, the threshold of article 3 is legally applicable because it is considered to reflect the threshold of general applicability of the law of non-international armed conflicts. This is how the applicability of the conventions on chemical, biological and other weapons is interpreted, for example, which makes all the more sense because these conventions, these conventions, already apply in peacetime and therefore even in peacetime it is not permitted to use such weapons, including in situations of internal unrest and tension; this would be a very strange interpretation since when armed conflict occurs it would seem that these conventions do not apply until the armed conflict meets the specific provisions of Additional Protocol II. It should always be borne in mind that the threshold of Article 3 applies in the event of doubt.
We are entering the minefield of non-internationalized internationalized armed conflicts, we can also say mixed armed conflicts, which are very frequent. Many conflicts are mixed conflicts, i.e. conflicts that are partly international armed conflicts and partly non-international armed conflicts. There were still some wonderful examples with Libya and the 2011 operation. There were two armed conflicts there, one international with NATO states against the Libyan government, and at the same time there was also a non-international or even several armed conflicts between the government and the various rebel forces. The question for us is how do we legally respond to these situations of mixed conflicts?
We will not mention here the cases where a conflict changes in nature, i.e. cases where a non-international armed conflict becomes a block of non-international armed conflict and vice versa, a non-international armed conflict becomes a block of international armed conflict because in this case there is only one passage, but there are the thresholds that we have seen applicable before and after depending on the point at which the conflict breaks out. We can think of the example of Iraq with the 2003 armed intervention, international armed conflict in the phase of allied intervention and then the new government was installed, that it was considered sufficiently independent and that it invited foreign forces to stay, the conflict turned entirely into a non-international armed conflict. It did not stop because there have always been rebel factions and other terrorists who continued the struggle, but it was no longer an international armed conflict, we moved from one to the other as the occupation ended. Already, moreover, before the end of the occupation, but there was a mixed international situation for the occupation and not international for the government's fighting against these various rebel factions. A very simple example is the successful secession where from a certain moment a new State is created, if the struggle continues, it could be that from a certain moment it becomes an interstate struggle. The issue is a little more complicated because it is not certain that the old government until it recognizes the new state is obliged to treat it as a state.
However, the most interesting situation for us is precisely the mixed conflicts where both have to be applied at the same time. Here, the classic example, a general category that can be applied to X conflicts, is the situation of foreign military intervention in a civil war. There is a non-international armed conflict and then foreign forces intervene. By "intervention", we mean here that foreign states send armed forces to the territory for civil war in order for them to participate in hostilities. It does not matter that these armed forces are regular army soldiers, it very often happens that these forces are transvestite forces, i.e. so-called volunteers or other persons who are difficult to identify; Ukraine still gives examples. In the case of hidden transactions, the difficulty is purely a factual difficulty, namely whether these so-called volunteers or others are indeed sent by the State and act on its behalf. It is a question of fact that may be difficult to determine, but that we must leave pending. What is unfortunate about this factual situation is that it cannot be determined and therefore not knowing which law is applicable depending on the difficulty of determining the fact. This shows once again how difficult this applicability of IHL is.
Let us take the very simple case that there is a civil war like in Vietnam or the DRC. There is a civil war at the beginning, states enter to fight with troops either on the government side or on the rebel side.
Let us see the case where in a mixed conflict, there is at the same time in the same conflict in relation to different events an international armed conflict and also a non-international armed conflict or several of them. The general rule in this matter is that the law remains fixed in these bilateral clusters. It is necessary to determine the applicable law according to the concrete relations between the belligerents: who is fighting against whom, that is what will determine the applicable law.
There is not a single applicable law, so for example, the internationalization of the conflict does not operate as a whole, just because in a non-international armed conflict there are several foreign States intervening with armed forces, it does not mean that the entire conflict would become an international armed conflict. That is precisely not the case. The original conflict between the government and the rebels retains its nature as a non-international armed conflict, for example, but at the same time, in other belligerent relations, there will be the application of the law of non-international armed conflict as with the example of Libya. At the same time, an international armed conflict, such as the United Kingdom against Libya, is a non-international armed conflict between the Kadafist government and a particular armed group.
This theory of the bilateralization of conflicts is also evident in practice. A very remarkable application of this doctrine can be found at the International Court of Justice in the 1986 Nicaragua case at paragraph 219. There were some direct attacks by the United States against Nicaragua, which meant an international armed conflict, and at the same time there was the civil war in Nicaragua between the government and the so-called "contras" forces. The Court applied its own law to each of these relationships, the one that was applicable, IAC or NIAC.
Let us now look at what it looks like, that is, what kind of bilateral relationship we could have in a mixed conflict. This is a little complicated not on the substance, but on the multiplicity of possible relationships. What always matters is the quality of the report, the moment there are States on both sides, it is always an international armed conflict, the moment there is a State against non-state entities or non-state entities between them, it is automatically a non-international armed conflict. It is the quality of the belligerent that determines the applicable law.
For example, the theme is one of civil war at the beginning, it is a non-international armed conflict with foreign interventions, so the base is a government fighting against rebel forces: government against rebel; state against armed group on its territory. The applicable law is NIAC. This can be from Article 3 or Protocol II, depending on the conditions of application of each of the texts.
In one case, there is a first state (1) which is a foreign state that intervenes on the government side, so it sends armed forces to the territory to support the government and to fight at the same time as the government forces and the rebels. We now assume that these foreign government forces are on a battlefield and confronting the rebels, there is an armed confrontation between the troops of the foreign state 1 and rebel forces somewhere on the state's territory facing civil war. The applicable law is CANI. What is decisive is whether or not the State has crossed a border to arrive on the territory of the State where the armed conflict is taking place, but what matters is that we have a State against a non-state entity, i. e. NIAC.
In another case, there is a government still struggling with rebel forces, but this time these rebels are supported by a foreign state. There is a State (2) fighting on the side of the rebels. Government forces fall on the armed forces of State 2 that are on its territory to support the rebel cause, so here it is IAC. The captured forces are prisoners of war.
Another scenario is with State 1 forces fighting for and with the government against State 2 forces fighting on the rebel side, i.e. State 2 sending troops to support the rebels. There is an armed clash between State 1 and State 2 troops on the territory facing civil war. What is applicable? From the IAC, state against state.
In a different case, there is a group of rebels (A) against a group of rebels (B) so rebels against rebels. The law that applies here is NIAC; one can even be precise in this case, because Protocol II can already be excluded in any case on a conventional basis. We could say that it is a NIAC article 3.
In another case, there is the government or even alternately State 1 forces intervening, one or the other or both, attacking a group of rebels and the particularity of these rebels is that they operate beyond the national border of the State, they are in a neighbouring State and conduct cross-border operations in the territory facing civil war. It is therefore as if there were a civil war in Switzerland and some armed groups were taking refuge near the border in Italy to conduct operations in Switzerland from Italy and that now the Swiss government or the state that would intervene on its behalf was going to make an expedition to Italy to bring the Estocade to these armed groups hiding behind the border. We must not be caught by the fact that a border is crossed, what matters is not that, what matters is the type of relationship: State versus non-state entity and therefore it is a NIAC.
A final hypothesis is that a government is fighting rebels. These rebels, in this case, are controlled by a state 3, so there is a government, a rebel group except that the rebel group happens to be a creation of a foreign state. A foreign State controls them, at least, according to the criterion of overall control, but perhaps even the control is effective and therefore even stronger, but we assume that the control is at least overall in the sense that we have discussed in law the responsibility of the State. In simple terms, rebels are guided by a state. Legally, what matters is that it is a state against a state. The rebels do not appear legally as an independent body, they are only the extended arm of a state; legally speaking it is a state organ or a state organ that controls them. So it's as if State A is fighting State B, in this case. Here, the government versus the state 3.
There is a certain complexity, but it is not enormous either, it is a de facto complexity more than a legal complexity. The complexity of the law is not really there because we are still in the IAC and NIAC categories, sometimes it can still qualify a little bit, all this is not too complicated, theoretically at least. On the ground, it can become quite complicated if we have to distinguish between very multiple military operations based on armed encounters, which applies if there are 5 or 6 intervening states and 5 or 6 rebel groups and everyone is fighting cheerfully against everyone, there is not much complexity in the qualification, but there are still many different situations and a certain complexity is obvious.
What about the United Nations, if the United Nations ever sends peacekeepers to a territory, for example; what happens then and what is the conflict called then? It is also a situation that resembles foreign intervention when the United Nations sends peacekeepers or other troops to the territory of a state. Blue helmets in the traditional sense were not drowned to participate in the armed conflict, but rather in phases where the armed conflict was paused and interposed between the belligerents and a relatively warm peace was maintained. However, in exceptional cases, peacekeepers in the strict sense of the term, sent with the consent of the State concerned, have been caught up in the turmoil of the armed conflict. The case of Congo in 1960 is often mentioned when troops were sent there and the central government was relatively quickly confronted with secessionist movements, the most famous of which was the Katanga movement. At that time, gradually, UN forces were drawn into this armed conflict and fought on the government side against the secessionist forces.
What happens much more often is that the United Nations authorizes States to send tropes to a territory, as in the case of resolution 1973 in the context of Libya. It is therefore another hypothesis where State forces under United Nations mandate or authorization are involved in armed conflict. This case does not interest us here because it is a foreign intervention. Libya can be analysed as such. The fact that there is a United Nations authorization is not relevant because it is the separation of ius ad bellum and ius in bello. The title of the intervention or its justification for the use of force has no bearing on the law of armed conflict, whether with a United Nations mandate or illegally, it has no bearing on the qualification of IHL and this also applies here.
If, on the other hand, there are peacekeepers who sometimes can participate in combat, although this is not so frequent. We should question the quality of these peacekeepers, that is, United Nations peacekeeping operations. These personnel are under dual command, both under the command of the United Nations through the Special Representative of the Secretary-General who has, let us say, strategic control of the troop and at the same time under the control of their respective states. These are contingents from different States that remain under their national command, particularly for any tactical, i. e. direct operational, question. Strategy is the purpose of the operation and tactics is the decision to intervene here or there, to do this and that, to use this or that weapon or to take that or that position; for that, it remains under the control of the various national commands.
Therefore, from the point of view of interest here. If there are UN troops somewhere like Somalia, what happens? What is the qualification of the conflict? It is States such as Katanga that are fighting against secessionist movements and therefore internal armed movements. So it is a situation where government forces are against rebels, and therefore NIAC. Now, there is a different opinion on this issue, but it is very controversial. Professor Kolb has long held and still holds a different view today, according to which the only exception to this kind of scheme is that of the strength of international organizations such as the United Nations, which should apply the law of international armed conflict in their belligerent relations. Professor Kolb has developed a whole series of arguments to this effect, it seems to him that this scheme is mainly made for States. Since there is a United Nations force, the law of international armed conflict should be applied already because United Nations practice goes in this direction, we must look at the 1999 bulletin of the Secretary General, the "circulaire" as it is also called in French, which sets out the rights that its troops must respect, all the rules contained in it come from the international armed conflict, and secondly, Professor Kolb has a relatively poor view of an international organization such as the United Nations, which preaches on human rights in particular and has special provisions in the Charter that fall short of the law of international armed conflict. The question is very open-ended and it is possible to object quite easily to what Professor Kolb says if they were really United Nations troops. If they were really United Nations troops, but they are not really United Nations troops in the sense that they are state contingents that are made available to the United Nations, but which remain at the same time under national command at the operational and tactical level. This is why Professor Kolb now has more doubts about his own opinion of the past. If they were real United Nations troops, that is, troops that would be under the exclusive command of the United Nations, strabby and operational, then he would fully agree with his former opinion. Since these are also troops under national control, Professor Kolb has more doubts today. The issue is very controversial, Professor Kolb had her voted on once when he was at the ICRC to find out how her other legal staff saw the issue. We voted on the issue and there was a split of channels 12 to 11. Luigi Condorelli had gone to the toilet and so if he had been there again he would have voted according to Professor Kolb on his side, which would have been 12 to 12. Even if it is speculative knows his opinion on this subject. In other words, it is a more or less total sharing at the ICRC on this issue. It is simply a very controversial issue.
States sending peacekeeper contingents are reluctant to apply the law of international armed conflict, they prefer to stick to this pattern: non-international armed conflict, no prisoners of war, etc.
This is on the qualification of conflicts from the point of view of the material applicability of the law of armed conflict. To be clear, the term "peacekeeper" means nothing in law, it is "participants in peacekeeping operations" known as "PPOs" which is the precise term with a legal meaning.
Applicability ratione personae
Holders of the Law of Armed Conflict
The question here is to whom the law of armed conflict applies. The first clear and simple rule is that the law of armed conflict is addressed primarily to States and in States primarily to their military branch. This should not surprise us because the State is the subject par excellence of war and, in addition, conventions are made by and for States. Indeed, who ratifies the conventions on the law of war, humanitarian law or the law of armed conflict? It is the States and these conventions are not open to other entities. It is enough to look in the clauses on ratification and accession to these conventions, we find each time the vocabulary according to which States can become parties and sometimes we use a slightly more flattering vocabulary which is that which powers can become parties as with the 1954 Convention on Cultural Heritage in Time of Armed Conflict where in the accession clause there is the following vocabulary, namely "the Powers" which are the States being a vocabulary that States sometimes willingly use for themselves; they see themselves as volunteers as "Power".
It is therefore quite normal that, like practically all public international law, it is addressed to States, and the same thing can be found in the law of armed conflict. This is particularly true for the IAC where there are confrontations between state armed forces. This is less true for NIAC, where one must recover to apply the law of armed groups and explain how IHL can be applicable to armed groups. In the IAC, we are in pure interstate. There are also some more IAC branches that are particularly state oriented, such as maritime warfare, maritime catches, smuggling, all these issues are rules that only apply in interstate warfare.
The conventions apply to the State and to all organs of the State. Of course, the military branch is most concerned by the conventions of the law of armed conflict, but it is the State that ratifies the conventions, it is the State that is bound by customary rules and this therefore means that all organs of the State are bound and not only the military branch. This is relevant because we have seen that some rules of the law of armed conflict also apply to subjects other than the military branch. We have already mentioned Article 58 of Additional Protocol I, where there is an influence on spatial planning, but spatial planning is necessarily other bodies concerned than the military branch, but also as another example civilians to whom IHL concepts must be disseminated, again very often it will be other bodies than the military branch which will deal with this dissemination of IHL to civilians.
States are bound and are the subjects par excellence of IHL, but what about others and who are already the others? First there are international organizations and there is the United Nations: can the United Nations itself be held as an organization by IHL obligations? If these obligations apply only to States, the United Nations could not be bound by them. It is another question to consider whether or not when the United Nations sends troops somewhere, whether or not it internationalizes the conflict. Now the question is whether the United Nations itself can be bound by rules of the law of armed conflict. The question then arises for armed groups, rebels, how can they be bound by rules of the law of armed conflict. It is not obvious, if we take the conventions, have the rebels ratified the conventions; normally, an international convention applies only to those who have ratified it or who have acceded to it. The rebels have not ratified or acceded to the Geneva Conventions, they cannot even do so because the Geneva Conventions are only open to States. But then how can we explain that rules of the law of armed conflict, for example common article 3, are applicable to rebels on a conventional basis and what about custom, for that matter: do customary rules apply to rebels? No doubt an explanation must be found to apply them, otherwise the entire law of non-international armed conflicts would be in weightlessness. If it could only be applied to state armed forces and not to rebels, there would be no reciprocity, it would not work. But it is also necessary to see how we can justify this personal applicability to armed groups that have not ratified this or that convention or alternatively how the applicability of customary rules can be explained to such groups. Finally, it is true that the secondary question arises as to the extent to which private individuals such as ourselves can be held by IHL and among individuals there are certain particularly important classes of individuals, such as private military companies that can intervene in conflicts. Private military companies (PMCs) are individuals from a legal point of view. Can they be held by IHL is how.
It can therefore be seen that personal applicability issues are not without importance.
The general rule in this area has emerged recently, in the 1990s, it was in the shadows before or perhaps no longer existed at all before the 1990s. This rule is a rule of effectiveness. In very short terms, it means that material participation in armed conflict as an actor or in legal terms, the material capacity to participate in armed conflict, automatically also entails personal capacity. In simpler terms, the actors of an armed conflict are also bound by the law relating to that armed conflict. Participating in an armed conflict automatically also means being bound by the rules of the armed conflict. This rule of effectiveness or this principle of effectiveness is there to fill gaps that would otherwise remain gaping. It would still be remarkable if in a branch of law that seeks to protect against excessive destruction and also seeks to protect people, the victims of war, we could have participants in an armed conflict who would not be bound by this protective law. It seems much more logical to say that everyone who participates in armed conflict can be bound by various obligations depending on the conventions they have ratified and so on, that is clear; but that they certainly have the capacity to be bound by rules of the law of armed conflict. This is the rule that has emerged more and more in recent years.
Let us now look at what this means for each of the topics: international organizations first, armed groups second, and individuals third. These are the three categories where personal applicability is a problem.
For international organizations, the issue is resolved although it has been extremely controversial for years. We will use the United Nations as an example because it is the world organization and it is probably the most important in terms of peace and security.
The United Nations did not consider itself bound by the law of armed conflict as an organization for a long time and until the 1990s. There were various reasons and arguments really. None of them were really decisive. One of these reasons was to say "we are not a party to the conflict", the United Nations would be above the parties to the conflict, it would try to pacify the dispute, to find a solution such as, for example, sending peacekeepers to separate the parties, but the United Nations is not a party to the conflict. If we wanted to apply IHL to them, it meant that we would see them as a belligerent, as a party to the conflict and we totally refuse their role. The United Nations also increased by the fact that it was not a party to the conventions and could not be, because it could not ratify the Geneva Conventions, accede to them since these conventions are only open to States. The United Nations also argued finally that there was a whole series of provisions of IHL that it was not in a position to apply because there is a whole series of rules in IHL that involve a territory, a State organization. For example, when IHL provides that courts must be operated when arresting certain civilians, enemies, etc., the United Nations does not have a court for this purpose, it is not a State precisely, it does not even have a territory and it cannot detain persons in a territory. So, in any case, we could not apply all this as it stands.
What the United Nations always conceded, however, was that it would apply the "spirit and principles of IHL". The United Nations has of course always said that it goes without saying that we will respect the fundamental content of IHL, in other words, they will never do things that would be "cowardly", but they are not bound by the letter, but they are always correct. It must be said that they have always been from the point of view of IHL. This old doctrine is over. It is understandable somewhere if we have a historical antenna in the sense that at the time it was the Cold War and all these IHL issues were very sensitive and highly politicized and that the United Nations was trying to stay away.
Henceforth, the United Nations, like a whole series of other organizations, has subsequently accepted the application of IHL, and has even accepted it in the Secretary-General's bulletin, which is only an expression of this, the 1999 circular concerning the applicability of IHL to United Nations forces, a peacekeeping operation. This circular can be found in the 1999 International Review of the Red Cross or on the ICRC website.
The principle is now accepted, international organizations can and are bound by IHL, they may not be able to apply all the provisions, but it will be necessary to see in customary law what it means exactly for them to be bound by IHL, but all the fundamental rules, they agree to apply them as such and the most important ones with some gaps, are found in the circular.
It is clear that a whole series of rules of the law of armed conflict must be applied by armed groups, particularly in non-international armed conflicts. In a non-international armed conflict, the government faces armed groups, rebels. Knowing how the government can be bound is not a difficult question, especially since States ratify the conventions, but knowing how an armed group can be bound is more complicated.
In this respect, a fairly careful distinction must be made between conventional and customary law.
With regard to customary law, the explanation of how an armed group can be linked is not too complicated. The rule that every participant in an armed conflict is automatically bound by it must be applied and it is concluded that the armed group as a group participating in an armed conflict, in other words, as a belligerent group, is bound under customary law by the referring rules, which means that the manifest practice is that groups apply these rules and States accept this application on a reciprocal basis. This easy-to-understand rule has been expressed in a variety of sources, including the so-called Šahoviæ resolution of the Institute of International Law, which is a resolution on the applicability of IHL and human rights law in armed conflicts involving non-state entities. This is a 1999 resolution in which, particularly in Article 4, the above principle is expressed in a particularly clear but also broad way, since it concerns not only IHL but also human rights law. What this resolution posits as an expression of customary law, the resolution does not say "I invent this", it is based on practice, is that armed groups are also bound by certain customary provisions of human rights law. This does not really pose many problems, plus the content of the customary rules, which is difficult to determine, but the very fact that armed groups are bound by these rules does not pose a problem and is fairly easily understood. What is more complicated is to express why one or more armed groups are bound by treaty provisions. Because, obviously, these groups must be bound by treaty provisions, otherwise, common Article 3 of the Geneva Conventions, as well as the entire Additional Protocol 2, would not make sense. These provisions must apply between a government and armed groups, rebel groups. If we cannot ask rebel groups to apply these treaty rules, all these conventions fall, because a government cannot apply them to itself, there is no treaty for itself or if there are contracts with itself.
An explanation had to be found and it is not legally very simple. The explanation that has the most credit is the Pictet explanation since the first one who exposed it with a certain bravery was Jean Pictet whose comments to the Geneva Conventions of the 1950s. Pictet, as we do not always say, has varied a little bit. If we look at the comments, we won't find exactly the same explanation, there are small variations.
The explanation is as follows: when a State ratifies or accedes to the Geneva Conventions known as the "Pictet", these conventions are applicable throughout its territory. In other words, it is not only engaging itself in inter-State relations, which it certainly does, but not only, it is also engaging all persons on its territory, since it is necessary for it to do so in order for the conventions to apply to armed groups at the time when those conventions become applicable on its territory normally with the publication of those conventions in the official series. In other words, ratification or accession to the IHL Convention would have a twofold effect: It is true that the conventions are applicable between States, and this also applies to Additional Protocol II, since other States may request compliance with Protocol II from a State at fault - the inter-State dimension does not disappear - but there would also be an inter-State dimension in the territory of the State in question, each person and in particular each national of that State being bound by the Geneva Conventions, a law applicable in the territory of the States in question, i. e. States that have ratified or acceded. The discussion on this issue may not be as important practically as it is in theory, and that is why, since IHL is mainly about practical problems to be dealt with, and the theoretical issues become a little blunt. This is above all a practical question and not really a major legal question because, if we take Additional Protocol II, we still have no idea that armed groups, barefoot groups that have formed into armed groups and of which some of the members may be illiterate, we should not imagine that they are familiar with Additional Protocol II and they will not be familiar with the Geneva Conventions either, they will not have heard about these conventions. That is why it is all very well to say that all this applies automatically on the territory and that as soon as an armed group is formed, the persons constituting that armed group are bound by the Geneva Conventions or Protocol II, etc., and legally, this explanation is undoubtedly sufficient, it is possible to sanction it criminally if they commit war crimes. But if we really want to enforce the rules of IHL, we would have to go to these people and tell them that as an armed group they are not supposed to ignore Article 3 and the Geneva Conventions. It is the ICRC delegate who, in most cases, will do the job, go to these groups and publicize these rules, and it is there that these groups will learn that these rules exist and that it is practically through a declaration of membership of this group that things will be done. As soon as these groups say that they want to respect these conventions and generally they want to respect them, for them it is a political issue, they want to take over the government, they want to secede, they want to be respectable; to say that they apply the Geneva Conventions is very exciting for a secessionist movement or for an armed group because they already feel like a quasi-state and on that it is possible to play, it is possible to flatter self-esteem. Basically, we must reach out to these people and get them to adhere to these texts, already by making them aware of their existence. Without this, there is the Pictet theory on how to legally bind these people and to enforce the law, we must go beyond that.
By "individual" we mean private persons who act in a private capacity and not individuals who act as agents of the State as military commanders, for example. Because when individuals act as agents of the state, they commit the state. Private individuals are also captured by IHL, although this is traditionally more limited except perhaps currently with private military companies.
Individuals within the meaning of international law are multiple entities and not just the individuals we all are. Of course, that too, but not only. Commercial companies, i.e. legal persons of all types, are also from the point of view of the DIP of individuals because they are simply private actors.
In relatively short terms, it has been considered for some time now that private individuals are also subject to IHL and the clearest expression of this trend can be found in criminal law trials. Thus already in Nuremberg following the Second World War, a whole series of individuals were tried who were not agents of the State, but private personalities. The most famous of them are important entrepreneurs in Germany, for example in the metal industry, industrialists such as Mr. Krupp or the managers of IG Farben and others. These people were tried by the American tribunal in Nuremberg, some of them by the International Military Tribunal. In Mr. Krupp's context, Mr. Krupp's industries had received a whole series of prisoners of war, in principle protected by the 1929 Geneva Convention, and these people were subjected to extremely hard work with very little food and, if any, with deaths and no medical treatment because in the end one could always replace people with others and therefore why bother. The same is true of more recent criminal trials, where businessmen may have been convicted of IHL violations by the Rwanda Tribunal.
The main problem from the legal point of view since we have towards these atomized individuals and because they do not come into contact so often with IHL. People like us obviously act every day and do a lot of things during an armed conflict, it is possible to steal also during an armed conflict, to kill people during an armed conflict; it is rather rare for individuals to have a sufficient connection with an armed conflict when they commit these crimes because they normally act in a private capacity and this does not bring them into the fold of IHL. Anyone who murdered another during an armed conflict did not commit a violation of IHL, but more normally a violation of the Criminal Code. It is therefore necessary to establish a link with the cause of a party to the conflict. If you take a rifle and kill an enemy soldier, there is obviously a link to the armed conflict with the cause of a belligerent, and that's what makes these cases relatively rare, because people who take a rifle and fight against the other side are normally part of armed groups, so we come back to a square that is different from the one we're dealing with here. But there are cases where the question of the "nexus" as the courts say is quite delicate, that is, if the person is acting on behalf of a belligerent, there are different tests here that are in the criminal law. In any case, these trials show us indirectly that these IHL rules are applicable, because otherwise there would be no war crime - war crimes are nothing more than violations of the law of armed conflict. If the law of armed conflict did not apply to these individuals, then they could not commit war crimes and could not have been convicted of such war crimes.
Last but not least, the special category of private military companies remains. This is now an important issue on which the literature is beginning to abound. These companies are therefore individuals from the point of view of legal analysis: private entities. As long as they commit acts that are related to the law of armed conflict, they are bound by the law of armed conflict and in particular their members, the physical individuals who act for them are bound. And Contracting States, such as the Geneva Convention, have an obligation to ensure that all entities on their territory comply with the principles of the law of armed conflict. This is one of the objectives of Article 1 of the Geneva Conventions. It is because the State undertakes the obligation not to respect the Geneva Conventions, but also to ensure compliance, and this means first of all by entities on its own territory. The doctrine today is in ecstasy before Article 1 for other reasons, always seeing the external aspect in it, and it believes it can say that third States should have to request compliance with the Geneva Conventions when they are not respected, but the original meaning of Article 1 was to say that the State undertakes an obligation also towards other entities on its territory to ensure that they will respect IHL in the event that it should have contact with IHL, which is clearly the case of private military companies.
The problem is somewhat the same as the one mentioned above with regard to armed groups. It is possible to say that private military companies are and that the individuals who work for them are bound, but not much is gained because if these people know almost nothing about IHL, we will not have made much progress. That is why, in order to facilitate the task of these States in controlling these companies, to facilitate their legislative task, but also to make IHL obligations known, there is a whole series of processes and in particular much talk about the Interlaken process because Switzerland has been at the forefront. These are processes of integration, participation and collaboration so that all actors come together and try to improve compliance with IHL and ensure that its cause can be heard.
The other problem with these companies is that they tend to blur the principle of distinguishing between what is military on the one hand and what is civilian on the other, and this is obviously a serious problem. But this is obviously a material problem.
Extension of the conventional scope of application by special agreements
How can entities extend the scope of IHL obligations applicable to them? Sometimes, the IHL legally applicable to a particular entity falls short of the rules that could reasonably be applied to the conflict in question. In a non-international armed conflict, for example, there is no prisoner of war status, therefore no specific obligation to treat captured persons in a certain way except elementary obligations not to torture and so on. However, the law provides for the extension of the obligations assumed, in particular through special agreements. In other words, how can IHL actors go beyond the applicable IHL ex lege, how can they take on the additional obligations of applying rules that are not normally applicable on a strictly legal basis, but that these actors may wish to apply voluntarily. What are these mechanisms to facilitate this extension of the applicable obligations?
There are two mechanisms that we must briefly consider in this regard. The first is enshrined in Article 2§3 of the Geneva Conventions, which is an article common to all conventions. The second mechanism is enshrined in Article 3§3 of the Geneva Conventions, which is also a common provision. Article 2 § 3 is in principle for international armed conflicts, and Article 3§3 is for non-international conflicts.
Article 2 § 3 with two sentences: "If one of the Powers in conflict is not a party to this Convention, the Powers parties to it shall nevertheless remain bound by it in their mutual relations. They shall also be bound by the Convention towards the said Power, if the latter accepts and applies its provisions. What interests us is the second sentence, but the first deserves an explanation. If we are strong in treaty law, we would have understood that in principle what we could legitimately expect is that the first sentence is superfluous, because even if we had not written it, the result would be the same in treaty law. The problem is that the rules in the law of old conflicts such as the Hague Regulation in particular were different and in particular there was a lex speciali on the subject at the time which was divided from the general law of treaties and this old special law was repudiated in the Geneva Conventions in the first sentence of Article 2§3 and moreover the 1929 Conventions had repudiated it and the 1949 Geneva Convention confirms the orientation.
What is it about? This was the old problem with the so-called "si omnes" clause. The special law of before 1949 and 1929 was also the law around the so-called "si omnes" case, which means "so all". The formula is brief and means "if all are bound by a convention". The content of this clause was to say that if there was an armed conflict, a convention adopting the Hague Regulation applied as long as all States Parties to the armed conflict in question were also bound by the Hague Regulation. So there is a conflict that begins between five states that are waging coalition warfare, all five states are parties to the Hague Regulation and it applies in the relations between all states. Let us suppose that a sixth State enters the conflict and that sixth State is not bound by the Hague Regulation. At that time, the clause si omnes, which said that in this case, not only was the Hague Regulation not applied between the parties to the Regulation and the sixth State which was not a party - this is normal and is the law of treaties - but that, in addition, the Hague Regulation was not applied even between the five related States. The reason for this particular clause was military necessity. It was considered that these five States would be placed in a more unfavourable position if they had to apply the Hague Regulation compared to the sixth State, which would have more freedom because it did not accept the treaty restrictions. This would therefore bring about unequal treatment between the belligerents by giving an additional incentive not to ratify conventions because, obviously, if we know that in the event that a State that is not a party to an armed conflict participates in more freedom than another, then we may hesitate to ratify a convention to assume a military disadvantage. However, it already became clear during the First World War that this principle was not practicable, that in a world conflict such as the First World War, there would inevitably be one State or another that was not bound by the Hague Regulations. And stop applying it just in case there is no longer any need to apply it, the Hague Regulations contained provisions on prisoners of war at the time and there were no others in 1907. It was still unfortunate to think that in this case it is not applied because it means that in major conflicts where it is most necessary to apply these conventions, we would never be unable to apply them. This is the reason why, after Montenegro's entry into conflict, which was not bound by the Hague Regulation, the other States decided nevertheless to continue to apply the Hague Regulation and it is from that moment that the clause si omnes declined until it was repudiated in 1929 and then especially in 1949 and is not reflected in Article 2 § 1. This provision is also found in the articles on the denunciation of the Geneva Conventions.
Article 2§3 states that these powers, which are therefore bound by the Convention, "shall in addition be bound by the Convention towards the said Power, if the latter accepts and applies its provisions". So it is sufficient for the sixth State to agree to apply the Geneva Conventions by any means, perhaps by declaration, by a note verbale, to agree to apply and apply the Geneva Conventions and they are applicable. Again, this is a rule that is unique in treaty law. There is no need to ratify or accede to a convention for it to be applicable to us, of course, if we have consented to it.
In a way, a third State assumes all the rights and obligations of the Geneva Convention without ratifying or acceding to it. This is seen as a sign of a desire on the part of the Geneva legislator to make IHL as easily as possible applicable without formalism and without difficulty if only one State is prepared to accept its application. One may wonder why it does not simply ratify or why it does not accede to the Geneva Conventions, this would be easier. States may sometimes hesitate to bind themselves to these conventions in the future for various and varying political reasons. We do not wish to close the door to them as far as the applicability of the rules contained in the Convention is concerned, it will then be sufficient for them to declare that they agree to apply the Convention in a particular armed conflict in progress in order to establish a reciprocal obligation between the parties to the Geneva Convention and that third State which remains a third State and yet is no longer a fully third State because it has accepted for an armed conflict or for a period of time to apply the Conventions. This mechanism is general, it can also be applied to other IHL conventions, including protocols.
In addition, it is possible not only to make the Geneva Conventions applicable, but to go even further if one wishes, of course, and this is the area of special agreements in Articles 6, 6, 6, 6 and 7 of the four Geneva Conventions. In these provisions, it is written that the belligerents may agree to apply any additional rules they may wish in their mutual relationship. These would be rules that go beyond what is provided for in the Geneva Conventions or that respond to requests in the Geneva Conventions. In the Geneva III Convention relative to Prisoners of War, there is a request to belligerent states to consider favourably the transfer of prisoners of war to neutral states. We are asking the States, they can conclude agreements to this effect if they so wish.
There are therefore two mechanisms: 2 § 3 and 6, 6, 6, 6, 6, 7 with regard to international armed conflicts. There is the second major mechanism, Article 3§3, for non-international armed conflicts in principle.
In 1949, but still quite widely, but less dramatically than in 1949; in 1949, when the Geneva Conventions were adopted, the law of non-international armed conflicts was, to say the least, in its "diapers". There was only Article 3 and Article 3 contains very little. The drafters of the Geneva Conventions were therefore aware that they had left many more gaps and that they had not regulated CANI. And, therefore, in order to overcome these shortcomings that had to be left since States had not agreed to go further, there is an invitation in the third paragraph of Article 3 to go beyond the applicable law in Article 3 and to assume other obligations through agreements: by special agreements exactly as provided for in article 6, 6, 6, 6, 7, but this is repeated here in article 3 because for the non-international armed conflict it was particularly urgent and therefore it was thought useful to recall this request in this provision. This was therefore appropriately recalled in Article 3 § 3.
This request is practically the most important in the sense that many agreements have been concluded in non-international armed conflicts in which the belligerents have agreed to apply the whole area of the law of armed conflict, which would not have been automatically applicable, but which the belligerent parties on a reciprocal basis obviously welcomed under the ICRC's request.
To take an old example, there was the civil war in Yemen in 1962. A special agreement was reached between the parties to the conflict, government on the one hand and rebel on the other, which provided, admittedly in a vague but not uninteresting way, for compliance with the essential provisions of the Geneva Conventions beyond Article 3. The parties were not prepared to accept something more concrete, more precise, but what is obvious is that they have gone beyond Article 3. All the major provisions, all the important protection provisions of the Geneva Conventions have been accepted by it through this special agreement.
Another interesting example is the former Yugoslavia with the Bosnian war in 1962. The warring parties agreed to apply a whole series of conventions, including the additional protocols between each of them, in an armed conflict that was otherwise of a mixed but relatively complex nature. This special agreement allowed the Criminal Tribunal for the former Yugoslavia to sometimes manage easily where otherwise it would have had many interpretative difficulties. Because he was sometimes able to say that it was not particularly necessary for him to get more involved in the question of whether a particular act of belligerence had been committed on Bosnian territory in the context of a CAI or in the context of a CANI because quite simply, the belligerent parties had agreed to fully apply the first Additional Protocol and therefore it had legally linked itself to it by their special agreement - the special agreement being a kind of collateral agreement.
Finally, an example that does not touch on non-international armed conflict, sometimes special agreements under Article 3 § 3 and special agreements under Articles 6, 6, 6, 6, 7 are not necessarily very clearly distinguished; even ICRC lawyers sometimes hesitate, Professor Kolb having pointed out to his colleagues once that he was talking to him about a special agreement under Article 3 § 3 and that it was a non-international armed conflict that pointed out to him his thoroughness as an academic lawyer. That's a nice example. There is an Israeli-Arab war, unfortunately there have been many, here we are talking about the 1973 war. However, in this conflict, the parties to the conflict, namely the State of Israel and the Arab States, have agreed by a special agreement to apply the rules on the protection of the civilian population contained in what we now call Additional Protocol I, i. e. Articles 48 et seq. Why is this example remarkable? It is because we are in 1973 and Additional Protocol I was adopted in 1977. This means that the parties did not agree to apply rules contained in an agreement already concluded, but agreed to apply rules that were at the time in the ICRC draft, i.e. rules that were not legally applicable, not yet completed, a legislative project, and they considered that this legislative project was good, agreeing to apply it. This shows that the parties are entirely free to tinker with rules that suit them or to adopt them, and the ICRC can also offer them all kinds of standard-setting services, such as draft agreements so that the parties can benefit from them, perhaps modify them partially and adopt them.
The applicability ratione loci
The spatial applicability is not a huge complication, a few pointed questions, but one that we will barely get into. The general principle of spatial applicability contrasts somewhere with the general principle of human rights is that the principle of effectiveness applies above all, namely that the law of armed conflict is not territorially limited, but that it applies wherever there are situations covered by the law of armed conflict. This raises the question of where there may be legal situations covered by the law of armed conflict.
The theatre of war
The principle of effectiveness is where there are situations covered by the law of armed conflict and where it applies. What this means in practice is as follows: first of all, IHL applies throughout the territory of the belligerents, several when there is an international conflict, possibly only one when there is a non-international armed conflict. It should be noted that the law of armed conflict applies to all the territories of the warring parties, even where there is no combat. The reason for this is that, if an international armed conflict is taken, there are enemy civilians to protect wherever they are on the territory, the applicability of IHL should not be confused with the sole applicability of Hague law, means and methods of warfare, the conduct of hostilities, where it is clear that these rules will be applied where there are hostilities and not in those parts of the territory where there are no hostilities; but IHL is broader. We also know that in different parts of the territory, there may be different types of international armed conflict, non-international armed conflict, but this is nothing new. Nevertheless, it is on all the territories of the belligerents that IHL applies. Secondly, it applies wherever there are in fact battles or situations involving it, for example on the sea, namely the high seas. The high seas are not under the sovereignty of a State, but acts of belligerence can be carried out there, being covered by the freedom of the high seas, so it is possible to attack warships of the opposing State and to exercise control over ships flying various flags, particularly with regard to the control of smuggling. It must be said that these rules have much less importance today, namely smuggling, than in the 19th century when there was an extremely rich practice and literature - which Professor Kolb finds fascinating, namely smuggling and war smuggling.
There is also the applicability of the law of armed conflict in areas where there is no combat, but simply situations giving rise to the applicability of IHL such as occupation. With the occupation of a territory, there is no longer hostility in the occupation phase or very little hostility, but there is the situation of war occupation recognized by IHL as giving rise to the applicability of some of these rules, in this case those on occupation of the territory.
It should be noted that there are no spatial limits because belligerent activities can take place anywhere and that is why if we were to have confrontational military activities leading to armed conflict in outer space, there would automatically be the applicability of these conventions. Would they be well done to govern space warfare activities, that is another question. It will probably be necessary to plan for example hospital ships rather than hospital ships because this could only be applied by analogy to outer space, and it will probably be necessary at that time to have another convention on space warfare that is more specific and meets the particular needs. Let us limit ourselves to noting that, fortunately, for the time being, there are no armed conflicts, even international ones, that even extend significantly into space. There is of course military equipment in space, but no hostility or acts falling on IHL at the moment.
Special regime areas
It should be noted that there are areas that are covered by a special regime, either more intense from the point of view of IHL or less intense in a certain way. There are certain areas which are, for example, health zones indicated by the Red Cross or the Red Crescent, areas where patients are taken in and where the first or even the second is provided with third care. These zones are approved by the belligerents and are spatial in that they are in principle immune to attack. There are therefore certain areas where there is immunity against attack, which is a strengthening of protection from the point of view of IHL. This is an area where IHL applies specifically in the sense that it prohibits attacks. Clarification that the principle of immunity against attack is of course not absolute, if there are hostile acts that are made from a health zone, it is possible to attack it.
In the opposite direction, there are also areas where IHL obviously applies, but where particular risks are incurred if one enters them. One example is mined areas. Warring parties may use mines, anti-personnel mines are prohibited by the Oslo-Ottawa Convention, but there are other types of mines that can be used, including anti-vehicle mines. Mined fields are reported as minefields; it is nothing particular from the point of view of IHL, it is simply that if you entered with vehicles, there are additional risks in an area of this kind since the party has exercised an option left to them by IHL. The same would be true for maritime combat zones. It is rather rare today that we have major sea battles, but during the Falkland/Malwina war in 1982, there were still major naval operations. There have been areas of fighting, i. e. areas where the belligerents had reported that in a particular area there was a risk of military operations between ships. It is clear that in these reported combat zones, IHL continues to apply. Therefore, if you enter it with a civilian ship, a belligerent has no right to simply attack and sink the civilian ship. However, a little like with mines, if you enter the combat zone duly communicated to navigation, you run particular risks, because it shoots in combat zones and then if the civilian ship is sunk obviously without being specially targeted, it is at our own risk that we have entered it.
A thorny problem is the current problem of the scope of battlefield. The problem has increased with the war on terrorism. Some states in the war on terrorism, including the United States of America, but they are not the only ones, claim to be able to attack targets, particularly with drones, in very diverse countries such as Yemen and Pakistan, among others. For factual questions, journalists are useful, for legal questions less so. The problem now is whether IHL applies, whether, in other words, it is exported with every drone that strikes somewhere, whether at that moment, in a certain way, entire regions of the world, an entire part of Africa, the entire Arabian Peninsula, Afghanistan and Pakistan, are all regions of armed conflict. Perhaps, but the problem is that these are not necessarily international armed conflicts because now the United States is not hitting government forces in Pakistan or Yemen or any other country, but they are hitting armed groups, known as terrorist groups. Consequently, we are in a situation of non-international armed conflict, State against armed group. In a non-international armed conflict, there is a criterion of the intensity of the conflict for there to be a non-international armed conflict. Therefore, it is not always obvious that the intensity threshold is reached, especially in more restrictive interpretations. Even if we apply these criteria and even if we have sympathy for the La Tablada case of the Inter-American Commission on Human Rights, which can hardly be considered hostile to IHL, La Tablada nevertheless, attack of a military base with armed groups on a perfectly military base with instruments of war and extremely heavy fighting actually for more than 30 hours, this is not the case of a strike with a drone where one strikes in a few seconds and one or more people die and that's all. Then the question arises as to whether multiple acts can be combined. But even if we add them up, they are sporadic acts. In short, there are problems of this kind in order to decide whether the law of armed conflict applies. If it does not apply, which is not impossible, there is still human rights law and that is why the question of whether these drone strikes are compatible with human rights law is so often discussed. With IHL it would be easier to make them compatible because the freedom to kill in IHL is still greater than in human rights law. As far as human rights law is concerned, this is another matter and we need to discuss IHL in this course.
The final remark on applicability ratione loci is the question of the extent to which the law of armed conflict when it applies to a space eliminates the parallel applicability of the law of peace there. The answer to this question is that if in a certain territory there is an armed conflict and therefore the law of armed conflict applies, this does not mean that the law of peace no longer applies. In reality, it is rather an overlay of legal regimes. There is the law of peace that continues to apply to peaceful relations between States, such as diplomacy - sometimes there are still diplomatic missions with the very States with which you are in armed conflict, and this is even quite understandable because you also have to talk to your enemies and "talk" means diplomatic mission. In any case, there are itinerant diplomatic missions and it is quite obvious that the law of peace, namely the law of diplomatic relations as codified in particular in the 1961 Vienna Convention on Diplomatic Relations, applies to these diplomatic missions.
The state of armed conflict also has an impact on treaties. For example, there are treaties that are suspended or even terminated upon the outbreak of armed conflict. A treaty that is typically considered terminated is an alliance, this is really very incompatible between States in a state of armed conflict that were formerly allied States; there are others that are suspended as trade treaties for example; there are others that apply on the other hand. Obviously, the entire law of armed conflict applies when there is an armed conflict. There is a whole doctrine on how armed conflict interacts with treaties concluded by States. Of course, a distinction must also be made between bilateral and multilateral treaties. The International Law Commission has been studying this subject of the impact of war on treaties and so we can read in the literature or look at the website of the International Commission - the rapporteur on this subject, Mr Brownlie, died in a car accident and therefore in a way he dealt with violence and the impact of violence on treaties that did not bring him luck.
The applicability ratione temporis
Applicability ratione temporis is the temporal applicability of the law of armed conflict. The question here is from when this right applies and until when it applies.
The beginning of applicability
The beginning of application is relatively simple, except in two cases which are always the troubles made. The simple principle is that the beginning of the application of the law of armed conflict is confused with the different material thresholds of applicability of the law. We have defined what armed conflict is and therefore, from the very first act of hostility, IHL applies. There is a threshold of entry and declaration of war: as soon as a declaration of war is declared, which is a proclaimed ace, it is possible to date it very precisely, the law of armed conflict applies. As far as occupation is concerned, the situation is different.
Which cases are a little more complicated? There are two of them.
First of all, the war occupation. It is not so obvious to define when a war occupation begins for the simple reason that the establishment of an occupation is a gradual act. What happens during an occupation is first of all the invasion. There is an invasion phase, then a consolidation of the invasion and an establishment of the occupation, but all this is done gradually and that is why it is not so obvious to say that the territory is now occupied. The invasion is when the first tank, the first soldier enters the territory. Then, at some point, when the enemy resistance is broken, so there is no longer any act of belligerence on a large scale, there may still be some pockets of resistance, but no more than that, and control is established over the territory. The most obvious outward sign of all this is the establishment of an occupation administration. At the latest, when the administration is established by the occupying power, at the latest at that time, we are sure that there is an occupation of the territory. We will see that some provisions already apply to the invasion phase. With the occupation everything is very complicated. What is sufficient for us is to remain aware that the question of occupation is gradual at the beginning and that this therefore poses additional problems in order to determine applicability.
The second case, which is also complicated, for the same reason, because it is a gradual phenomenon, is that of non-international armed conflict where, because of the intensity required, we are also confronted with a gradual situation, at least in most cases, therefore, the beginning of the application of this right can rarely be determined with ultimate certainty, we will be in ranges.
The general end of military operations
When does the law of armed conflict cease to apply? There are several hypotheses here. The first is that this right should cease because the material situations giving rise to its applicability should cease on their side. So, for example, in an international armed conflict, if both belligerent States conclude a peace, separate or comprehensive, then the armed conflict is over and the law of armed conflict no longer applies. It is also necessary to consider a second way to achieve a termination, also called "end" or "extinction". This way is simply to denounce, and therefore withdraw from, a convention because once you have withdrawn from a convention, it will no longer be applicable in our relations with other States. We must therefore consider the two questions: cessation of applicability because the material facts are lacking; but also what about denunciation, can we denounce conventions on the law of armed conflict, can we denounce the Geneva Conventions, can we denounce the additional protocols and if so, what is the effect of this denunciation?
How does the law of armed conflict cease to apply because the situations that gave rise to its applicability are disappearing? The fundamental rule in this matter is that the termination of the applicability of IHL is not done at a single date and in bulk, but in successive waves according to the various provisions. So, we go out in stages and at times staggered in time.
There are three exits that we can call objectives. By this, Professor Kolb means that material reasons disappear, unlike subjective reasons to end the applicability of IHL, this is typically denunciation.
First, in the objective, in the end of the situations giving rise to applicability, there is, as far as The Hague law on the conduct of hostilities is concerned, the "general end of military operations". It basically makes sense to say to ourselves that when military operations, belligerent operations are over, then Hague law no longer applies.
Then, for Geneva law, which has a different termination threshold, it is not the general end of military operations for Geneva law. For Geneva law, it is rather the end of detentions, internments and beyond that the restitution of property. And then, as always, the occupation still has a separate regime because the occupation is truly complicated and in no way blends with the other rules making somewhere separate band, the occupation is a prima done. As far as the end of military operations is concerned, this way out is found in Article 4 of the Geneva Convention, repeated in Article 3(b) of Additional Protocol I. By analogy, it is obviously also applied in non-international armed conflicts.
What does "general end of military operations" mean? This means the effective and definitive cessation of hostilities. And this is normally done by a general armistice, which is obviously definitive. This is what distinguishes the armistice from "ceasefires", which are not in essence definitive. The conclusion of an armistice is only one possibility. There are others. There can be an unconditional surrender and which is therefore even definitive. In the past, there was also what was called "defrosting". Defrosting was formerly the decapitation of a state by the collapse of all government structures, so that the winning state assumed the state government and then the territory. This is also the reason why today we no longer talk about defrosting since there is no longer the right of annexation. But in the past, debellatio was one of the ways to stop military operations by collapsing the enemy's government structures. In the case of Germany at the end of the Second World War, we sometimes refer to it as "quasi debellation" because there was a collapse of the government and the allies assumed the government functions for Germany well. The difference with a defrosting in the legal sense of the term is of course that the Allied Powers never intended to annex German territory, quite the contrary.
The "general purpose of military operations", the term "general", was used wisely because it means that as long as military operations have not ceased, not only between two belligerents, but also between their allies, there is no general purpose for military operations, only a partial purpose for military operations and Hague law is obviously intended to continue to apply. If we conclude an armistice like France, for example, during the German invasion, but allies continue to fight, like the United Kingdom, there is obviously no general end to military operations.
The issue of the Geneva Conventions
The second threshold is that of Geneva law, i.e., in particular, the Geneva Conventions, the protocols insofar as the protocols deal with Geneva law and not the conduct of hostilities, the end of detentions and internments. This is the purpose of articles 5, 5, 5, 5, 6 of the Geneva Conventions I to IV. It is easily understandable that as long as there are still detainees, such as prisoners of war, they must be covered by the Geneva III Convention in the case of prisoners of war. As long as there are civilians who have not been released, Convention IV must apply to their profits. It would still be doubtful if we could say that Geneva law stops at the end of military operations, that is, with the definitive armistice, and from that moment on, prisoners of war no longer enjoy protection under Convention III, because it is obvious that they will still be detained for a certain period of time.
The general end of military operations is an act, the armistice, but then all repatriations must be organised, it takes a certain amount of time; it would still be strange if the conventions did not apply and prisoners of war were no longer protected during this period. The same applies to all other protected persons. This is why these conventions remain applicable as long as there is a prisoner of war who has not been released, a single wounded and sick person who is still in the control of the opposing party, a single civilian who has not yet been released, such as a civilian detained in a camp as in Article 79 et seq. of Convention IV. This can take years. In the Iran-Iraq war, it was in the early 2000s that the last prisoners of war were released, it seems, at least the last ones. Professor Kolb does not know if we can talk about liberating, speaking rather about the resituated coffins, could we say. This means that an armed conflict can last for a very long time. The law of Geneva may still be applicable for 20 or 30 years because of the 1967 conflict if there are still people in detention or people whose fate is unknown.
The Geneva Conventions deal mainly with protected persons and do not specifically contain rules on property, sometimes yes, but indirectly by referring to property belonging to protected persons. However, it is also clear that as long as property to be returned to its owner remains confiscated by the opposing power and such property has not been returned, Geneva law also remains applicable. The Eritrea-Ethiopia Commission reminded us of this. So, if cars are requisitioned and not yet returned to their owners, if personal objects of prisoners of war are removed, particularly objects that may be dangerous in a prisoner of war camp, personal weapons for example, but also too large sums of money or too large values that are confiscated when a prisoner of war enters the prison camp. It is to be returned at the time of release. Until this has been done, there are also the relevant provisions that continue to apply until such restitution has taken place. That is the usual threshold of the Geneva Conventions, which is staggered over time according to the releases of the persons concerned.
The war occupation
Thirdly, there is the war occupation. There are two major difficulties in determining the end of the right of war occupation. The first concerns disappearance as a result of the occupation itself. When does an occupation end as a fact in the field? It is easy to tell when a person is released, that is, when he or she is no longer interned. It is not easy to say when a territory is no longer occupied. Better still, it is obvious to say so in some cases, but not in others. A second difficulty comes from this unfortunate Article 6§3 of the Geneva Convention IV.
Determine when the fact of occupation comes to an end
The first set of problems is to determine when the fact of occupation comes to an end. The classic case is the only simple case is that the army that invaded the territory and settled there withdraws. At that time, the occupation ends by evacuating the occupied territory. This corresponds more or less to the case of the end of internment and detention as far as persons are concerned. But now come the more complicated cases.
We know that war occupation requires a hostile presence. So when is it if an occupying power remains in the occupied territory, but argues that from now on it is not there as a hostile power, but at the invitation of the new government of the occupied territory, which wants the former occupier to remain on its territory? If the consent to remain in the territory granted by the local government to the occupying State were to be taken legally seriously, the result would be that the occupation would be over since the occupation implies a hostile relationship, and that, on the contrary, when the local government empowered and invites a foreign power to come militarily to the territory, this territory is not occupied, otherwise Mali should be a territory occupied by France since 2014, if not before, but this is obviously not the case.
The great difficulty in this respect obviously comes from the point of determining when local government can freely give its consent for the occupier to remain. It is legitimate to believe that this local government, which can ultimately only enjoy its place following the good will of the occupier, is too dependent on the latter to freely express a will. Consequently, there are significant problems in history related to the end of the occupation with divergent arguments. A classic case is Iraq, and even today, lawyers do not know exactly when the occupation ended; there is indeed an official version which is on 27 June 2004 with the departure of the Bremer administration. But, the first Afghan government with the occupation phase being anything but truly independent of the Americans being composed largely of former CIA agents and therefore, frankly, its independence is questionable. The fact remains that, subsequently, there were free elections and a new Afghan government, and from that moment on at least, the invitation could legitimately be given. Perhaps we have read in the press that now the Americans want to get out of Afghanistan relatively quickly and that it is the Afghan government that is holding them back as best it can. In March 2015, the Afghan Prime Minister was in the United States to ask that the United States stay. It should also be recalled that the Soviet Union argued in the 1950s that Japan continued to be occupied by the Americans, except that of course the Japanese freely want the Americans to stay because they felt increasingly surrounded by communist countries. In short, there are always discussions on the legal capacity of the local government to invite foreign forces because its real independence and therefore the freedom to formulate this invitation will be questioned. This makes it difficult to determine when the occupation ends.
Two other cases should be mentioned, not being of the same kind, but nevertheless. First of all, there is the so far still rather theoretical question of whether the Security Council could end an occupation by simply declaring it over. It is true that this situation has not gone too far in the Iraqi situation as mentioned in 2004, since Security Council Resolution 1546 provided that this occupation would end on 30 June 2004, which was the date on which the American Bremer administration had to withdraw and the new Afghan government took over power. Then, the actual departure was on June 27.
Could the Security Council in a binding resolution under Chapter VII of the Charter of the United Nations declare that a certain situation is no longer a war occupation and that it ceases on a certain date or that it has never been a war occupation, and if ever the Security Council did so, would this decision have priority over IHL, at least by treaty, because of the joint effect of the effect of Articles 25 and 103 of the Charter and over customary law of armed conflict under the principle of special lexi?
The question remains open and can give rise to very interesting debates on the limits of the Security Council's power: is the Security Council bound by IHL, is IHL a limit to its powers that it would not exceed; this is a very interesting debate among lawyers. However, the question is complicated if it were to arise. In Resolution 1546, it was in the preamble and it was like a simple factual statement, but it was a simple description of an anticipated fact. The Security Council has not taken a position on this issue in an operational paragraph. This was a recital in the preamble. If this had been included in the body of the resolution, we would probably have had more discussions.
Let us also mention situations such as those in Gaza. The occupied territories in Palestine are particularly complicated in every respect and here is a very good example. Gaza has ceased to be occupied since the withdrawal of the Israeli army and there is no doubt about that. If we do not occupy a territory with a physical presence, then we are not occupying it in the traditional sense of the term because a whole series of obligations of the right of occupation cannot be applied, it implies physical presence on the territory. When it comes to civilian life, hygiene and protecting museums, we cannot do all this from the outside. Nevertheless, it was formerly an occupied territory and Israel has retained almost complete control over all the borders of Gaza, there are some corridors to Egypt.
Consequently, Gaza is completely controlled outwards by Israel on the common border and at sea by exclusion zones, and one may wonder whether the right of occupation should not continue to apply at least on certain points. Not all the provisions, of course, but at least for example the provisions governing the responsibility of the occupying power for the supply of the occupied territory, because Israel still controls the supply very largely, opening or closing the border. Should we therefore continue to apply at least these provisions, would the occupation continue partially and functionally in relation to some provisions and not others because of effective border control; the question has also stirred up doctrine and minds, and as we can imagine, there are not uniform answers.
Article 6 § 3 of the Geneva Convention IV
The second difficulty is the unfortunate Article 6§3 of the Geneva Convention IV. This provision was inserted in 1949 for very adventitious reasons, namely because of the occupation of Germany in particular and all its specific features. It was provided for in that provision and it is still provided in that provision that the right of occupation must apply in full for one year after the general end of military operations and that, following the expiry of that period, only certain provisions of the convention would continue to apply; which means, on the contrary, that all the others cease to apply one year after the general end of military operations if, of course, the territory is still occupied.
This is a branch of provisions that must apply if a territory is occupied even beyond the time limit of one year after the end of military operations, the other provisions no longer apply.
The purpose of this limitation was to ensure that the powers occupying Germany had some freedom in managing this very particular situation in which the aim was to rebuild the State. The main humanitarian provisions in particular have therefore been reserved. That is, it has been more or less recalled that the occupying power even after one year following the end of military operations should not make "crap" in the occupied territory, says Professor Kolb, and therefore these provisions have been inserted, which are supposed to contain the most important humanitarian protections. On the other hand, from an administrative point of view, we wanted to give the occupying power more freedom.
It should be added that this singular provision also stems from this old conception that prevailed totally in 1949, namely that the war occupation is an incident of war and that it is called upon to end very quickly after the end of military operations. In other words, and more simply, we did not think that there would be any prolonged occupations. It took the experience of the occupied territories of Palestine for us to change our minds and, in Additional Protocol I, to go back and bring the end of the law of military occupation back into line with what was provided for in Article 42 of the Hague Regulations and which still constitutes customary law today, namely that the law of occupation lasts as long as the occupation lasts. That is the only logical rule in the end. There is a right of occupation and this must apply as long as the fact of the occupation where it persists. This was the rule of Article 42 of the Hague Regulation, and is again the rule in Article 3(b) of Additional Protocol I. This is not the rule for parties to the Geneva Convention IV under the previous provision.
This creates some legal difficulties. Why? Why? First, because it is obvious that, as far as the parties to Convention IV who are also parties to Additional Protocol I are concerned, for these States, in their mutual relations, the rule in Article III of Additional Protocol I, i. e. the former rule, prevails: the right of occupation lasts as long as the occupation lasts. The reason is simply the lex posteriori. But for States that have ratified only Convention IV and not Additional Protocol I, the latter is not applicable in their reciprocal relations and in their relations with States Parties to the Protocol, only applies the rule of Article 6 § 3, so the additional question arises as to whether this rule has been repealed by subsequent practice. Indeed, it has not been invoked since 1949. Even Israel has not invoked it for the occupied territories in Palestine. It must be said that Israel was in any case placing itself from the point of view of Convention IV, which does not apply legally and formally, and therefore it would have been inappropriate to argue that Article 6§3 applied. But still, they didn't invoke it. The only passage where there is an invocation is the International Court of Justice in the wall case and it actually cites Article 6 without going into the question of what really still applies.
Here again, opinions diverge in doctrine. Professor Kolb himself argued that Article 6§3 was no longer applicable. In 2015 he still believed in it, and in reality, we must be honest and say that there are also different visions on the issue and that a certain margin of interpretation and complexity in this area is therefore opening up, which is not appropriate.
It only shows one thing. When legislating, it should never be done with special cases in mind, especially when these special cases are truly quite singular. We do not legislate with Germany in the lead, occupied Germany, we legislate by thinking of general categories, because hard cases made that law.
The objective end of applicability: end of armed conflict and/or captivity; problem of occupied territories
"Termination" would seem to be in a vocabulary that is a little more familiar to us, except that "termination" is reserved for private contracts and that the denunciation and the term used for treaties. By the way, denouncing a treaty has absolutely nothing to do with denouncing something in the sense of attacking someone because they would have done something wrong. It is not I Accuse of Zola who is at issue here.
Can we denounce humanitarian conventions such as the Geneva Conventions, for example? This question should not be approached in a dogmatic way, but it should be approached in accordance with the law of treaties. By dogmatic approach, we mean that we must not say that these are humanitarian provisions, so of course we cannot denounce them. This is a mistake that some students make quite often and, in Mr. Kolb's experience, more often in Berne than in Geneva. He assumes that this is because there are many human rights classes in Berne, because his colleagues in Berne are human rights specialists with a reasoning that is "a little bit twisted", because people believe that we live in a world different from the one in which we live. If we simply apply the law of treaties, the first thing to do is to look, to take a look at the conventions concerned to see if they have express clauses that allow denunciation. If they have such clauses, they should obviously be applied since the parties have agreed that the agreement in question can be terminated. If we do this for humanitarian conventions, we quickly discover that many of the conventions and in any case those we have mentioned so far, such as the Hague Regulation, the Geneva Conventions and the Additional Protocol, therefore, all the most important clauses contain denunciation clauses. As far as the Geneva Conventions are concerned, they are Articles 63, 62, 142, 158 of Convention I to IV. As far as Additional Protocol I is concerned, it is Article 99.
What can be said is that these provisions have never been implemented to date since no State has submitted a letter of denunciation to the depositary, i. e. Switzerland, to date. No states, including the United States in 2001, 2002, 2003, which was the phase in which they criticized the Geneva Conventions; no letters of denunciation. The question is therefore from a practical point of view not very pleading, but it is possible to denounce. Under what conditions can this be done? This is specified in these provisions, which are all cast in the same mould. So there is the same content. The above-mentioned provisions state that, first, the denunciation takes effect one year after the notification to the depositary. So there is a notification that the depositary receives and it is one year after it takes effect from date to date. In some treaties, the exact time is even specified because there are different times, particularly with regard to financial agreements, because in financial matters it can make a difference, but it is not IHL.
It is specified that denunciation cannot have effect in an armed conflict that has already begun. So, if an IHL convention, in this case the Geneva Conventions in the provisions mentioned above, is denounced during an armed conflict, not only will the one-year rule apply, but not only will the rule that until the end of the armed conflict, we will not be released from the obligations incurred. The aim is obviously not to allow States to avoid exactly when they should apply the conventions because the temptation could obviously be relatively great to be a party to the Geneva Conventions as long as the weather is fine and when applying them, to take a freedom through denunciations. So, not until the end of the armed conflict in question, and we have seen that this can mean for another ten or twenty years, because if there are still people in detention, prisoners of war, etc., it can mean that these conventions will be in force for a very long time to come.
Denunciation applies only to the person denouncing, so it is the person who is released from obligations under the conventions, but the other parties to the Geneva Convention remain bound by each other. This goes without saying in treaty law, but it is a reaffirmation, it is recalled that the clause so omnes de s'applique plus en DIH. The second trace of the clause so omnes can be found here.
And last but not least, these clauses remind us that general international law and the Martens clause remain applicable even if and when conventions are denounced. This reminder is also superfluous in legal matters because it is obvious that general international law remains applicable, but it is not entirely by chance that this clause was inserted here. In a way, States are reminded that there is little point in denouncing the Geneva Conventions because the vast majority of the obligations contained therein are customary obligations, although a denunciation does not free up almost anything in substance, but it also gives a very bad image. This is probably also the reason why no State claims today and probably for some time to come to denounce these conventions.
It should be noted that it is possible to denounce them legally, under the conditions we have just mentioned.
- “Les Conventions De Genève De 1949 Et Leurs Protocoles Additionnels.” Humanrights.ch - Le Portail Suisse Des Droits Humains, www.humanrights.ch/fr/droits-humains-internationaux/humanitaire/conventions-de-geneve/.