Friday, July 14, 2006

Is the Israel-Hezbollah conflict an international armed conflict?

Roger Alford, over at Opinio Juris, asks whether the escalating conflict between Israel and Hezbollah is an international armed conflict. Another of Opinio Juris' contributors, Chris Borgen, addresses in the comments section the issue of attributing state responsibility to the state of Lebanon. That is essentially a question of jus ad bellum. I briefly here address the jus in bello question - under international humanitarian law - of whether the conflict is an international armed conflict within the meaning of IHL. My comments here don't have any particular axe to grind - this is just my blackletter law response.

The determination of what constitutes an armed conflict for purposes of international humanitarian law (I am using that term here, rather than law of war, because law of war can be used to denote both jus in bello and jus ad bellum issues, whereas here I refer specifically to jus in bello, the conduct of war) is a factual determination, established by the fact of fighting between parties that rises to a level legally constituted as armed conflict. Whether that level has been reached in any particular conflict is a question of facts-and-circumstances, and often disputed by the parties (usually in the case of a government denying that rebel activity rises to the level of an armed conflict) because of a view that admitting of an armed conflict gives legal rights to the other party. Although the ICRC and other war monitors typically try strenuously to deny that characterization of fighting as an armed conflict grants any political legitimacy or status beyond the activation of methods-of-fighting obligations under international humanitarian law, the perception of many parties is that such characterization does. In this case, however, no one would reasonably dispute that the level of fighting - with Israel's military fully engaged, and Hezbollah using rockets and drone aircraft, going on for days with significant casualties - meets the level of fighting to constitute an armed conflict.

The question then becomes, is there something about the nature of the parties that might preclude a party from being a "party to a conflict" in the meaning of IHL? Can a transnational terrorist organization, for example, such as Al Qaeda, be such a party to a conflict? What about Hezbollah? In the case of Al Qaeda, the Supreme Court in Hamdan appears to have assumed that in the case of a terrorist force such as Al Qaeda, its fightersare not only liable to be tried for war crimes, but also to be treated as illegal combatants for the systematic violation of the laws of war by the party itself - and hence not entitled to Third Geneva Convention protections as POWs. At least, the Hamdan court did not appear to challenge those baseline propositions.

The Hamdan majority found, however, that although Al Qaeda fighters could presumably be treated as illegal combatants, the United States was still obligated to treat its members in accordance with Common Article Three of the Geneva Conventions, which governs armed conflicts in the territory of a state-party with a non-state actor, typically a rebel group. The territory, in the case of Hamdan, was Afghanistan, not the United States, but literally within the language of the Common Article Three; the fighting was against a party, even one that fought in a manner that deprived it of legal combatant status, but still, a party, and hence covered as a party to a conflict within the language of Common Article Three. The fact that its methods were terrorist did not eliminate its status as a "party" within Common Article Three. The Hamdan opinions wander around a good deal more than this, but that reconstructs the basic and most sensible argument in favor of the application of Common Article Three.

The argument against finding that Common Article Three applies to Al Qaeda lies partly in the history of Common Article Three - it was drafted to apply to civil wars, internal typically but also those involving cross border conflicts between a government and rebels based across the border. It was not drafted, and not imagined by its framers, to apply to a genuinely transnational, non-territorially based group for whom any particular territory was merely opportunistic. This will seem slightly pointless to the pure lawyers merely parsing language, but the law of war frankly doesn't make much sense without an understanding of the practicalities. Common Article Three was not drafted to apply to all forms of violence, even political violence - the drafters had lengthy debates on how to exclude more minor violence that did not rise the some agreed level of armed conflict - attacks on police stations, for example. Nor did anyone believe that Common Article Three applied to purely criminal activities - transnational drug trade, for example.

One of the problems with Hamdan, perhaps, is that it does not seem on its own terms to say that anything rising to the level of systematic violence - the levels of violence in the drug trafficking trade along the Tijuana border, say - does not fall within Common Article Three. Political, nonpolitical - the Conventions are deliberatley silent as to motive. What under Hamdan obviously excludes such as large scale gang wars along the borders, entirely about control of the drug trade, and being fought by US miltary forces including National Guard units, from Common Article Three? Drug trafficking, obviously, is a domestic crime. Terrorism is a likewise a crime under domestic criminal laws, and if your whole combatancy is both illegal as to method and consists of "merely" sporadic, albeit horrific, violence, in what sense do you rise to be a "party to a conflict"? Why are you not simply terrorists - wherever you happen to be found?

That is a strong argument, I believe, with respect to Al Qaeda - except not so strong with respect to the war in Afghanistan. There, Al Qaeda took a stand, took a stand much more akin to what a party to a conflict does, in a particular place, against military forces. But let me leave that aside to return to Hezbollah.

In the case of Hezbollah, the determinination that it is a party to a conflict within the meaning of Common Article Three is actually much easier, because it fits much more classically the motivating idea of this 1949 innovation in the law of war - it is not a genuinely transnational group such as Al Qaeda. It is territorially based in a way that Al Qaeda is not. It is fairly easy to conclude that it is a party to a conflict in the minimal Common Article Three sense. What does that net members of Hezbollah captured by the Israelis? Editorializiing a little here, something less than many commentators on Hamdan seem to imagine it means. No one on any side can be summarily executed; Common Article Three provides a limited set of humanitarian guarantees.

(Note, although not applicable in this case of an armed conflict that goes crossborder, nothing in international law prevents a state from prosecuting captured insurgents who are its own citizens for treason, insurrection, rebellion, murder in the case of any killings done including those of government soldiers, etc. Common Article Three is not an amnesty and not a get out of jail free card for rebel forces. It simply says that rebels cannot be punished without some non-summary proceeding.)

This is another way of saying, therefore, that the Israel-Hezbollah conflict is not, on first pass, an international one, because Hezbollah, while a party to a conflict, is not a party to the Geneva Conventions. It is not a high contracting party, and cannot be one. Its armed conflict with Israel is therefore governed by Common Article Three - on both sides, how Israel must treat its fighters and how Hezbollah must treat Israel's. Note, however, that Common Article Three contemplates that it is to be treated as a temporary condition, with the aim that the parties, without, at least in theory, granting any political concessions, will agree to apply full or at least fuller Geneva Conventions protections bilaterally in the conflict. (This rarely happens, because parties see this as a further step toward legitimacy.)

Now, what could be argued that would complicate this picture? Well, if the actual state forces of Lebanon were to be involved in the fighting, the armed conflict between these two parties, Israel and Lebanon, would be an international armed conflict, with full Geneva Conventions applied. They are each high contracting parties, and in any case, as a matter of customary international law, all states - emphasize states - are bound by the 1949 Conventions. The general view is that when you have mixed parties - two states fighting, say, with some rebel group operating separately as a party - then you characterize the conflict with respect to each party. (Some have argued, although this has not been generally accepted, that such a war becomes internationalized as among all the actors once two states are involved.) As between the two state parties, full Geneva applies; as between a state party and a nonstate actor, Common Article Three applies. So the second pass at the question is to say that an armed conflict between Israel and Lebanon is international, but the conflict between Israel and Hezbollah - or, for that matter, if somehow it happened - between Lebanon and Hezbollah - would be Common Article Three.

But now the complication. In the case in which fighting groups, even though politically separate in some sense, become sufficiently intertwined in command and control in a practical, operational, factual sense, then it has been argued that they then take on the character of the force which has such command and control. Thus, for example, in the situation of Al Qaeda in Afghanistan, Amnesty International argued that its fighters had become sufficiently intertwined and mingled with Taleban (presumed by AI to constitute government forces) forces and commanded as government forces to "internationalize" the conflict and bring them all under full Geneva - a view rejected by the United States, certainly. One might, in the Al Qaeda in Afghanistan, have argued equally forcefully on the facts that in fact Taleban forces had been under essentially Al Qaeda control and that nominally government forces had become in effect privatized.

In any case, given Hezbollah's place in the Lebanese government, it is not implausible to argue that its forces are, in some sense, Lebanese government forces. That said, however, at least at this point, it seems wrong to say even though Hezbollah is a minority party in government, its forces in the field are under Lebanese government command and control. This would argue - very strongly, I would say at this point - for not treating Hezbollah forces as those of a state-party to the Geneva Conventions, entitled to full Geneva protections. It is a very big step, in my view, to get from Hezbollah militias to the forces of the state of Lebanon.

Thus, at this point in the unfolding of this latest mess in the Middle East, it seems to me a Common Article Three conflict, a non-international armed conflict, between Israel and Hezbollah.

ps (July 15, 2006). I should add one thing concerning "internationalized" armed conflicts. The standard I have mentioned above is one that I have drawn more or less from the ICRC - essentially who is making decisions, particularly decisions concerning committing war crimes, what I have called a command and control standard - if you are a state essentially running the insurgent group, then, on this view, the full Geneva Conventions are triggered, because the group whose decisions you control make them essentially you. You cannot claim that the state and the insurgent group it is sponsoring are separate for these jus in bello purposes. The International Court of Justice, and the Yugoslavia tribunal in the Tadic case, took a somewhat different approach to attributing responsibility to a state sufficient to trigger the full Geneva Conventions. The court in Tadic, for example, focused on whether the non-state actor was a 'de facto agent' of the state. Here is Professor Steven Ratner's useful non-technical description of the legal standards from the law of war training manual, Crimes of War, on "international and non-international armed conflicts" (the website, run by Anthony Dworkin, is a very useful place for discussion of all sorts of laws of war issues, here; I served as legal editor of the original 1999 book):

One such hard case, all too typical these days, is a civil war with foreign involvement or provocation, but without the foreign State's resort to the classic acts of war. What level of such involvement in a case like Bosnia or Zaire is enough to trigger the Geneva Conventions? International law offers no precise answers to this question. The International Court of Justice has held that a foreign State is responsible for the conduct of a faction in a civil war if (a) the faction is a de facto agent of the foreign State or (b) the foreign State otherwise orders it to commit certain acts. The UN's Yugoslavia Tribunal held in the Tadic case in 1997 that the de facto agent standard applied to trigger the Geneva Conventions; it went on to find that the Bosnian Serb army in that particular case was not a de facto agent of Serbia, that Serbia was thus not a party to the conflict, and that the conventions did not apply. The International Committee of the Red Cross Commentary to the Geneva Conventions suggests a lower standard, focusing on who had made the decision leading to the illegal acts. The issue remains unresolved.

That said about "internationalized" armed conflicts, the normal rule is you proceed party by party, each with respect to each other party to the conflict, to determine what law applies in that case - full Geneva or Common Article Three. In the Israel -Hezbollah - Lebanon case, in a strictly jus in bello sense, the sense of the standards described above, it does not appear to me at this point that the Lebanese government has command and control over Hezbollah that would make Hezbollah forces its own; hence the conflict is not internationalized as between Hezbollah and Israel. I emphasize that this analysis is strictly one of jus in bello, not jus ad bellum.

6 comments:

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Kathy R. said...

More controversially, the law of international armed conflicts applies when a state is directing hostilities against a transnational armed group on the territory of another state without the agreement of the latter state (e.g., Israel in Lebanon in 2006, if we consider the acts of Hezbollah not to be attributable to Lebanon).”
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