Definition and General Legal Regimes
DEFINITION – TRANSNATIONAL ASYMMETRIC ARMED CONFLICT
This study addresses legal aspects arising from transnational asymmetric armed conflict (TAAC) in international humanitarian law (IHL). It is imperative to note, however, that neither the term “transnational” nor “asymmetric” are legal terms per se. Both are terms connoting factual situations that might give rise to complex questions of legal interpretation, which we hope to clarify here; but in and of themselves, the terms are not currently recognized as distinct categories of conflicts in positive international law.1
While transnational armed conflicts are often also asymmetric, there is no necessary correlation between the terms. Indeed, transnational armed conflicts can theoretically be symmetric (for instance, when the non-state actor across the border operates in scope and methods that resemble regular armed forces of a state; or, conversely, when both parties—state and non-state alike—employ guerilla tactics); just as international armed conflicts can be asymmetric (for instance, when a regular army faces decentralized armed resistance during occupation).
The term TAAC can be elusive. When we use it in this document, we refer to a situation in which the following factual conditions are cumulatively fulfilled:
a. the existence of an armed conflict in which a state deploys its regular armed forces against a non-state armed group operating from outside the state’s territory;
1 See noaM luBell, exTraTerriTorial uSeof force aGainST non-STaTe acTorS 126 (2010).
b. the actions of the non-state actor are not attributable to the territorial state, if such a state exists;
c. the deployment of the forces is not an intervention in an internal armed conflict, conducted with the territorial state’s consent; and
d. the non-state actor, either by choice or on counts of its limited capabilities, employs tactics resulting in a challenge to the traditional IHL concepts of combatant-civilian distinction, or the distinction between military and civilian objects.2
In condition (a) of our definition, we presuppose the existence of an armed conflict, at least at some point in time, which is a precondition for the application of IHL in a specific case.3 As put—albeit not in the context of transnational conflicts—by the Appeals Chamber of the ICTY in the famous Tadic case:
An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state.4
The determination whether an armed conflict exists in a specific instance is crucial, since if this is not the case, state actions are regulated strictly by the international law of human rights (IHRL)—a body of law which severely restricts the use of lethal force,5 and which might very well apply
2 See also Eyal Benvenisti, The Legal Battle to Define the Law on Transnational Asymmetric Warfare, 20 duKe J. coMP. & inT'l l. 339, 341–342 (2010).
3 See, e.g., Laurie R. Blank & Benjamin R. Farley, Characterizing US Operations in Pakistan: Is the United States Engaged in an Armed Conflict? 34 fordhaM inT’l l. J. 151 (2010).
4 See Prosecutor v. Tadic, Case No. IT-94-1-A, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, 70 (Oct. 2, 1995). We thus exclude instances in which, for example, a state abducts an individual from the territory of another state, such as the famous 1960 Eichmann abduction from Argentina by Israeli agents; or the Turkish abduction of Ocalan from Kenya in 1999. Compare luBell, supra note 1, at 2–3, 9. a recent case is the extraterritorial abduction of alleged Hamas operative Dirar Abu-Sisi by Israeli agents operating in the Ukraine. See
‘Abducted’ Palestinian Dirar Abu Sisi on Hamas Charges, BBc newS (apr . 4, 2011), available at http://www.bbc.co.uk/news/world-middle-east-12957071.
5 See Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Study on Targeted Killings, ¶¶31–33, Hum. Rts. Council, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 2010) (by Philip Alston); see also nilS Melzer, inT’l coMM. red croSS,
also to a state’s extra-territorial actions.6 Indeed, some threshold for the existence of armed conflict must be determined, since otherwise states could always derogate from—or even abrogate—their human rights obligations, by arbitrarily declaring that a certain situation amounts to an “armed conflict.”
Nonetheless, the application of the Tadic standard to specific cases, assuming it can be extended to TAACs, can encounter difficulties. This is especially true in instances where forcible actions are taken against decentralized transnational bodies such as al-Qaeda (the so-called “global war on terror”). The question whether such circumstances amount to
“armed conflicts,” or should be dealt with exclusively as an issue of law enforcement, has generated much controversy.7 However, in this study we are only concerned with cases in which it is obvious that the threshold of armed conflict has been crossed, at least at some point.8 Such cases may be found, for instance, in the fighting between various groups and the US in Afghanistan (but not necessarily elsewhere);9 the conflict between Israel and Hizbullah in 2006 (assuming Hizbullah’s actions were not attributable to Lebanon);10 the warfare between Turkey and the PKK in northern Iraq;11 or, perhaps, the conflict between Rwanda and Hutu militias operating in the Democratic Republic of the Congo, during certain stages of the Congolese Conflict, which has taken place intermittently since the mid-1990s.12
In condition (b) of the definition, we limit the term TAAC only to conflicts against non-state actors where the latter’s actions are not attributable to the territorial state. This is since state-attribution necessarily transforms
inTerPreTive GuidanceonThe noTionof direcT ParTiciPaTionin hoSTiliTieSunder inTernaTional huManiTarian law 24 (2009) [her einaft er ICRC DPH].
6 See infra sec. IV.2
7 See, e.g., Rosa Ehrenreich Brooks, War Everywhere: Human Rights, National Security and the Law of Armed Conflict in the Age of Terrorism, 153 u. Pa. l. rev. 675 (2004); Mary El l en O’Connel l , When is War Not a War? The Myth of the Global War on Terror, 12 ilSa J. inT’l & coMP. l. 5 (2005); Study on Targeted Killings, supra note 5, at ¶¶46–56; luBell, supra note 1, at 112 –121.
8 id. at 130–131.
9 Id. at 85, 121.
10 Id. at 85, 97.
11 See Armed Conflict between Army, PKK continues, hurriyeT (Aug. 20, 2011), available at http://www.hurriyetdailynews.com/n.php?n=armed-conflict-between-army-pkk-continues-2011-08-19.
12 See, e.g., eliav lieBlich, inTernaTional lawand civil warS: inTervenTionand
conSenT 24 –30 (2013).
the conflict into an international one. Such transformation can take place when the non-state actor is directly sent by the territorial state;13 when it is controlled by that state, either through effective or overall control;14 or, perhaps, when the state acquiesces to the actions of the non-state actor, while failing to exercise “due diligence” or “vigilance” to prevent its actions.15 Furthermore, it is worthwhile to note that in international law, situations of occupation transform the transnational conflict into one generally regulated by the legal framework of international armed conflict, regardless of the identity of the involved parties.16 Since the threshold for the existence of occupation is increasingly seen as low, at least in some international circles, it is expected that more and more TAACs will shift closer to international ones rather rapidly.17
13 See Definition of Aggression, G.A. Res. 3314 (XXIX), U.N. Doc. A/9631 art. 3(g) (Dec. 14, 1974), which reflects customary international law, as held in: Military Aid and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶195 (June 27).
14 There is an ongoing disagreement between international tribunals regarding the question whether the standard for attribution of acts by private individuals or organizations to states should be assessed in light of the “effective” or rather “overall”
control standard. Compare id. ¶¶115 –11 with Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chambers Judgment ¶¶17–18 (Int’l Crim. Trib. For the Former Yugoslavia Jul. 15, 1999) (respectively setting forth the effective control versus the overall control standards) and Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), 2007 I.C.J., ¶398, ¶¶405–406 (February 26) (preferring the effective control standard).
See also Rep. of the Int'l L. Comm'n, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, art. 8, U.N. Doc. A/56/20;
GAOR, 53d Sess., Supp. No. 10, (2001). Indeed, the threshold for attribution is not entirely settled in international law. See ICRC DPH, supra note 5, at 23.
15 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, G.A. Res. 2625 (XXV), U.N. Doc. A/8082 (Oct. 24, 1970).
Armed Activities on the Territory of the Congo (DRC v. Uganda), 2005 I.C.J.
168, ¶¶276-305 (Dec. 19). For more on the “internationalization” of transnational conflicts see luBell, supra note 1, at 97–99.
16 See Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, art. 2, Aug. 12, 1949, 75 U.N.T.S. 287. [hereinafter GCIV].
17 See, e.g., Independent Int’l Fact Finding Mission, Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, Vol. 2, 306, (Sept.
30, 2009). (“the mere fact that some degree of authority is exercised on the civilian population triggers the relevant conventional provisions of the law of occupation
In condition (c) we disregard instances in which the operations of the state are permitted through the consent of the territorial state, when the latter itself is involved in a conflict against the targeted actor. Without elaborating on this issue, in such instances the conflict is essentially an intervention by a third party in an internal armed conflict.18 While similar rules of IHL might in fact apply in such situations, we exclude these conflicts from our definition for the sake of conceptual clarity. Finally, condition (d) alludes to the challenges, detailed in our introduction and further explored supra, that asymmetric conflicts present to the application of the basic pillars of IHL.
GENERAL LEGAL FRAMEWORKS – INTERNATIONAL LAW