New Challenges to the Classification of Armed Conflicts 

by Divya Sharma, Student at University of Kent 

Abstract

The definition of armed conflicts has drastically changed under the realm of International Humanitarian Law. The introduction of new state and non-state actors poses different challenges to the classification of armed conflicts. 

War on Terror

After the unprecedented events of September 11, the Bush administration in the US announced their ‘global war on terrorism. This opened a wide discussion on the characterization of the armed conflicts between the state actor and non-state actors under the global war of terrorism. Three different types of armed conflict exist under the ambit of IHL. International armed conflict, internationalized armed conflict and non-international armed conflict. It is easy to apply the IHL rules to recognize the particular type of armed conflict in some conflicts, such as the North Korean-South Korean War of 1950. However, its classification under the changing dynamics, such as the global war of terror, needs some uncovering. There is no clear definition of terrorism under international law, but what constitute’ acts of terrorism’ are clearly stated in the Geneva Convention of 1973.

USA’s conflict against the terrorist group Al-Qaeda puts a real test on the flexibility of humanitarian laws and the notion of armed conflicts. Judge Aldrich of the US Supreme Court interprets the conflict between the US and Al-Qaeda not per se as an armed conflict between a state (US) and an organization (Al-Qaeda). Therefore, this conflict can’t be considered an armed conflict within the meaning of common Article 2 of the Geneva Conventions. [1] At the same time, some intellectual academics of International Law consider that the hostilities between the US and Al-Qaeda constitute a non-international armed conflict. Andrew C. Orr, in his article, states that: “Al-Qaeda can be considered an independent organization capable of being considered a party in a NIAC as per international law rules. It can carry out military operations (World Trade Center bombings and London bombings in 2005) and has a hierarchal command that follows multiple management tiers. It also operates under different groups as AQAP in Yemen, al-Shabaab in Somalia.” This ascertains the fact that the US is fighting series of distinct NIAC’s in different states. [2] Further, while discussing the impact of global terrorism on the law of armed conflict, it is relevant to consider the Target killings Case in the Supreme Court of Israel. In this case, two human rights NGOs challenged the Israeli’s Army’s use of the policy of targeted killings (killing a specific person, usually a suspected terrorist). [3]

The Supreme Court of Israel, In this case, Supreme Court took a broader view while denying the arguments put forward by the petitioners. The court held that the International armed conflict applies to occupied territories, and Article 51(3) of Protocol I binds Israel under Customary International Law rules. It further suggested that the continuous state of armed conflict has existed between Israel and various insurgent groups since the first intifada. [4] Unsurprisingly, this decision was critiqued by numerous academics and international law scholars. Regarding the status of an armed conflict between the occupying power and rebel groups, Professor Cassese states that whether terrorists are in a character or an occupied territory, this type of armed conflict amounts to an international armed conflict. [5] Another main challenge under the ambit of armed conflict is ascertaining who may be the legitimate target under the armed conflict. 

The ‘Principle of Distinction’ is a fundamental principle for protecting victims during an armed conflict. There is a lot of ambiguity around the status of individuals in times of armed conflicts, and in the context of war on terror, this issue is ever more complex. In the event of armed conflict, under this principle, the parties to an armed conflict must distinguish between civilians and combatants and can only target combatants. According to the Direct Participation in Hostilities (DPH) guidelines, there are two categories, combatants and civilians, who are latter comprised of two sub-categories, civilians and civilians losing their protection by taking direct part in the hostilities. [6] In contrast, the US argues that individuals who fall outside these categories should not be offered protection under international law, which brings us to the tripartite division, whereas, in contrast to that, the ICPR has maintained the sanctity of combatant and civilian division. The ICRC commentary to the Geneva Convention spells out that every person in enemy hands must have some status under international law; nobody in the enemy hands falls outside the law. [7]

Drone Warfare  

In recent history, drones or UAVs have emerged as one of the most significant military systems of 21st-century warfare. Global North is particularly intrigued by drone warfare, and countries like the US, Israel, Russia, and United Kingdom play a dominant role in developing this warfare. Lately, the legality of these drones has come under a lot of scrutiny under the international law realm. Military technology has rapidly advanced after the unprecedented events of 9/11. The law of armed conflict only applies when a certain threshold is satisfied. Different legal rules are applied to ascertain the specific type of armed conflict. Specifically discussing drone strikes, where a state targets a non-state actor, it would be a non-international armed conflict. The law and rules related to the NIAC are specified under international law, but its application is a bit tricky in the context of drone strikes. It is easy to specify the state actor, but it is complex for a non-state actor (an insurgent group). An armed group is a party to non-international conflict only when it fulfils certain requirements, including that the level of violence must reach a certain threshold. There must be sufficient evidence pointing to the fact that a particular armed group has a command structure, headquarters and can carry out military operations. In the event of NIAC, the whole territory of state parties together with high seas and EEZ is known as ‘area of war’. So, IHL is applicable far beyond the zone of battle. [8]

Furthermore, in NIAC, the whole territory of state parties together with high seas and EEZ is known as ‘area of war’. So, IHL is applicable far beyond the zone of battle. The relevance of the type of armed conflict is very important to ascertain the legality of a drone strike.

Moving forward with the famous 2015 drone strike case in the UK, an extremely hostile criticism on drone warfare was given in August 2015, the UK personnel led the RAF killed three people, including two British nationals who were suspected ISIL operatives in a drone strike in Syria. On the question of the legality of the drone strike, UK relied on its right to self-defence in Iraq (Article 51 of the United Nations Charter, 1945). [9] It is important to note here that this drone strike cannot come under the ambit of armed conflict as the United Kingdom has never been a party to NIAC in Syria, so ISIS is not directly participating in hostilities against the British). So, the rules under IHL would not be applied here, and thus, the pressure is on Human rights law to set a standard of accountability for drone strikes. The repeated use of drones by the global north has led to a cry for help from the international law community to set a clear and specific criterion to judge the lawfulness of a drone strike. The current international legal regime surrounding the targeted killing undermines the accountability due to the lack of transparency under domestic regulation. For a clearer and straightforward interpretation of accountability under the international law regime, a domestic accountability system is required. [10] Most importantly, the use of drones is drastically increasing. To ascertain the legality of these drone strikes, the principle of international law should be applied equally on all the states irrespective of their status in international politics.

Digital Battle Space – Doctrines of jus ad bello to Cyber Conflicts 

Cyberspace is considered a new battle space or can be called a ‘digital battle space’. In today’s technology digital dependent world, cyber attacks pose a real threat for a nation and its citizens. It is crucial to investigate the nexus between the rapidly evolving field of technology and International Law, particularly International Humanitarian Law. To answer this question, we need to think about few important things. 

Firstly, Is cyber conflict a concern only for a technologically advanced state? Secondly, can a cyber-operation by itself trigger the application of IHL? Thirdly, is existing international humanitarian law adequate to apply in highly advanced cyberspace? 

Jumping right into the first question, it can be said with complete surety that cyber conflict is an issue of concern for all nations, not just technologically advanced nations. Because of the interconnected nature of cyberspace, a threat to one nation can be a threat to another nation within one minute. A cyber-attack carried out against one state can affect many other states irrespective of their geographical location. [11] For instance, in August 2020, suspected Pakistani hackers used custom malware to steal files from victims in twenty-seven countries, most prominently in India and Afghanistan. In October 2020, Suspected Iranian hackers targeted government agencies and telecommunications operators in Iraq, Kuwait, Turkey, and the UAE as part of a cyber espionage campaign. Also, in February 2021, Iranian hackers took control of a server in Amsterdam. They used it as a command-and-control centre for attacks against political opponents in the Netherlands, Germany, Sweden, and India. [12] These cyber-attacks are the recent instances that explain cyberspace’s threat to all the nations around the globe, no matter where they originated from in the world. Moving on to the next issue, we can see that IHL is applicable only when the tensions between the states or a situation of violence between a state and a non-state armed group – escalate into an armed conflict. [13] For a particular cyber-attack to be considered an armed conflict, it needs to fulfil a certain threshold. This ‘threshold question’ can be answered by looking into the Tallinn Manual (a non-binding document that explores the applicability of international humanitarian law and the doctrines of jus ad Bellum to cyber conflicts). According to the Tallinn manual Rule 82, it is accepted that the cyber operations having a similar effect to that of the kinetic operations such as destruction of civilian and military objects, death or injury of civilians or soldiers is governed under the ambit of IHL and is applicable in the international armed conflict. [14]

For instance, the death of patients in intensive-care units caused by a cyber operation on an electricity network resulted in cutting off a hospital’s electricity supply. However, it is not very clear under the IHL it is not very clear whether the cyber operations that do not cause a similar level of consequences that of the kinetic one can amount to an armed conflict under international humanitarian law. Due to the primarily digital character of the cyber operations, it is very challenging to bring it under the ambit of IHL. It is important to note here that a cyber operation can only constitute a cyber-attack if it fulfils the threshold of ‘consequential harm’ (Tallinn Manual). Cyber operations can cause different consequences against the cyber-infrastructure and physical objects reliant on the computer systems. It is very unlikely that the cyber operations directed on the online infrastructure can meet the requirements of a cyber-attack. It is possible that these cyber operations against the online infrastructure such as websites, news platforms, governmental websites can cause high-level disruption, confusion and defacement. Still, they are very unlikely to lead to damage, destruction, injury or death. [15]

Further, this position becomes even more complex when cyber operations are directed towards the computer systems and the data, which can affect the functionality of the physical objects. There are diverse views on this subject. One group of experts holds that the impaired functionality of a physical object due to cyber operations decides whether it is a cyber-attack. Cyber operations can interfere with the functionality of physical objects in a partial, temporary, or permanent way. This ability to interfere with physical objects reliant on data without damage perhaps exemplifies the dilemma the Law of Armed Conflict faces with the advent of cyber warfare. Here the international community needs to look beyond consequential harm to include cyber operations under the ambit of international law. Lastly, we can say that the existing IHL is adequate to apply in cyberspace, but the states need to come together to fight against cyber-attacks. When states adopt the IHL treaties, they do so to regulate the present and future conflicts. The greatest strength of the international humanitarian law is that the rules of IHL are applicable in armed conflicts is applied to ‘all forms of warfare and to all kinds of weapons’, including ‘those of the future’ this welcomes the application of IHL rules on cyber operations (ICJ, Nuclear Weapons advisory opinion). It is also important to mention here that affirming the application of IHL to cyber operations during armed conflict does not legitimize cyber warfare or encourage the militarization of cyberspace. [16]

ENDNOTES

[1] Avril McDonald, Defining the War on Terror and the Status of Detainees: Comments on the Presentation of Judge George Aldrich, https://www.icrc.org/en/doc/assets/files/other/a ril_mcdonald-final.pdf.

[2] Andrew C. Orr, Unmanned, Unprecedented, and Unresolved: The Status of American Drone Strikes in Pakistan under International Law CILJ Vol 44, 740 (2011).

[3] The Public Committee against Torture in Israel et al v. The Government of Israel et al, Supreme Court of Israel sitting as the High Court of Justice, Judgment, Dec. 11, 2006, HCJ 769/02.

[4] Marko Milanovic, Lessons for Human Rights and Humanitarian Law in the War on Terror: Comparing Hamdan and the Israeli Targeted Killings Case (2007).

[5] A. Cassese, International Law 420 (2nd ed. 2005).

[6] ICRC, Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, Geneva, (DPH Guidelines) (2009).

[7] Pictet J. Commentary of the Geneva Conventions, Fourth Geneva Convention, 51 (1958).

[8] Malcom N. Shaw, International Humanitarian Law CUP, 226 (2012).

[9] Adriana Edmeades Jones, Hidden from the Public: The United Kingdom’s Drone Warfare, Just Security, Jul. 2017 <https://bit.ly/32EC8bQ&gt; (accessed May 22, 2021).

[10] Neta C. Crawford Accountability for Target Drone Strikes Ethics & International Affairs, 47 (2012).

[11] Helen Durham, Cyber Operations During Armed Conflict: 7 Essential Law and Policy Questions, Humanitarian Law & Policy, https://blogs.icrc.org/law-and-policy/2020/03/26/cyber-armed-conflict-7-law-policy-questions/

[12] Center for Strategic & International Studies Report, <https://www.csis.org/programs/strategic-technologies-program/significant-cyber-incidents

[13] ICRC 2016 Commentary on the 1949 First Geneva Convention  , <https://ihl-databases.icrc.org>

[14] Michael N. Schmitt, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, <https://www.cambridge.org/core/books/tallinn-manual-20-on-the-international-law-applicable-to-cyber-operations/law-of-cyber-armed-conflict>

[15] Michael J. Norris, The Law of Attack in cyberspace : Considering the Tallinn Manual’s Definition of ‘Attack’ in the digital Battlespace, < http://www.inquiriesjournal.com/articles/775/the-law-of-attack-in-cyberspace-considering-the-tallinn-manuals-definition-of-attack-in-the-digital-battlespace>

[16] International Humanitarian Law and Cyber Operations during Armed Conflicts ICRC position paper (Nov. 2019).

Disclaimer – All views and opinions expressed in this article are personal and belong solely to the author(s) and do not necessarily represent those of the LAABh Foundation or the individuals and institutions associated with LAABh Foundation.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: