Use of Force Against Non-state Armed Groups: Nature of Armed Conflict

Use of Force Against Non-state Armed Groups: Nature of Armed Conflict

What happens when a State, assume the United States of America, uses military force on the territory of another State, lets say, Pakistan, without the consent of Pakistan. What laws would apply? Would these laws as applicable change, if instead of attacking the Pakistani armed forces, the US attacks other armed groups, or, kidnaps and kills Osama Bin Laden?[1] These questions have garnered significant attention due to the recent changes in the socio-political balance of the world. Historically, an armed attack primarily took place between two States or ‘High Contracting Parties’ as the Geneva Convention describes it. However, with the Cold War, proxy wars and guerrilla warfare, non-state armed groups like Al Qaeda and Taliban were created that even though quite powerful, had no state responsibility per se. They were harboured within states and use of force against them was classified as a Non-International Armed Conflict (NIAC). The result seemed appropriate as these non-state armed groups emanated primarily from one state and its activities were restricted to that state. However, now Al Qaeda itself has a worldwide operation with 19 subdivisions and an army 30,000 strong and Taliban occupied and governed Afghanistan.

This creates a problem for the current legal system. Originally, the first step for holding these non-state actors accountable came from the Nicaragua[2] and Tadic[3] cases by the International Court of Justice (ICJ) and the International Criminal Tribunal for former Yugoslavia (ICTY) respectively. Nicaragua case made US liable for the actions of Contras, whereas Tadic case classified the conflict as an International Armed Conflict (IAC), thereby applying stricter and more developed International Humanitarian Law (IHL) rules. However, with the advent of Al Qaeda like organisations, and now ISIS, these non-state armed groups are of significant size and possess great military power. Thus, the aim of this paper would be to classify the nature of conflicts with such non-state armed groups.

Before we dive into the debate of whether such a conflict should be labeled an IAC or a NIAC, we need to understand the differences between an IAC and a NIAC.

There are five major differences:

• Conduct of Hostilities: The level of protection given to environment is much lesser in a NIAC. Article 35(1) of the Additional Protocol I to the Geneva Convention (AP I) states that natural environment should not be targeted without reason. Such a provision is not present in Additional Protocol II to the Geneva Convention (AP II).
• Detention: If the state using force occasionally sends forces in to pick up people from the state where the non-state group is based (as the US has done in Syria) and then takes them back to its own territory for detention, then, in an IAC, Geneva Convention IV (GC IV) of 1949 will apply and these people will have to be given prisoner of war protection. This is not so in a NIAC.
• Prosecution: If soldiers of the foreign State were caught in an IAC, then they would be granted combatant immunity and would not be prosecuted.[4] However, in a NIAC, for example, US soldiers are caught then, they would face trial and jail time.
• The list of war crimes subject to International Criminal Court (ICC) jurisdiction is very different depending on whether the conflict is an IAC or NIAC. It is important to note here that damage to civilian objects is neither a NIAC war crime nor subject to proportionality. Thus, in a NIAC, the State is free to go on a wanton rampage destroying civilian objects and the ICC would not be able to prosecute them. Additionally, the ICC recognises 34 war crimes in IAC whereas only 19 in NIAC.
• Universal jurisdiction to prosecute crimes is only applicable if the crime is committed during an IAC.

At one level, even though there still exists huge difference between an IAC and a NIAC, the distinction between them does not seem to match. The purpose for which the distinction was created would be voided, if the conflict as described in the introduction would be labeled an IAC. The purpose being that hostilities involving a non-state armed group and another State does not match the quintessential IAC (between two High Contracting Parties). However, at the send level, these hostilities between the non-state actor and the State are not restricted to the territory of that said State. There is an involvement of a foreign state, thus internationalizing the NIAC. A quintessential NIAC, as described by the Common Article 3 of the Geneva Convention (GC) and Article 1(1) of the AP II, are different that the conflict as described above. Common Article 3 states that a NIAC is an “armed conflict not of an international character occurring in the territory of one of the High Contracting P