International armed conflict: Difference between revisions
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|The law of [[international armed conflict]] (IAC) applies to any dispute between two or more States leading to the intervention of their armed forces.<ref>Common Article 2 to the Geneva Conventions (stipulating that the Conventions “shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties”).</ref> No matter how short-lived or minor, any hostilities between the armed forces of two States constitute an international armed conflict, even if one or both states deny the existence of armed conflict. (cite to GC III Commentary p 23) Some scholars have suggested that the fighting must be of a certain intensity before international humanitarian law (IHL) comes into effect,<ref>See, eg, C Greenwood, ‘Scope of Application of Humanitarian Law’ in D Fleck (ed), <i>The Handbook of International Humanitarian Law</i> (2nd edn, OUP 2008) 48; ILA Use of Force Committee, Final Report on the Definition of Armed Conflict in International Law (2010) 32; Gary D. Solis, <i>The Law of Armed Conflict: International Humanitarian Law in War</i> (2nd edn, CUP 2016) 162.</ref> but the prevailing view is that any “resort to armed force between States”,<ref><i>Prosecutor v Tadić</i> (Decision on Jurisdiction) IT-94-1-AR72 (2 October 1995) [70].</ref> however brief or intense, triggers the application of IHL.<ref>See, eg, Jean S. Pictet (ed) <i>Geneva Convention IV relative to the Protection of Civilian Persons in Time of War: Commentary </i>(ICRC 1958) 20–21; Yves Sandoz, Christophe Swinarski, and Bruno Zimmermann (eds), <i>Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949</i> (ICRC 1987) 40; René Provost, <i>International Human Rights and Humanitarian Law</i> (CUP 2002) 250; C Greenwood, ‘Scope of Application of International Humanitarian Law’ in Dieter Fleck (ed), <i>The Handbook of International Humanitarian Law</i> (3rd edn, OUP 2013) 45; Andrew Clapham, ‘Concept of International Armed Conflict’ in Andrew Clapham, Paola Gaeta, and Marco Sassòli (eds), <i>The 1949 Geneva Conventions: A Commentary</i> (OUP 2015) 16 [38]; Tristan Ferraro and Lindsey Cameron, ‘Article 2: Application of the Convention’, in ICRC (ed), <i>Commentary on the First Geneva Convention</i> (CUP 2016) 79 [218]; Noam Zamir, <i>Classification of Conflicts in International Humanitarian Law: The Legal Impact of Foreign Intervention in Civil Wars </i>(Edward Elgar 2017) 53–55; Kubo Mačák, <i>Internationalization of Armed Conflicts in International Law</i> (OUP 2018) 15–16.</ref> Furthermore, the law does not prescribe any specific form for the resort to force,<ref>Cf. <i>Legality of the Threat or Use of Nuclear Weapons Case</i> (Advisory Opinion) [1996] ICJ Rep 226, para. 89 (holding that the relevant rules of IHL apply “to all international armed conflict, <i>whatever type of weapons might be used</i>”) (emphasis added).</ref> so hostilities between the belligerent States may involve any combination of kinetic and cyber operations, or cyber operations alone.<ref>Tallinn Manual 2.0, commentary to rule 82, para. 11.</ref> |
|The law of [[international armed conflict]] (IAC) applies to any dispute between two or more States leading to the intervention of their armed forces.<ref>Common Article 2 to the Geneva Conventions (stipulating that the Conventions “shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties”).</ref> No matter how short-lived or minor, any hostilities between the armed forces of two States constitute an international armed conflict, even if one or both states deny the existence of armed conflict. (cite to GC III Commentary p 23) Some scholars have suggested that the fighting must be of a certain intensity before international humanitarian law (IHL) comes into effect,<ref>See, eg, C Greenwood, ‘Scope of Application of Humanitarian Law’ in D Fleck (ed), <i>The Handbook of International Humanitarian Law</i> (2nd edn, OUP 2008) 48; ILA Use of Force Committee, Final Report on the Definition of Armed Conflict in International Law (2010) 32; Gary D. Solis, <i>The Law of Armed Conflict: International Humanitarian Law in War</i> (2nd edn, CUP 2016) 162.</ref> but the prevailing view is that any “resort to armed force between States”,<ref><i>Prosecutor v Tadić</i> (Decision on Jurisdiction) IT-94-1-AR72 (2 October 1995) [70].</ref> however brief or intense, triggers the application of IHL.<ref>See, eg, Jean S. Pictet (ed) <i>Geneva Convention IV relative to the Protection of Civilian Persons in Time of War: Commentary </i>(ICRC 1958) 20–21; Yves Sandoz, Christophe Swinarski, and Bruno Zimmermann (eds), <i>Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949</i> (ICRC 1987) 40; René Provost, <i>International Human Rights and Humanitarian Law</i> (CUP 2002) 250; C Greenwood, ‘Scope of Application of International Humanitarian Law’ in Dieter Fleck (ed), <i>The Handbook of International Humanitarian Law</i> (3rd edn, OUP 2013) 45; Andrew Clapham, ‘Concept of International Armed Conflict’ in Andrew Clapham, Paola Gaeta, and Marco Sassòli (eds), <i>The 1949 Geneva Conventions: A Commentary</i> (OUP 2015) 16 [38]; Tristan Ferraro and Lindsey Cameron, ‘Article 2: Application of the Convention’, in ICRC (ed), <i>Commentary on the First Geneva Convention</i> (CUP 2016) 79 [218]; Noam Zamir, <i>Classification of Conflicts in International Humanitarian Law: The Legal Impact of Foreign Intervention in Civil Wars </i>(Edward Elgar 2017) 53–55; Kubo Mačák, <i>Internationalization of Armed Conflicts in International Law</i> (OUP 2018) 15–16.</ref> Furthermore, the law does not prescribe any specific form for the resort to force,<ref>Cf. <i>Legality of the Threat or Use of Nuclear Weapons Case</i> (Advisory Opinion) [1996] ICJ Rep 226, para. 89 (holding that the relevant rules of IHL apply “to all international armed conflict, <i>whatever type of weapons might be used</i>”) (emphasis added).</ref> so hostilities between the belligerent States may involve any combination of kinetic and cyber operations, or cyber operations alone.<ref>Tallinn Manual 2.0, commentary to rule 82, para. 11.</ref> |
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It is unclear what effect cyber operations unaccompanied by any use of kinetic force would have to have in order for IHL to apply. Although it is generally accepted that if cyber operations have similar effects to classic kinetic operations and two or more State actors are involved, the resulting situation would qualify as an IAC,<ref> |
It is unclear what effect cyber operations unaccompanied by any use of kinetic force would have to have in order for IHL to apply. Although it is generally accepted that if cyber operations have similar effects to classic kinetic operations and two or more State actors are involved, the resulting situation would qualify as an IAC,<ref>Tristan Ferraro and Lindsey Cameron, ‘Article 2: Application of the Convention’, in ICRC (ed), <i>Commentary on the First Geneva Convention</i> (CUP 2016) 92, para. 255.</ref> the law is unsettled on whether cyber operations that merely disrupt the operation of military or civilian infrastructure amount to a resort to armed force for the purposes of IHL.<ref>Tristan Ferraro and Lindsey Cameron, ‘Article 2: Application of the Convention’, in ICRC (ed), <i>Commentary on the First Geneva Convention</i> (CUP 2016) 92, para. 256.</ref> |
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In the cyber context, States often act through non-State intermediaries and proxies (see also [[attribution]]). In such situations at the outset of an armed confrontation, the relevant State must exercise a sufficient degree of control over the non-State entity that commences hostilities against another State for the situation to qualify as an IAC. However, the correct legal test to use in this regard is subject of an ongoing controversy.<ref>See further |
In the cyber context, States often act through non-State intermediaries and proxies (see also [[attribution]]). In such situations at the outset of an armed confrontation, the relevant State must exercise a sufficient degree of control over the non-State entity that commences hostilities against another State for the situation to qualify as an IAC. However, the correct legal test to use in this regard is subject of an ongoing controversy.<ref>See further Kubo Mačák, <i>Internationalization of Armed Conflicts in International Law</i> (OUP 2018) 39–47.</ref> The prevailing standard for the characterization of an international armed conflict is that of "overall control", which requires that the State provides some support and that it participates in the organization, co-ordination, or planning of the relevant operations. (add cite here). A separate standard, the "effective control" test, requires that the State must exercise control over the entire course of the operations in question.<ref>See <i>Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US)</i> (Merits) [1986] ICJ Rep 14, paras. 112–15; see further Kubo Mačák, ‘Decoding Article 8 of the International Law Commission’s Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors’ (2016) 21 JCSL 405, 421.</ref> According to the now prevailing view, the “effective control” test is the controlling test for the purposes of attribution under the law of State responsibility, but the “overall control” test is the correct one for conflict qualification under IHL.<ref><i>Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro)</i> (Judgment) [2007] ICJ Rep 43, para. 405; <!--[ADD REF TO SCHOLARSHIP SUPPORTING THIS VIEW]-->; but see Tristan Ferraro and Lindsey Cameron, ‘Article 2: Application of the Convention’, in ICRC (ed), <i>Commentary on the First Geneva Convention</i> (CUP 2016) 99 [271] (arguing that overall control is the controlling test in both contexts). </ref> Decades of consistent practice by international criminal tribunals including the ICTY, the ECCC, and the ICC have confirmed the application of these standards.<ref>See ''Prosecutor v Tadić'' (Appeal Judgment) IT-94-1-A (15 July 1999) [120-121]; See ''Prosecutor v Lubanga'' (Pre- Trial Chamber 1) ICC-01/04- 01/06 (29 January 2007) [209-211]; See Case No 001/ 18-07-2007/ ECCC/ TC (26 July 2010) [540] <!--[ADD REF]--></ref> |
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Revision as of 11:09, 14 November 2018
Definition
International armed conflict |
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The law of international armed conflict (IAC) applies to any dispute between two or more States leading to the intervention of their armed forces.[1] No matter how short-lived or minor, any hostilities between the armed forces of two States constitute an international armed conflict, even if one or both states deny the existence of armed conflict. (cite to GC III Commentary p 23) Some scholars have suggested that the fighting must be of a certain intensity before international humanitarian law (IHL) comes into effect,[2] but the prevailing view is that any “resort to armed force between States”,[3] however brief or intense, triggers the application of IHL.[4] Furthermore, the law does not prescribe any specific form for the resort to force,[5] so hostilities between the belligerent States may involve any combination of kinetic and cyber operations, or cyber operations alone.[6]
It is unclear what effect cyber operations unaccompanied by any use of kinetic force would have to have in order for IHL to apply. Although it is generally accepted that if cyber operations have similar effects to classic kinetic operations and two or more State actors are involved, the resulting situation would qualify as an IAC,[7] the law is unsettled on whether cyber operations that merely disrupt the operation of military or civilian infrastructure amount to a resort to armed force for the purposes of IHL.[8] In the cyber context, States often act through non-State intermediaries and proxies (see also attribution). In such situations at the outset of an armed confrontation, the relevant State must exercise a sufficient degree of control over the non-State entity that commences hostilities against another State for the situation to qualify as an IAC. However, the correct legal test to use in this regard is subject of an ongoing controversy.[9] The prevailing standard for the characterization of an international armed conflict is that of "overall control", which requires that the State provides some support and that it participates in the organization, co-ordination, or planning of the relevant operations. (add cite here). A separate standard, the "effective control" test, requires that the State must exercise control over the entire course of the operations in question.[10] According to the now prevailing view, the “effective control” test is the controlling test for the purposes of attribution under the law of State responsibility, but the “overall control” test is the correct one for conflict qualification under IHL.[11] Decades of consistent practice by international criminal tribunals including the ICTY, the ECCC, and the ICC have confirmed the application of these standards.[12] |
Appendixes
See also
Notes and references
- ↑ Common Article 2 to the Geneva Conventions (stipulating that the Conventions “shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties”).
- ↑ See, eg, C Greenwood, ‘Scope of Application of Humanitarian Law’ in D Fleck (ed), The Handbook of International Humanitarian Law (2nd edn, OUP 2008) 48; ILA Use of Force Committee, Final Report on the Definition of Armed Conflict in International Law (2010) 32; Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War (2nd edn, CUP 2016) 162.
- ↑ Prosecutor v Tadić (Decision on Jurisdiction) IT-94-1-AR72 (2 October 1995) [70].
- ↑ See, eg, Jean S. Pictet (ed) Geneva Convention IV relative to the Protection of Civilian Persons in Time of War: Commentary (ICRC 1958) 20–21; Yves Sandoz, Christophe Swinarski, and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC 1987) 40; René Provost, International Human Rights and Humanitarian Law (CUP 2002) 250; C Greenwood, ‘Scope of Application of International Humanitarian Law’ in Dieter Fleck (ed), The Handbook of International Humanitarian Law (3rd edn, OUP 2013) 45; Andrew Clapham, ‘Concept of International Armed Conflict’ in Andrew Clapham, Paola Gaeta, and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary (OUP 2015) 16 [38]; Tristan Ferraro and Lindsey Cameron, ‘Article 2: Application of the Convention’, in ICRC (ed), Commentary on the First Geneva Convention (CUP 2016) 79 [218]; Noam Zamir, Classification of Conflicts in International Humanitarian Law: The Legal Impact of Foreign Intervention in Civil Wars (Edward Elgar 2017) 53–55; Kubo Mačák, Internationalization of Armed Conflicts in International Law (OUP 2018) 15–16.
- ↑ Cf. Legality of the Threat or Use of Nuclear Weapons Case (Advisory Opinion) [1996] ICJ Rep 226, para. 89 (holding that the relevant rules of IHL apply “to all international armed conflict, whatever type of weapons might be used”) (emphasis added).
- ↑ Tallinn Manual 2.0, commentary to rule 82, para. 11.
- ↑ Tristan Ferraro and Lindsey Cameron, ‘Article 2: Application of the Convention’, in ICRC (ed), Commentary on the First Geneva Convention (CUP 2016) 92, para. 255.
- ↑ Tristan Ferraro and Lindsey Cameron, ‘Article 2: Application of the Convention’, in ICRC (ed), Commentary on the First Geneva Convention (CUP 2016) 92, para. 256.
- ↑ See further Kubo Mačák, Internationalization of Armed Conflicts in International Law (OUP 2018) 39–47.
- ↑ See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14, paras. 112–15; see further Kubo Mačák, ‘Decoding Article 8 of the International Law Commission’s Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors’ (2016) 21 JCSL 405, 421.
- ↑ Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, para. 405; ; but see Tristan Ferraro and Lindsey Cameron, ‘Article 2: Application of the Convention’, in ICRC (ed), Commentary on the First Geneva Convention (CUP 2016) 99 [271] (arguing that overall control is the controlling test in both contexts).
- ↑ See Prosecutor v Tadić (Appeal Judgment) IT-94-1-A (15 July 1999) [120-121]; See Prosecutor v Lubanga (Pre- Trial Chamber 1) ICC-01/04- 01/06 (29 January 2007) [209-211]; See Case No 001/ 18-07-2007/ ECCC/ TC (26 July 2010) [540]