Modern International Humanitarian Law Fails to effectively regulate armed conflicts which involves

the participation of multinational forces. Critically discuss this statement with reference to

international practice and academic commentary.

Module: International Law of Armed Conflict

Student Number: 650042321

Word Count: 3906 (within the 5% limit)

Modern International Humanitarian Law Fails to effectively regulate armed conflicts which involves

the participation of multinational forces. Critically discuss this statement with reference to

international practice and academic commentary.

As Dr Ferraro1 observes: “the question of the applicability and application of international

humanitarian law (IHL) to multinational forces (M.F) is at the forefront of legal discussion.”2 Indeed,

Zwanenburg3 notes that whilst “not a new phenomenon […] perhaps more than ever before, today’s

military operations are carried out by [M.F]”;4 a trend that is unlikely to change in the near future.5

However the ICRC6 cautions that “certain States and international organisations (I.Os) engaged in

[operations] have been reluctant to accept that [IHL] is applicable to their actions, even when criteria

for its applicability have been fulfilled.”7 Accordingly, it is necessary to consider how IHL applies to

armed conflicts (A.C) involving M.F. Part One addressed the applicability of IHL to M.F whilst Part

Two examines shortfalls already existing within IHL which are them amplified by the involvement of

M.Fs. Overall, it is asserted that IHL fails to effectively regulate A.Cs involving M.Fs. However, it is

first appropriate to outline the relevant terminology.

Terminology: Multinational Forces and Armed Conflicts

1 Dr Tristan Ferrara is a Legal Adviser is the Legal Division of the International Committee of the Red Cross, Geneva.2 Tristan Ferrara, “The Applicability and Application of International Humanitarian Law to Multinational Forces” (2013) Vol.95 International Review of the Red Cross 561-612, 5613 Martin Zwanenburg is a senior legal adviser at the Ministry of Defence of the Netherlands.4 Martin Zwanenburg, “International Humanitarian Law Interoperability in Multinational Operations” (2013) Vo.95 International Review of the Red Cross 681-705, 6815 Martin Zwanenburg, “International Humanitarian Law Interoperability in Multinational Operations” (2013) Vo.95 International Review of the Red Cross 681-705, 6816 International Committee of the Red Cross7 International Committee of the Red Cross, “International Humanitarian Law and The Challenges of Contemporary Armed Conflicts” Report of the 31st International Conference of the Red Cross and Red Crescent (28 Novemner-1 December 2011) 30

Multinational Force

The term ‘M.F’ refers to a military force or operation conducted by troops of two or more States

acting together.8 M.Fs vary in size, functions and command structure and can be distinguished

between those led by an I.O such as NATO or the United Nations (U.N) and those that are led by the

States.9

Armed Conflict

The presence of an international armed conflict (IAC) is specified in Common Article.2 of the 1949

Geneva Conventions as: “all cases of declared war or of any armed conflict that may arise between

two or more high contracting parties, even if the state of war is not recognized, the convention shall

also apply to all cases of partial or total occupation of the territory of a high contracting party even if

the said occupation meets with no armed resistance.”10 A non-international armed conflict (NIAC) is

defined under Common Article.3 of the same Convention as “armed conflicts that are non-

international in nature occurring in one of the High contracting parties.” 11 Furthermore, per Stewart,

when war occurs between “two different fractions fighting internally but supported by two different

states”,12 such a conflict may be considered internationalised.13 For instance, the 1998 Conflict in the

Democratic Republic of Congo (DRC) where forces from Rwanda, Angola, Zimbabwe and Uganda

intervened to support various groups to the conflict in the DRC.14

Part A

8 NATO defines M.F as: “An operation conducted by two or more nations acting together”. See: NATO Standardisation Agency, NATO Glossary of Terms and Definitions (English and French), APP-06, 2013 p.2-M-11; Zwanenburg (n-4) 684 9 ibid10 1949 Geneva Conventions (i) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Filed; 1949 Geneva Convention (ii) for the Amelioration of the Condition of Wounded Sick and Shipwrecked Members of Armed Forces at Sea; 1949 Geneva Convention (iii) Relative to the Treatment of Prisoners of War; 1949 Geneva Convention (iv) Relative to the Protection of Civilian Persons in Time of War.11 ibid Common Article.312 See also: Gertrude C. Chelimo, “Defining Armed Conflict in International Humanitarian Law” (2011) Vol.3 No.4 Law and Justice: Student Pulse available at: http://www.studentpulse.com/articles/508/defining-armed-conflict-in-international-humanitarian-law 13 James G Stewart, “Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict” (2003) Vol.85 No.850 International Review of the Red Cross, 313- 350, 31514 ibid

I. Applicability of IHL to an Armed Conflict

Initially, States and I.Os contended that M.Fs could not be considered a party to a conflict and

therefore, not bound by IHL.15 M.Fs generally operate on behalf of the international community (I.C)

as a whole. Therefore, it was maintained that M.Fs were precluded from being a ‘party’ or a ‘power’

to the conflict within the meaning of the Geneva Conventions.16 It was also submitted that when

certain categories of M.F intervene in an armed conflict (AC) the application of IHL is altered17 for

instance, that a higher threshold of violence is required to establish the existence of an AC involving

the U.N18 and/or peace-operations.19 Notably, during the 2011 Libyan conflict20 “some States

asserted that they were only fulfilling their mandate to protect civilians […] had no belligerent intent”

and therefore, not engaged in an AC.21 However, these views preclude the “firmly anchored”

distinction between jus in bello and jus ad bellum:22

“By virtue of this distinction, the applicability of IHL to [M.F], like any other actors, depends

exclusively on the circumstances prevailing on the ground, irrespective of the international

mandate that may have been assigned to such forces.”23

Therefore, irrespective of whether or not the recourse to force is legitimate, engaged under a UN

Security Council (UNSC) mandate or is a ‘peace-operation’, where the criteria establishing an armed

conflict are satisfied a M.F cannot be absolved of its obligations under IHL.24 However, as M.F,

15 ICRC (2011) (n-7) 3016 ibid; 1949 Geneva Conventions (n-10)17For instance, it either applies differently, does not apply at all or only applies as a matter of policy. International Committee of the Red Cross, “International Humanitarian Law and The Challenges of Contemporary Armed Conflicts” Report of the 32nd International Conference of the Red Cross and Red Crescent (8-10 December 2015) 21These legal constraints were often based on the fact that M.F operate on behalf of the I.C and under a UN Security Council mandate. 18 ICRC (2015) (n-17) 2119 ICRC (2011) (n-7) 3120 Bruno Pommier, “The use of force to protect civilians and humanitarian action: the case of Libya and beyond (2011) Vol.93 No.884 International Review of the Red Cross 1063-108321 Ferraro, “International Law Programme Discussion Summary: The Applicability of International Humanitarian Law to Multinational Forces” (2014) Chatham House, The Royal Institute of Internal Affairs 5-722 ICRC (2015) (n-17) 2123 ibid 22; See also: ICRC (2011) (n-7) 3024 ICRC (2011) (n-7) 31

principally peace-operations, generally intervene where there is a pre-existing NIAC, the issue arises

as to when their actions meet the threshold to become a party to the existing AC. As the ICRC notes:

“this assistance has not often taken the form of full-fledged kinetic operations against a

clearly defined enemy, but rather a sporadic use of force, logistical support, intelligence

activities […] or participation in the planning and coordination of military operations.”25

Furthermore, as Zwanenburg asserts: “[I]n multinational operations (M.O), there is no central

authority that determines the law that applies to the operation.”26 Accordingly, “different states

contributing troops to [M.O] may come to different conclusions concerning the application of IHL.”27

As illustrated in the ISAF operation in Afghanistan:

“Some [troop contributing countries] (TCC) to this operation considered there to be a [NIAC]

between ISAF and the Afghan government on the one hand and one or more organised

armed groups on the other. The Netherlands, at least initially, was of the view that it was not

engaged in an armed conflict. Germany also initially denied that its forces were involved in

an armed conflict. Only in February 2010 did the German government accept that in

Northern Afghanistan, where German forces were deployed, there was an armed conflict in

the sense of IHL.” 28

Consequently, the legal status of M.F providing such support it contentious. The ICRC contends that:

“the complexity of the question […] lies mainly in the fact that […] the support given by M.F does not

by itself meet the threshold of intensity required for NIACs.”29 Following the ISAF contention, the

ICRC developed a ‘Support-Based Approach’ (S.B Approach) to determine whether the actions of a

M.F objectively form an integral part of the pre-existing NIAC and can therefore, be linked to IHL.30

Accordingly, “greater focus [is afforded] to the function [of the M.F] than on the conditions of

25 ICRC (2015) (n-17) 2226 Zwanenburg (n-4) 68827 ibid 68728 ibid29 ICRC (2015) (n-17)2230 ibid

intensity.” 31 The ICRC maintains that the approach should produce a clear determination of the

existence of a “genuine belligerent intent on the part of the M.F”32 thus, instigating the application of

IHL.

However, the “S.B Approach” is not automatic; the classic criteria under the Geneva Conventions

remains the principal authority.33 Nevertheless, once “it is deemed that the condition of intensity is

not fulfilled by one of the states in the coalition party to the NIAC, the relevant state’s function is

then examined.”34 Furthermore, whilst TCCs, engaged in an AC, are all assumed be party to it, under

the “S.B Approach”, this presumption is rebuttable.35 This goes someway alleviate the concern

amongst States and I.Os that their involvement in a M.F unequivocally renders them a party to a

conflict.36

However, Ferraro acknowledges the criticism that:

“The ICRC is importing new rules in relation to its ‘S-B Approach’ for a NIAC whilst

maintaining that the classic ordinary rules of IHL on the classification of conflicts apply […]

the legal basis of the S-B approach is not found in any IHL provision.”37

Furthermore, the approach is non-binding thus, States and I.Os are able to challenge and overlook

the approach thereby, hamstringing the application of IHL. However:

“[T]his […] approach flows from the logic of IHL and is in line with the principle of distinction

between combatants and civilians […] The rational is to link to IHL action that forms an

integral part of a pre-existing armed conflict.”38

Consequently, it asserts a level of authority and influence.39

31 ibid32 ibid 2333 ibid 34 Ferraro (n-21) 5-735 For instance, medical activities.36 Ferraro (n-21) 5-737 ibid 38 ibid 739 ibid

Overall, whilst IHL is applicable to M.F, the differing views within M.F as to whether they have

become involved in an armed conflict can create tensions and impact cooperation. 40 Despite the

“S.B Approach”, securing admission by the respective States (or I.Os) of the applicability of IHL to

their situation remains a challenge. Therefore, IHL’s ability to regulate M.F engaged in armed conflict

is dubious.

II. Categorising an Armed Conflict: IAC, NIAC or Internationalised

Per Ferraro: “Once the conditions for the existence of [AC] are met, there should be a pragmatic

approach to determine the kind of conduct to which the [M.F] are a party.”41 This section focuses on

the involvement of M.F in a pre-existing NIAC (pre-NIAC) and the subsequent classification of the

conflicts.

M.Fs become involved in pre-NIACs by (a) supporting the State authority against an OAG or (b)

intervening alongside the non-state actor against the State.42 Some commentators submit that M.Fs

involvement internationalises a conflict; triggering the application of IHL pertaining to IACs.43

However, Professor Megret considers that where M.Fs intervene with the consent of the State “the

M.F is merely ‘tagging along’ with the State’s own conflict”44 thus maintaining a NIAC.

Conversely, should the M.F “take centre stage” against the non-state actor, there is a strong

inference that the conflict will become internationalised.45 Alternatively, where the M.F intervenes

alongside the OAG, it amounts to an IAC between the M.F and the State.46 However, the conflict

between the host State and the OAG remains a NIAC.47 Indeed, the ICJ in Nicaragua v the United

40 Ola Engdahl, “Does the involvement of multinational operation forces in armed conflict challenge the categorisation of such conflicts?” (2015) Independent Institute of Humanitarian Law 2-541 Ferraro (n-21)42 Frederic Megret, “IHL and Multinational Forces: crucial questions” ICRC Intercross Blog, 23 August 2013 available at http://intercrossblog.icrc.org.blog#stash.kTE4xX8M.dpbs accessed 23/03/201643 ibid44 ibid; Ferraro (n-21) 245 Megret (n-42)46 ibid. It is immaterial that the M.F may coordinate its efforts with the no-state actor. 47 ibid

States of America48 and the UN International Criminal Tribunals for the Former Yugoslavia49 (ICTY)

assert that conflicts involving M.F includes “both international and non-international dimensions.”50

Condemningly, this “can create situations of dizzying and seemingly arbitrary complexity.” 51

However, it may be the best way of satisfying the wishes of States.52 The IHL governing IACs is more

onerous than that governing NIACs. As such, States may become reluctant to approach the I.C for

assistance were the conflict then to become internationalised. Therefore, Engdahl concludes: “Even

though the multinational side do bring a strong international element to the conflict it should always

be regarded as a NIAC.”53 Whilst “in some situations the entanglement of various armed conflicts

may lead to the conclusion that one dimension […] has overtaken” 54 the conflicts remain distinct.

Per the 2011 Libyan conflict,55 the conflict between the M.F and the State authority was an IAC

whilst the conflict between the rebels (OAG) and the Libyan Government remained a NIAC.56 Despite

the fact that the rebels were in receipt of strong international support “the conflict was not primarily

one between the Libyan State and the [I.C] in which the rebels would have simply acted under UN

control.”57

Nevertheless, Engdahl acknowledges the suggestion that involvement of M.F acting under a UN

mandate should internationalise a conflict:58

“The forces concerned are representative of the international community […]. Act[ing] on a

higher moral ground than their opponents [they] should be held to the highest possible

standards.” 59

48 Case Concerning The Military And Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America) (Merits) Judgement of 27 June 198649 See: http://www.icty.org/ and http://www.icty.org/en/action/cases/450 Megret (n-42)51 ibid52 ibid53 Engdahl (n-40) 354 Megret (n-42)55 Pommier (n-20)56 Megret (n-42); See also Pommier (n-20)57 Megnet (ibid); Engdahl (n-40); Pommier (ibid) 58 Engdahl (n-40) 3-459 ibid

Should a conflict become internationalised, the non-state actors would be afforded combat privilege

and except from prosecution by their State.60 Furthermore, it would run contrary to the spirit of IHL

to treat combatants and non-state actors differently depending on which military force captures

them, for instance.61 It may also be desirable to ‘humanise’ certain armed conflicts by considering

them to be IACs:62 “[whilst IAC] obligations are more onerous, nothing is lost from a humanitarian

point of view, even in cases where the conflict is arguably technically non-international.”63 Such a

consideration is particularly relevant when establishing the rights and treatment of detainees.64

Nevertheless, States are reluctant to affirm this transformative feature. Rather, the character of the

A.C is based on the actions and nature of the parties and not exclusively on the multinational

character of one.65 Accordingly, different types of conflict can exist simultaneously. However,

although “[not] a complicated legal issue, and well within the spirit of IHL […] it may prove difficult in

practice.”66

To this extent, not only does IHL apply to M.F, but it is also flexible enough to be applied to a range

of scenarios including, where the M.F aligns itself with the State or AOG. However, determining

whether the conflict is a NIAC, IAC or internationalised remains a contentious topic and a further

hurdle facing the application of IHL.

iii) Establishing Who is Party to an Armed Conflict

As the ICCRC notes: “the involvement of [M.F] in armed conflicts raises a set of issues related to the

determination of who should be considered a party to an [A.C] […] Should it be argued that only

[TCCs] are a party to the conflict[…]? What about [I.O] under whose command and control the [M.F]

operate” such as the U.N or NATO?67

60 ibid 3-561 ibid 562 Megret acknowledges that, although based on the factual elements of a conflict, determining the categorisation of a conflict is also linked to “a certain normative ambition.” Megret (n-42)63 ibid64 ibid65 Engdahl (n-40) 3-566 ibid 567 ICRC (2011) (n-7) 32

Operations under the leadership of an I.O involve TCCs placing their armed forces at the I.O’s

disposal.68 However, regarding attribution, IHL is silent.69 Condemningly, “these questions [have not]

attracted sufficient analysis.” 70 Accordingly, the issue needs to be addressed.

It has been asserted that “only [TCCs] are party to the conflict for the purposes of IHL.”71 However,

Megret counters:

“[T]he original arguments of why [IHL] should not apply [to I.Os] […] because I.O could not be

party to humanitarian treaties were never very convincing in the first place, notably in view

of the pragmatism and the flexibility of the laws of war.” 72

Moreover, Ferraro critiques:

“There [would] be something artificial about pretending that the I.O can be read out of the

equation, given that States derive their mandates from and operate under its control.” 73

Accordingly, I.Os can be held to be party to an armed conflict.

Whether or not the I.O, the TCC, or both are party to the conflict depends on the structure of the

organisation principally, the level of authority and ‘control and command’ asserted by the I.O over

the troops.74 For instance, “by virtue of the command and control structure of the U.N operations

and the delegation of operational control to the U.N by the TCC”75 it is generally assumed that the

U.N exerts the ‘requisite control’ to be considered party to the conflict.76 This is to the exclusion the

of the TCCs and the other U.N member States.77

68 ICRC (2015) (n-17) 2369 ibid70 ICRC (2011) (n-7) 3271 Ferraro (n-21) 972 Megret (n-42)73 Ferraro (n-21) 974 ICRC (2015) (n-17) 23-24; Megret (n-42); Ferraro (n-21) 975 Ferraro (ibid) 476 ICRC (2015) (n-17) 24; Ferraro (n-21) 477 ICRC (ibid); Ferrero (ibid)

This can be contrasted to the position of NATO where TCCs are involved and assert influence at

strategic, operational and tactical levels of the command structure. For instance, the NATO

operations in Libya78 and Afghanistan:79

“TCCs are so closely associated with the NATO command and control structure that it is

almost impossible to discern whether it is NATO itself or the TCCs that have overall effect

over military operations.”80

Accordingly, IHL is attributable to both NATO and the TCCs simultaneously.81 Appraisingly:

“concurrence of responsibility is the notion that seems most likely to promote humanitarian

outcomes, especially in the context where immunities may represent a significant obstacle to

engaging the responsibility of [I.O]s.”82 However, the presumption of attribution is rebuttable.83

Additionally, Dannenbaum cautions that “dual attribution […] has been affirmed repeatedly in theory

[…] while failing to attribute conduct to two or more entities.”84 Moreover, “there is an ongoing

debate, based on particular the diverging case law, on whether the to apply an ‘effective control’ or

an ‘overall control’ test”85 when establishing to whom the actions are attributable. 86 Consequently,

“states take differing views regarding the command and control structures, and therefore, who

should be considered party to the conflict.”87 Thus hindering the application of IHL to M.F.

Moreover, U.N missions are not entirely immune from State interference. Thus, the question is

raised: “whether the extent of interference can disrupt the effective control and the chain of

command, [resulting in] the mission no-longer [being] considered a U.N mission.” 88 In the absence of

78 See NATO: http://www.nato.int/cps/en/natolive/71679.htm 79 See NATO: http://www.nato.int/cps/en/natohq/topics_8189.htm 80 ICRC (2012) (n-17) 2481 ibid82 Megret (n-42)83 ICRC (2015) (N-17) 2484 Tom Dannenbaum, “Dual Attribution un the Context of Military Operations” (2015) Vo.12 International Organisation Law Review 401-426, 42685 ICRC (2015) (n-17) 2386 ibid87 Ferraro (n-21) 4-988 ibid 4

an authoritative deciding body, determining the application of IHL, the question is left to States,

again resulting in differing views. 89 Ultimately, “there is no ‘one size fits all’ approach.”90 Whilst on

the one hand, this allows IHL to be applied to a range of scenarios, on the other hand, its application

is ultimately subject to the will of TCCs. Thus, application of IHL to M.F is hindered and its adequacy

doubtful.

Part B

i) Common Article.1 to the Geneva Conventions: Who’s Responsible and What For?

Common Article.1 to the four Geneva Conventions states: “The High Contracting Parties undertake

to respect and to ensure respect for the present Convention in all circumstances.” Whilst I.Os cannot

be party to the GC, they are nevertheless bound by the provision:91 “As an [I.O] enjoying

international legal personality… [The UN] should be bound by the obligations enunciated in Common

Article.1 […] whether they are customary norms, general principles of law or something else.”92

Moreover, the ICJ affirmed that “such an obligation does not derive from the Conventions, but from

the general principles of humanitarian law to which the Conventions merely give specific

expression.”93As such, it applies to both States and I.Os. The issue now lies in its interpretation.

On the one hand, a broad interpretation of the provision has been adopted:

“The participating High Contracting Parties call upon all parties, directly involved in the

conflict or not, to respect and to ensure for the [GC] in all circumstances, to disseminate and

89 ibid 490 ICRC (2015) (n-17)2391 F. Megret and F Hoffman, “The UN as a Human Rights Violator? Some Reflections on the United Nations.” (2003) Vol.24 Human Rights Quarterly 31492 ibid93 Nicaragua v USA (n-48) Para 104; See also, T Meron, “The Geneva Conventions as Customary Law” (1987) Vol.81 American Journal of International Law 348

take measures necessary for the prevention and suppression of breaches of the

convention.”94

On the other hand, Kalshiven and Focarelli have condoned such an expansive reading of the Article.1

as not being envisaged by the provision’s drafters.95 Furthermore, Hoppold considers:

“[O]ne might conclude that that Common Article.1 [GC] empowers, rather than obliges, States to

intervene when parties to conflict breach their obligations under the [GC].”96

However, this would “seem contrary to the plain meaning of Common Article.1.”97 States already

have a positive obligation under Article.1 to ensure that the parties to the conflict respect IHL “in all

circumstances.” This obligation arises not from being party to the conflict but merely being signatory

to the GC.98 Indeed, Article.1 “should be seen as encompassing an obligation to refuse orders given

by a Force Commander which would entail breaching IHL”99 and placing an obligation on TCCs to

ensure all operations respect100 IHL. Accordingly, Article.1 is far reaching and should, in principle,

ensure compliance with IHL thus, effectively regulating of A.Cs involving M.F. However, to fulfil the

obligation, States and I.Os must be aware of what IHL entails in the first instance; an aspect

challenged by differing interpretations and IHL ratifications.

ii) Ratification and Interpretation: Issues of Consistency and Coherency

Per the ICRC:

94 “Conference of High Contracting Parties to the Fourth Geneva Convention: Declaration” Geneva, 5 December 200195 F. Kalshoven, “The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit” (1999) Vol.2 Yearbook of international Humanitarian Law 3; C. Focarelli, “Common Article 1 of the 1949 Geneva Conventions: A Soap Bubble?” (2010) Vol.21 European Journal of International Law 12596 Mathew Happold, “Comment- obligations of States contributing UN peacekeeping missions under Common Article 1 to the Geneva Conventions” in Krieger, Heike (Ed.) Enforcing International. Humanitarian Law in Contemporary African Conflicts (Cambridge University Press, 2014) 382-398, 39597 Happold (n-96) 39598 ibid99 ibid 396100ibid 396

“The ‘unity of effort’ [sought in operations] is often impacted by inconsistent interpretations of

IHL by [TCC] operating on the basis of different legal standards.

[…]

[A]n important practical challenge is to ensure that [operations] are conducted taking into

consideration the different levels of ratification of IHL instruments and the different

interpretations of those treaties and customary IHL.”101

Although the Geneva Conventions have been universally ratified, the situation regarding their

Additional Protocols (APs) and other IHL treaties is diverse; 173 States are bound by Additional

Protocol.1 (AP.1)102 and 167 Additional Protocol.2 (AP.2).103 Consequently, “it is highly likely that in a

[M.O] some forces will be bound by treaties that do not bind some of the other forces which they are

cooperating.”104 For instance, Article.52 of AP.1 provides that “attacks shall be limited strictly to

military objectives.” Furthermore, Article.57(2)(a)(i) entails for precautions to be taken to ascertain

the legitimacy of the target.105 Therefore, whilst the ‘Principle of Distinction between Civilians and

Combatants’ is considered international customary law (ICL),106 States signatory to AP.1 are subject

additional obligations under Article.57. Accordingly, one State’s troops may be able to perform a

military task whilst another is not. Furthermore, although it has been maintained that many of the

101 ICRC (2011) (n-7) 32102 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I)103 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II). Other IHL treaties with varying levels of ratification include: the 1954 Hague Convention on the Protection of Armed Conflict and its two Protocols of 1954 and 1999; the 2008 Convention on Cluster Munitions. Critically, AP ratification does not include the “most important military power in the word today, the United States, or other important military powers such as Pakistan and Turkey.” Zwanenburg (n-4) 688104 Zwanenburg (n-4) 689105 AP.1 Article 57

“(2)With respect to attacks, the following precautions shall be taken: (a)those who plan or decide upon an attack shall: (i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them.”

106 ICRC: Customary International Law https://www.icrc.org/customary-ihl/eng/docs/v2_cha_chapter1_rule1

rules and obligations contained in the APs are considered ICL the method of obtaining “evidence of a

general practice accepted as law”107 is “imprecise and leaves much room for interpretation.”108

Moreover, the rule of stare decisis does not apply to the ICJ or other international courts or

tribunals109 and the inconsistencies in the Courts’ approach towards IHL criticised:

“The International Criminal Tribunals for the former Yugoslavia and for Rwanda have

engaged extensively in the interpretation of IHL norms […] these tribunals have frequently

delved deeply into the question of how a particular rule should be understood […] whilst the

ICJ has been criticised for its ‘light treatment’ of IHL.”110

Furthermore, some States disagree with the interpretations of the ICTY.111 Consequently, there is a

lack of continuity in the interpretation and therefore, application of IHL. For instance, the

interpretation of what constitutes a ‘military objective’ and therefore, a legitimate target, varies

considerably between States.112 Although not party to AP.1 the U.S considers Article.52(i) and (ii) as

reflecting ICL.113 However, their interpretation of the provision is “considerably broader than that of

many other States including the U.S’ NATO allies.”114 Similarly, there are varying interpretations of

107 Case Concerning North Sea Continental Shelf (Judgement) [1969] ICJ Reports Para 77108 Zwanenburg (n-4) 689109 Gilbert Guillaume, “The use of precedent by international judges and arbitrators” (2011) Vol.2 No.1 International Journal of Dispute Settlement 5-23110 Zwanenburg (n-4) 691; See also: David Kretzmer, “The Advisory Opinion: the light treatment of international humanitarian law.” (2005) Vol.99 No.1 American Journal of International Law 88-102, referring to the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. 111 See: Operational Law Experts Roundtable on the Gotovina Judgement: Military Operations, Battlefield Reality and the Judgement’s Impact on Effective Implementation and Enforcement of International Humanitarian Law. International Humanitarian Law Clinic, Emory Law School, 2012. Available at: www.law.emory.edu/fileadmin/NEWWEBSITE/Centres_Clinics/IHLC/Gotovina_Meeting_Report.pdf 112 Zwanenburg (n-4) 692113 Memorandum for John H. McNeill, Assistant General Counsel (International), OSD (9 May 1986) in Law of War Documentary Supplement, Unites States Army Judge Advocate General’s Legal Center and School, 2007 pg 399 Article.52(3). Available at <https://openlibrary.org/authors/OL7099261A/Judge_Advocate_General's_Legal_Center_and_School_(United_States._Army)._International_and_Operationa> Cited in Zwanenburg (n-4) 692114 Kenneth Watkin, “Coalition operations: a Canadian perspective” in Michael D, Casted (ed), International Law and Military Operations, U.S Naval War College International Law Studies (Vol.84, 2008) pg 255

what amounts to ‘direct participation in hostilities’ whereby, under AP.1 Article.53 a civilian

becomes a legitimate target.115 The Geneva Convention116 and Protocols do not define ‘direct

participation’ however, the ICRC has published its Interpretative Guidance on the Notion of Direct

Participation in Hostilities117 and, although criticised by some and not legally binding, is an

authoritative works concerning the application of Articles.53.118 However, compared to the ICCRC

the U.S adopts a considerably broacher interpretation.119 Furthermore:

“Even between states working particular closely with the United States, there remain areas

of the definition pf ‘direct participation in hostilities’ on which there is consensus and other

areas which there are different views.”120

Consequently, the U.S considers certain objects to be legitimate targets whilst its allies consider

them to be civilian objects.121 States and I.Os have sought to overcome such challenges through

varying methods of legal interoperability122 however, the issue remains that IHL in itself fails to

effectively regulate armed conflicts involving M.F Critically, Common Article.1 cannot be adhered to

when States fail to agree as to the interpretation and standard of IHL in the first instance.

iii) Detention and Human Rights: Looking Beyond IHL

115 Zwanenburg (n-4) 693116 1949 Geneva Convention (n-10) 117 Nils Melzer, Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, ICRC, Geneva, 2009.118 Zwanenburg (n-4) 693119 ibid120 ibid 695; Stephen Pomper, “Toward a limited consensus on the law of immunity in non-international armed conflict: making progress through practice” in Kenneth Watkin and Andrew J. Norris (eds), Non-International Armed Conflict in the Twenty-First Century, US Naval War College International Law Studies (Vol.88, 2012) 182121 Zwanenburg (n-4)695122 See: ibid 698- 705

Concerning IHL and M.F “challenges are particularly acute when in relation to procedural safeguards

for detention in NIACs.”123 Compared to IHL regulating IACs, IHL governing NIACs is considerably less

comprehensive. Bellinger and Padmanabhan’s identification of four controversies concerning

detection in NIACs highlighted the shortfall of IHL in this area.124 However, international human

rights law (IHRL) has entered the field. Whilst the application of IHRL alongside IHL is a contentious

subject in itself,125 it is generally accepted that IHRL continues to apply during an armed conflict and

operates concurrently alongside IHL.126 Thus, it serves to ‘fill the IHL gap’ in this area. Notably, the

extra-territorial application of the European Convention of Human Rights and its Article.5 rights

pertaining to detention were utilised in Al-Jedda v the United Kingdom [2011];127 Al-Skeini v the

United Kingdom [2011]128 and Hassan v the United Kingdom [2014].129 However, the extra-territorial

application of the ECHR has proven contentious amongst States and academic commentators. As

Mallory and Wallace have cautioned: “if States are expected to uphold human rights obligations

during extra-territorial military operations, it will deter them from contributing troops to [UN peace-

operations].”130 Therefore, the application of human rights in this field may prove to be a catch-22.

However, the development of the Copenhagen Principles,131designed to addresses the uncertainties

123 ICRC (2011) (n-7) 32124 John B. Bellinger III and Vijay M. Padmanabhan, “Detention Operations in Contemporary Conflicts: Four Challenges for the Geneva Conventions and Existing Law” (2011) Vol.105 No.2 American Journal of International Law 202: “1. Which individuals are subject to detention?

2. What legal process must the state provide to those detained?3. When does the state’s right to detain terminate?4. What legal obligations do states have in connection with repatriating detainees at the end of

detention?”125 Bruce ‘Ossie’ Oswald, “Some controversies of detention in multinational operations and the contributions of the Copenhagen Principles” (2013) Vol.95 International Review of the Red Cross 707-726, 712-15126 ibid127 Al-Jedda v the United Kingdom [2007] Judgement of the Grand Chamber, Eur. Ct. H.R., Applicant Number: 27021/08128 Al-Skeine v the United Kingdom [2011] Judgement of the Grand Chamber, Eur. Ct. H.R., Applicant Number: Application No. 55721/07129 Hassan v the United Kingdom [2014] Judgement of the Grand Chamber, Eur. Ct. H.R., Application No. 29750/09130 Conall Mallory and Stuart Wallace, “The ‘deterrent argument’ and the responsibility to protect” (2015) Vol.19 No.8 The International Journal of Human Rights 1213-1125, 1213131 The Copenhagen Principles and Guidelines are the outcome of a five-year long process that was initiated by the Danish Government in 2007. The process was initiated in recognition of the fact that bilateral or ad-hoc solutions to detention during international military operations often led to unacceptable differences in the handling of detainees, which, according to the Danish Ministry of Foreign Affairs, are not only unsatisfactory in

surrounding the legal basis for detention and the treatment of detainees during military operations

in NIACs, may serve to alleviate these concerns.132 Appraisingly, the Principles were ‘welcomed’ by

16 States including the Five Permanent Members of the SC133 and whilst non-binding, will

nevertheless inform practice.134 However, both the Swedish and Russian delegations expressed

“concerns about the Principles reflecting IHRL appropriately.”135 As such, the challenge remains to

“develop a common standard that will adequately reflect states’ obligations under the applicable

bodies of [I.L].” 136 An obstacle the ICRC believes can be overcome through the development of

means of “treaty law or otherwise.”137 Overall, IHL fails to effectively regulate issues of detention in

NIACs an issue that is, once again, due to the varying legal standards and interpretations between

States, is exasperated in the context of M.F.

Conclusion

Overall, whilst IHL has the potential to regulate armed conflicts involving M.F there is a distinct lack

of coherency amongst States and academic opinion regarding its application. IHL is challenged by

each of the aspects addressed above. Critically, should any one of these inhibit its application it

consequently fails to regulate the conflict. Some of the challenges discussed are not isolated to A.C

involving M.Fs however, the varying levels of ratification combined with broadly differing

interpretations of IHL provisions serve to exuberate the issues when applied to M.Fs. Owing to the

level of ambiguity within each aspect, one is compelled to conclude that IHL does not effectively

regulate conflicts involving M.Fs.

relation individual protection but at times also constitute a hindrance to effective military cooperation. See: http://www.ejiltalk.org/the-copenhagen-process-principles-and-guidelines/ 132 Oswald (n-125) 723133 ibid 722; See also, 3rd Copenhagen Conference on the Handling of Detainees in International Military Operations, Copenhagen, 18-19 October 2012, Minutes of the Meeting as Recorded by the Chair pg 4. Available at http://um.dk/en/~media/UM/English~site/Documents/Politics-and-diplomacy/Official%20minutes_CP%20ny.pdf 134 Oswald (n-125)723135 ibid 722; See also, 3rd Copenhagen Conference (n-133) 4136 ICRC (2011) (n-7) 32137 ibid

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