The Applicability of Common Article 3 to the Geneva Conventions to Armed Attacks by Transnational Armed Groups

Anna Marie Brennan

This post examines whether armed attacks by Transnational Armed Groups come within the meaning of Common Article 3 to the Geneva Conventions as supplemented by Addition Protocol II (CA3).

A Transnational Armed Group can be described as a non-state armed actor which operates beyond the territorial borders of a single state and carries out serious and violent acts intended to cause fear, death, serious bodily injury and property damage to a person, group or general population in order to force a government or international organisation to perform or refrain from performing a particular act. The best example of a Transnational Armed Group is Al-Qaeda. Other examples of Transnational Armed Groups include Jemaah Islamiyah and the Palestine Liberation Organisation. However, these particular Transnational Armed Groups are more limited in geographical scope and vary in organisation and objectives. At present, Al Qaeda is the only Transnational Armed Group operating on such a wide geographical basis with training grounds in Pakistan, Afghanistan and Uganda. Al-Qaeda has also proven itself to be global in outlook by carrying out attacks in locations such as Madrid, London, Bali, Karachi and New York.

Two requirements define the scope of application of CA3: (1) the existence of an armed conflict; and (2) that it is a non-international armed conflict. However, characterising attacks by Transnational Armed Groups as an armed conflict within the meaning of CA3 raises major policy questions. First of all, ascribing ‘belligerent’ or ‘combatant’ status to members of Transnational Armed Groups might invest members of such groups with rights and privileges under International Humanitarian Law (IHL). Secondly, the classification of attacks by Transnational Armed Groups as an armed conflict may also symbolically aggrandise the Transnational Armed Group by suggesting that states consider them much more than a sinister criminal organisation. Lastly, categorising attacks by Transnational Armed Groups as an armed conflict could also immunise members of such armed groups from prosecution for proportional attacks directed against military targets. As a result of these issues, it is difficult to categorise attacks by Transnational Armed Groups under either traditional perceptions of war or contemporary ideas of armed conflict. Nevertheless, the attacks do exhibit several characteristics of armed conflict including their purpose, coordination and intensity.

Nevertheless, the question whether CA3 regulates armed attacks by Transnational Armed Groups still remains. The text of CA3 provides very little guidance on the issue. In reality, the text of CA3 is only helpful in determining the type of armed conflicts it does not regulate by identifying its field of application as ‘armed conflict not of an international character.’ Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) has arguably clarified the definition of armed conflict in IHL. In particular, the Appeals Chamber in Prosecutor v. Tadic (Tadic) concluded that:

[A]rmed conflict exists whenever there is a resort to armed force between States and protracted armed violence between … such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal armed conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole of the territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place.

Two features of this definition clarify the definition of ‘armed conflict.’ First of all, the definition suggests that an armed conflict exists only if the armed group controls a segment of the state’s territory. Secondly, the definition categorises internal hostilities as an armed conflict only if the violence is protracted. Jinks notes that both requirements would limit the conditions under which CA3 applies. Even though the definition laid down by the ICTY is persuasive, a careful reading of the Tribunal’s reasoning makes clear that it does not restrict the scope of application of CA3 to Transnational Armed Groups.

The Tribunal’s definition does not necessitate that armed groups have control over territory within the state. The Tribunal defines the circumstances in which IHL applies by carefully analysing its general scope of application, the temporal scope of application and the territorial scope of application. Jinks notes that by defining the territorial field of application for non-international armed conflict the ICTY confirms that IHL is applicable in territory that is no longer under the control of the state and in the whole of that territory.

In addition, the ‘protracted’ armed violence prerequisite does not limit the application of IHL in any considerable way. The conclusion reached by the ICTY Appeals Chamber in Tadic indicates that most instances of internal violence would satisfy this requirement. Whether the internal violence is protracted is determined by reference to the entire time period of the armed hostilities from the initiation to the cessation of the hostilities. Moreover, IHL applies to all acts committed during an armed conflict even if the act was committed before the point at which the ‘protracted’ threshold was crossed. To be precise, the ‘protracted’ requirement does not exclude acts committed in the early stages of a non-international armed conflict. The ‘protracted’ armed violence requirement can be best appreciated as little more than a reiteration of the rule excluding isolated and sporadic acts of violence from the scope of IHL. Furthermore, the jurisprudence of the ICTR established that armed violence over a period of a few months meets the ‘protracted’ requirement and, because of the level and intensity of the armed violence, it constituted an armed conflict within the meaning of CA3.

In conclusion, the intensity, coordination, and pattern of attacks by Transnational Armed Groups against the United States and other states make clear that attacks by Transnational Armed Groups are not simply isolated and sporadic acts of violence and constitute an armed conflict within the meaning of CA3. Attacks by Transnational Armed Groups have involved the coordinated use of force and have demonstrated their capability to operate globally even against military and diplomatic targets. It is undoubtedly clear that the organisational capacity of Transnational Armed Groups such as the Palestine Liberation Front and Al Qaeda distinguishes them from ‘mere bandits’ in that they indisputably possess the de facto capability to carry out sustained armed attacks against states.

ICC Prosecutor to Charge Sudanese President?

This blog post was submitted by PhD candidate and Government of Ireland Scholar Pádraig McAuliffe, who is reading for a PhD entitled The Serious Crimes Process of East Timor in the Field of Human Rights Law under the supervision of CCJHR Co-Director, Dr. Siobhán Mullally

The Guardian, The New York Times and the BBC this morning report that the ICC Prosecutor, Luis Moreno Ocampo is to seek the arrest of the Sudanese President Omar Al-Bashir on Monday next for war crimes, crimes against humanity and genocide committed in Darfur. Currently, two Sudanese (Ali Kushayb, a leader of the Janjaweed militia, and Ahmad Harun, currently fulfilling one of the more ironic positions imaginable, that of domestic Humanitarian Affairs minister) are charged with 51 counts of war crimes and crimes against humanity, including acts of murder, persecution, torture, rape and forcible displacement. Neither has come before the Court. At a time of existential crisis for the ICC, the move can be interpreted as a bid to reassert the ongoing relevance of a body that has yet to complete a trial since establishment in 2002 after the signing of the Rome Statute in 1998. As William Schabas, the head of the Irish Centre for Human Rights at the National University of Ireland, notes: “This is a very decisive moment for the court. It has been going through a terrible period, this could revive its image and make people feel it’s a robust dynamic institution, or it could be another blow.” This note of pessimism is worth bearing in mind – the story of the ICC has been one of disappointment, disillusionment and anticlimax, most notably in the disintegration of the case against Joseph Kony and allegations by diplomats that the pursuit of arrest warrants in Uganda hampered peace negotiations.

There are justifiable fears that an indictment of Al-Bashir will impair what halting progress there has been made in calming, albeit imperfectly, the situation in Darfur. There are also fears an indictment might serve as motivation to remove international aid workers and peacekeepers in Darfur. The NY Times quotes Alex de Waal, a Sudan expert at the Social Science Research Council in New York: “Bashir is paranoid; he feels the world is out to get him. He is prone to irrational outbursts and could respond in a very aggressive way.” Indeed, peacekeepers were attacked with seven fatalities last Tuesday, while several members of Doctors Without Borders were expelled from the country last week. A charge against Al-Bashir would represent another welcome erosion of the idea of head of state immunity most notable in the prosecutions of Slobodan Milosevic and Charles Taylor. Though both were sitting heads of state at the time of indictment, there was little prospect of them being brought before the ICTY and SCSL while in power, as the Sudanese President so securely is. Milosevic and Taylor had to be removed from office domestically before being brought to justice, something there is little prospect of in Khartoum. Charges might also be welcomed as a move away from the patent absurdity of charging militia leaders and Ministers but ignoring those “conflict entrepreneurs” further up the chain who instigate or retain the capacity to restrain the violence.

Nonetheless, aside from the Kantian moral imperative to prosecute, what of the other instrumental purposes that so often animate transitional justice? Put more simply, given the patent unlikelihood of Al-Bashir being arrested and brought to The Hague any time in the foreseeable future, what good will come from charging someone who will never come before the courts and from hardening the attitude of someone who has shown a willingness to slaughter his own people and to remove international peacekeepers and aid workers whenever it becomes politic to do so? The ICC Chief Prosecutor’s attitude seems to be that it is better to light a single candle than to curse the darkness, but the candle could set fire to the negotiations that have brought peacekeepers to Darfur and restrained the butchery. It may dash what little hope of progress that remains.