PART ONE (1): NATURE OF THE CONFLICTS
The fact pattern discloses three keys issues for determination. The first issue is what was the nature of the hostilities existing between the State of Cataria and the State of Tumberland between 23rd January 2017 and 3rd September 2017. Secondly, what International Humanitarian Law instruments apply to the different phases of the hostilities within the aforementioned period. Lastly, what is the implication of Xeron’s participation in the conflict between Cataria and Tumberland.
International Humanitarian Law (IHL) distinguishes two types of armed conflict, to wit, international armed conflict, and non- international armed conflict. It is this categorization that determines the IHL rules to be applied in any given case.
Under Article 2 common to the Geneva Conventions, an international armed conflict occurs when one or more States have recourse to armed force against another State, regardless of the reasons or the intensity of this confrontation. The locus classicus of this position is the decision of the International Criminal Tribunal for the former Yugoslavia (ICTY) The Prosecutor v Dusko Tadic. In that case, the ICTY held thus, “an armed conflict exists whenever there is a resort to armed force between States”
From the Tadic case (supra) it emerges that the requisite threshold for international armed conflict is as simple as any kind of use of arms between two States. Article 2 common to the Four Geneva Conventions defines international armed conflict as covering cases of declared wars as well as any armed conflict where the state of war has not been recognized. Therefore, the declaration of war itself is formal and what matters is military occupation of another state. What follows the existence of an international armed conflict is the application of the IHL rules embodied in the four Geneva Conventions, Additional Protocol 1 (AP1) and The Hague Regulations, 1907.
Non-international armed conflicts, on the other hand, are defined under Article 3 common to the Geneva Conventions to “armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties”. Such hostilities occur between a State’s armed forces and non-governmental armed groups or between such groups only. In determining whether a non-international armed conflict exists, it is imperative to look at the intensity of the conflict and the organization of the parties. IHL Scholars have elaborated on this test arguing that it is a minimum for distinguishing an armed conflict from internal banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law. In this regard, D. Schindler proposes a clearer test, thus:
“The hostilities have to be conducted by force of arms and exhibit such intensity that, as a rule, the government is compelled to employ its armed forces against the insurgents instead of mere police forces. ….. the hostilities are meant to be of a collective character, [i.e.] they have to be carried out not only by single groups.”. [Emphasis supplied]
The effect of establishing the existence of an armed is that the four Geneva Conventions, Additional Protocol 2(AP2), 1997 and The Hague Regulations, 1907 become applicable.
Turning to the facts of the case, from the evening of 23rd January 2017 to mid-February, gunshots were fired by inhabitants of Tumberland as Cataria would find out in February that year. These inhabitants were operating from both Cataria and Tumberland and therefore, there existed the use of force as well as occupation. However, such a confrontation would neither fit within the realm of international armed conflict. This is because it has not been established that said “inhabitants” were acting as agents of Tumberland or its armed forces neither did Tumberland consent to or acquiescence in the use of force. At the same time, it has not met the threshold required in non-international armed conflict since the intensity was still too low as there were no causalities neither was the conflict being fought from any organized front. Therefore, it can be inferred that the nature of the conflict at that point was “transnational” making IHL would not apply to it.
The occurrences of 22nd February 2017, involving the entrance of Cataria watch groups and the local police of Cataria into Tumberland, heightened the conflict between the two countries as there was use of force by both civilians and the Police of both countries, loss of lives and property. However, despite the use of force, the occupation of Tumberland’s territories by Catarian insurgents, and retaliation by the government of Tumberland, the conflict could not rise to the IHL standard of internationality. It could also not be categorized as a non-international armed conflict since the intensity of the attack did not compel Tumberland to employ its armed forces instead of Police officers. For these reasons, the conflict remained “transnational” and did not call for the application of IHL.
From 15th May 2017, the conflict took an interesting turn. Deployment of Tumberland’s troops into Critma, the occupation of Critma by Tumberland’s citizens (in May 2017) and the recognition by the Prime Minister of Tumberland that his armed forces were present in Critma (18th June 2017) are not of any legal consequence. This is because Critma had ceased to be part of Cataria pursuant to the referendum held in February 2017 and as such, Tumberland’s troops had occupied Critma and not Cataria.
Tumberland’s declaration (2nd September 2017) that Critma was its 6th region precipitated into a higher level of conflict: Cataria launched airborne attacks on the territory of Tumberland and Xeron announced support of Tumberland and sent Xeron’s troops to fight along the Tumberland’s. From that point on, the conflict became a case of an international armed conflict as the armed confrontations were between the troops two States (Tumberland and Xeron) against another State (Cataria). From that moment, the Four Geneva Conventions, Additional Protocol 1 (AP1) and The Hague Regulations, 1907 became applicable to the situation.
From the foregoing, it becomes clear that IHL gained applicability to the situation on 2nd September 2017 as prior to that, domestic and other transnational laws applied to the conflicts.
PART TWO (2): LEGALITY OF THE ATTACK LODGED CATARIAN TROOPS
From the facts of this case, the pertinent issue is whether the attack lodged by Catarian troops on Tumtune radio station and civilians of Tumberland was lawful.
Although IHL does not concern itself with the reasons leading to war, it seeks to regulate the conduct of belligerents in war. In this principle lies the distinction between twin terms jus ad bellum and jus in bello. Jus ad bellum refers to the conditions under which one may resort to war while jus in bello governs the conduct in war and it is, in other words, IHL. Therefore, regardless of their reasons for engaging in war, parties to any armed conflict are duty-bound to respect the core principles and rules of IHL.
Among the principles of IHL are necessity and distinction. Under these principles, combatants can only use means and methods that are necessary to achieve their military object and, even more important, distinguish between combatants and civilians. Elaborating on these principle, Marco Sassòli argues in his masterpiece, How does the Law Protect in war, that allowing attacks on persons other than combatants would be a fundamental violation as victory can be achieved by overcoming only the combatants of a country. Therefore, combatants have a fundamental duty to desist from attacking civilians.This principle lies in the wording of Article 50 (1) of the Additional Protocol 1 whose import is that any person who is not a combatant belongs to the civilian population.
The primacy of the principle of distinction (of civilians and combatants) is deeply entrenched into customary IHL as well as the Geneva Conventions. Article 25 of the Hague Regulations prohibits, “the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended” In addition, Articles 48, 51 and 52 of the Additional Protocol 1 do embody the same principle by making protection of civilian population indispensable.
Moreover, States are bound by the principle of proportionality which prohibits military attacks which “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof….” This was affirmed in the ICTY way case of Prosecutor v. Galic wherein the following was stated:
“The act of making the civilian population or individual civilians the object of attack resulting in death or injury to civilians, transgresses a core principle of international humanitarian law and constitutes without doubt a serious violation of the rule contained in the relevant part of Article 51(2) of Additional Protocol I. It would even qualify as a grave breach of Additional Protocol I. It has grave consequences for its victims.”
From the facts of this case, it is possible that Tumberland was going to violate IHL principle if indeed, it called upon civilians and children (15 years). However, this would not warrant Cataria to retaliate by violating IHL. This is because the principle of jus in bello (IHL) takes precedence over Jus ad bellum. Therefore, Catarian troops were under obligation to respect, among others, the principles of necessity and distinction.
By attacking Tumtune, a radio station which was not a military object, Catarian troops violated the principle of necessity and distinction. In the same breath, the attack on Tumberland’s building flies on the face of distinction as the civilians were not yet part of the combatant population.
The upshot of the above analysis is that Catarian troops violated peremptory IHL principles rendering their military operation unlawful.
PART THREE (3): USE OF PROJECTILES
The issue to be addressed is whether Tumberland’s use of deadly projectiles was in violation of IHL rules and principles.
Under the 1868 Declaration of St Petersburg, the only legitimate objective of war is the weakening of an enemy’s military forces and of arms, projectiles, and materials designed to cause unnecessary suffering are prohibited. So sacrosanct is this rule that it is not only codified under the Hague Rules (on the international customary law) but also it has been adopted into a number of treaties. Article 35(2) of Additional Protocol 1 provides for a more elaborate provision thus:
“It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.”
The underlying principle in the foregoing provisions is that of unnecessary suffering. Scholars have propounded that the test applicable in determining whether a means or method employed in warfare causes unnecessary suffering is a balance between a State’s lawful force (as dictated by military necessity) and the consequences of that force.If the damage arising from the use of the means and methods) results is superfluous to the achievement of the military objective, unnecessary suffering will follow.
The ICJ in the Nuclear weapons case, while holding that use of nuclear weapons would be a superfluous means of war, reasoned as follows (in part):
“It is not permitted in the choice of weapons to cause unnecessary suffering to enemy combatants, nor to render their death inevitable. A military target may not be attacked if collateral civilian casualties would be excessive in relation to the military advantage.”
Similarly, the European The European Court of Human Rights (ECHR) in the case of Isayeva v. Russia, the Court had the following to hold of weapons that are indiscriminate and dangerous:
“The Court considers that using this kind of weapon in a populated area, outside wartime and without prior evacuation of the civilians, is impossible to reconcile with the degree of caution expected from a law enforcement body in a democratic society………………. The massive use of indiscriminate weapons stands in flagrant contrast…. cannot be considered compatible with the standard of care prerequisite to an operation of this kind involving the use of lethal force by State agents.” [Emphasis mine]
One would easily conclude, from the above cases, that in the circumstances herein, the projectiles employed by Tumberland were superfluous and targeted both combatants and civilians. This is evident from the fact that the projectiles could ignite upon contact with air and the persons affected sustained deep burns and had breathing problems. Therefore, there is no gainsaying the fact that the projectiles caused unnecessary suffering and violated against the principle of distinction by injuring civilian population. Consequently, the use of those projectiles could neither be lawful nor tenable under IHL.
PART FOUR (4): THE STATUS OF PERSONS CAPTURED BY CATARIA
A number of issues fall for determination. First, what is the status of Xeron and Tumberland soldiers captured by Catarian troops. Secondly, whether Kurkat citizens captured can be considered Prisoners of war and if not, the implications thereof. Lastly, whether Kurkat can be considered a party to the armed conflict.
Under The third Geneva Convention, a combatant who falls in the hand of the enemy becomes a Prisoner of war (POW). The implication of becoming a POW is that one may be interned without any particular procedure or for no individual reason. However, the purpose of such internment is only limited to hindering one’s direct participation in hostilities and/or to protect them. This legal position has been affirmed in a number of cases including the US case of Harukei Isayama and Others.
It is important to note that POW status is only for former combatants and as such, persons who take part in a war unlawfully do not POW such status upon capture. For this reason, IHL makes it illegal to hire mercenaries. Article 47 of the Additional Protocol 1 sets the test for determining who a mercenary is. It states that such a person:
“a) Is specially recruited locally or abroad in order to fight in an armed conflict; b) Does, in fact, take a direct part in the hostilities; c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; d) Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict? e) Is not a member of the armed forces of a Party to the conflict, and f) Has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.” [Emphasis mine]
A mercenary enjoys neither combatant nor POW status but instead, such a person is a violator of IHL and could be tried for engaging in the war illegally. However, by virtue of Article 75 of the Additional Protocol 1, such a person is entitled to a fair hearing and to the basic humane conditions.
Flowing from the clear provisions of IHL already enumerated, it becomes clear that the Kurkat men hired by Tumberland are mercenaries within the purview of article 47 of the Additional Protocol 1 and being such, they do not enjoy POW status merely because of their participation in the ongoing war. The implication, therefore, is that they could be tried for engaging in the war illegally without recourse to IHL. In the same breath, the State of Kurkat cannot be rendered a party in the ongoing armed conflict merely because its citizens were hired by Tumberland (as mercenaries).
On the other hand, the members of Tumberland and Xeron armed forces captured enjoy POW status as they were combatants having the right to take part in war. For that reason, although Cataria is entitled to intern them, it has no right to punish them for taking part in war. However, the punishment cannot be done in any inhumane and arbitrary manner as the mercenaries have the inherent right to dignity and cannot subjected to torture or to cruel, inhuman or degrading treatment or punishment.
As for the issue of the insignia and uniforms, it suffices to note that the failure by some of the soldiers to distinguish themselves properly amounts to violation IHL violation. They had a fundamental duty to ensure that they cannot be mistaken for civilians or for Catarian soldiers.
PART FIVE (5): CATARIA’S RECRUITMENT MEASURE
The issue is whether Cataria’s measure to recruit persons under the age of fifteen (15) years violates IHL rules and if so, to what extent.
IHL encapsulates special treatment to children and this is, arguably, because children are a vulnerable group. Additional Protocol 1 makes it illegal for States to recruit persons under the age of fifteen (15) into their armed forces and puts States in a straight-jacket to ensure that children do not take a direct part in hostilities.
A similar provision is entrenched in the United Nations Convention on the Rights of the Child. Article 38 of the Convention Commands States to, inter alia:
“Take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities…….…. Refrain from recruiting any person who has not attained the age of fifteen years into their armed forces.”
The decision of the International Criminal Court (ICC) in the case of Thomas Lubanga is instructive to the protection of children from direct hostilities. In that case, the ICC found the accused guilty of conscripting and enlisting children under the age of fifteen years into an armed group. The ICC relied on Commentaries on the Additional Protocols to the Geneva Conventions to hold that although the Rome statute employs the use of the words “conscripting and enlisting”, the same is not different from the IHL principle of non-recruitment of children.
From the analysis above, it becomes clear that Cataria’s measure of lowering the age of recruitment of its citizens into the armed forces to fourteen (14) years is inconsistent with the mandatory provisions of Additional Protocol 1 and the United Nations Convention on the Rights of the Child.
Cataria would, however, be able to recruit who are lower than the age of eighteen (18) years of age but above fifteen (15). The condition in recruiting from this class of children would be that the State of Cataria gives priority to those children who are the oldest.
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TREATIES AND CONVENTIONS
Convention on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects, 1980.
Convention on the Rights of the Child, November 20, 1989.
Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight is an international treaty agreed in Saint Petersburg, Russian Empire, November 29 / December 11, 1868.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention) Aug. 12, 1949, 6 U.S.T. 3114
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention) Aug. 12, 1949, 6 U.S.T. 3217
Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) Aug. 12, 1949, 6 U.S.T. 3316
Geneva Convention Relative to the Protection of Civilian Persons in Times of War (Fourth Geneva Convention) Aug. 12, 1949, U.S.T. 3516
International Covenant on Civil and Political Rights, 16 December 1966.
Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 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), 8 June 1977.
Isayeva v. Russia, 57950/00, Council of Europe: European Court of Human Rights, 24 February 2005.
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Osman v. Prosecutor, Case No. 114, Malaysia.
The United States, Trial of Lieutenant General Harukei Isayama and Others, Case No. 101.
The Prosecutor v Dusko Tadic, Case No. 211, ICTY
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The Republic of Nicaragua v. The United States of America (1986) ICJ.
The Prosecutor v. Thomas Lubanga Dyilo. ICC-01/04-01/06.
The Prosecutor v. Galic, Case No. 218, ICTY, 2003.
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