WHAT LAW IS APPLICABLE IF STATE B INTERVENES AGAINST REBELS ON THE

TERRITORY OF STATE A, WITHOUT THE CONSENT OF STATE A, BUT WITHOUT

ANY INVOLVEMENT ON ITS PART IN THE HOSTILITIES?

Leuwen entry for the Jean Pictet Competition, 2004

Introduction

Under the facts provided it is possible to interpret the conditions of State B's
intervention in two ways. On the one hand, the facts could suggest that prior
to State B's intervention, hostilities were already taking place between State
A and rebels, regardless of which State B chose to intervene without taking
part in the hostilities between State A and the rebels. An instance of this is
the Turkish intervention against Kurdish rebels in Iraq in 2000. On the other
hand, the facts can also suggest that as a result of State B's intervention
against the rebels, hostilities now exist between the two. State A neither
consents nor takes any involvement in these actions, such as was the
situation involving Russia in relation to the alleged infiltration of Chechen
fighters into the Pankisi Gorge region of Georgia. Other similar interventions
include the activities of Peru in combating FARC insurgents in Colombia, and
perhaps even Israel's intervention against Palestinian 'terrorists' across the
Syrian border.

That the second scenario is more frequently encountered in practice suggests

that an analysis of the legal implications is more pressing. Both situations
raise interesting legal issues, however the second scenario, given the greater
frequency, raises them more often. We will proceed on the assumption that
State B (for example Russia) intervenes against rebels (Chechens) on the
territory of State A (Georgia), without Georgia's consent or involvement.

We will consider a number of different permutations of the available facts and

their concomitant legal implications, both in terms of Ius ad Bellum and Ius in
Bello. We will firstly consider whether an international armed conflict exists,
and between whom. We will then move on to consider the trigger factors for
the conflict, as this will determine the legality of the recourse to the use of
force. This is linked to considerations of the attribution of the acts of non-
state actors to states that harbour them, which in turn raises questions about
the factual relationship between State A and the rebels. The final factual
permutation relates to the origin of the rebels. We will then proceed to
consider over-arching legal regimes, such as Human Rights obligations and
pre-existing bi- and multi-lateral treaties.
What is an armed conflict?

International Humanitarian Law is ratione materiae applicable to armed

conflicts. More precisely IHL in its entirety is applicable to international armed
conflicts, but only in parts to non-international armed conflicts.

It could be seen as peculiar that, in none of the laws that codify armed
conflicts, a definition of armed conflict itself has been given. This definition is
vital: only from the moment that an armed conflict exists, IHL can be applied.
As Pictet described in his commentaries on common article 2 of the Geneva
Conventions (GC), it is sufficient that hostilities exist de facto. The
applicability of the Geneva Conventions does not need the declaration of war,
nor the recognition of a state of war. In paragraph 70 of the Tadić case
(Prosecutor v Tadić [1996] 35 ILM 35), the International Tribunal for the
Former Yugoslavia finds that 'an armed conflict exists whenever there is a
resort to … protracted armed violence between governmental authorities (of
State B) and organised armed groups (the rebels on the territory of State A)'.
It therefore becomes necessary to consider both the extent and duration of
the military operations. If the intervention is on a small scale for a very
limited period of time, it seems unlikely to reach this threshold. On the other
hand, a massive intervention by large numbers of troops over a long period
of time will more obviously meet this criterion.

The Conventions are primarily made to protect individuals and not the
interests of States; the Roman law maxim mirrors this hominum causa omne
ius constitutum est.

State A is involved in the Hostilities

As the title suggests that one of the State actors is uninvolved in the
hostilities, it follows that there is no armed conflict between States A and B.
There may well exist armed conflict between State A and the rebels, and
State B and the rebels, but no such relationship subsists between State A and
B.

Assuming that State A is engaged in hostilities against rebels on its territory,

the law applicable would be that of a non-international armed conflict. This
would therefore be Additional Protocol-II and common Art. 3 of the Geneva
Conventions. Additionally, domestic legislation (most importantly criminal
provisions) remains applicable, unless international law over-rules it. Whilst
this would provide some protection, the full conventions would apply far more
comprehensive and clear protection.
The remainder of this essay will consider the situation where State B is
involved in hostilities against the rebels.

Was State B's intervention the first act of violence?

The current international legal regime is one involving the respect of

territorial integrity and political sovereignty, and the pacific resolution of
dispute. Thus, any unilateral intervention without the consent of the territorial
State is by definition contentious, if not in violation of this regime. The
primary source for this is Art. 2(4) of the United Nations Charter (UN Charter).
Critics of this provision claim that it is either merely declarative or no longer
legally effective. The International Court of Justice (ICJ), however, recognised
in paragraph 188 of the Nicaragua case (Nicaragua Case (Merits) ICJ Rep
[1986])case that it constitutes customary international law.

If State B's intervention was the first act of violence, then it can either be
regarded as anticipatory selfdefence, or armed aggression. The Caroline case
(The Caroline Case, 30 BFSP 195-6 [1837]) illustrates an early example of
pre-emptive self-defence. This precedent, however, has become obsolete in
the light of changing state practice. The very signing of the UN Charter
evidences this change.

The accepted nature of self-defence would not seem to include pre-emptive

action, as such action would be incompatible with the text of Art. 51 UN
Charter. As this article provides an exception to the general principle of
pacific dispute resolution and collective security (which is the purpose of the
UN Charter), it must necessarily be interpreted narrowly. As a consequence,
the right of anticipatory self-defence does not have an explicit legal basis.
Indeed, previous similar interventions have been condemned by the UN
Security Council, such as Israel's attack on an Iraqi nuclear installation in
1981. The most recent Iraq conflict could well act as a catalyst to change this
position when taken in to consideration with 9/11.

The legal basis for such a condemnation can be seen in Art. 2 UN Charter, as
affirmed by the ICJ in paragraph 212 of the Nicaragua case: states are
obligated to respect the territorial integrity and political sovereignty of other
states. Thus whilst an intervention against a non-state actor on the territory
of another state may or may not violate the principle of political sovereignty,
it certainly violates territorial integrity and perhaps even their neutrality
Whilst anticipatory self-defence has at best a dubious legal basis, unjustified
armed aggression remains contrary to the purposes of the United Nations,
and as such is illegal.

Certain other provisions in the UN Charter contain exceptions to this

principle, such as the inherent right of individual or collective self-defence
under Art. 51 UN Charter. This article would be applicable to State B if the
rebels attacked State B first, prior to any form of intervention. It would also
apply to State A, given that a violation of its territory has taken place. On the
other hand, had the rebels not first attacked State B, State B might still have
some right of recourse to force in the context of a punitive measure, provided
that their was some initial insult or breach of international law that needed to
be 'avenged'.

Can one implement self-defence against Non-State Actors?

It has been argued that non-state actors are capable of making an armed
attack such as those envisaged by Art. 51 UN Charter. It would therefore be
possible to construct the right of self-defence against such a nonstate actor.
This conclusion, however, could have the ultimate effect of giving 'terrorists'
combatant status, and so is very controversial.

If one can claim the right of self-defence against non-state actors, State B's
response is legitimate. They have been attacked, and are now resorting to
force of arms to redress this injury. On the other hand, if such a right does
not exist, State B's actions are equivalent to either anticipatory self-defence,
or even simple armed aggression.

We submit that such non-state actors as rebels and terrorists may well have
sufficient legal personality to be the object of self-defence, but should not
simply because of this benefit from combatant status. They should be
required to demonstrate sufficient discrimination in terms of Art. 43 AP-I.

The fact that the rebels are a non-state actor is not necessarily a bar for them
to declare themselves bound by various treaties; the Palestinian Liberation
Organisation has unilaterally done so with AP-I.
Can the rebels' actions be attributed to State A?

Should the connection between the rebels and State A be close enough, or
should their exist such a level of co-operation and acceptance, an attack by
the rebels could be attributed to State A itself. This would provide State B
with a legal basis for intervention, but only if both these criteria were met.
Since the events of September 11th, 2001, certainly the political climate has
changed—and perhaps also the legal one. The Congress of the United States
of America has passed a resolution authorising the use of military force
against states that harboured those responsible for the attacks.

The command-authority necessary to create such a relationship of attribution

is either 'effective' (Nicaragua) or 'overall' (Tadić). Effective suggests a
tighter degree of control than does overall. The International Law Commission
returns to the Nicaragua judgement in its formulation of State
Responsibilities. Recent legal discourse, subsequent to 9/11, suggests a more
expansive view.

If such attribute can take place, then the conflict is of necessity an

international one. This will mean that the complete spectrum of IHL
instruments will apply (depending on ratification of certain of the non-
customary laws).

Where do the rebels originate from?

It is further necessary to consider the origins of the rebels. If they are

originally from State A, it will make little difference. Indeed, it seems unlikely
that State B would intervene against rebels fighting against the government
of State A without there being some ideological motivation (for example,
South Vietnamese operations against communist insurgents seeking to
destabilise Laos and Cambodia during the Vietnam War).

The other possibility is that they are originally from State B. This could
perhaps turn the substance of the conflict into a non-international one. The
only international aspect of this conflict would be the location, and David
suggests that merely one foreign element is not sufficient to render a conflict
international. This seems doubtful, however, given that territory is a very
substantial and politically charged element. Should the conflict be non-
international, then AP-II would become applicable, provided that State B has
ratified it, and the conditions of Art. 1 AP-II are fulfilled. It is important also to
stress that common article 3 of the Geneva Conventions would apply.
What is the relationship between State A and the rebels?

State A supporting and/or tolerating the rebels could amount to a breach of

Security Council Resolution 1373 (2001) if it were possible to prove that the
rebels were guilty of terrorist acts (as was allegedly the case with the target
of the Israeli intervention in Syria on 6th October 2003). Such a situation can
be imagined where State A is militarily inferior to State B, and would run the
risk of massive retaliation should it become operationally involved.
Regardless of the balance of power in a situation like this, the states may
simply dislike each other, perhaps because they have different ideologies or
religions, and so would be unwilling to co-operate. If such a close relationship
between the non-state actor and their 'host' exists, it may be possible to
attribute the acts of the rebels to their 'host' state, as discussed earlier.

On the other hand, State A may be unable to directly fight against the rebels,
but is at the same time hostile to foreign intervention. An historical example
might be Turkish offensives against Kurds in northern Iraq. The Iraqi
government was unwilling to see foreign forces on its territory, but was
restricted in what military operations it could mount against the Kurds
themselves.

This distinction would make little difference in terms of the IHL, but would be
of importance in terms of ius ad bellum.

Human rights

Also international human rights law should be considered here. This is a set
of international rules, on the basis of which individuals and groups can expect
and/or claim certain behaviour or benefits from governments.

In principle, human rights law is always applicable. But some human rights
may be derogated from in "times of national emergency which threatens the
life of the nation and the existence of which is officially proclaimed" (e.g. Art.
4 ICCPR, reaffirmed by the ICJ in its Nuclear Weapons Advisory Opinion). Only
a core of non-derogable human rights such as the prohibition of slavery and
the prohibition of torture and inhumane treatment would still apply in such a
situation.

The Right to Life is also regarded as non-derogable right, but it must be seen
in the context of IHL. Thus it becomes somewhat devalued in a regime that
permits not only the killing and injury of combatants, but also collateral
damage to civilians.

Thus State B could declare such an emergency, but only after having
informed the other States Parties about the provisions from which it has
derogated, and only on a temporary basis (UN Human Rights Committee
General Comment No. 29).

Moreover, in many situations of armed conflict, it is not the government but a

non-governmental entity that exercises control over people, and these
entities usually deny that they are bound by international standards like
Human Rights Covenants. [a bit inconsistent with PLO thing, no?] That could
be the case with the rebels on the territory of State A. As a consequence,
significant gaps in human rights' protection still remain.

Bilateral & Multilateral Agreements

To be complete in determining the law applicable to this scenario, the

bilateral and multilateral agreements involving State A and B, such as
membership of the Organisation for African Unity or the Arab League, must
also be mentioned. They remain in force according to the provisions of the
relevant instruments. Certain customary relationships such as the right of hot
pursuit may also exist, again depending on the extraterritorial police
competencies created by international agreement.

Conclusion

If we return to the situation of the introduction, namely the intervention of

Russian against Chechen 'terrorists' on the territory of Georgia, we could now
conclude what law is applicable. Russia acts in the context of a punitive
measure to Georgia's unwillingness to secure their borders, and for
harbouring such groups.

We qualify this conflict as international for a number of reasons. Firstly, given

the attitude of the Georgian authorities (and their unwillingness or inability to
deal with the Chechen insurgents), this will justify a punitive reprisal by
Russian forces. The conflict therefore becomes international in scope. Given
the history of conflict between the Russians and the Chechens, the attack can
be seen as either an instance of anticipatory selfdefence (in which case it
would probably currently be illegal), or simply the continuation of existing
hostilities on another front. In this second case, Russia is in violation of
Georgia's territorial sovereignty. Both of these are Ius ad Bellum
considerations; they will not change the applicable law during the actual
conduct of hostilities.

The origin of rebels, despite them being nominally nationals of the Russian
Federation, does not outweigh the other factors described above. The conflict
therefore remains international.

As an international armed conflict, the law applicable in terms of IHL will be

the Hague-law and the Geneva Conventions. AP-I will also apply as both
countries have ratified it. This will insure that at least a minimum standard of
military conduct is obeyed, and that, where it is not obeyed, offenders will be
punished. By preserving this element of humanity in the very heart of armed
conflict, International Humanitarian Law keeps open the path towards
reconciliation and contributes not only to restoring peace among the
belligerents but also to fostering harmony amongst peoples.

Copyright © Karen Ronsijn, Marcus Wischik, Priyanka Dhillon, Ang Chun Li

2004

http://www.wischik.com/marcus/essay/hostilities.html