by Jessica Poarch

Have you ever wondered how to tell when a riot or internal dispute becomes a non-international armed conflict falling under the regulation of Common Article 3 of the Geneva Conventions? If the answer is yes, I highly recommend reading  “Losing the Forest for the Trees: Syria, Law and the Imperatives of Conflict Recognition” by Laurie R. Blank & Geoffrey S. Corn. This article can be found on Professor Corns’ SSRN page to which the title above is hyper-linked.

In the Article, while arguing for a new approach to Conflict Classification, the authors provide detailed analysis on the history, purpose, and current test used to classify conflicts as well as an explanation as to why proper classifications of conflict are vital to the future of the LOAC.

The Article’s basic argument is that the definition of “armed conflict” has become too legalistic to the detriment of humanitarian protections, the purpose for which the LOAC was formed. The definition of “armed conflict” was laid out by the ICTY in the case of Prosecutor v. Tadic as “exist[ing] where there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” The Court then looked to the two elements of “intensity of the conflict and the organization of the parties to the conflict” to determine if their definition was met.  In subsequent cases, both the ICTY and the ICTR solidified these two elements together as a concrete test when determining if an armed conflict exists – stating that both elements must be met. The article uses the current situation in Syria as an example noting that although violence on the ground between the Free Syrian Army and the Loyalist was intense and large number of civilians were being killed the Commission sent out to investigate human rights violations refused to call violence an “armed conflict” because both prongs of the test were not met. Therefore the LOAC did not apply.

The article then draws an analogy to U.S. Constitutional Criminal Jurisprudence to show the detriment of using such a legalistic approach to a broad conceptual idea (here: probable cause when using an informant and the existence of an armed conflict in a non-international situation) and to provide a road map to fixing the problem.  In the second section, the Article tells the story of the development of the probable cause jurisprudence surrounding the use of informant’s tips to obtain a warrant.  In a nut shell, the Supreme Court established a two prong test which it later applied as a couplet to show why a particular warrant did not meet the probable cause requirement.   Lower courts took this decision and applied the test in a way that required both elements of the test to be met before a warrant was valid. This legalistic approach caused the issue to resurface before the Court  in Illinois v. Gates where the Court found that, as the Article puts it, “because the probable cause is a practical, common sense assessment of all facts and circumstances, the inflexibility of the strict two-prong approach that evolved from its earlier opinions actually undermined the very purpose of probable cause assessment. Instead, these two prongs are properly understood as a framework to guide a totality of the circumstances assessment …”

The Article concludes by arguing the the Supreme Court’s decision in Gates is instructive to the future of defining armed conflicts. Much like the ridged and legalistic probable cause test leading to decision in Gates,  the test used by the international community to determine is an armed conflict of a non-international nature exist “undermines” the purpose of the LOAC and therefore, as in Gates, the international community should move toward a “totality of the circumstances” approach to conflict classification.

In my opinion, the article pin points a very interesting problem in determining when a conflict exists. Labeling internal conflict within a state an “armed conflict” brings with it two very important consequences – the privilege of belligerency and the application of humanitarian protections in the LOAC (for more information on the basic principles of the LOAC see the “LOAC Basics” tab at the top of the blog). Therefore, I agree with the authors that correctly labeling conflict is vital to the future and effectiveness of the LOAC and should be addressed by the international community. Where I differ in opinion from the Authors is in thinking that an earlier classification of the conflict in Syria as an “armed conflict” would have provided additional protection to the civilians caught in the middle of the fighting. One of the most precarious issues in the LOAC is enforcement.  There is no international force that intervenes to prevent or imminently punish war crimes after a red line is tripped and an internal conflict rises to the level of an “armed conflict.” Instead  the LOAC relies on the fighters themselves to abide by the law and criminal tribunals to punish violators long after the crimes have been committed. Therefore, I believe that the conclusion that an earlier classification would have bolstered humanitarian protections is premature at best. Assuming that a tribunal is established for Syria and the Court agrees with the Commission leaving the humanitarian violation committed in the earlier part of the conflict unpunished, an earlier classification by the Commission would mean that the harmed caused to more people would be punished.  Absent this, I do not see where an earlier classification would have provided additional humanitarian protection.