The end of application of international humanitarian law
Published online by Cambridge University Press: 02 March 2015
This article provides an overview of the rules governing the end of application of international humanitarian law (IHL), or the law of armed conflict. It articulates the general principle that, unless there is a good reason of text, principle or policy that warrants an exception, the application of IHL will cease once the conditions that triggered its application in the first place are no longer met. For IHL to apply, its distinct thresholds of application – international armed conflict, belligerent occupation and non-international armed conflict – must continue to be satisfied at any given point in time. The article also examines situations in which a departure from the general rule is warranted, as well as the factors that need to be taken into account in determining the end of each type of armed conflict. In doing so, the article analyzes terminating processes and events, which generally end the application of IHL (but not necessarily all of it), and transformative processes and events, which end the application of one IHL sub-regime but immediately engage another. Finally, the article briefly looks at the (putative) armed conflict between the United States and Al Qaeda and its seemingly imminent end.
- International Review of the Red Cross , Volume 96 , Issue 893: Scope of the law in armed conflict , March 2014 , pp. 163 - 188
- Copyright © icrc 2015
1 Generally on classification of armed conflicts, see Milanovic, Marko and Hadzi-Vidanovic, Vidan, “A Taxonomy of Armed Conflict”, in Henderson, Christian and White, Nigel (eds), Research Handbook on International Conflict and Security Law, Edward Elgar, Cheltenham and Northampton, MA, 2013, pp. 256–313CrossRefGoogle Scholar, pre-print draft available on SSRN at: http://ssrn.com/abstract=1988915, on which some parts of the following discussion draw heavily (all Internet references were accessed in October 2014). See also the article by Julia Grignon in this issue of the Review.
2 Geneva Convention for the Amelioration of the Condition of the Wounded and the Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 (GC I); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked members of the Armed Forces at Sea, 12 August 1949, 75 UNTS 85 (GC II); Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135 (GC III); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 (GC IV).
4 See M. Milanovic and V. Hadzi-Vidanovic, above note 1, pp. 305–308.
5 See the article by Julia Grignon in this issue of the Review.
6 The applicability thresholds of the treaties did not immediately crystallize into custom, and due to the fluid nature of customary law, it is difficult to pinpoint the exact time at which this crystallization occurred.
7 See generally Kleffner, Jann, “Scope of Application of International Humanitarian Law”, in Fleck, Dieter (ed.), The Handbook of International Humanitarian Law, 3rd ed., Oxford University Press, Oxford, 2013Google Scholar, p. 44; M. Milanovic and V. Hadzi-Vidanovic, above note 1, pp. 258–264.
8 Ibid., p. 260. Perhaps the most notorious example of this occurred with regard to the Manchurian crisis and the Sino-Japanese conflict in the 1930s, in which both Japan and China for various political reasons denied the existence of a state of war – for more on this, see Carty, Anthony and Smith, Richard A., Sir Gerald Fitzmaurice and the World Crisis: A Legal Adviser in the Foreign Office, 1932–1945, Martinus Nijhoff, The Hague, 2000Google Scholar, pp. 41 ff.
9 See Schwarzenberger, Georg, “Jus Pacis ac Belli? Prolegomena to a Sociology of International Law”, American Journal of International Law, Vol. 37, No. 3, 1943, p. 470CrossRefGoogle Scholar; Jessup, Philip C., “Should International Law Recognize an Intermediate Status between Peace and War?”, American Journal of International Law, Vol. 48, No. 1, 1954, p. 100CrossRefGoogle Scholar.
11 M. Milanovic and V. Hadzi-Vidanovic, above note 1, pp. 260–261.
12 See J. Kleffner, above note 7, p. 62.
13 CA2(1) hence provides that: “In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them” (emphasis added).
14 See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (AP I), Art. 1(3).
15 See generally Levie, Howard S., “The Nature and Scope of the Armistice Agreement”, American Journal of International Law, Vol. 50, 1956, p. 880CrossRefGoogle Scholar; Baxter, Richard, “Armistices and Other Forms of Suspension of Hostilities”, Collected Courses of the Hague Academy of International Law, Vol. 149, 1976, pp. 357–390Google Scholar; J. Kleffner, above note 7, pp. 65–66.
17 On the marginalization of the concept of “war”, see especially Kritsiotis, Dino, “Topographies of Force”, in Schmitt, Michael and Pejic, Jelena (eds), International Law and Armed Conflict: Exploring the Faultlines, Martinus Nijhoff, The Hague, 2007Google Scholar, p. 29.
18 See J. Kleffner, above note 7, p. 66, contra Y. Dinstein, above note 16, pp. 59–61 and 324.
19 The paradigmatic example of such a conflict would be the 1950–1953 Korean War. The hostilities in that conflict ended with the 27 July 1953 armistice, but no peace treaty was signed thereafter. Even if, despite the lack of hostilities and the long passage of time, the failure of the parties to agree to a peace treaty maintained the formal state of war, and thus an IAC, the effect of the Charter-based jus ad bellum rules would be to preclude a use of force even if the provisions of the armistice were breached. In other words, any resort of force would need to be justified under self-defence or Security Council authorization within the Charter framework – see, e.g., Simon, Ernest A., “The Operation of the Korean Armistice Agreement”, Military Law Review, Vol. 47, 2007, p. 105Google Scholar. For arguments that the 1953 armistice did, in fact, terminate the state of war, see, e.g., Y. Dinstein, above note 16, pp. 43–44. von Heinegg, Wolff Heintschel, “Factors in War to Peace Transitions”, Harvard Journal of Law & Public Policy, Vol. 27, No. 3, 2004, pp. 849–854Google Scholar.
20 This was, for example, an issue in the Ethiopia/Eritrea arbitration; Eritrea had not made a declaration of succession to the Conventions upon its independence in 1993 or thereafter, and consistently maintained that it was not bound by them. It only acceded to them in 2000, after its conflict with Ethiopia had ended. The Claims Commission found that Eritrea was not a party to the Conventions until its accession, but that most of the Conventions' rules reflected customary IHL, which was indeed binding upon Eritrea – see Eritrea Ethiopia Claims Commission, Partial Award, Prisoners of War – Eritrea's Claim 17, 1 July 2003, paras 31–42.
21 GC I, Art. 63; GC II, Art. 62; GC III, Art. 142; GC IV, Art. 158; AP I, Art. 99; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609 (AP II), Art. 25.
22 For example, GC III, Art. 142, para. 2, provides that “[t]he denunciation shall take effect one year after the notification thereof has been made to the Swiss Federal Council. However, a denunciation of which notification has been made at a time when the denouncing Power is involved in a conflict shall not take effect until peace has been concluded, and until after operations connected with the release and repatriation of the persons protected by the present Convention have been terminated.”
23 For more on this, see Kolb, Robert and Hyde, Richard, An Introduction to the International Law of Armed Conflicts, Hart, Oxford, 2008, pp. 104–105Google Scholar.
24 See also Derek Jinks, “The Temporal Scope of Application of International Humanitarian Law in Contemporary Conflicts”, HPCR Background Paper prepared for the Informal High-Level Expert Meeting on the Reaffirmation and Development of International Humanitarian Law, Cambridge, 27–29 January 2003, p. 3, available at: www.hpcrresearch.org/sites/default/files/publications/Session3.pdf; J. Kleffner, above note 7, p. 61.
25 This includes those rules that also apply in peacetime and those whose application was triggered by the armed conflict but will not cease with the end of armed conflict.
26 Pictet, Jean (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 3: Geneva Convention Relative to the Treatment of Prisoners of War, ICRC, Geneva, 1960Google Scholar, Art. 2(1), p. 23.
27 M. Milanovic and V. Hadzi-Vidanovic, above note 1, p. 274.
28 For more on this, see J. Kleffner, above note 7, pp. 44–45.
29 Cf. D. Jinks, above note 24, p. 3: “Given the de facto ‘armed conflict’ regime of the Geneva Conventions, the general applicability of international humanitarian law terminates if active hostilities cease and there is no probability of a resumption of hostilities in the near future.” See also R. Kolb and R. Hyde, above note 23, p. 102.
30 International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Gotovina, Case No. IT-06-90-T, Judgment (Trial Chamber), 15 April 2011, para. 1694.
31 Leaving aside the possibility that the UN Security Council is actually modifying the applicable IHL regime through its decisions, or indeed that it has the power to do so.
32 See also J. Kleffner, above note 7, pp. 61 and 70.
33 GC I, Art. 63; GC II, Art. 62; GC III, Art. 142; GC IV, Art. 158.
34 See J. Pictet, above note 26, pp. 541–543.
35 Pictet, Jean (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 4: Geneva Convention Relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958Google Scholar, Art. 6(2), p. 62.
36 The ICTY Appeals Chamber's dictum in Tadić that “[i]nternational 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 conflicts, a peaceful settlement is achieved” is in my view too insistent, at least implicitly, with regard to the consensual nature of the end of conflict. ICTY, Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2 October 1995, para. 70. On the end of IHL application in NIACs, see below. What matters is finality de facto; plenty of armed conflicts, both international and internal, have ended without any kind of formal agreement or settlement, such as the NIAC in Sri Lanka.
37 See J. Pictet, above note 35, p. 62.
38 See Sandoz, Yves et al. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987Google Scholar, Art. 3(b), paras. 152–153.
39 See, e.g., D. Jinks, above note 24, p. 3; Blank, Laurie, “A Square Peg in a Round Hole: Stretching Law of War Detention Too Far”, Rutgers Law Review, Vol. 64, No. 1, 2011, pp. 1179–1182Google Scholar; Bartels, Rogier, “From Jus In Bello to Jus Post Bellum: When do Non-International Armed Conflicts End?”, in Stahn, Carsten, Easterday, Jennifer S. and Iverson, Jens (eds), Jus Post Bellum: Mapping the Normative Foundations, Oxford University Press, Oxford, 2014, pp. 300–303Google Scholar.
40 See Pejic, Jelena, “Terrorist Acts and Groups: A Role for International Law?”, British Yearbook of International Law, Vol. 75, 2004, pp. 78Google Scholar and 81. See below for more on the question of whether IHL actually grants such authority or merely sets limits on State action.
41 The legal effects of lex specialis are in my view quite modest; it does no more than allow human rights norms to be interpreted in the light of IHL (and vice versa where appropriate), but does not allow for their displacement in the event of any contradiction between the two. See Milanovic, Marko, “Norm Conflicts, International Humanitarian Law and Human Rights Law”, in Ben-Naftali, Orna (ed.), International Humanitarian Law and International Human Rights Law, Oxford University Press, Oxford, 2011Google Scholar, p. 95.
42 See Tristan Ferraro, Occupation and Other Forms of Administration of Foreign Territory, Expert Meeting Report, ICRC, 2012, pp. 26 ff., available at: www.icrc.org/eng/resources/documents/publication/p4094.htm. See also Vaios Koutroulis, Le début et la fin de l'application du droit de l'occupation, Pedone, Paris, 2010.
44 See J. Pictet, above note 35, pp. 62–63. On transformative occupation, see also Roberts, Adam, “Transformative Military Occupation: Applying the Laws of War and Human Rights”, American Journal of International Law, Vol. 100, 2006, p. 580Google Scholar.
45 See also R. Kolb and R. Hyde, above note 23, pp. 103–104.
46 In the Wall case, the International Court of Justice (ICJ) did not seem to consider this possibility, finding that due to the passage of time, only those provisions of GC IV mentioned in Article 6(3) continued to apply in the Occupied Palestinian Territory, although the remaining provisions were not really central to the case. See ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para. 125. While agreeing with the Court that GC IV, Art. 6(3) will be the governing framework for States not party to AP I, such as Israel, Dinstein argues that any outbreak of hostilities in the occupied territory (such as the Palestinian intifadas) will reinstate the applicability of the whole of GC IV and restart the time limit in GC IV, Art. 6(3) – see Y. Dinstein, above note 43, pp. 280–283.
47 See Y. Dinstein, above note 43, p. 272: “A definitive close of the occupation can only follow upon a durable shift of effective control in the territory from the Occupying Power to the restored sovereign (or its allies).”
48 See United States of America v. Wilhelm List et al., in Law Reports of Trials of Major War Criminals, Vol. 8, 1949, pp. 38 and 55–56 (holding that the German occupation of partisan-held parts of Yugoslavia did not cease since “the Germans could at any time they desired assume physical control of any part” of Yugoslavia); see also ICTY, Prosecutor v. Naletilic, Case No. IT-98-34-T, Judgment (Trial Chamber), 31 March 2003, para. 217 (holding that an occupation exists so long as the occupying army has the “capacity to send troops within a reasonable time to make the authority of the occupying power felt”).
49 R (on the application of Al-Skeini and others) v. Secretary of State for Defence,  UKHL 26,  AC 153, para. 83 (per Lord Rodger).
50 European Court of Human Rights, Al-Skeini and Others v. the United Kingdom, App. No. 55721/07, Judgment (Grand Chamber), 7 July 2011.
51 Bearing in mind that the positive obligation to secure or ensure human rights is a flexible one, I would tentatively argue that the two thresholds should be the same – see Milanovic, Marko, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy, Oxford University Press, Oxford, 2011, pp. 141–147CrossRefGoogle Scholar.
53 Cf. Adam Roberts, “What is a Military Occupation?”, British Yearbook of International Law, Vol. 97, 1984, pp. 249, 276–279 and 287–288.
54 See Vienna Convention on the Law of Treaties, 1155 UNTS, 331, 8 ILM 679, entered into force 27 January 1980. For example, for an argument that the 1999 Kumanovo Military Technical Agreement, whereby the Federal Republic of Yugoslavia consented to the presence of NATO troops on its territory, was a possibility vitiated by coercion, with Kosovo thereby constituting an occupied territory, see Cerone, John, “Minding the Gap: Outlining KFOR Accountability in Post-Conflict Kosovo”, European Journal of International Law, Vol. 12, No. 3, 2001, pp. 469 and 484CrossRefGoogle Scholar. See also E. Benvenisti, above note 52, Chapter 10.
55 Art. 47 GCIV provides: “Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.”
56 ICTY, Prosecutor v. Tadić, above note 36, para. 70.
57 According to the ICTY Appeals Chamber, “an armed conflict exists whenever 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”. Ibid., para. 70. For more detailed discussion regarding the elements of the NIAC threshold, see J. Kleffner, above note 7, pp. 49–50; M. Milanovic and V. Hadzi-Vidanovic, above note 1, pp. 282 ff.
58 Cf. S. Sivakumaran, above note 3, pp. 252–254. See also D. Jinks, above note 24, pp. 7–8.
59 See above note 36.
60 ICTY, Prosecutor v. Haradinaj et al., Case No. IT-04-84-T, Judgment (Trial Chamber), 3 April 2008, para. 100. The issue was not revisited in the subsequent litigation in Haradinaj, as the parties agreed on the scope of the armed conflict when the case was retried.
61 See also R. Bartels, above note 39, pp. 303 ff. (arguing that the organization element is of special relevance in the context of the end of a NIAC, and providing an overview of the ICTY jurisprudence on factors and indicators of the intensity and organization criteria).
62 This section incorporates much of the discussion in M. Milanovic and V. Hadzi-Vidanovic, above note 1, pp. 292–293.
63 Note that one can use the term “internationalized armed conflict” in a different, descriptive sense, to refer to any NIAC in which there is some type of foreign intervention. This is, again, not how I will be using the term, in order to maximize both its utility and precision.
64 For more on the mechanisms of internationalization, see ibid., pp. 292–302.
66 In the case of cross-border NIACs the domestic law authority need not necessarily come from the law of the State in which the hostilities take place, but could also come from the law of the State exercising powers of detention.
67 In this regard, see especially Serdar Mohammed v. Ministry of Defence,  EWHC 1369 (QB), paras. 239 ff. (in which the High Court of England and Wales finds that IHL in NIAC does not provide for a power to detain, and that any such authority can come from domestic law or other parts of international law, such as Security Council resolutions). For more on this, see Kubo Mačák, “No Legal Basis under IHL for Detention in Non-International Armed Conflicts? A Comment on Serdar Mohammed v. Ministry of Defence”, EJIL: Talk!, 5 May 2014, available at: www.ejiltalk.org/no-legal-basis-under-ihl-for-detention-in-non-international-armed-conflicts-a-comment-on-serdar-mohammed-v-ministry-of-defence/; L. Hill-Cawthorne and D. Akande, “Does IHL Provide a Legal Basis for Detention in Non-International Armed Conflicts?”, EJIL: Talk!, 7 May 2014, available at: www.ejiltalk.org/does-ihl-provide-a-legal-basis-for-detention-in-non-international-armed-conflicts/.
68 M. Milanovic and V. Hadzi-Vidanovic, above note 1, pp. 305–308.
69 See Marco Sassòli, “Transnational Armed Groups and International Humanitarian Law”, HPCR Occasional Paper Series, No. 6, Winter 2006, pp. 7–8.
70 Haines, Steven, “Northern Ireland 1968–1998”, in Wilmshurst, Elizabeth (ed.), International Law and the Classification of Conflicts, Oxford University Press, Oxford, 2012, pp. 130–131 and 133–136Google Scholar (reporting that, according to unattributable information given to the author, various legal advisers within the United Kingdom government thought that the NIAC threshold was reached, at least during some periods).
71 “It is the understanding of the United Kingdom that the term ‘armed conflict’ of itself and in its context denotes a situation of a kind which is not constituted by the commission of ordinary crimes including acts of terrorism whether concerted or in isolation. The United Kingdom will not, in relation to any situation in which it is itself involved, consider itself bound in consequence of any declaration purporting to be made under paragraph 3 of Article 96 unless the United Kingdom shall have expressly recognised that it has been made by a body which is genuinely an authority representing a people engaged in an armed conflict of the type to which Article 1, paragraph 4, applies.” United Kingdom of Great Britain and Northern Ireland, Declaration of 2 July 2002, available at: www.icrc.org/ihl.nsf/NORM/0A9E03F0F2EE757CC1256402003FB6D2?OpenDocument.
74 For more on this, see M. Milanovic, above note 41. Cf. the Serdar Mohammed judgment, above note 67.
75 See, e.g., Bellinger, John and Padmanabhan, Vijay, “Detention Operations in Contemporary Conflicts: Four Challenges for the Geneva Conventions and Other Existing Law”, American Journal of International Law, Vol. 105, 2011, p. 201CrossRefGoogle Scholar (repeatedly referring to targeting and detention authority under IHL, and identifying gaps of such authority in NIACs, which the authors feel is needed). See also Kress, Claus, “Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts”, Journal of Conflict & Security Law, Vol. 15, No. 2, 2010, p. 260CrossRefGoogle Scholar (speaking of States being “more interested in availing themselves of the wider powers they can derive from the application of the law of non-international armed conflict (compared with international human rights law) than they are concerned by the restraining effect of the ensuing obligations”).
76 In that regard, see especially Anderson, Kenneth, “Targeted Killing and Drone Warfare: How We Came to Debate Whether There Is a ‘Legal Geography of War’”, in Berkowitz, Peter (ed.), Future Challenges in National Security and Law, Hoover Institution, Stanford University, 2011, pp. 1–18Google Scholar, available at: http://ssrn.com/abstract=1824783.
77 Supreme Court of the United States, Hamdan v. Rumsfeld, Government Brief on the Merits, No. 05–84, p. 26, available at: www.justice.gov/osg/briefs/2005/3mer/2mer/2005-0184.mer.aa.html.
78 See also C. Kress, above note 75, p. 255; M. Sassòli, above note 69, pp. 4–5; N. Lubell, above note 73, p. 96.
80 See Hamdan v. Rumsfeld, 548 US 557 (2006), p. 630. On the fundamental lack of clarity in the Court's decision on classification and its several possible interpretations, see Milanovic, Marko, “Lessons for Human Rights and Humanitarian Law in the War on Terror: Comparing Hamdan and the Israeli Targeted Killings Case”, International Review of the Red Cross, Vol. 89, No. 866, 2007, pp. 373–393CrossRefGoogle Scholar.
81 See also S. Sivakumaran, above note 3, p. 234.
83 See also C. Kress, above note 75, p. 261; J. Pejic, above note 79, p. 196; N. Lubell, above note 73, pp. 114–121.
84 For a discussion of the difficulties in applying the IHL detention regime to suspected terrorists, see, e.g. L. Blank, above note 39.
85 See also Noam Lubell, “The War (?) against Al-Qaeda”, in E. Wilmshurst (ed.), above note 70, pp. 451–452.
86 See, e.g., the speech of Jeh Johnson, at the time General Counsel of the U.S. Department of Defense, at the Oxford Union, on “The Conflict Against Al Qaeda and its Affiliates: How Will It End?,” 30 November 2012, available at: http://www.lawfareblog.com/2012/11/jeh-johnson-speech-at-the-oxford-union/ (“I do believe that on the present course, there will come a tipping point – a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed. At that point, we must be able to say to ourselves that our efforts should no longer be considered an “armed conflict” against al Qaeda and its associated forces.”); Remarks by President Obama at the National Defense University, 23 May 2012, available at: http://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-national-defense-university .
87 For an excellent discussion of the developments in US law and policy and an argument that the end of the conflict would not necessarily spell the end of any authority to use lethal force, see Robert Chesney, “Postwar”, Harvard National Security Journal, (2014, forthcoming), draft available on SSRN at: http://ssrn.com/abstract=2332228.
88 In other words, a rebel group fighting a State does not have the right in international law to detain the State's soldiers, nor for that matter does it have the right, or power, or authority to kill them. It is simply not unlawful under IHL for the rebel group to kill combatants if it abides by the targeting rules of IHL, or to detain them, but it must do so in conformity with IHL rules on treatment in detention. The same applies for the State itself, whose authority to kill or detain stems from its own domestic law. See also Rowe, Peter, “Is There A Right to Detain Civilians by Foreign Armed Forces during a Non-International Armed Conflict?”, International and Comparative Law Quarterly, Vol. 61, Issue 03, July 2012, p. 697CrossRefGoogle Scholar.
89 For a discussion of the need to apply human rights flexibly in an extraterritorial setting and strike a balance between universality and effectiveness, see M. Milanovic, above note 51.