Ihl and Continued Conflict After Peace Agreements
Rogier Bartels
Rogier is a researcher at the Netherlands Defence Academy (NLDA) and works at the Dutch National Prosecutor's Office. He holds LL.M-degrees from Utrecht University and the University of Nottingham. Before taking up his current positions, he was an associate legal officer in Chambers at the International Criminal Tribunal for the Former Yugoslavia, and a legal adviser at the International Humanitarian Law Division of the Netherlands Red Cross.
Rogier is an adjunct-lecturer at the Hague University of Applied Sciences, where he teaches international humanitarian law, and he co-convenes the Hague Initiative for Law and Armed Conflict.
Last week, the UN special representative to Syria, Lakhdar Brahimi, attempted to broker a ceasefire for – at least – the duration of the Eid Al-Adha holiday. Although both sides, the Syrian government and the opposition, reportedly agreed to a cease-fire, the fighting did not stop and there were daily reports of attacks from both sides (see, e.g., here, here, and here).
So – as one of my students asked me – does the application of international humanitarian law (IHL) continue during a ceasefire and can acts perpetrated during ceasefires qualify as war crimes? Naturally, as some rules (e.g. those related to the protection of persons deprived of their liberty for reasons related to the armed conflict) continue to apply even after the conflict ends, these rules obviously also continue to apply during a ceasefire. But what about the rest of the rules? IHL applies during armed conflicts, so the question would be whether a non-international armed conflict continues to exist during a ceasefire.
Does IHL cease to apply as a result of a ceasefire agreed between the parties?
The Decision on jurisdiction by the ICTY Appeals Chamber in Tadic, in the same paragraph in which its – now famous – definition of armed conflict was given (para. 70), also held with regards to the "[f]ighting among the various entities within the former Yugoslavia [that] began in 1991" that
[n]otwithstanding various temporary cease-fire agreements, no general conclusion of peace has brought military operations in the region to a close. These hostilities exceed the intensity requirements applicable to both international and internal armed conflicts.
However, since the Appeals Chamber held that the continued hostilities exceeded the lower threshold of armed conflict by reason of which IHL should apply anyway, it is not entirely clear what Appeals Chambers view on application of IHL during ceasefires is, but it appears that it considers that armed conflicts do not end during a (temporary) ceasefire. That would be in line with its view on when non-international armed conflicts end (discussed below).
With the introduction of the term "armed conflict" as opposed to "war", the 1949 Geneva Conventions modified determination of the scope of application for IHL from a formal into a factual one. Consequently, any determination of the application of IHL should take into account the actual conduct of the parties rather than statements as to whether or not they want to adhere to a ceasefire. The Appeals Chamber's finding could also be explained as corresponding with this notion, by giving priority to the situation on the ground.
Besides statements as to the intent to adhere to a ceasefire, parties often make specific statements on the continued application of IHL: ceasefire agreements in practice often contain references to IHL (see the examples at Sivakumaran, p. 132; and ICRC, p. 25). However, these references are mainly related to obligations that parties to a conflict that has fully ended would also have with regards to, e.g., persons deprived of their liberty. Other references to IHL might be included, but as the ICRC observed, "[a]s ceasefire agreements do not necessarily guarantee the end of hostilities, the suspension of hostilities might be an opportunity to remind the parties of their obligations under IHL and secure a commitment to compliance, should hostilities be taken up again." (ICRC, p. 24; emphasis added) As hostilities often continue during ceasefires (such was the case in Sri Lanka after the cease fire agreement of 2002, and the Lomé Cease Fire Agreement was even followed by the Lomé Peace Agreement, but neither ended the conflict), the conflict and thus the application of IHL can be said to continue on that basis.
If, however, there would be no hostilities during such a ceasefire, would it then mean that – due to a lack of protracted armed violence – no actual non-international armed conflict existed during that period, hence IHL ceased to apply? After Tadic, the ICTY has held that the requirement of protracted armed violence relates mainly to the intensity (see, e.g., Celebici, para. 184). As a consequence it would seem that also a short ceasefire period could potentially mean that there is no non-international armed conflict during that period. Yet, as opposed to the start of an armed conflict, there should probably be a certain protractedness of the ceasing of armed violence before a conflict can be considered as ended. How long though?
When does a non-international armed conflict end?
There has been an extensive academic debate and voluminous case law exists on what qualifies as an armed conflict (see, e.g., earlier posts), and on when the so-called lower threshold for NIAC has been crossed. The debate has almost solely focused on the start of these armed conflicts, however. In fact, very little has been written on the temporal application of IHL, or indeed, on the end of these armed conflicts. Even monographs about non-international armed conflicts address the issue of temporal application only in passing, very briefly, or not at all.
Common Article 3 applies to "case[s] of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties", but does not refer to any end of the said application; nor, indeed, does it give any guidance as to when these armed conflicts not of an international character may end. Similarly, 1977 Additional Protocol II refers to "the end of the conflict", but does not clarify when this may be. And whilst it refers to "the end of hostilities" in relation to the granting of amnesty for the participation in the armed conflict, this only reflects that "when hostilities have ceased, passions die down and there is a possibility of amnesty." (ICRC Commentary to AP II, p. 1401) The ICRC Commentary to Article 2 of Additional Protocol II does note that as the Protocol's text "does not contain any indication as regards the end of its applicability[,] [l]ogically this means that the rules relating to armed confrontation are no longer applicable after the end of hostilities". However, it has been noted that "[i]t is not quite clear whether this is a reference to the cessation of active hostilities, usually through the conclusion of a ceasefire agreement, or the general close of hostilities, usually through a peace agreement." (Sivakumaran, p. 252)
In its seminal decision on jurisdiction inTadic (referred to above), the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) held
that 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. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities […], in the case of internal conflicts, [until] a peaceful settlement is achieved. (Decision on jurisdiction, para. 70)
This reference to a peaceful settlement being reached is the only authoritative statement on the issue, but it is not very specific, of course. Furthermore, I would submit that "a peaceful settlement" is too strict a standard for a non-international armed conflict to be considered as ended, and that there is no support in IHL to set such a standard. If a non-international armed conflict only starts when organised groups are engaged in fighting of a certainintensity, then logically, the armed conflict ends when these two criteria are no longer present.
In the Gotovina case, the Markac Defence tried to make this argument, but as the submission was initially made with respect to a non-international armed conflict and the Gotovina Trial Chamber determined that the concerning situation was to be qualified as an international armed conflict, the Trial Chamber considered the Defence's submission only with relation to the end of an international armed conflict, and in that regard held that Markac's position "does not accurately reflect the law." (Gotovina Trial Judgement, para. 1694) Indeed, for the existence of an international armed conflict there are no intensity or organisational requirements. It is unfortunate that the Trial Chamber did not need to consider the argument about the end of a non-international armed conflict, raised by the Defence, and thus did not provided a clarification of the law on this point.
To conclude:
Ceasefire agreements, like peace agreements indicate the parties' intent to end hostilities, but ultimately the determination as to whether the hostilities have ceased depends on the actual situation on the ground. However, because the determination of the existence of an armed conflict (and thus of the application of IHL) is a factual one, I submit that the same counts for determining the end of a non-international armed conflict. Such conflicts can end before a peace settlement is reached if the organisation of the parties and/or violence would drop below the respective thresholds for organisation and intensity. Clearly, in Syria that is unfortunately currently not yet the case.
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Source: https://www.armedgroups-internationallaw.org/2012/11/01/ceasefires-and-the-end-of-the-application-of-ihl-in-non-international-armed-conflicts/
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