Category Archives: IHL

There is no Civil War in the US

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Contrary to what Henry Porter may think, there is no civil war going on in the US. Porter’s claim is based on the total number of firearm deaths in the country: The annual toll from firearms in the US is running at 32,000 deaths and climbing, even though the general crime rate is on a downward path (it is 40% lower than in 1980). If this perennial slaughter doesn’t qualify for intercession by the UN and all relevant NGOs, it is hard to know what does. But total deaths is not the only criteria for a civil war.

Other criteria can be found in the Commentaries to the Geneva Conventions (1949); in particular Common Article 3 of Geneva Convention III.

One is the existence of a “Party in revolt against the de jure government (which) possess an organized military force, an authority responsible for its acts, acting within a determined territory and having the means of respecting and ensuring respect for the Convention.” Second is that “the legal government is obliged to have recourse to the regular military forces against insurgents organized as military and in possession of a part of the national territory.” Third, there must be a recognition of the insurgents as belligerents by the state. Finally the insurgents must have the “characteristics of a state.” Obviously none of these things exist in the US: There is no “insurgency” occurring in the US.

But what of Porter’s more straightforward humanitarian claim? Is there some agreed upon international norm at stake in the number of gun deaths that occur in the US such that “intercession by the UN and all relevant NGOs” is necessary? The US – probably the most important political actor there is –  doesn’t appear to think such a norm exists. And who would enforce this norm anyway?

Though the situation of gun violence is the US is definitely tragic, it is not clear that the world should intervene.

Is Dshokhar Tsarnaev a “Belligerent?”

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So Senator Lindsey Graham thinks is in violation of the law of armed conflict (LOAC):

 

The overall problem with this claim is that Tsarnaev is not a belligerent in any armed conflict. To be a belligerent in terms of the (LOAC), one need to be involved in an armed conflict. There are only two types of armed conflict recognized by the LOAC: international and non-international. As far as I am aware we are not at war with Russia (of which Chechnya is a federal subject) so Tsarnaev is not a belligerent in an international armed conflict. Nor is there a civil war going on in the US.

Maybe, just maybe, if he can be tied to insurgent groups in Afghanistan or Iraq. And again, maybe, just maybe, if we think there are still civil wars going on in those countries then maybe he is a belligerent.

But from all the information there is a present, it appears Tsarnaev is a terrorist plain and simple. And should be dealt with as such. The US has ample legal resources at its call to do this without the need of expanding the definition of “belligerent” beyond its meaning.

Who Decides When a Civil War Begins?

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An article posted on the PBS Newshour web site http://www.pbs.org/newshour/extra/features/world/july-dec12/syria_07-17.html claimed:

The International Committee of the Red Cross (ICRC), a Geneva, Switzerland-based organization dedicated to protecting victims of armed conflict and providing humanitarian aid, is the group tasked with officially declaring that a conflict has met the qualifications for civil war. The ICRC holds this responsibility because of its position as the keeper of the Geneva Conventions.

This is not the case. The ICRC’s claim is not a legal decision bringing IHL into force. IHL comes into force when such a conflict takes on certain characteristics such as when a certain level of protracted violence has been reached.

That this claim is met is an empirical question determined by the  facts on the ground – regardless of what anyone says . Even if the ICRC did not say an armed conflict existed this would not change the facts on the ground. And it happens to be true in this case. Thus, at least, Common Article 3 of the Geneva Conventions applies in the case of Syria

However, It does not seem to be the case that an Additional Protocol II conflict exists. The Free Syrian Army (FSA), though is may be under a responsible command, does not appear to hold enough territory to make the conflict qualify.

Nonetheless, the ICRC’s claim that a civil war is in progress and that therefore IHL applies does lend credibility to those who make this claim.

What is an interesting question is at what point does/has this conflict become internationalized.