The Forever War and the Laws of War

Photo by israel palacio

Dr. Nathan Derejko, Lecturer in Law, University of Essex

The looming threat of a ‘forever war’, characterised by the so-called ‘Global Battlefield’ and the perpetual applicability of International Humanitarian Law (IHL), has thrust the question of when and how Non-international Armed Conflicts (NIAC) end to the forefront of international concern and debate. In both practical and legal terms, identifying the end of a NIAC is notoriously difficult. There are several reasons for this, but two in particular should be highlighted.

First, is the complex spectrum of social, political and economic factors that underpin, propel, and ultimately bring NIACs to an end. Indeed, history is replete with NIACs spanning several years and, in some cases, several decades.

Second, is the virtual silence of IHL regarding its temporal scope of application during NIAC. While conventional IHL speaks of the ‘end of hostilities’ and the ‘end of the conflict’, it stops short of providing any guidance on the precise meaning and scope of these expressions, or the relationship between them.

These factors are further compounded by a comparative dearth in legal scrutiny of when and how NIACs end. While considerable judicial and academic analysis has focussed on IHL’s threshold of activation (when a NIAC legally comes into existence), much less attention has been given to its threshold of termination (when a NIAC legally ends).

In a recent article, A Forever War? Rethinking the Temporal Scope of Non-International Armed Conflict (published in the Journal of Conflict and Security Law), I undertake a forensic examination of IHL’s threshold of termination during NIAC.

The article first explores the temporal architecture of Common Article 3 and Additional Protocol II to determine what, if anything, IHL has to say about its threshold of termination. From here, it unpacks and critically examines two of the leading approaches for determining IHL’s threshold of termination during NIAC: the ‘peaceful settlement’ approach advanced in the jurisprudence of International Criminal Law; and the ‘lasting pacification’ approach advanced by the International Committee of the Red Cross.

While both of these approaches possess advantages and limitations, it is argued that neither produce entirely satisfactory results for determining IHL’s threshold of termination during NIAC.  In short, their common ailment is a quest for a single point in time that marks the ‘end’ of a NIAC, and at which point IHL terminates in toto. In practice, such an approach invariably results in the over-extension of IHL to factual circumstances that no longer warrant its application, or by the termination of its applicability before comprehensive protection is restored under International Human Rights Law.

For these reasons, the article develops and proposes an innovative ‘functional approach’ for determining IHL’s threshold of termination during NIAC, which  addresses the silence and shortcomings of existing law and doctrine, while at the same time, holds true to the very object and purpose of IHL during NIAC.

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