Unsettled Guidance in an Era of Persistent Conflict
Can we say, definitively, when an armed conflict no longer exists under international law? The short, unsatisfying answer is sometimes: it is clear when some conflicts terminate as a matter of international law, but a decisive determination eludes many others.[1] To give one concrete example, ascertaining whether conflict in Afghanistan and elsewhere continues is key to determining the legal power of the United States, at least as far as international law goes, to keep holding certain detainees at the Naval Base at Guantánamo Bay, Cuba—a question that has come before U.S. courts repeatedly.[2]
The lack of fully-settled guidance often matters significantly. That is because international law tolerates, for the most part, far less violent harm, devastation, and suppression in situations other than armed conflicts. Thus, certain measures governed by the laws and customs of war—including killing and capturing the enemy, destroying and seizing enemy property, and occupying foreign territory, all on a possibly large scale—would usually constitute grave violations of peacetime law. The rules on the conduct of hostilities, for instance, contemplate that the use of lethal force against persons is inherent to waging war.[3] By comparison, under law-enforcement principles governed by international human rights law, the use of lethal force may be used only as a last resort and only when other means are ineffective.[4]
Today, visions of perpetual war mix with knotty factual scenarios and often-unsettled international-legal guidance on the end of armed conflict. Well into its second decade, the United States’ “War on Terror”[5] shows little prospect of abating.[6] In 2009, the U.S. Army envisaged an era of persistent conflict, extending at least from 2016 to 2028.[7] More broadly, contemporary armed conflicts frequently “result in unstable cease-fires, continue at a lower intensity, or are frozen by an armed intervention by outside forces or by the international community. Hostilities, or at least acts of violence with serious humanitarian consequences, often break out again later.”[8]
Rare, in short, is the decisive end-point of a contemporary war. Much more common are violent enmities toggling on and off, sometimes over very long periods. An assessment of armed conflicts that existed at least at some point in 2014 (the most recent year analyzed) identified 13 conflicts of an international character and 29 conflicts of a non-international character.[9] In several of those theaters, traditional elements of military, law-enforcement, and peace-keeping operations blended into protean combinations. The resulting amalgams often defied easy classification under international law. Moreover, many measures traditionally reserved for armed conflict are increasingly being directed, especially in response to terrorist threats, at individuals or small groups, not at political collectives. In the process, war seems to lose some of its traditional inter-collective logic.[10] Further, in some domains—not least in the realm of cyber operations—there is vanishingly little consensus among states and commentators on what, exactly, may give rise to an armed conflict in the first place, let alone what marks its end.
Against that backdrop, it is worth exploring a detailed legal analysis and discussing the implications of international law, as it currently stands, not providing sufficient guidance to detect when many armed conflicts end and when the relevant international-legal framework of armed conflict ceases to apply in relation to them.[11] Diverse additional imperatives compel our exploration as well. A starting point to bolster the normative regime is to grasp existing law. Not knowing when wars end risks unwittingly supporting endless wars and thereby sanctioning, if tacitly, unlawful harm.[12] And despite significant recent contributions,[13] calls for further research and analysis have not been fully heeded.[14]
Purpose of this Legal Briefing
Where does international law give clear direction on when conflicts terminate? Where does it not? Why does it matter? And what could be done in this area to strengthen international law’s claim to guide the behavior of warring parties and to protect affected populations? Answering these questions requires delving into the myriad (and often-inconsistent) provisions in treaty law, customary law, and relevant jurisprudence that purport to govern the end of war. Alongside the doctrinal analysis, an answer to these questions also begs a careful consideration of the changing concept of war and of what constitutes its end; evaluating diverse interests at stake in the continuation or close of conflict; and contextualizing the essentially political work of those who design the law. This Legal Briefing is dedicated to that examination. Our aims are to conduct a pioneering study of international law pertaining to the end of armed conflict and to provide a resource for scholars and practitioners.
Structure
The Legal Briefing is divided into seven sections, in addition to this Introduction and the Conclusion. Section 2 is a primer on key legal concepts and fields. Section 3 highlights interests of diverse stakeholders. Sections 4 and 5 outline international law concerning the end, respectively, of international armed conflicts and of non-international armed conflicts. Section 6 sketches various scenarios that pose challenges to ending—and discerning the end—of conflict. Section 7 explores such challenges, in particular, concerning the end of the U.S.’s War on Terror. Section 8 puts forward four theories on when the most common form of armed conflict today—non-international armed conflicts—may come to an end. Finally, the Conclusion identifies concerns that international lawyers must address to strengthen international law’s claim to guide behavior in war.
Caveats
The bulk of the research was conducted primarily in English and thus generally does not comprehensively consider secondary sources in other languages. We do not make a claim to an exhaustive treatment of the innumerable international-law concerns regarding the end of armed conflict. To have been truly comprehensive, this study would have needed to be much, much longer and would have required research in many more languages.
[2]. See infra Section 7.
[3]. See Jelena Pejic, Conflict Classification and the Law Applicable to Detention and the Use of Force, in International Law and the Classification of Conflicts 105 (Elizabeth Wilmshurst ed., 2012) [hereinafter, “Pejic, Use of Force”] (and further explaining that, while that “body of rules aims to avoid or limit death and other harm, particularly of civilians, [it] recognizes that the very nature of armed conflict is such that loss of life cannot be entirely prevented”). Id. See generally International Committee of the Red Cross, The Use of Force in Armed Conflicts: Interplay between the Conduct of Hostilities and Law Enforcement Paradigms, Nov. 2013 [hereinafter, “ICRC, Use of Force”].
[4]. See, e.g., Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Judgement, ICTY Trial Chamber II, IT-04-82-T, July 10, 2008, ¶ 178 [hereinafter, “Boškoski, Trial Judgement”] (stating that, “in situations falling short of armed conflict, the State has the right to use force to uphold law and order, including lethal force, but, where applicable, human rights law restricts such usage to what is no more than absolutely necessary and which is strictly proportionate to certain objectives”) (citations omitted). See generally Pejic, Use of Force, supra note 3, at 111 (stating also that “such [other] means must always be available”). Id. See infra Section 3 concerning other legal stakes of the (ongoing) existence (or not) of an armed conflict.
[5]. President Obama withdrew the use of the phrase “global war on terror” and instead defined his Administration’s approach to the relevant U.S. effort as “a series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten America.” Remarks by the President at the National Defense University, May 23, 2013 (stating that, “[b]eyond Afghanistan, we must define our effort not as a boundless ‘global war on terror,’ but rather as a series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten America”). Yet other parts of the U.S. government continue to invoke the “war on terror” and to appropriate funding under the “Global War on Terror.” See, e.g., Ameur v. Gates, 759 F.3d 317, 328 (4th Cir. 2014) (“Section 2241(e)(2) survives rational-basis review, a ‘deferential’ standard that asks only whether Congress had a ‘reasonable basis for adopting the classification.’ That ‘reasonable basis’ is evident for § 2241(e)(2), as the statute is meant to limit court interference in our nation’s war on terror”) (emphasis added; citations omitted). With respect to appropriations, the “Overseas Contingency Operations/Global War on Terrorism” (OCO/GWOT) designations were first in effect for FY2012 appropriations. See Susan B. Epstein and Lynn M. Williams, Overseas Contingency Operations Funding: Background and Status 5–6, Cong. Res. Serv., Jun. 13, 2016. Funds designated “OCO/GWOT” “are not subject to procedural limits on discretionary spending in congressional budget resolutions, or the statutory discretionary spending limits provided through the Budget Control Act of 2011 (BCA).” Id. at 1 (citations omitted). Having used the OCO/GWOT exemption for the Department of Defense, Congress also adopted this approach for foreign-affairs agencies, with funds being provided under the first foreign-affairs OCO/GWOT appropriation for a wide range of recipient countries, including Yemen, Somalia, Kenya, and the Philippines and for the Global Security Contingency Fund. Id. at 6.
[6]. See, e.g., Samuel Moyn, Endless War Watch, Winter 2017, Lawfare, Feb. 13, 2017, https://www.lawfareblog.com/endless-war-watch-winter-2017 <https://perma.cc/3QBV-4QS2>; Samuel Moyn, Why the War on Terror May Never End, N.Y. Times, June 24, 2016, https://www.nytimes.com/2016/06/26/books/review/spiral-by-mark-danner.html <https://perma.cc/BU8A-LLYK> (reviewing Mark Danner, Spiral: Trapped in the Forever War (2015)); Adam Klein, When Does the War on Terror End?, Lawfare, Apr. 18, 2016, https://www.lawfareblog.com/when-does-war-terror-end-0 <https://perma.cc/7Q8P-LXM8>; Adam Klein, Part II: Terrorist Groups and the Law of How Wars End, Lawfare, Apr. 19, 2016, https://www.lawfareblog.com/part-ii-terrorist-groups-and-law-how-wars-end <https://perma.cc/S4KK-JLQH>; Samuel Moyn, “War Time: An Idea, Its History, Its Consequences,” by Mary L. Dudziak, Lawfare, May 24, 2012, https://www.lawfareblog.com/war-time-idea-its-history-its-consequences-mary-l-dudziak <https://perma.cc/AZ8N-NLVP> (reviewing Mary L. Dudziak, War Time (2012)).
[7]. See U.S. Training and Doctrine Command Pamphlet 525-3-0, The Army Capstone Concept, Operational Adaptability: Operating under Conditions of Uncertainty and Complexity in an Era of Persistent Conflict, 2016–2028.
[8]. Marco Sassòli, Antoine A. Bouvier, and Anne Quintin, I How Does Law Protect in War? 34 (3d ed., 2011).
[9]. See The War Report: Armed Conflict in 2014 23–25 (Annyssa Bellal ed., 2015). The Rule of Law in Armed Conflicts Project (RULAC) maintains a website that seeks to “systematically qualif[y] situations of armed violence using the definition of armed conflict under international humanitarian law.” See Geneva Academy of International Humanitarian Law and Human Rights, Rule of Law in Armed Conflicts Project, http://www.rulac.org/ <https://perma.cc/KH2W-KY68>.
[10]. See Gabriella Blum, The Individualization of War: From War to Policing in the Regulation of Armed Conflicts, in Law and War (Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey eds., 2014).
[11]. The primary IHL treaties that we will examine include Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, T.I.A.S. 3362 [hereinafter, “GC I”]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, T.I.A.S. 3363 [hereinafter, “GC II”]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, T.I.A.S. 3364 [hereinafter, “GC III”]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, T.I.A.S. 3365 [hereinafter, “GC IV”]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter, “AP I”]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609 [hereinafter, “AP II”].
[12]. See, e.g., Mary L. Dudziak, War Time (2012); Fionnuala Ní Aoláin, “Anything Can Happen:” Interpreting the ‘End’ of War, 49 Tulsa L. Rev. 569 (2013) (reviewing Thomas U. Berger, War, Guilt, and World Politics after World War II (2012), Larry May, After War Ends: A Philosophical Perspective (2012), and Kimberly Theidon, Intimate Enemies: Violence and Reconciliation in Peru (2012)).
[13]. See Nathalie Weizmann, The End of Armed Conflict, the End of Participation in Armed Conflict, and the End of Hostilities: Implications for Detention Operations under the 2001 AUMF, 47 Colum. Hum. Rts. L. Rev. 204 (2016) [hereinafter, “Weizmann, The End of Armed Conflict”]; Bettina Scholdan, “The End of Active Hostilities:” The Obligation to Release Conflict Internees under International Law, 38 Houston J. Int’l L. 99 (2016) [hereinafter, “Scholdan, The End of Active Hostilities”]; Julia Grignon, The Geneva Conventions and the End of Occupation, in The 1949 Geneva Conventions: A Commentary (Andrew Clapham, Paola Gaeta, and Marco Sassòli eds., 2015); Bruce Oswald, End of Internment, in The 1949 Geneva Conventions: A Commentary (Andrew Clapham, Paola Gaeta, and Marco Sassòli eds., 2015) [hereinafter, “Oswald, Internment”]; Marco Sassòli, Release, Accommodation in Neutral Countries, and Repatriation of Prisoners of War, in The 1949 Geneva Conventions: A Commentary (Andrew Clapham, Paola Gaeta, and Marco Sassòli eds., 2015) [hereinafter, “Sassòli, Prisoners of War”]; Gabriella Venturini, The Temporal Scope of Application of the Conventions, in The 1949 Geneva Conventions: A Commentary (Andrew Clapham, Paola Gaeta, and Marco Sassòli eds., 2015) [hereinafter, “Venturini, Temporal Scope”]; Alice Debarre, When Does War End?, Humanity in War, Dec. 17, 2015, https://humanityinwarblog.com/2015/12/17/when-does-war-end/ <https://perma.cc/VG9D-6VFW>; Julia Grignon, L’applicabilité Temporelle du Droit International Humanitaire (2014) [hereinafter, “Grignon, L’applicabilité Temporelle”]; Marko Milanovic, The end of application of international humanitarian law, 96 Int’l Rev. Red Cross 163 (2014) [hereinafter, “Milanovic, End of IHL Application”]; Deborah N. Pearlstein, Law at the End of War, 99 Minn. L. Rev. 143 (2014); Deborah N. Pearlstein, How Wartime Detention Ends, 36 Cardozo L. Rev. 625 (2014); Rogier Bartels, From Jus in Bello to Jus Post Bellum: When do Non-International Armed Conflicts End?, in Jus Post Bellum (Carstehn Stahn, Jennifer S. Easterday, and Jens Iverson eds., 2014) [hereinafter, “Bartels, When NIACs End”]; Robert M. Chesney, Postwar, 5 Harv. Nat’l Sec. J. 305 (2014); Yoram Dinstein, War, Aggression and Self-Defence 34–61 (5th ed., 2012) [hereinafter, “Dinstein, War”]; Tristan Ferraro, Determining the beginning and end of an occupation under international humanitarian law, 94 Int’l Rev. Red Cross 133 (2012); Vaios Koutroulis, Le début et la fin de l’application du droit de l’occupation (2010); Robert Kolb and Richard Hyde, An Introduction to the International Law of Armed Conflicts 99–106 (2008); Christine Bell, Peace Agreements: Their Nature and Legal Status, 100 Am. J. Int’l L. 373 (2006) [hereinafter, “Bell, Peace Agreements”]; Derek Jinks, “The Temporal Scope of Application of International Humanitarian Law in Contemporary Conflicts,” Program on Humanitarian Pol. & Conf. Research, 2003, www.hpcrresearch.org/sites/default/files/publications/Session3.pdf <https://perma.cc/T28W-MSWU> [hereinafter, “Jinks, The Temporal Scope”].
[14]. See International Law Association, Final Report on the Meaning of Armed Conflicts in International Law, in What Is War?: An Investigation in the Wake of 9/11 363 (Mary Ellen O’Connell ed., 2012) [hereinafter, “ILA, Meaning of Armed Conflicts”].
Indefinite War
Unsettled International Law on the End of Armed Conflict
