Shivesh Saini and Himani Jha

This article deals with the problem of conflict classification. Generally, there exist certain low-intensity disputes which fall below the required low threshold of Common Article 2 and hence, go unregulated. The article seeks to solve the legal gap by certain suggestions that could be applied. 

This article analyses the application of international humanitarian law (IHL) and the law of armed conflict in low-intensity conflicts like the Indo-China skirmish in the disputed Galwan Valley. Instead of sophisticated weapons, unorthodox weapons such as nail-studded rods were used, highlighting the disparity between the legal definition of armed conflict and the threshold for establishing an international armed conflict (IAC). Classifying the conflict is crucial, particularly considering Jean Picket’s view on Common Article 2 of the Geneva Conventions, which excludes sporadic acts such as isolated attacks and armed provocations from being classified as part of an international armed conflict. The ambiguity emerges from the fact that the International Committee of the Red Cross (ICRC) has highlighted in multiple reports that International Armed Conflicts have a relatively low threshold, allowing for sporadic acts to be encompassed, in contrast to Jean Picket’s commentary. Consequently, a state of uncertainty arises concerning the appropriate inclusion of such acts, owing to the absence of concrete provisions addressing this matter. Nevertheless, there exist sufficient state practice and legal opinion supporting the notion that even the detention of a single armed soldier can trigger an IAC.

The problem of conflict classification of these low-intensity conflicts demands immediate regulation through appropriate law. The various contemporary disputes like the Galwan standoff of Indo-China, India’s surgical strike on Pakistan in 2016 & 2019 and Israel’s routine strikes on Gaza suggest the same. The article supports applying both ad bellum and in bello simultaneously to regulate armed conflict, especially in challenging conflict categorization cases. The core ad bellum rules should govern all armed conflicts regardless of intensity and duration. Additionally, the in bello branch, which deals with prisoner treatment, could be extended to cover prisoners of war and combatants held in unidentified armed conflicts. Despite their distinct nature and specific domains of application, the laws concerning the use of force and prisoner treatment are interconnected components of a broader legal framework. Both should be implemented in any situation involving the use of force, even when an armed conflict is already underway. These legal framework should be based on id bellum considerations of proportional military targets in armed conflict. In simpler terms, these legal regulations should govern all the attacks individually in a proportionate manner.

The Geneva Conventions and their protocols lack a precise definition for the commencement of war. The Tadic ruling of 1995 contradicts Jean Picket’s view that any use of force by one party constitutes an armed conflict, as it fails to distinguish between sporadic attacks and other forms of armed conflict. Hence, the first-shot strategy may be suitable for analysing the application of IHL once a conflict begins. According to the first-shot approach (Pictet theory), any armed confrontation between regular armed forces automatically qualifies as an armed conflict, based on the intensity of the conflict. This viewpoint finds support in the 2010 Final Report of the Use of Force Committee of the International Law Association (ILA), which recognizes intensity as a crucial element for the existence of armed conflict. However, this perspective conflicts with the ICRC’s stance, which adopts a lower threshold where a mere confrontation or armed force intervention between two states can lead to an armed conflict under Common Article 2.

Intensity as a criterion to determine armed conflict

The concept of ‘limited warfare’ emerged in the 1970s due to evolving political dynamics in third-world nations. In 1991, military historian Martin van Creveld compiled a comprehensive list of key elements found in low-intensity conflicts. Unlike high-tech weaponry seen elsewhere, these conflicts often relied on basic weapons, reminiscent of past Indochina conflicts and the recent Galwan standoff. Although the list doesn’t address the war in the Humanitarian Law context, it still exemplifies characteristics useful for defining armed conflict. In 1983, when Lieutenant Bobby Goodman’s plane was shot down and he was captured by Syrian forces, President Ronald Reagan demanded his treatment as a prisoner of war. Similarly, in December 2006, the Israeli High Court examined the definition of armed conflict and determined that Israel was involved in an armed struggle in the Palestinian Territories. The court prioritized casualties as a significant factor, rather than intensity and duration as criteria. Therefore, it becomes evident that these situations generally lacked a formal war declaration and failed to meet the required level of intensity specified in the ILA report. This highlights the need for a flexible evaluation of these conflicts, as they may not be confined to a specific territory and leaving behind a certain number of victims.

For the vivid application of intensity criteria, the International Court of Justice (ICJ) in the Nicaragua case emphasised the distinction between the grave and less grave use of force in the conflict. The key factor is whether the central armed forces are involved in the use of force. This interpretation aligns with Professor Dietrich Schindler’s viewpoint, which asserts that the presence of regular armed forces alone is sufficient to enforce the Geneva Conventions. The central method of evaluating gravity entails analysing the deployed weapons, casualties, military targets, and conflict duration. However, there is uncertainty regarding the accuracy of this threshold as regular armed forces often exceed the lowered threshold specified in Common Article 2. This can be observed in the Israeli armed forces’ low-intensity surgical strikes in Gaza. The intensity argument faces criticism in the Limaj case, where the ICTY disregarded intensity and duration as criteria for determining the existence of a conflict. Similarly, in the Delalic judgement, the ICTY recognized the ICRC’s interpretation, which rejected intensity and duration as criteria. Therefore, it can be concluded that there is no scientific formula but factors such as a mere deliberation and attributed attack on the enemy might be more appropriate for constituting an armed conflict. These attacks further raises the questions that what should be the response of victim state in these situations and what should be the relevant laws to regulate such self-defence.

Right to self-defence in low-intensity armed conflict

The pertinence of the right to self-defence becomes apparent in this particular situation because of the uncertainty surrounding whether the exclusion of minor armed provocations from the scope of Common Article 2 confers upon the opposing state the entitlement to exercise self-defence under Article 51 of the UN Charter. The dilemma stems from the requirement stated in Article 51 that an armed conflict must be present, while it remains unclear whether these actions qualify as an armed conflict in themselves. If one concludes that the right to self-defence is unavailable in a confined conflict, does that imply that the aggressor state can freely opt to engage in other sporadic acts while impeding the victim state’s ability to utilize force in self-defence due to the lack of an armed attack? Conversely, if one concludes that such a right does exist, does it permit the victim state to carry out lethal attacks in accordance with the principles of military necessity? These questions still exist within the realm of low-intensity armed conflict that demands immediate answers for the regulation of conflicts.

To address these queries, it’s crucial to analyse different viewpoints and comparable incidents to fully grasp whether such acts constitute armed conflict for invoking the right of self-defence and what should be the relevant criteria. The Eritrea-Ethiopia Claims Commission and the ICJ in the Nicaragua case argued against applying Article 51 in similar situations. This contradicts the ICJ’s ruling in the Oil platform case, where the destruction of a single military vessel has been deemed an attack. The Inter-American Commission on Human Rights supported this view in Abella v Argentina, despite the short duration of conflict where the factors like the type of attack and casualties were considered. The Russian invasion of Crimea highlighted the need for an unambiguous threshold criterion. The seizure of Crimea’s parliament and airports by unmarked Russian forces, although resulting in limited violence, qualified as an international armed conflict due to its nature and political intent. Similarly, during the second Indochina conflict in 1968 and some US operations in Vietnam like the ‘linebacker’ bombings, when combined with other smaller acts, clearly exceeded the sporadic threshold. However, both parties categorized them as limited wars despite significant casualties. This approach contradicts the objective of the low threshold set by Common Article 2, which aims to regulate any conflict between sovereign states. These conflicts provide ample evidence that political factors and military objectives are more relevant than intensity and duration in determining the right of self-defence. Nonetheless, disputing parties, as in the Galwan dispute, often refrain from classifying such conflicts due to diplomatic considerations. Nonetheless, conflicting parties, such as in the Galwan dispute, often avoid classifying such disputes due to diplomatic considerations.

The absence of dispute classification opposes the objective of Common Article 2’s broad scope, encompassing all conflicts among independent nations. These conflicts suggest that territorial intervention and military goals are more appropriate criteria than intensity and duration for asserting self-defence rights. However, this does not grant states an unrestrained ability to define the nature of the conflict. Even self-defence actions must align with ad bellum considerations, ensuring a balanced right to engage without undue aggression. This gap can be resolved by adhering to fundamental rules and laws governing the use of force. Furthermore, according to Article 22 of the 1907 Hague Convention and Article 35(1) of Additional Protocol I, combatants in armed conflicts possess the right to employ combat forces, subject to limitations on their deployment. Jean Pictet’s Commentary emphasizes that even when the law of armed conflict (LOAC) lacks restrictions, parties shall remain bound by customary law and general principles. These statements may imply authorization or permissiveness in employing combat force against an adversary. In such cases, considerations of ad bellum necessity and proportionality, along with other applicable laws, can determine legitimate targets. These considerations can be incorporated into rules of engagement and targeting directives to ensure lawful attacks under IHL. The engagement of targets or exercise of belligerent prerogatives must be necessary and proportionate in ad bellum terms, avoiding unnecessary escalation of the conflict.

Applying IHL wholly to complex warfare might be an honest solution but is not an essential one. The more pragmatic solution will be to apply id bellum and in bello (synonym to IHL) in a more accommodative and corresponding manner. Adhering to ad bellum and in bello regulations in that situation is necessary based on the actual circumstances. In limited war, there are instances when traditional military targets are unacceptable. Destroying significant legislative structures and general staff of an enemy state would be necessary in other conflicts, but not a legitimate target in limited war scenarios. While many agree that war can be conducted within the boundaries of legitimate self-defence, they also emphasize adherence to those boundaries. In other words, determining the standards of self-defence should consider the legality and duration of the use of force. To put it another way, the standards of self-defence should be determined by both whether or not use of force (as opposed to a more restrained form of military action) is legal in the first place and how long it is legal. Thus, Professor Greenwood rightly noted that the State that uses force in retaliation for an armed attack cannot expand its legal standing by designating the conflict as a war. Only force that is deemed to be reasonably necessary shall be used in self-defence.

Where to go?: The possible solutions

Considering the aforementioned concerns, a different perspective for comprehending these low-intensity conflicts is to explore Common Article 2 of the Geneva Conventions, rather than relying exclusively on intensity as a criterion, as was done in ILA reports. Common Article 2 emphasizes the approach advocated by the ICRC, which discourages the use of intensity as a criterion, in contrast to the framework presented in ILA reports. An alternative approach, therefore, could be to turn to Common Article 2 instead of intensity. Under Common Article 2, the conflict can be applicable even if it hasn’t been officially declared by a single high contracting party, but if another state’s territory has been affected through intervention or armed attack. However, this raises concerns regarding the legal treatment of detainees and combatants in such conflicts, as there is no specific legislation to regulate their status. Another viable solution to address similar armed conflicts is to apply the principles of proportionality and necessity, derived from jus ad bellum, alongside the rules of jus in bello and the Geneva Convention III of 1949 pertaining to prisoners’ treatment. Although the laws governing the use of force and armed conflict are distinct and have specific areas of application, they are interconnected components of a comprehensive legal framework and should be implemented simultaneously. Therefore, in cases where the armed conflict is relatively limited in scope, ad bellum considerations should also be limited, granting both sides the right and responsibility to restrict the range of legitimate military targets based on the overall situation. This approach ensures that only targets directly posing a threat in the conflict are considered legitimate, while non-threatening infrastructure is exempt. A key solution is to expand the reach of Common Article 2 to encompass these conflicts, establishing a policy-driven legal framework where the enforcement of law begins when force is used. Consequently, even in low-intensity armed conflicts, military actions taken by a state to exercise its right to self-defence must adhere to the lawful target requirements of ad bellum and maintain proportionality.

In conclusion, the ICRC position, grounded in policy rather than strict legal considerations, was endorsed by the ILA Use of Force committee during a conference on war at Notre Dame University. Some scholars argue that determining armed conflict should rely on a unilateral initial attack that receives unanimous acceptance. It is preferable for states to decide their own stance on initiating armed conflict through political processes, without concurrently assessing the legal status of the conflict. This becomes particularly significant when there is disagreement about the exact nature of a conflict, leading a state to apply IHL as a matter of high policy to ensure the best protection for prisoners in enemy territory. Hence, disputes like the Galwan standoffs and low-intensity surgical strikes ought to adhere to a basic set of rules once force is employed, and the right to self-defence in such cases should be restricted by the proportionality doctrine found in the ad bellum branch of law.

The authors are third year undergraduate student of law at the University of Law and Legal Studies, GGSPIU.