Statehood and the Law of Armed Conflict

This post highlights an important aspect of my latest monograph, The Essence and Reality of States – Effectiveness, Recognition and Legitimacy. The monograph is mainly about the genealogy of notions that have long informed discourse on international law, as well as general jurisprudence and international relations, on the concept of statehood.

One of the conclusions reached is that statehood under international law is not about a political entity’s factual existence or a degree of its factual control over the relevant territory. Instead, it is about its status under concrete rules of international law that determine the legality of the entity in question, as well as its fundamental rights, such as its political independence and territorial sovereignty or supremacy.

Here I would like to elaborate upon some implications of that thesis in relation to the range of issues arising under the law of armed conflict.

Statehood and the Treaties Regulating Armed Conflicts

The four Geneva Conventions of 1949 (which, together with their two Additional Protocols of 1977, are the principal sources of international humanitarian law and are widely reflected in customary international law) apply to armed conflicts between entities whom international law considers to be States. Otherwise, a political entity could not become a party to the Conventions, and certainly not just because it has effectively emerged on some territory that under international law belongs to other States. Think of the Islamic State of Iraq and Syria (ISIS) that had, for several years, built up an effective public authority framework on the territories under its factual control; or of the Turkish Republic of Northern Cyprus (TRNC), which has no separate legal existence under international law.

Further, substantive rules of international humanitarian law (IHL) are designed to apply to hostile relations between States, when two or more States are in a mutual military confrontation through their armed forces. The involvement of non-State entities in the relevant conflict does not transform the legal status or territorial supremacy of the State on whose territory the relevant non-State entity is active. In particular, a territory or apparatus of a State cannot be targeted by another State invoking the right to self-defence just because a non-State actor is active on the territory of the (potential) target State (as explained earlier here, here, here, here, and here). A use of force like this would be a prohibited use of force, as it would be against a State’s territorial integrity and political independence (UN Charter, art. 2(4)), one without the consent of the territorial State. As would be typical in such cases, IHL does not come into effect until and unless the sustained armed confrontation between two or more States takes place.

Recognition: A State’s Zustand or its Legal Status?

As I highlight in the monograph, the opposite conclusion would rely on a contractarian viewpoint. In international legal discourse, such a viewpoint has been expressed by Sole Arbitrator Huber in the Island of Palmas Arbitral Award, suggesting that a State’s territorial sovereignty is relative to its protection of the rights and interests of other States in the relevant territory. In our context, that could be a putative right or interest of the State using force against the territorial State to protect itself or its allies from a terrorist or related threat.

As a variety of the same argument, I discuss in the monograph the Hegelian concept of recognition. According to Hegel, a State is not entitled to be recognised as such by other States, over and above the vagaries of its material condition (Zustand). In other words, the actual material capability of a State determines the extent to which other States can be expected to respect its territorial sovereignty. The notion of recognition used here is less about formal or ritual acknowledgment or bestowal of a status to the relevant political entity and more about the actual treatment of, or conduct of relations with, that entity. This is a notion of recognition wider than one ordinarily used in textbooks of international law, as it draws widely on philosophy and a (mainly constructivist) theory of international relations.

This overall conception is, however, at variance with positive international law. To illustrate, Article 4 of the 1933 Montevideo Convention stipulates that “The rights of each [State] do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.” The same approach is embodied by customary international law as stated in the 1970 Friendly Relations Declaration, with regard to use of force and sovereignty and independence of States.

Requiring Confrontation Between States Proper

Another implication of the normative concept of statehood is that the law of international armed conflict applies in situations where an armed conflict obviously involves two or more States. An example includes one State’s direct intervention in armed conflict on the territory and direct involvement against armed forces of another State (see here for a fuller discussion). This approach follows, overall, from the Paramilitary Activities and Bosnian Genocide decisions by the International Court of Justice (ICJ). The ICJ’s approach differs from the International Criminal Tribunal for the former Yugoslavia (ICTY), which, in Prosecutor v. Tadic, decided that international humanitarian law is applicable to relations between two States that are not in an actual military confrontation with each other (and, as shown here, the ICTY did not impeccably follow that viewpoint in other decisions).

What the law requires for the application of the law of international armed conflict is a confrontation between two or more entities which legally possess statehood, as opposed to other entities. For instance, if the TRNC were to use force against Cyprus or any other State, that would legally be a use of force by Turkey. If an entity like ISIS or another de facto entity were to use force without the involvement of any (legally existing) State, the State against which the force would be used would not: (a) be subject to an armed attack under Article 51 of the UN Charter; and (b) it would not be engaged in an international armed conflict. This would instead be an internal armed conflict which, despite involving a trans-boundary element on material terms, would not involve the same element on international legal terms.

Statehood and Belligerent Occupation

Finally, the concept of legitimate statehood is relevant to States under occupation (various aspects of which are also discussed here and here), to whose condition IHL applies (in conjunction with the principle of self-determination). The law of belligerent occupation law is structured in such a way that it does not affect basic legal prerogatives and statehood in general of the State the whole or part of whose territory is occupied by another State. Under the Fourth Geneva Convention, the occupying power is not allowed to act as the overall government of the occupied territory, but it is required to leave most of the occupied State’s legal system intact.

The English Court of Appeal has held in Al-Jedda that Iraq’s Governing Council was not a properly sovereign State organ, and hence it could not modify the law on Iraqi citizenship that was in force before Iraq’s U.S.-led occupation from 2003 onwards. For the occupying power to gain greater rights of governance over the occupied territory, occurrences additional to belligerent occupation are required, for instance, debellatio (subjugation) of Germany in 1945, or the passage of UN Security Council resolutions under Chapter VII authorising the occupying powers to exercise the authority over and above that available in the Fourth Geneva Convention, for instance, with regard to Iraq from 2003 onwards.

Conclusion

Overall, across the body of the law of armed conflict, there is an observable symmetry around the concept of statehood as a normative concept. This derives not from vagaries of fact but from the concrete rules of international law that determine the status and territorial scope of every State in terms of the legal entitlement conferred to them by specific rules or principles of international law, as opposed to the factual assertion of State rights or power. International humanitarian law is structured around such a basic concept of statehood under international law, and none of its aspects prejudices any element of that basic concept.

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Alexander Orakhelashvili is a Professor of International Law at University of Birmingham.

The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense. 

Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.

Photo credit: U.S. Army, Pfc. Eli Johnson