Afghanistan accedes to Additional Protocols to Geneva Conventions: Will AP II govern the conflict in Afghanistan?

Afghanistan accedes to Additional Protocols to Geneva Conventions: Will AP II govern the conflict in Afghanistan?

Last week (June 24) Afghanistan acceded to Additional Protocols I & II to the Geneva Conventions. These treaties continue to inch towards univeral participation as there are 169 States parties to AP I and 165 party to APII. The ratification by Afghanistan ruins, somewhat, the point I usually make in class when introducing the Geneva Conventions and its APs.  I point out that though the APs are among the most widely ratified treaties, the list of States not parties to them is practically a list of  countries that have been involved in major armed conflicts over the last 30 years. The Additional Protocols will enter into force 6 months after the deposit of the instrument of accession by Afghanistan, i.e at the end of December. This means that from that date, AP II (which applies to non-international armed conflicts) will apply to the conflict in Afghanistan (i) in so far the conflict takes place between the forces of the government of Afghanistan and insurgents; and (2) in so far as the Taleban and other insurgents “exercise such control over a part of [Afghanistan’s] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” (Art. 1(1) APII)  This second condition is often seen as a weakness of APII and is a condition not required by Common Art. 3 of the GCs, which also applies to non-international armed conflicts. However, that condition appears to be fulfilled in the case of Afghanistan as reports indicate that between 50 to 72% of that country are controlled by the Taleban or have a Taleban presence. 

Given that much, if not most of the fighting against the Taleban is undertaken not by the Afghan armed forces but by the NATO led International Security Assistance Force (ISAF), APII will not apply to much of the conflict in that country. This would indicate yet another weakness of APII (in additon to the fact that it provides only rudimentary provisions for the non-international conflicts it covers). If, as is common, the country in which the conflict takes place invites another country or countries to fight against rebels, APII will not govern the conflict between invited country and the rebels. This will be the case even if the invited country is itself party to AP II as that treaty applies only a conflict “which take[s] place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups . . .” The question that then arises is whether the host country can  be held responsible for any violations committed by the invited forces. Under the ILC’s Articles on State Responsibility such responsibility can only be attributed to the host state if, accordinig to Art. 6, the armed forces of the invited State are “placed at the disposal” of the host State. The ILC Commentary to Art. 6 states that:

” The notion of an organ “placed at the disposal of ” the receiving State is a specialized one, implying that the organ is acting with the consent, under the authority of and for the purposes of the receiving State. Not only must the organ be appointed to perform functions appertaining to the State at whose disposal it is placed, but in performing the functions entrusted to it by the beneficiary State, the organ must also act in conjunction with the machinery of that State and under its exclusive direction and control, rather than on instructions from the sending State.” [Commentary para 2]

The commentary goes on to note that:

” . . . mere aid or assistance offered by organs of one State to another on the territory of the latter is not covered by article 6. For example, armed forces may be sent to assist another State in the exercise of the right of collective self-defence or for other purposes. Where the forces in question remain under the authority of the sending State, they exercise elements of the governmental authority of that State and not of the receiving State.” [Commentary Para. 3

This pretty much rules out the application of Art. 6 to the cases of invitation by one state to the armed forces of another to fight rebels, except in cases where the inviting State exclusively controls the forces of the invited State. Furthermore, the provisions of the ILC Articles (Arts. 16-18)  dealing with responsibility of a State in connection with acts of another State (eg aiding or assisting another state) will also be inapplicable as they only apply where both States are subject to the international obligation that is breached.

Given all of these weaknesses of APII, its good to be told by the ICRC (in its Customary International Humanitarian Law Study) and the ICTY (in the Tadic case) that customary international law provides a pretty robust framework which applies to non-international armed conflicts!!

In other treaty ratification news, Chile ratifed the Rome Statute of the ICC yesterday and becomes the 109th State party to that treaty. This ratification means that all the States in South America are now party to the ICC Statute (or will be when the Statute comes into force for Chile in September).