Don’t create an international armed conflict between the UK and Russia

Yesterday the British Prime Minister Theresa May stated that “it was highly likely that Russia was responsible” for the March 4th poisoning attack on a former Russian spy and his daughter in Salisbury, England.  May also said that in the absence of a “credible response” from Russia, the UK “will conclude that this action amounts to an unlawful use of force by the Russian State against the United Kingdom.”

According to a new essay by respected scholars Ryan Goodman and Alex Whiting, if an “unlawful use of force” is the conclusion, the two nations were, as a matter of law, in an “international armed conflict.”  My view is that international law should avoid construing events like this which are essentially criminal in nature as creating an armed conflict between two nuclear powers.

Prime Minister May was careful to use the words “use of force” and not “attack” in describing the incident.  Why would that be important?  Article 2 (4) of the UN Charter says that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nation.”  Obviously, a “use of force” violates the Charter.

However, the self-defense provision of the Charter – Article 51 (as well as Article 5 of the NATO treaty) – limits using force in response to incidents to circumstances where “an armed attack occurs against a Member.”  May plainly found the incident extremely serious, but stopped short of calling it an “armed attack” by Russia that would have activated NATO’s self-defense regime. (Professor Ashley Deeks of UVA has an excellent post about the conventional thinking regarding the UK’s options if it suffered a “use of force” as opposed to an “armed attack.”)

The “use of force” and “armed attack” dichotomy is accepted by most countries, but not all.  The U.S. takes a different view, that is, that any use of force triggers the right of self-defense.  In the U.S. interpretation, there is not a “gap” between the amount of force that violates the UN Charter, and the amount of force that permits self-defense.

The U.S. accepts that the degree of force used in self-defense must be proportional to the harm suffered, but does insist that force can nevertheless be lawfully used to counter any amount of force inflicted against the U.S. or its allies or interests.  (I discuss this in more detail in a discussion of cyber operations found here, and Goodman has an excellent recent piece here.)

Regardless, Professors Goodman and Whiting believe that if the facts of the Salisbury poisonings prove Russian involvement, that incident – even if it only amounts to a “use of force” and not an “armed attack” – is still sufficient to put Vladimir Putin (and other Russians) in the dock of the International Criminal Court (ICC) as suspected war criminals charged with deliberating targeting civilians.

But to be a “war” criminal there must be a “war” of some sort, and in this instance Professors Goodman and Whiting are apparently relying upon Common Article 2 of the Geneva Conventions.  It declares that the provisions of the Convention apply in cases of “declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.”  (Emphasis added).  The poisoning incident that injured the former spy and his daughter (along with a policeman) is apparently enough for Professors Goodman and Whiting to come to their “armed conflict” finding – which gives the ICC jurisdiction to prosecute “war” crimes.

As terrible as these crimes were, do they really sound like enough to declare that 200 million people were in an armed conflict?

Actually, It may surprise you but the commentary of International Committee of the Red Cross about the Geneva Conventions contends that there is “no mention of any threshold for the intensity or duration of hostilities” that is needed to trigger their application. Accordingly, any act of hostilities – however minor – is enough.  Once the Conventions apply, the entire panoply of “grave breach” war crimes come into play, including deliberately “causing serious injury to body or health – which would seem to fit the facts of the Salisbury case.

If a “use of force” at this level is enough to thrust two nations into an armed conflict, why do most nations believe self-defense requires an “armed attack”?  This view is traceable to the 1986 International Court of Justice case of Nicaragua v. U.S. (¶ 195), which spoke of reserving the characterization of “armed attack” as used in the Article 51 self-defense provision of the Charter to graver forms of violence in terms of “scale and effects.”  It specifically excluded, for example, a “mere frontier incident” with a regular armed force, notwithstanding the obvious violence involved.

Professor Goodman previously explained the seeming anomaly this way:

To say we are in an armed conflict, however, is not to say we are at war.  The definition of an “armed conflict,” which preoccupies humanitarian lawyers who want to know if the Geneva Conventions apply, is not the same as the political state of affairs involved in “war.”  Remember even the detention of a single soldier would presumably be enough to trigger the protections of the POW Convention, yet that is nowhere near a sufficient amount of force to be considered a war between two states.  Indeed, as odd as it might sound to a policymaker, a detained soldier may properly be classified as a “prisoner of war” even when there isn’t a war.

The problem here is that there is no direct relationship between the Geneva Convention threshold and the UN Charter.  Put another way, the Geneva Conventions were not written to create a state of “armed conflict” where a party was precluded from the right of self-defense.  Nevertheless, Goodman and Whiting explain their thinking in the UK case as follow:

Whether or not it is a sufficient use of force to trigger “war” in the political sense or the right of self-defense, the use of force likely triggers an “international armed conflict” for the purposes of applying the humanitarian rules such as the 1949 Geneva Conventions and 1977 Additional Protocol to the Geneva Conventions, which the United Kingdom and Russia have both ratified.

In other words, they are arguing that the UK may be in an international armed conflict with Russia, even if legally the amount of force they suffered would not permit them to use force in self-defense.  As counterintuitive as that may sound, it is not just a plausible reading of the law, it’s the dominant one among international lawyers.  Sure, the low threshold for the application of the Geneva Conventions was originally thought to provide more protection for individuals caught up in a conflict, but today it could have unintended consequences.

Let’s ask ourselves: is the law – let alone humanity – really served by telling the two nuclear powers in this case that they are in an “armed conflict”?

And does it really advance respect for the law to then tell the victim nation that notwithstanding the existence of an armed conflict, the law does not permit them to fight back with force?  At some point nations might start acting as if they are in an “armed conflict” as international lawyers tell them they are, ignoring the nuance that the behavior that launches that “armed conflict” isn’t necessarily enough, legalistically-speaking, for the “political state of affairs” called “war.”

Words matter, especially in a world of instantaneous, global communications.  The convoluted reasoning that allows international lawyers to say that a circumstance sufficient to create an “international armed conflict” which engages the Geneva Conventions is not a “war” in the “political sense,” is the sort of logic which the public will not and, really, should not accept.  Indeed, even lawyers use the “law of war” and the “law of armed conflict” virtually interchangeably.

In the real world, the “political sense” of the citizenry means something, and expecting them to parse some technical difference between “armed conflict” and “war” is a mistake that could set in motion a political chain of events that are unintended.  After all, Clausewitz advises us that “war is the continuation of politics by other means.”

The law of war and peace should not sound “odd” to policymakers or the public at large as Professor Goodman concedes it does.  At a minimum, we need to reserve an “armed conflict” designation to instances that are also factually sufficient to authorize the victims to use force to defend themselves.  If the circumstances don’t merit a lawful use of force in self-defense, why create an “armed conflict” between the antagonists?   Do we really want to put publics – and their militaries equipped with ready-to-launch nuclear weapons – in an “armed conflict” mindset?

To be clear, the perpetrators of this horrific crime must be brought to justice and punished, but telling hostile nuclear weapons’ states that the law insists they are in an “international armed conflict” may someday take us a place the world doesn’t want to go.

As we like to say on Lawfire, check the facts, assess the law, and decide for yourself!

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