When characterising a conflict situation as an international armed conflict, states and other analysts traditionally consider the facts on the ground'. When determining whether a situation is one of civil disturbance and riot, or has risen to the level of a non-international armed conflict ('NIAC'), there is much greater latitude for legal-policy considerations to influence, and indeed direct, the characterisation decision. This article explores three aspects of legal-policy concern for states dealing with conflict characterisation at this lowest law of armed conflict ('LOAC') threshold between less-than-NIAC law enforcement and NIAC: a general outline of three elements of legal-policy discretion that are clearly assumed and inherent within LOAC; legal defensibility, a discourse that is fundamentally governed by the tension between applicable law and policy objectives; and utility, a concern that focuses upon the balance to be struck between the legal argument employed to justify conflict characterisation and the capacity of the state to retain some degree of context control.
III Three Aspects of Legal-Policy Discretion and Conflict
IV Legal Defensibility
V Contextual Utility
A Maintaining Context Control
B Facilitating a Desired Course of Action
C Assigning Status to the 'Other'
When faced with violence rising above the level of localised or sporadic, the black letter law answer as to whether a situation is one of armed conflict or not is that it is simply a question of fact. The rationale behind this seemingly clear and simple principle is well expressed in Jean S Pictet's most humanitarian explanation: 'A wounded soldier is not more deserving, or less deserving, of medical treatment according to whether his Government does, or does not, recognize the existence of a state of war'. (1) What is occasionally overlooked, however, is that Pictet's focus was upon art 2 of Geneva Convention I, (2) and was thus concerned with international armed conflict ('IAC'), where the 'facts' that would generally speak as to characterisation are overwhelmingly overt and highly visible--uniformed militaries of two or more states engaged in hostilities. In this sense the focus on 'facts' is fundamentally a call to use an objective test with a narrow range of fairly self-evident indicators. The complications and disagreements one faces with respect to the 'facts' in such situations are rarely as to whether there is an armed conflict afoot, but rather as to whether it is purely IAC, or has been transformed by some complication into some form of hybrid or mixed armed conflict, such as 'internationalised internal armed conflict' or concurrent IAC and non-international armed conflict ('NIAC'). (3)
But this inference that the 'facts on the ground' will determine conflict characterisation affects both branches of the law of armed conflict ('LOAC')--IAC and NIAC. (4) This assertion to the effect that an objective assessment of what you see before you will always set you right thus appears (consciously, it could be said) to leave no room for 'policy' or 'interpretation' by a state considering its options when faced with a threshold situation. As Andrew Clapham acutely asks, '[s]o if the law applies should we worry about the attitude of the government?' (5) The answer is, if the law clearly applies, 'no'. (6) The problem, however, is that the jurisdictional 'facts' that inhabit the threshold between NIAC/less-than-NIAC law enforcement (that is conflict and violence, but not an armed conflict such as to bring into operation the relevant LOAC), which are accorded the power to determine 'if the law applies', are significantly less objective than in prospective IAC situations. Indeed, they are fundamentally subjective and fluid as opposed to the more fixed and readily identifiable criteria common to IAC. …