31-03-2009 Article, International Review of the Red Cross, No. 873, by Robin Geiss
The process of state failure is commonly accompanied by armed violence, which generally oscillates around the level required to trigger the application of IHL and has cross-border spillover effects. This article examines the specific issues raised by qualification of armed violence in fragile states – in particular, the application of IHL to sporadic law enforcement operations by third parties.
The gradual process of state failure is commonly accompanied by armed violence. Apart from occasional outbreaks, armed violence in fragile states tends to smoulder with relatively low intensity, often over an extended period of time. The actual level of violence may oscillate around the level of violence that is commonly accepted as triggering the application of international humanitarian law (IHL). In addition, because of the specific objectives typically – though not necessarily always – pursued by armed groups in failed state conflict scenarios, cross-border spillover effects are fairly frequent. The qualification of armed violence in such scenarios according to the conflict categories laid down in IHL thus raises some rather specific issues. Moreover, weak states, failing states, and ultimately failed states are increasingly perceived as a key threat to international security. States seem increasingly inclined to assume sporadic order maintenance functions in the place of disabled governments so as to maintain the perceived security threat at a tolerable level. Current efforts to repress acts of piracy off the coast of Somalia are an evident case in point. Since the Security Council, in Resolution 1851, at least implied the possibility of applying IHL in that specific context, the application of this legal regime to sporadic law enforcement operations by third parties also demands further scrutiny.
Robin Geiss is legal advisor at the Legal Division of the International Committee of the Red Cross.