This article explores the implications for the protection of civilians and other vulnerable persons, of the requalification of a conflict downwards from international to non-international, focusing in particular on the changes in the characterization of the conflicts in Afghanistan and Iraq from 2001 and 2003 respectively.
Determining the legal character of an armed conflict is rooted in an inherently political interpretation of black letter treaty law. It is generally agreed that when the United States and its coalition allies entered the wars in Afghanistan in 2001, and Iraq in 2003, their operations in those countries were initially subject to the laws of international armed conflict. However the International Committee of the Red Cross (ICRC) has determined that the conflict in Afghanistan became non-international with the establishment of the United States' backed government of Hamid Karzai on 19 June 2002 and that the conflict in Iraq became non-international with the establishment of the Iraqi Interim Government on 28 June 2004. The basis for this requalification is Article 2 of the Geneva Conventions read in conjunction with an interpretation of the meaning of ‘state’ (and of its power to authorize a foreign intervention in its own territory) that is inherently, and possibly inevitably, political.
Changes in the legal characterization of a war have profound implications for the protection of both non-combatants and combatants under international humanitarian law, in particular for humanitarian access; for the protection of non-nationals from deportation; for the protection of detainees; for the conduct of hostilities; and for the protection of persons transferred into the hands of local authorities. The practical consequence of a requalification of an armed conflict downwards to non-international is a marked loss of protection for persons that were protected by the Geneva Conventions in the earlier stages of the conflict.