CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ WAR: FOREIGN INVESTMENTS IN DANGER … very relevant as the interventions of third states to non-international armed conflicts occur in some form quite frequently. 93 However, legal assessment of this scenario is very challenging in several respects. The involvement of a foreign state in non-international armed conflict can take several forms, of which the most distinguishable are these scenarios: a) A foreign state participates in the conflict on the side of the government to defeat insurgents. This form of participation of a foreign state does not change the character of the armed conflict as non-international. The ongoing intervention of Russian and Iranian armed forces on the side of the Syrian government can serve as an example of this scenario. 94 b) A foreign state participates in support of insurgents against an established government. This can happen by the exercising of control over insurgents or by direct military intervention of the foreign state. The United States government’s support of the contras in Nicaragua in the early 1980s or NATO’s intervention in the armed conflict between the Federal Republic of Yugoslavia and the Kosovo Liberian Army in 1999 can be given as examples of this scenario. 95 Most recently, conflict in eastern Ukraine where pro-Russian separatists are allegedly supported by the Russian Federation can possibly also fit as an example of this scenario. 96 Leaving aside the question of the standard of control over insurgents required 97 which is not definitely settled, 98 we can see two parallel conflicts in this scenario in accordance with the so-called ‘mixed regime’ doctrine. The regime of international armed conflict applies to armed clashes between an intervening state and the territorial state (or to occupation by intervening state), whereas the regime of non-international armed conflict applies to clashes between the territorial state and insurgents. 99 c) A foreign state attacks insurgents in the territorial state without its consent, as seen for example during the Israel-Hezbollah conflict in Lebanon in 2006 100 or the ongoing intervention of the western alliance against ISIS in Syria and possibly also intervention of Turkey against the Kurdistan Workers’ Party positions in Northern Iraq in recent years. 101 This scenario raises some issues. If military operations of the intervening state are directed solely against insurgents located in the territory of the territorial state, there are different views on the typology of such armed conflict. Some authors consider the absence of consent of the territorial state as a decisive factor which determines such a scenario as 93 Book Discussion: Some Considerations on Intervention Against Non-state Actors in Foreign Territory [online]. ejiltalk. org, May 31, 2017 [accessed on May 31, 2017]. Available at < https://www.ejiltalk.org/ejil-talk-book-discussion- some-considerations-on-intervention-against-non-state-actors-in-foreign-territory/ >. 94 For thorough classification of conflict in Syria, see GILL, T. D., Classifying the Conflict in Syria. International Law Studies – U.S. Naval War College, Vol. 92, 2016, pp. 352-380. 95 STEWART, J. G., Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict. International Review of the Red Cross , Vol. 85, 2003, p. 315. 96 Iskander Energy Corporation seated in Canada which extracts coal-bed-methane in the Donetsk region is just one example of foreign investment endangered by the conflict in eastern Ukraine. 97 Many authors refer to the overall control as a sufficient level as developed in the judgement of the Appeals Chamber of the ICTY in Tadić Case . See for example again, Towards a single definition of armed conflict …, p. 325. Other applicable standards we know in international law are effective control used by International Court of Justice in Nicaragua Case or effective overall control used by European Court of Human Rights in Al Skeni or Al Jedda . 98 Classifying the Conflict in Syria , p. 367. 99 Ibid, p. 365. 100 What Exactly Internationalizes an Internal Armed Conflict? [online]. ejiltalk.org, May 7, 2010 [accessed on May 31, 2017]. Available at < https://www.ejiltalk.org/what-exactly-internationalizes-an-internal-armed-conflict/ >. 101 Classifying the Conflict in Syria, p. 371.

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