I doubt that a doctoral thesis – and then a book – on international law could be more timely than Alexander Wentker’s Party Status to Armed Conflict in International Law. The ongoing wars in Ukraine and in the Middle East, among others, raise difficult questions of conflict classification and party status as a matter of international humanitarian law, with tangents to the law on the use of force, the (undead but better off fully dead) law of neutrality and the law of state responsibility. To give but one example straight from the pages of a law school hypothetical, the day before the launch of Alex’s book at All Souls in Oxford a British missile fired from (and by) Ukraine killed or injured a North Korean general in Russia. Is North Korea then a party to the international armed conflict between Russia and Ukraine (see also here)? And is the UK?
Or, consider the question of intelligence sharing by partners during an armed conflict (see more here). Some of that intelligence may be strategic in character. But, frequently, it can also directly support targeting on the battlefield. Among many examples, there is the Ukrainian strike on the Moskva, the flagship of the Russian Black Sea fleet, enabled by shared allied intelligence. It is clear that intelligence support by allies to Ukraine, especially by the United States, has been systemic. As the New York Times reported last year:
A senior U.S. official said of the C.I.A.’s sizable presence [in Kyiv], “Are they pulling triggers? No. Are they helping with targeting? Absolutely.”
In July 2022, Ukrainian spies saw Russian convoys preparing to cross a strategic bridge across the Dnipro river and notified MI6. British and American intelligence officers then quickly verified the Ukrainian intelligence, using real-time satellite imagery. MI6 relayed the confirmation, and the Ukrainian military opened fire with rockets, destroying the convoys.
Does such targeting support make the United States a party to the armed conflict between Russia and Ukraine?
On these and other issues, Wentker’s book can provide valuable guidance (see on that point also here and here). It is not only very timely, but combines legal rigour with a healthy dose of common sense. This is evident not only from the book itself, but also from the fact that it fed directly into a more accessible Chatham House research paper, of which Wentker was the principal author.
Both the book and the paper are especially valuable in drawing important lines between considerations of law and policy. Looking at the long arc of allied support to Ukraine, for example, it is manifest how the main policy driver behind the hesitancy of some states to provide certain weapons systems, for instance, was in their understandable desire to avoid escalation. Yet the justifications given were often very legalistic, of the “we don’t want to participate in the armed conflict” variety. By contrast, some policy makers may want to push a policy narrative of not participating in the conflict even if, as a matter of law, such participation clearly exists. My point here is simply that policy and legal considerations – and red lines – need not match, and Wentker’s work is very clear on this.
One core argument of the book may provoke some controversy. Every IHL scholar will agree that it is essential to establish whether a state or an organized armed group has become a party to a (usually preexisting) armed conflict. But, Wentker argues that it may also be crucial to establish whether the state or group has become a co-party, i.e. that it is participating in the conflict side-by-side with another party, and that this co-party status has some particular legal consequences over and above party status alone.
Not all IHL scholars will agree. There is no doubt that, purely as a matter of fact, there are plenty of historical and contemporary examples of states (or armed groups) fighting side by side. The question, however, is whether being a co-party is in some sense a distinct legal status.
IHL does lack clear black letter rules on when the provision of various forms of support by A to B, when B is engaged in an armed conflict with C, will render A a party to the B-C armed conflict. This normative gap has to be filled by scholarly and other efforts, such as the ICRC’s ‘support-based approach’ to foreign intervention in NIACs in particular. Any such attempt will involve a mix of formal legal reasoning and pragmatic, policy-oriented considerations.
Wentker’s arguments on this, in the book and in the Chatham House paper, focus on the directness of the connection between the support given and the partner’s conduct of hostilities against their adversary. His analysis, and that of others, can thus enable us to distinguish between some easy cases, and some hard cases, of (not) becoming a party to a conflict through the provision of assistance.
First, there are easy cases of support NOT leading to party status: supplying money, technology, weapons, ammunition, intelligence about the strategic intentions or military secrets of the adversary, political support, or humanitarian assistance. Such assistance can violate some other rules of international law – for example, those of the jus ad bellum (if the assisted party is the aggressor) or those on complicity. But, without more, such support does not render the assisting entity a party to the conflict as a matter of IHL. An approach to party status that would encompass all of these forms of support would be far too broad – on such a view, we would now be in a world war with the US and China (among others) on opposite sides, due to their support to Ukraine and Russia respectively.
Then there are the easy cases of support that DOES lead to party status: conducting joint air strikes, ground operations, or special forces operations involving attacks as defined in IHL; conducting cyber operations that amount to attacks in IHL; joint tactical planning, i.e. choosing specific targets together or making joint decisions on attacks only one party will pursue. Again, such support might be legal or illegal as a matter of other rules of international law, but as a matter of IHL it would lead to party status. North Korea is the easy case here – it has definitely become a party to the Russia-Ukraine IAC.
Then there are the hard cases, on which reasonable people (and governments) can disagree. These would include the provision of training (especially in theatre), sharing tactical, directly actionable intelligence that can be used for targeting, engaging in defensive cyber (not just the transfer of technology or know-how, but the actual conduct of such operations), de-mining, logistical support including air-to-air refuelling and the like. A particularly important example here is that of one state permitting the combat aircraft of another state overflight rights over its territory, or the use of its airfields, or the stationing of weapons and supplies for easier access, or the passage of ground forces through its territory – Belarus being the paradigmatic case here with respect to the war in Ukraine.
For Wentker, the idea of co-party status involves not only a direct connection between the assistance given and the hostilities, but also coordination or cooperation among the partners. This is only common sense. The bigger question is whether such co-party status entails distinct legal consequences, and for him it does. The first such consequence is especially relevant to NIACs, and it relates to the aggregation of the acts of all of the co-parties in assessing whether the intensity threshold for NIACs was reached. Then there are the consequences that actually entail responsibility. Wentker argues that a co-party has a heightened duty to ensure respect for IHL (pursuant to Common Article 1 of the Geneva Conventions and their customary equivalent), more than a ‘mere’ bystander. He also argues that co-party status engages the overarching precautionary duty to take constant care to spare the civilian population – thus, for example, were the United States considered to be a co-party to the NIAC between Israel and Hamas in Gaza, it would have more duties under IHL alone than if it was just a passive observer.
These arguments have a lot of intuitive appeal. And they are tailored, at least to some extent, to those states (like the US, UK or Israel) who reject a broad reading of the duty to ensure respect for IHL. There is a meaningful difference between situations in which two partners fight side by side, and those where uninvolved or less involved third states may try to exert their influence to secure compliance for IHL.
But, that said, that approach is hardly unproblematic. Underlying both the notion of co-parties and directness of contribution as one of its criteria is some kind of intuitive reliance on proximity as a basis for duty. Lawyers have of course relied on concepts such as proximate cause for centuries. These concepts can be workable. Yet, it is also clear that they are packed with all sorts of implicit, unarticulated normative judgments (e.g. is providing money or artillery shells without which Ukraine could never be able to defend itself really somehow materially different from providing Ukraine with the coordinates of a target on the battlefield?).
But, one does not need some kind of perfect theory to make a genuine contribution to untangling questions of such great importance. One only needs a theory that is good enough, and, in my view at least, Alex Wentker has presented such a theory. He has also done this lucidly and straightforwardly. He should be commended in particular for drawing reasonably clear lines between considerations of law and policy – policy judgments should be informed by the law, not misinformed by the law. The ultimate success of his arguments, however, is primarily in the hands of the government and military lawyers of those states that have (so far) rejected very broad approaches to the external dimension of Common Article 1 in particular.
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