Frozen Conflicts in International Law

Part IV: Situating the Concept within the Legal Landscape

The relationship between international law and frozen conflicts can be approached from different angles. Part I deals with the term ‘frozen conflicts’, Parts II and III with the cases referred to as frozen conflicts, and Part IV now situates frozen conflicts as a concept within the legal landscape. Due to their inherent ambiguity, frozen conflicts do not fit neatly into dichotomous categories. Instead, they are situated, firstly, between the categories of war and peace and, secondly, between those of law and politics. This reflects a broader issue in international law, where rigid dichotomies struggle to capture complex realities. Frozen conflicts exemplify such challenges. To illustrate this further, frozen conflicts will be compared with other ambiguous concepts in international law that lack clear legal definitions but are nevertheless relevant to the discipline. Analogies will be drawn with the concepts of jus post bellum and asymmetric war. This Part will conclude with an examination of strengths and weaknesses of frozen conflicts as a legal concept.

I.Between Dichotomies

Law is famous for its foundational dichotomies, its strict either–or approach, also described as an ‘on-off switch approach’.⁸¹⁸ Dichotomies are endemic across the entire discipline. Famous dichotomies exist, for example, between states and nonstates, legal and illegal, international and non-international armed conflicts, the presence and absence of armed attack, combatants and civilians, and jus ad bellum and jus in bello.⁸¹⁹ The clear-cut dichotomies certainly correspond with the need to determine which rules are applicable to a situation or case; rules, again, may be applicable or not, but nothing in between. Yet, such improved legal clarity and efficiency entails an oversimplification of — S. 120 —ambiguous cases.⁸²⁰ Sharp distinctions might have been suitable for traditional wars in the nineteenth century but are less so for the conflict scenarios of today.⁸²¹ The world has become more complex, and borderline cases appear to have become typical.⁸²² In response, the legal landscape has also undergone some changes.⁸²³ New phenomena in the real world lead to the emergence of new legal concepts that can soften all-too-rigid dichotomies.

Although still foundational in theory, these dichotomies have been challenged. The dichotomy between state and nonstate has been complemented by the concept of de facto states: in certain situations, such as protection against the use of force,⁸²⁴ de facto states might be treated like states, but in others they remain nonstates, for instance when seeking accession to international organisations. The dichotomy between legal and illegal has been softened in one prominent case: NATO’s intervention in Kosovo 1999 was considered illegal but legitimate.⁸²⁵ Furthermore, the dichotomy of the presence or absence of an armed attack, which determines the lawfulness of the use of force in self-defence, has been challenged by the concept of imminent attack⁸²⁶ and by humanitarian catastrophes.⁸²⁷ The dichotomy of international and non-international armed conflicts has been softened by the constant assimilation of the second type of conflict into the first and the recognition that both humanitarian and human rights obligations are relevant to both types.⁸²⁸ The dichotomy of combatants and civilians has been blurred in recent decades in cases of terrorists fighting against a state. The dichotomy between — S. 121 —jus in bello and jus ad bellum has been complemented by the proposition of jus post bellum, as will be discussed below, and by jus in bello compliance that influences jus ad bellum considerations.⁸²⁹ In fact, over time, many legal dichotomies have evolved towards continua.⁸³⁰ Frozen conflicts follow this trend of eschewing dichotomies; which dichotomies they affect will be outlined next.

A.War and Peace

1.From Formalist to Functionalist Distinction

Frozen conflicts are situated, firstly, between the states of war and peace. The relationship between war and peace has passed through different periods, always mirrored in how the law treated them. It was only in the late nineteenth century that war and peace were strictly separated and war obtained a distinct legal status that altered the rights and powers of public actors.⁸³¹ The state of war was easily identifiable by a formal declaration, which triggered the application of a precise set of rules.⁸³² This approach developed from the concept of a sovereign authority that was allowed to wage wars.⁸³³ The clear distinction of war from peace sought to limit the carnage of war and was accompanied by the legal demarcation of the battlefield, the definitions of combatants and noncombatants, neutrals and belligerents, and the separation of the public sphere of war from the private one.⁸³⁴ This rigid distinction faced significant challenges in the twentieth century as both the nature of warfare and the frameworks of law underwent profound changes.⁸³⁵

Warfare evolved through the twentieth century, first with the global scale and brutality of the two World Wars, and later with the emergence of asymmetric wars in the postcolonial era.⁸³⁶ New technologies, the increased involvement of civilians and economies, the merging of peacetime politics with wartime strategy, and the emergence of ‘hot’ and ‘cold’ wars all differed markedly from the wars of the nineteenth century.⁸³⁷ The traditional concept — S. 122 —of war, fought on clearly demarcated battlefields by uniformed soldiers in stark contrast to peace, has increasingly become an illusion. The possibility of constant surveillance and communication among different actors irrespective of the physical distance between them has further blurred the lines between war and peace.⁸³⁸ War has been transformed into something asymmetric, chaotic, nonlinear, and increasingly characterized by its gradual transition to peace.⁸³⁹ Moreover, states have lost their monopoly on warfare due to the involvement of warlords, drug lords, freelance terrorists, and private agencies.⁸⁴⁰ Of course, such transformations are ongoing. Recently, warfare through information and data has become especially common. Another observation confirming the decline of the dichotomy of war and peace has been made regarding multilateral treaties. In the past, consequences of the state of war included the interruption of diplomatic and other relations, the termination or modification of treaties, and the application of the laws of war,⁸⁴¹ but today, international obligations are to be respected irrespective of all circumstances, including war.⁸⁴²

The frameworks of law in relation to war have undergone similar profound changes. Concerns about the overly simplistic dichotomy between the legal statuses of war and peace were expressed as early as the mid-twentieth century. Ideas of a status in between, a ‘status mixtus’⁸⁴³ or ‘state of intermediacy’,⁸⁴⁴ were introduced by Schwarzenberger and Jessup. Jessup described the legal necessity of ‘fitting every situation into one of the two traditional categories of peace and war’ as ‘difficult’.⁸⁴⁵ He considered the dichotomy risky and not representative of the facets of international life.⁸⁴⁶ Yet, these two concepts, ‘status mixtus’ and ‘state of intermediacy’, have not been formally adopted in international law. Although the approach to defining war within the legal framework has evolved, the dichotomy persists. Key to new approaches to a definition were the UN Charter of 1945, the Geneva Conventions — S. 123 —of 1949, and its Additional Protocols⁸⁴⁷ of 1977. This new legal framework aimed to provide a more flexible, practical, and functional approach to identifying and regulating situations of war.⁸⁴⁸ Rather than being strictly formal, rule-oriented, and separated from politics and economics, the new legal framework was designed to be a practical tool for politics.⁸⁴⁹ War became something to be managed by humanitarian lawyers and military professionals.⁸⁵⁰ The UN Charter was drafted in broad strokes that needed to be interpreted, since it was not clear what ‘aggression’ or ‘intervention’ means, whether economic pressure would count, and so forth.⁸⁵¹

As a result of these changes, the traditional concept of war has almost completely lost its legal relevance;⁸⁵² it has fallen into disuse and been substituted by the concept of armed conflict through the adoption of the Geneva Conventions of 1949. Instead of a formalist approach to defining war, the existence of an armed conflict was to be assessed based on the factual situation on the ground regardless of any formal declarations.⁸⁵³ Rules moved away from an overly rigid dichotomy by being transformed into broader principles and standards: for example, the clear-cut distinction between combatants and civilians was expanded into the broader ‘principle of distinction’.⁸⁵⁴ Dichotomies enshrined in the Geneva Conventions of 1949—such as public actors versus private actors, combatants versus civilians, or speaking of the wounded and sick ‘in the field’ and prisoners of war and civilians ‘in time of war’—were softened again in the Additional Protocols of 1977 and 1980, which also blur the lines between international and non-international armed conflicts, addressing all ‘victims’ of conflict.⁸⁵⁵ These protocols extended protections to guerrilla wars, internal conflicts, and all those affected by military violence.⁸⁵⁶

2.The Remaining Dichotomy and Its Instrumentalization

The adoption of the concept of armed conflict has softened the traditional dichotomy of war and peace by recognizing new forms of warfare. However, concerns have been raised that this approach still does not fit the fluidity of today’s battlefields.⁸⁵⁷ Ultimately, despite this nuanced approach, whether a situation qualifies as an armed conflict or not remains a binary question, and this question is still subject to debates. Difficulties arise, for example, when diverse actors are involved in a conflict and switch between acts typical of wartime and acts typical of peacetime. Instances include terrorists who perform war-like activities in times of peace and international authorities and ‘rogue’ states that circumvent the exceptionality of war by engaging in coercive actions over prolonged periods of time, leading to unpredictable and irregular phases of violence.⁸⁵⁸ Actors engage in a range of activities: in the same place, troops can shift from engaging in active hostilities to stabilizing a zone after conflict, providing humanitarian aid, or promoting nation-building.⁸⁵⁹ Difficulties can also arise in situations that do not exhibit the intensity of violence that is required to be classified as an armed conflict. Violent incidents, crimes, rioting, and civil unrest do not qualify as armed conflict and are treated as peace in international law.⁸⁶⁰

The classification of armed conflicts has no gradation, no ambiguity. Such a clear-cut distinction brings clarity inasmuch as certain rules, for instance IHL, are either applicable or not; they cannot be applied gradually to a situation of low- or medium-intensity violence. In theory, armed conflict is a legal construct that highlights certain forms of violent activities by certain actors.⁸⁶¹ Despite allegedly objective criteria to identify an armed conflict, the concept is not only legally but also socially constructed, which means that there is no objective ‘litmus test’ by which to classify an armed conflict.⁸⁶² Dividing lines and thresholds have underlying political choices and stalemates.⁸⁶³ The legal construct of armed conflict is contingent and an object of political contestation. Why should struggles for democratic governance not — S. 125 —benefit from the classification as an armed conflict?⁸⁶⁴ For example, Veuthey has argued against this rigidity and advocated for a continuum of rules that correspond to a continuum of conflict situations to include conflicts that are spatially and temporally hard to define.⁸⁶⁵

Scholars discussing the challenges of classifying an armed conflict often seek to extend the application of IHL to atypical conflict situations.⁸⁶⁶ If frozen conflicts were seen as ongoing armed conflicts under common article 2 of the Geneva Conventions, IHL would apply to them continuously throughout the decades. Yet, the application of IHL to frozen conflicts could also be argued for on the basis of belligerent occupation under article 42 of the Hague Convention IV of 1907. Furthermore, whether acknowledging the presence of an armed conflict, leading to the application of IHL, is regarded as beneficial or not largely depends on perspective and cannot be generalized.⁸⁶⁷ The problem of frozen conflicts goes beyond the question of the applicability of IHL. The low intensity of these conflicts often does not include attacks or detention, upon which IHL would touch. The law of armed conflict is not particularly suited for nonkinetic operations.⁸⁶⁸ Frozen conflicts are characterized by low-intensity violence and nonkinetic operations, violence that is more subtle and atypical of armed conflicts.⁸⁶⁹ This includes the ideational dispute over the territory, the threat from the presence of military forces, human rights violations, forced displacement, political dependency, and the policies of ‘passportization’ and ‘borderization’. The nature of frozen conflicts has become an instrument⁸⁷⁰ of Russia’s policy towards its neighbours. Violence is just one tool of war amongst many, according to Kennedy.⁸⁷¹ The Cold War, for instance, was fought commercially and culturally more often than militarily.⁸⁷² Psychological warfare and technological races, such as who would send the first person to the moon, of course also played a role. One — S. 126 —consequence of frozen conflicts’ not fitting neatly into the category of armed conflict, we think, is international law’s blindness to them. This oversight— failure to recognize and address less violent, protracted conflicts—has also been described as ‘law’s vulgar silence’.⁸⁷³

The difficulties of classifying a situation as an armed conflict or not can be interpreted in many ways. According to Berman, they can be regarded as the necessity of creating a synthesis between the law of armed conflict and of peace; they can be interpreted as the abolition of one sphere by the other; or, finally, they can be interpreted as ‘making the distinction between the two spheres available for strategic instrumentalization’.⁸⁷⁴ Berman argues for the third interpretation and gives the examples of the ‘war on terrorism’ following the events of 9/11 in 2001 and the conflict of the US with Iraq since 1990.⁸⁷⁵ In both cases, the US has often blurred the lines between war and peace. Their instrumentalization has involved alternating between military and police actions, treating terrorism as war at some times and as a crime at other times. These shifts are used to gain strategic advantages and influence public opinion.⁸⁷⁶

We argue that frozen conflicts are another example in which the war/ peace dichotomy has been instrumentalized. Law’s blindness or silence has been instrumentalized by Russia, which plays with the ambiguity and this grey area. In South Ossetia, Abkhazia, and Transnistria, Russia manoeuvres strategically within the ambiguous space between war and peace. The irregular phases of low-intensity violence, and even periods of no violence at all, make it difficult to see the situations as armed conflicts. The situations do not clearly meet the threshold for classification as armed conflicts, allowing them to disappear from the radar of international law. Consequently, they are often seen as political rather than legal issues. Indeed, a strategy may be inferred that aims to generate and maintain legal ambiguity specifically to avoid unified international reaction. This strategy has also been called hybrid warfare:⁸⁷⁷ another term that lacks clear definition in international law. This term has been frequently associated with Russia and describes a strategy of obscuring the distinctions between various modes of warfare.⁸⁷⁸ International law, with its binary logic, provides ample opportunities to follow such a strategy.

B.Law and Politics

1.A Dichotomy Constantly Challenged and Reaffirmed

Frozen conflicts are furthermore situated between the domains of law and politics. International law, like other disciplines, is constituted by its difference from other social and intellectual spheres, such as the economy or religion, but especially by its difference and separation from politics.⁸⁷⁹ Often, an issue is understood as either legal or political, and it seems necessary to make a choice of one or the other.⁸⁸⁰ International lawyers may argue that a particular issue is not a problem of law but rather one of politics, policy, or international relations.⁸⁸¹ This concern is valid for frozen conflicts as well: due to the lack of a clear legal definition and their fuzzy conceptualization in general, it is easy to refuse them as a legal topic. It is not necessary to conduct a comprehensive analysis of the relationship between law and politics here. It is a complex relationship; it can be examined from conceptual, research, and practical perspectives across various periods and alternates constantly between attraction and rejection.⁸⁸² What is important for the purpose of this thesis is that, despite shifting boundaries and criticisms, the separation between law and politics persists, and it seems legitimate to speak of a dichotomy. Even literature and practice that acknowledge the interplay of law and politics and the relevance of politics to law in fact reaffirm the underlying dichotomy.⁸⁸³ This dichotomous framework often leads to boundaries that create blind spots and silences around certain topics,⁸⁸⁴ which holds particularly true for frozen conflicts.

Engaging with the relationship between international law and politics raises the question of what determines the international community: law or politics. This question was discussed thoroughly in the interwar period by Morgenthau and Lauterpacht.⁸⁸⁵ Morgenthau, founder of international relations as a discipline and highly critical of international law’s limited capacities — S. 128 —to resolve disputes, argued that the opposition of political and legal is inadequate, since all legal questions can be considered political or nonpolitical at the same time.⁸⁸⁶ No subject can be regarded as political per se, given that no objective characteristics allow for such a clear classification.⁸⁸⁷ Morgenthau argued that whether an issue is political or not is instead a quality or colouring that can be attached to any kind of question.⁸⁸⁸ Therefore every allegedly legal question can also be dominated by politics. This is where Morgenthau identified the limits of international law and its mechanisms for settling disputes.⁸⁸⁹

Lauterpacht rejected this political realism and held the opposite view: that the nature of international affairs is ultimately legal.⁸⁹⁰ Although he agreed with Morgenthau that disputes can be both legal and political at the same time,⁸⁹¹ eventually, Lauterpacht argued, it is law that is capable of resolving them. He stated that ‘international disputes are, irrespective of their gravity, disputes of a legal character in the sense that, so long as the rule of law is recognized, they are capable of an answer by the application of legal rules’.⁸⁹² Instead of politicians and diplomats, Lauterpacht believed in courts and judges having the competence to determine the international sphere.⁸⁹³ Politics can still influence this function, but it is not the power politics of states but a progressive extension of the legal sphere, which follows principles of universalism and humanity.⁸⁹⁴

In his comparison of these two scholars, Koskenniemi observed that for Morgenthau, ‘the world is above all political, and law appears only as a marginal phenomenon, preoccupied with issues of minor interest’, whereas for Lauterpacht, ‘the world is above all legal and most things are determined by laws and courts that sometimes leave issues for politicians to decide’.⁸⁹⁵ This permeability of both disciplines, irrespective of which is above the other, both challenges and reaffirms the dichotomy between law and politics. Although both Morgenthau and Lauterpacht rejected a simplistic dichotomy, a separation remains. Similar debates still take place today: raising the question of — S. 129 —whether an issue is political or legal entails deciding whether politicians or lawyers can better deal with the problem.⁸⁹⁶ One famous example is the debate on the responsibility to protect. Whenever the topic comes up in academic treatises or in practice, the question is addressed whether it is a political or legal concept. A large number of publications has discussed this question,⁸⁹⁷ and state officials debated it at the UNGA meetings in July 2009.⁸⁹⁸ The arguments for and against a legal or political character of the concept have been abundantly examined by others, so it suffices at this point to emphasize the basic tenor of the binary approach: the responsibility to protect is either a legal or a political concept.

The dichotomy of law and politics is also noticeable in the activities of international bodies. Two examples are the Tadić decision by the ICTY in 1995⁸⁹⁹ and the decision by the Pre-Trial Chamber of the ICC not to authorize an investigation of crimes committed in Afghanistan between 2003 and 2014.⁹⁰⁰ Both decisions have been criticized as political and thus as failing to respect the supposed immunity of law from politics.⁹⁰¹ The Tadić decision was criticized for being political because the ICTY assumed the justiciability of non-international armed conflicts under international law, and in the case of Afghanistan, the decision not to open an investigation on the grounds that it was nonjusticiable was considered equally political.⁹⁰² Ideally, international law is resilient to the political caprices of states and fights against their — S. 130 —self-interested motives,⁹⁰³ because politics is ultimately about power and lacks any universally valid truth or ethics.⁹⁰⁴ More examples could be listed in which international law has been criticized for being influenced by politics, such as the case of Kosovo’s independence. However, the point is clear: frequently, a matter is considered either legal or political, or at least one domain is viewed in relation to the other, which also reaffirms the dichotomy.⁹⁰⁵

2.Question of Perspective

Koskenniemi presented some remarkably insightful thoughts on the relationship between law and politics.⁹⁰⁶ He rejects the view that a matter is either legal or political depending on its intrinsic properties; instead, he argues, it can be both at the same time, depending on perspective. To illustrate this point, he refers to an optical illusion that challenges one’s perception. The image shows the head of an animal that can be interpreted as a duck with its pronounced beak but also as a rabbit with its long, furry ears (Figure 3).⁹⁰⁷ The drawing became famous through Wittgenstein’s Philosophical Investigations, published in 1958.⁹⁰⁸ Whether the image is of a rabbit or of a duck depends completely on — S. 131 —the observer’s mind. Neither objective criteria nor objective reality can deter mine whether the drawing depicts one animal or the other. Both the duck and the rabbit can be seen in one and the same image, and an observer can even shift from seeing a rabbit to seeing a duck or vice versa.

Koskenniemi explained that ‘what we see depends on what we are inclined to see, or, technically, our cognitive bias’.⁹¹⁰ What one sees is thus determined by the way one looks at it; in fact, the subjective perspective is decisive. The same is true, Koskenniemi stated, for law and politics: ‘The question about whether something is “really” law or “really” politics is as meaningful or meaningless as the question of whether Wittgenstein’s image is really that of a duck or a rabbit’.⁹¹¹ The answer is that it is both. A single topic can be seen as both legal and political, or, in other words, from a legal and a political point of view. Whether some matter is considered legal or political is therefore not determined by the relationship of the topic to the world but by its effect on the observer’s mind.⁹¹² The meaning of a specific matter depends on the lens one looks through, on the conceptual framework. A single topic, like the image, conveys multiple messages, and one needs the ability to recognize the law or the politics in it.

Whether one sees the law or the politics in a topic is influenced by the institutional context. Accordingly, at the ICJ or ICC people see the law in a specific issue and speak the language of law, whereas in a foreign ministry’s political department, or the UNSC, people see the politics in a specific issue and speak the language of politics.⁹¹³ Lawyers focus on what the law says, politicians on what the right political solution is.⁹¹⁴ The comparison with the duck–rabbit image illustrates how the relationship between law and politics is more complex than a simple separation, contradiction, or dichotomy, all of which would mean that they are mutually exclusive. Instead, law and politics must be viewed as overlapping in ‘nested opposition’,⁹¹⁵ interdependent, or co-constitutive. However, they cannot be fully merged either.⁹¹⁶ In Wittgenstein’s ambiguous image, one recognizes either the whole duck or the whole rabbit but not a mix of them, a half-duck, half-rabbit monster, as Koskenniemi clarified.⁹¹⁷

3.Frozen Conflicts between Law and Politics

Frozen conflicts raise the question whether they are a legal concept or whether they belong to the political domain.⁹¹⁸ Grant offers three reasons why frozen conflicts are not a legal concept: first, the juridical characteristics of frozen conflicts are too diffuse and have ‘little or no necessary juridical connection to one another’;⁹¹⁹ second, the term is not neutral, suggesting that there is no hope for conflict resolution, whereas lawyers have the duty to find solutions and act as problem-solvers without prejudging the situation; and third, the concept is inappropriate because it represents legal fragmentation, implying that there is a regional international law emanating from Russia as opposed to the general international law.⁹²⁰ In what follows, these arguments are put into perspective.

Grant’s first argument, that frozen conflicts have too diffuse juridical characteristics and lack a single readily identified core phenomenon, assumes that it is the nature of frozen conflicts and their intrinsic properties that prevents them from being a primarily legal concept. Following Koskenniemi’s approach, however, the nature of frozen conflicts should not lead to their dismissal as a legal concept, because the question whether they are legal is not the right one to ask. Accordingly, despite their diffuse nature, frozen conflicts can be both legal and political, because ultimately this is a question of perspective. The present thesis argues that frozen conflicts are a legal concept, because they can be seen from a legal perspective.

Grant’s second and third arguments against classifying frozen conflicts as a legal concept operate at a different level. These arguments include the lack of neutrality of the term and the implication of legal fragmentation. They do not refer to the nature or intrinsic properties of frozen conflicts but depend on the question of what makes a good legal concept. This aligns with Koskenniemi’s further elaboration on the relation between law and politics: instead of focusing on whether a matter is legal or political, he emphasizes the issue of whether the matter is best treated by law or by politics.⁹²¹ Applying this wording to Grant’s arguments, international law is not best suited to treat frozen conflicts, because frozen conflict as a concept is not neutral and suggests legal fragmentation. Indeed, as has been discussed above, law has not been able to resolve frozen conflicts. Parties use the language of law as a tool — S. 133 —for the continuation of politics and warfare.⁹²² Doubts about whether frozen conflicts are best treated by law are therefore justified.

Two conclusions can be drawn from this discussion. The first refers to the nature of frozen conflicts. Given their diffuse nature and the fact that they do not neatly fit into traditional legal categories such as armed conflict, it may be tempting to judge them a nonlegal concept and assign them to the political domain. However, this conclusion is based on the nature and inherent properties of frozen conflicts. Whether frozen conflicts constitute a legal concept is a matter of perspective. As shown in Part III, these conflicts are characterized by various legal aspects. Dismissing frozen conflicts as a legal concept due to their nature is unimaginative and inadequate. Excluding an issue from the legal realm assumes that the discipline is not meant to address or explore some specific problems, which means waiving professional responsibility.⁹²³ Therefore, like the duck–rabbit image, the concept of frozen conflict can simultaneously be political and legal.

The second conclusion addresses whether law or politics is best for treating frozen conflicts. It must be emphasized that the law has so far proven incapable of resolving frozen conflicts. In fact, it has been incapable of resolving any conflicts. In contrast, if politics were to address frozen conflicts with the willingness to resolve them, it might succeed. Thus, instead of excluding frozen conflicts as a concept from the legal sphere due to their ambiguous nature, a more nuanced conclusion is that law may not be the best discipline to address or resolve the problem of frozen conflicts. Yet, this finding reveals more about the limitations of international law than about the nature of frozen conflicts. It shows that the discipline has its limits when dealing with ambiguity and grey tones. Consequently, frozen conflicts are simultaneously legal and political, because they can be examined from both perspectives. However, it remains uncertain whether law is the best approach for addressing frozen conflicts. This is why overall the concept of frozen conflicts can be placed between law and politics.

II.Analogies with other Ambiguous Concepts

With the concept of frozen conflicts situated both between armed conflict and peace and between law and politics, this chapter will draw analogies with two other ambiguous concepts. These are the concepts of jus post bellum and asymmetric warfare. Neither concept fits neatly into existing legal categories.

In fact, jus post bellum is situated between jus ad bellum and jus in bello, and asymmetric warfare blurs the boundaries between armed conflict and peace. In order to infer analogies for the relationship between international law and frozen conflicts, the two concepts will be examined in terms of their emergence, legal content, and added value for the discipline.

A.Jus Post Bellum

1.Origin of the Concept

The idea of jus post bellum emerged in two different contexts that, nevertheless, overlap to some extent. Its origin can, firstly, be traced back to the just war tradition and the call for rules that apply when a war has terminated. Secondly, it originated in the call for a third category to complement the oversimplistic dichotomy of war and peace and apply to situations between war and peace or in transition from war to peace.

The first origin, the just war theory, is a long-standing aspect of moral and political philosophy that offers a framework of principles to systematically assess the morality of acts during wartime.⁹²⁴ Just war theory traditionally distinguished between the questions of what constitutes a just cause for waging war and in what way war may be justly conducted, even though sometimes these two aspects have also been connected to each other.⁹²⁵ With most scholars thinking in these two categories, the termination phase of war was mostly ignored.⁹²⁶ Yet scholars of the modern just war tradition that arose in the 1500s and 1600s, such as Vitoria, Suarez, Grotius, and Vattel, expanded the concept of just war and reflected on justice after the end of war.⁹²⁷ Ultimately, Kant coined the idea of just war theory after war.⁹²⁸ He regarded justice after war as the third aspect of the just war theory. Together with the right to wage war and rights during war, it formed the tripartite conception of warfare. Although Kant did not use the term ‘jus post bellum’, he outlined the concept avant la lettre, writing of the right after war (‘Recht nach dem — S. 135 —Krieg’).⁹²⁹ The novelty of Kant’s idea lies in his linkage of the rules of war and after war with the overarching aim of achieving perpetual peace.⁹³⁰

The second origin of jus post bellum is the fundamental dichotomy between the legal states of war and peace. Because war was outlawed and was defined by a factualist approach in the twentieth century, the idea of jus post bellum was situated between the concepts of jus ad bellum and jus in bello.⁹³¹ The traditional war–peace dichotomy is, to some extent, reflected in today’s jus ad bellum–jus in bello dichotomy.⁹³² The clear-cut distinction between the two regimes of jus ad bellum and jus in bello was questioned, and some scholars began to argue for a state in between as early as the 1940s. As mentioned previously, Schwarzenberger proposed the term ‘status mixtus’⁹³³ and Jessup the ‘state of intermediacy’,⁹³⁴ both concepts that better correspond to the realities of situations between war and peace. The wording of jus post bellum clearly marks the connection to the concepts of jus ad bellum and jus in bello. The different contexts of origin impart different meanings and consequences to the concept, as will be outlined next.

2.Legal Content, Added Value, and Critics

Jus post bellum, often described as ‘law after war’ or the ‘law of transition from war to peace’,⁹³⁵ is obviously closely linked to its sister concepts, jus ad bellum and jus in bello. Despite this obvious link, jus post bellum remains ambiguous and has therefore even been rejected by some scholars.⁹³⁶ Instead of one authoritative or consolidated meaning, the term has a matrix of definitions, depending on who uses it.⁹³⁷ Consequently, its legal implications are highly controversial as well. Even supporters of the concept are aware of definitional problems. For example, Stahn admits that the concept is imprecise, stating that — S. 136 —[it] is unsatisfactorily narrow and overly broad at the same time … [it] is so broadly used that it means different things to different communities, sometimes even within the same discipline… As it stands, jus post bellum is thus still more a metaphor than a fully developed moral or legal concept.⁹³⁸

The empirical findings on the references to jus post bellum in a large number of journals presented by Iverson underscore that ‘with the expansion of references there has been an increase of ambiguity, not a consolidation around a consensus definition’.⁹³⁹ The reasons for this lack of definition are manifold.

First, the term has been fundamentally ambiguous from its very beginnings.⁹⁴⁰ To some, jus post bellum is the law to apply after a war, whereas to others, it is the aspiration to transition from war to peace. Thus, Iverson distinguishes between the temporal and functional understandings of the concept: the definition of ‘law after war’ implies a temporal understanding, whereas ‘the law of transition from war to peace’ implies a functional one.⁹⁴¹ The temporal understanding focuses on the temporal distinction from the sister concepts jus ad bellum, at the beginning of a war, and jus in bello, during the war. The functional understanding focuses on what the various law regimes regulate, not when they apply.⁹⁴² Iverson explains that the temporal understanding of jus post bellum is simple but not very useful:⁹⁴³ Jus post bellum would apply from the moment a conflict has ended, thus in an early state of peace.⁹⁴⁴ It clearly distinguishes between the state of war and the state of peace. In contrast, the functional understanding acknowledges that the distinction between war and peace might be unclear, and that in such diffuse situations jus post bellum has the function of transitioning out of war into peace.⁹⁴⁵ However, the differentiation between the temporal and functional understanding of jus post bellum, which would have brought more clarity to the concept, has not prevailed, and authors even switch from one understanding to the other without noticing.⁹⁴⁶

Second, the concept remains ambiguous because it is not clear what the jus in jus post bellum actually entails. To some it means ‘law’, but to others ‘justice’ or ‘morality’.⁹⁴⁷ The meaning that is ascribed correlates with the community that uses the term. While to moral theorists, jus post bellum is a moral concept that determines the overall justice of the war by assessing its outcome,⁹⁴⁸ to lawyers such moral considerations are taboo, due to the absolute prohibition of the use of force: bringing democracy or stability after war cannot render it legal. Legal scholars suggest that the jus in jus post bellum means ‘law’ and understand the concept as a legal framework to deal with post-conflict peacebuilding and enable transition to peace.⁹⁴⁹ Opinions vary on whether it means an existing body of law combined under a new label, a new body of law that should be created, or an interpretative tool or framework. For example, Österdahl and van Zadel argue that jus post bellum is at the minimum an area of law that mixes IHL, international human rights law, international criminal law, national criminal law, national administrative law, national constitutional law, and national military law, and should also include new rules that are to be developed.⁹⁵⁰ Orend argues for the development of new rules for the post-conflict phase and even suggests a new Geneva Convention for this purpose.⁹⁵¹ Similarly, Bamigboye and Ayeni suggest creating a fourth additional protocol to the Geneva Conventions that specifically deals with jus post bellum.⁹⁵² However, De Brabandere stresses that the ambition to add new legal obligations will face the usual difficulties of law-making: the lack of political will for treaties and the lack of developed customary law.⁹⁵³ Fleck suggests jus post bellum to be a partly independent legal framework but completes it with nonlegal rules, explaining that it should be addressed by a flexible creativity of formal and informal approaches.⁹⁵⁴ Moreover, Stahn proposes six organizing — S. 138 —rules and principles for the transition from conflict to peace, such as fairness and inclusiveness of peace settlements and humanization of reparations and sanctions.⁹⁵⁵ Iverson similarly discusses eight core areas of jus post bellum, building on Stahn’s idea.⁹⁵⁶

These different approaches to jus post bellum accompany different ambitions for its conceptualization. Conceptualizing it as a system or body of norms is ambitious and requires a maximalist perspective of the idea.⁹⁵⁷ A more minimalist perspective⁹⁵⁸ defines it merely as an interpretative framework that helps apply the existing legal norms to transitions from conflict to peace. Overall, there is ‘no agreement nor any uniform view on what jus post bellum is or should be.’⁹⁵⁹ Accordingly, opinions vary on the concept’s added value for the discipline. Supporters of the concept consider it useful, because it places the post-conflict phase of reconstruction in the spotlight of international attention.⁹⁶⁰ They believe that this phase of transition needs its own legal realm within the landscape of the laws of armed conflict⁹⁶¹ that focuses particularly on protecting civilians.⁹⁶² Compared to the beginning and middle of armed conflicts, the time after is under-regulated, creating a gap that needs to be addressed by international law.⁹⁶³ This legal gap is also evident because the existing law, especially the law of occupation, aims to maintain the status quo, and thus does not enable large-scale societal changes.⁹⁶⁴ In his comprehensive work on jus post bellum, Iverson emphasizes two key strengths of the concept: the broad and increasing interest in the topic and its solid foundation in an ancient ethical tradition as well as in modern legal tradition.⁹⁶⁵

Conversely, critics reject the concept of jus post bellum and do not assign any added value to it. The arguments for this standpoint vary, again depending on exactly how jus post bellum is conceptualized. If it is merely a label referring — S. 139 —to the existing body of law that applies to post-conflict situations and transitions out of conflict, it is merely a descriptive legal concept. This might be the least controversial conceptualisation, yet it changes little and can be regarded as useless.⁹⁶⁶ If jus post bellum aims to fill alleged legal gaps with obligations for peace-building exercises,⁹⁶⁷ the added value would be obvious. However, it has been argued that in fact, no such gap exists: De Brabandere emphasizes the existing legal rules that apply after an armed conflict and in transition to peace, considers it an exaggeration to speak of a ‘legal void’, and mentions for example international human rights law, IHL, the law of occupation, and the Vienna Convention on the Law of Treaties, which regulates the fairness of peace settlements.⁹⁶⁸ Additionally, there is the concept of transitional justice that deals with past crimes and the transition to peace.⁹⁶⁹ According to De Brabandere, the problem is the lack of implementation rather than a lack of legal rules, which cannot be solved by creating new legal rules for jus post bellum.⁹⁷⁰ Iverson sees jus post bellum’s key weaknesses in the lack of consensus, even among supporters of the concept, which leads to challenges in harmonizing various sources.⁹⁷¹

3.Parallels to Transitional Justice

Jus post bellum cannot be addressed without mentioning transitional justice. There are parallels between these two concepts, not only in terms of their content but also in their somewhat unclear status as concepts in international law for lack of clear definitions. Transitional justice has been described as the ‘conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes’.⁹⁷² It is also understood as the transition within democratic systems;⁹⁷³ however, the relationship between democracy and transitional justice has not been conclusively clarified.⁹⁷⁴ Moreover, it has also been defined — S. 140 —as ‘transition from war to peace’, which implies a radically distinct idea and might be confused with jus post bellum.⁹⁷⁵ The origin of transitional justice is the transition to democracy of various states from the 1970s to the 1990s.⁹⁷⁶ The purpose is to build a sustainable peace with justice for human rights violations that occurred under the past regime and that are to be prevented in the future. The emphasis is on the aspiration for a transition towards justice in line with a political order that prevents human right violations.⁹⁷⁷ The assumption of an armed conflict is not substantial to transitional justice; neither is its absence.⁹⁷⁸ In contrast, jus post bellum can only be viewed in the context of an armed conflict, like its sister concepts of jus ad bellum and jus in bello. Nevertheless, in many cases transitional justice may overlap with jus post bellum,⁹⁷⁹ and it is regarded as a part of the latter.⁹⁸⁰ What is remarkable is the fact that, despite criticism, the concept of transitional justice is much more firmly established in international law than that of jus post bellum. In addition, there is a broad normative framework at the UN addressing transitional justice, for instance in the 2004 Report of the UN Secretary General, ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies’,⁹⁸¹ and the 2010 Guidance Note on the ‘United Nations Approach to Transitional Justice’.⁹⁸²

What is of interest for this work is not the detailed content of transitional justice but the emergence of this new field in international law and the fact that some scholars even reject the notion that transitional justice constitutes a field.⁹⁸³ The concept of transitional justice emerged at the end of Argentina’s military dictatorship and during the subsequent criminal prosecutions by the new, democratically elected government.⁹⁸⁴ Other states went through similar shifts from authoritarian regimes to democracies, for example Uruguay, Chile, South Africa, Greece, Algeria, and Bulgaria. Scholars engaged with — S. 141 —these complex transitions and organized conferences at the end of the 1980s and beginning of the 1990s, so that soon an expert pool existed for the new field.⁹⁸⁵ Although there are various examples in history of similar transitions and attempts at coping with past crimes,⁹⁸⁶ the term ‘transitional justice’ became fashionable only in the 1990s.⁹⁸⁷ The term and the concept were appealing, at the beginning especially within the human rights movement,⁹⁸⁸ and later within international law in general. Around 2000 and thereafter a self-conscious field of practice and study emerged, consistently termed ‘transitional justice’ and dealing with transitions in a range of societies.⁹⁸⁹ The UN increasingly adopted the role of monitor and sponsor of transitional justice⁹⁹⁰ and created a ‘Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence’ in 2011.⁹⁹¹ The concept’s fast rise in international law within just a few decades is remarkable, and the idea has spilled over into disciplines other than law, including anthropology, cultural studies, development studies, economics, education, ethics, history, philosophy, political science, psychology, sociology, and theology.⁹⁹²

However, transitional justice, like jus post bellum, has faced intense criticism concerning its status and its added value for international law. One critical argument is that the concept is too vague, given the lack of a legal definition and uncertainty over what international law specifically permits or requires of which actors during transition.⁹⁹³ Due to its popularity, the idea of transitional justice broadened over time and became less defined. The popularity of a concept certainly offers opportunities,⁹⁹⁴ but nevertheless results in vagueness.⁹⁹⁵ The field also overlaps with the UN’s peace and security mandate for accountability, justice, and reconciliation.⁹⁹⁶ A second criticism is that power — S. 142 —has shifted from the originally affected communities to a specialized, elitist field of experts: instead of self-determined transitions, they are directed by others through the neutral language of international law.⁹⁹⁷ The turn to legal hegemony and UN managerialism may have marginalized some of the most pressing concerns of people attempting to overcome past crimes.⁹⁹⁸ Furthermore, the concept has been criticized for being overly inclusive, because the term classifies situations together that seem too distinct to be addressed in one category.⁹⁹⁹ The question arises how the consequences of Latin America’s military juntas, South Africa’s apartheid system, Southern European dictatorships, and Soviet communism can be compared to one another.¹⁰⁰⁰

4.Analogies with Frozen Conflicts

Treatises on jus post bellum allow analogies to be drawn to the concept of frozen conflicts and its position within the legal landscape. Primarily, both concepts challenge the boundaries of existing categories. Jus post bellum, at least according to some approaches, has been created to overcome the dichotomy of jus ad bellum and jus in bello, which reflects the original dichotomy of peace and war. To overcome this dichotomy, a third category is introduced that addresses diffuse situations somewhere in transition from war to peace. Frozen conflicts consist of such diffuse situations, where war has terminated but peace has not been established. Both concepts are attempts at greater nuance, not simplification. However, because they exist beyond the boundaries of well-established categories, both concepts remain ambiguous. Neither jus post bellum nor frozen conflict has a consolidated definition. Instead, these concepts are associated with various meanings, depending on the community that employs the term. Furthermore, neither concept has clear legal implications, which raises the question of whether they have any added value for international law.

Despite these deficits, jus post bellum, frozen conflicts, and transitional justice have witnessed a steady increase of interest and expansion of references in recent decades. There seems to be a need to conceptualize the ambiguity in order to compensate for the oversimplification inherent to the binary — S. 143 —logic of law. The expanded use of these terms provides leverage, but also dilutes their meaning.¹⁰⁰¹Jus post bellum and transitional justice have both been deemed overly inclusive. In the same vein, we think that the expanded application of the term ‘frozen conflict’ to situations beyond the post-Soviet context is overly inclusive, watering down its original meaning. Even within the post-Soviet context, the term can be criticized for comparing situations that are too different from each other.

Differences between the concepts of jus post bellum, transitional justice, and frozen conflict concern the intentions behind them. Jus post bellum and transitional justice both pursue the objective of establishing certain obligations and aim to trigger specific actions by particular actors: often the international community, dominated by the West. In contrast, the concept of frozen conflict is neutral in the sense that it does not require action or imply claims directed towards a specific goal, such as transitioning out of conflict, bringing democracy, or protecting human rights. It remains at a factual level and does not imply a risk of hegemony in international law nor UN managerialism, because the concept does not mandate any action. Instead, frozen conflict implies a certain inactivity by the international community; the latter has given up on these situations. Overall, the concepts of jus post bellum and frozen conflict face an uncertain future in the discipline. Iverson states that it is impossible to foresee the longevity of a concept, because it largely depends on its future usage and the coherence of its use by experts.¹⁰⁰²

B.Asymmetric Warfare

1.Origin of the Concept

Asymmetric warfare, also termed asymmetric war, refers to warfare in which the parties have highly unequal strategies and capabilities. Of course, warfare between unequal parties has occurred throughout history; indeed, in every war, the parties’ aim is to create asymmetry and thus establish superiority over the enemy.¹⁰⁰³Two and a half millennia ago, Sun Tzu described the asymmetric strategy of an army like flowing water: avoiding the heights, meaning the opponents’ strengths, and hastening to the lowlands, meaning their weaknesses.¹⁰⁰⁴The phenomenon of asymmetric warfare is neither new nor particularly surprising. In fact, any war can be characterized as asymmetrical, because — S. 144 —belligerents are never identically strong, equipped, organized, persistent, and so forth.¹⁰⁰⁵Asymmetry can thus refer to various factors shaping a war, such as power, means, methods, organization, values, and time.¹⁰⁰⁶

Apart from some rudimentary references to distant history, speaking of ‘asymmetric warfare’ is usually intended to stress a contemporary phenomenon that contrasts with ‘old’ or ‘traditional’ wars.¹⁰⁰⁷There seems to be a consensus that ‘asymmetric warfare’ crystallized as a concept in international law in the 1990s.¹⁰⁰⁸Besides lawyers, scholars of peace and conflict studies, military strategy, and political science have engaged with the concept.¹⁰⁰⁹Traditionally, warfare has been perceived as armed hostilities between armies of centralized states, an assumption upon which the law of war is built,¹⁰¹⁰yet by the end of the Cold War, irregular forms of warfare emerged due to the new political landscape and new technological means. Because of technological innovations such as hand-held missiles, undetectable explosives, improved communication tools, and low-cost effective weaponry, irregular forces became able to confront states and challenge even the strongest of powers.¹⁰¹¹These irregular forces and loosely organized groups of fighters differ from their state opponents in their objectives, methods, and strategies.¹⁰¹²

Berglund and Souleimanov showed how scholars and government-affiliated strategists rushed to find appropriate labels and to categorize this emerging form of conflict.¹⁰¹³Various terms attempting to capture this new phenomenon have appeared in publications since the 1990s. Examples include ‘fourthgeneration — S. 145 —warfare’,¹⁰¹⁴‘small wars’,¹⁰¹⁵‘protracted social conflicts’,¹⁰¹⁶‘new wars’,¹⁰¹⁷‘non-linear wars’,¹⁰¹⁸and ‘asymmetric wars’.^1019,1020The latter became the ‘catch-phrase du jour’ in the 2000s.¹⁰²¹Many articles were also published on the topic during that decade.¹⁰²²

The asymmetry between the parties to a conflict is of particular interest to international lawyers, especially in the case of terrorism. The latter concept was shaped by the attacks of 9/11 in 2001, in which a handful of terrorists killed thousands of people on a superpower’s territory in very little time and thus demonstrated the vulnerability of the US and the West in general.¹⁰²³ International terrorism is commonly regarded as the paradigmatic case of asymmetric warfare.¹⁰²⁴Another example is a series of terrorist attacks in Russia in 2004. The hostage-taking and massacre in North Ossetia, carried out by Chechen suicide attackers, spotlighted the strategy of weaker military forces seeking to exert influence in conflicts. They choose targets in peripheral war zones, potentially leading to spirals of violence.¹⁰²⁵It was in this context of escalating terrorist attacks in the 2000s that the concept of asymmetric warfare gained widespread recognition. However, one could argue that terrorist acts are nothing new and had already triggered wars in the past.¹⁰²⁶ Instead, the novel characteristic might be that these terror attacks are an integral part of asymmetric warfare and more structured and systematic than — S. 146 —ever before.¹⁰²⁷Asymmetric warfare entails a strategy by which the weaker party attempts to overcome its disadvantage by attacking soft targets and consequently causing great damage.¹⁰²⁸

2.Legal Content, Added Value, and Critics

The appearance of this new phenomenon in the world, followed by its conceptualization as asymmetric warfare, raises the question of what the law says about asymmetric wars. The answer depends on how asymmetric warfare is defined. According to a US Army Major, Buffaloe, in its heyday the phrase ‘asymmetric warfare’ meant everything from the 9/11 terrorist strikes to roadside bombs to computer viruses to nuclear proliferation.¹⁰²⁹According to the journal Dynamics of Asymmetric Conflicts that was first published in 2008, the definitions range from terrorism to genocide, marking the two most extreme forms of asymmetric conflicts.¹⁰³⁰Possible asymmetric aspects of war include power, means, methods, organization, values, time, techniques, applicable norms, and doctrines.¹⁰³¹Some scholars distinguish between asymmetric warfare levels (strategic, operational, and tactical) and asymmetric warfare forms (technological, doctrinal, normative, participatory, and moral).¹⁰³²Legal and political scholars frequently ‘offer a laundry list of associated characteristics and sporadic examples, thus forcing readers to engage in text exegesis’¹⁰³³to understand the term. Consequently, some qualify ‘asymmetric conflict’ as an umbrella term referring to all imbalances and differences between the parties to a conflict.¹⁰³⁴Indeed, the term means different things to different speakers and therefore has been described as ambiguous and even useless.¹⁰³⁵Due to its several meanings, its legal implications vary, too.

One approach to the concept emphasizes that international law is completely indifferent to asymmetries.¹⁰³⁶Jus in bello, for example, applies as soon as a situation amounts to an armed conflict, irrespective of asymmetries — S. 147 —in military strength, political goals, or the lawfulness of the use of force.¹⁰³⁷ Accordingly, a confrontation with a superior enemy does not allow the weaker party to use prohibited means of warfare. Moreover, the asymmetries in the motives for waging war or strategic goals are important to understand but irrelevant from a legal perspective.¹⁰³⁸In this understanding of asymmetric warfare, the concept has little legal relevance. To some lawyers, asymmetric warfare is thus nothing but a description of a fact of life and ‘by no means a legal term of art’;¹⁰³⁹it entails no legal implications and consequently presents no added value to the discipline.

However, other understandings of the concept are not indifferent to international law. Often, lawyers define asymmetric warfare narrowly by referring specifically to the inequality between the actors involved in the conflict. This typically means confrontation between the regular military forces of a state and nonstate groups. This understanding equates asymmetric warfare with the well-established category of non-international armed conflict according to common article 3 of the Geneva Conventions. These conflicts are defined by the participation of nonstate groups.¹⁰⁴⁰Consequently, asymmetric wars have the same legal consequences as non-international armed conflicts. These implications can be briefly outlined. Despite the parallels with international armed conflicts, some differences remain in the applicable IHL rules.¹⁰⁴¹ To non-international armed conflicts, only a limited set of rules applies. In essence, non-international armed conflicts are ruled by common article 3 of the Geneva Conventions, the provisions of Additional Protocol II of 1977, and article 8(2) (c) and (e) of the Rome Statute.¹⁰⁴²Whereas in international armed conflicts the law acknowledges the statuses of combatants, civilians and other persons who are hors de combat, the wounded, sick and shipwrecked, and — S. 148 —prisoners of war,¹⁰⁴³in non-international armed conflicts there is no equivalent protection based on status.¹⁰⁴⁴Not carrying the status of combatants means that members of an irregular armed group do not enjoy combatant immunity or prisoner-of-war status when they fall into the hands of the enemy.¹⁰⁴⁵Cases discussed within this understanding of asymmetric warfare take place in non-international armed conflicts and include Turkey versus the Kurdistan Workers’ Party (PKK), Colombia versus the Revolutionary Armed Forces of Colombia (FARC), and Russia versus Chechnya.¹⁰⁴⁶This understanding of asymmetric warfare helps address difficulties of international law when regulating internal conflicts.

Another approach to the concept of asymmetric warfare is to not restrict it to the category of non-international armed conflicts. For a conflict to qualify as a non-international armed conflict, the nonstate group needs to meet the criteria of an organization with a hierarchical command structure that exercises control over a part of the state’s territory in the sense of article 1 Additional Protocol II of the Geneva Conventions. However, asymmetric war can also refer to the involvement of a conflict party that is poorly organized, without any command structure or control over a territory, and that ignores both domestic law and IHL.¹⁰⁴⁷In some cases, the activities of such parties might not even qualify as armed conflict because they do not meet a certain threshold of intensity of violence. In such situations, ‘asymmetry’ refers to the fact that a state fights using its regular army, bound by the laws of armed conflict, while the nonstate party is only bound by the domestic rules of a state that it usually does not recognize.¹⁰⁴⁸The actions of the nonstate group can only be prosecuted under criminal law. Authors who understand the term ‘asymmetric warfare’ in this way also use the term ‘transnational asymmetric warfare’ and ‘transnational warfare’ to refer to conflicts between state military forces and foreign nonstate actors that take place beyond state borders.¹⁰⁴⁹Transnational — S. 149 —terrorism and the ‘global war on terror’ are frequent examples.¹⁰⁵⁰This understanding of the concept of asymmetric war offers an opportunity to discuss the limits to the scope of applicability of IHL to irregular war actors.

Asymmetric warfare has also been conceptualized more broadly. Schmitt presents a very broad understanding to grasp all of its legal consequences and stresses that asymmetry always has ramifications and operates across the entire spectrum of a conflict.¹⁰⁵¹In his approach, the term ‘asymmetric warfare’ means normative, technological, doctrinal, and moral asymmetry, which all cause repercussions in law. These aspects of asymmetry can also be interconnected. For instance, normative asymmetry between the legal status of a state actor and that of a nonstate one is intertwined with asymmetries in technological capabilities, doctrinal strategies, and moral standing, all of which impact compliance with IHL.¹⁰⁵²For example, when nonstate actors disguise themselves as civilians, the opposing state may well argue for a lower threshold of proportionality because the principle of distinction has been misused.¹⁰⁵³Another example is the unequal technological resources of states and irregular forces: the attacker is obliged to take all feasible precautions to avoid incidental loss of life, injury to civilians, and damage to civilian objects (article 57(2) Additional Protocol I). Which precautions may be feasible depends on what is feasible for each party, which is likely to differ. Thus, the norm imposes different obligations on the parties depending on their technological means.¹⁰⁵⁴In other words, different standards of feasibility apply to states, which are usually technologically superior to nonstate groups; this results in privileging nonstate groups because they face a lower threshold of compliance with the law.¹⁰⁵⁵Doctrinal asymmetry involves war tactics designed to exploit the enemy’s weaknesses, which can lead to systematic attacks on civilians that undermine the principle of distinction and create a cycle of reciprocal IHL violations.¹⁰⁵⁶Finally, moral asymmetry, also termed ad bellum asymmetry, refers to the differing moral justifications behind the use of force, which can influence the parties’ willingness to comply with IHL because, despite the strict legal distinction between jus ad bellum and jus in bello, — S. 150 —in reality, differences in moral reasoning behind a war matter.¹⁰⁵⁷In a conflict between a state and a nonstate group, the first usually presents itself as retaining the moral upper hand compared to the irregular entities of ‘terrorists’.¹⁰⁵⁸ Thus, such conflicts suddenly bring jus ad bellum considerations into the assessment of the lawfulness of certain military actions.¹⁰⁵⁹

To summarize, asymmetric warfare is a popular topic in legal research and practice. However, there is no authoritative definition with exact legal consequences. Instead, conceptualizations vary, so that its meaning remains ambiguous. Therefore, some neglect the legal content of the term, regarding it as purely descriptive, whereas others simply equate it with the undisputed legal category of non-international armed conflict. A third group sees asymmetric wars as exactly the type of conflict that does not qualify as non-international armed conflict and sometimes adds the word ‘transnational’ to specify this.¹⁰⁶⁰A fourth group understands the term very broadly and identifies a range of consequences with indirect impacts on IHL. Consequently, the added value of the concept of asymmetric warfare for the discipline is either modest or potentially considerable.

3.Analogies with Frozen Conflicts

Treatises on the concept of asymmetric warfare allow analogies to be drawn with frozen conflicts. Both concepts address the phenomenon of new forms of wars that have proliferated since the 1990s, sharply contrasting with traditional wars between states that have clear beginnings and ends and are fought by traditional military forces with typical war equipment. The new and complex realities of warfare require a vocabulary to address these phenomena. Although asymmetric warfare is a popular concept in legal research and practice, its meaning remains ambiguous. In fact, definitions of the term vary. Most commonly, asymmetry refers to the parties involved in a conflict: states against nonstate groups. This understanding raises questions of the applicability of IHL rules to the nonstate actors, who often are terrorists. Their strategy entails blurring the boundaries of IHL dichotomies, such as the distinction between combatants and noncombatants. As in the case of frozen conflicts, such dichotomies are vulnerable to instrumentalization. For example, in asymmetric wars, terrorists instrumentalize the dichotomy of combatants — S. 151 —and noncombatants, and the dichotomy of war and peace in general, by using civilian infrastructure such as airplanes, trains, and computers to attack the opponent.

Moreover, like frozen conflicts, the concept of asymmetric warfare has, at least by some, been regarded as purely descriptive rather than a legal term of art. However, descriptive concepts can provide opportunities to address a bundle of legal problems and reveal the limits of traditional categories. Such terms still contribute to explaining the factual nature of the hostilities concerned, which is also important for lawyers.¹⁰⁶¹Moreover, the term ‘asymmetric warfare’ is neutral, as is ‘frozen conflict’. Unlike jus post bellum and transitional justice, it does not (aim to) trigger action by the international community. Asymmetric warfare also remains at the factual level and thus, like frozen conflict, does not imply the risk of hegemonic claims in international law or UN managerialism.

To conclude the analogy, the question whether asymmetric warfare and frozen conflicts are connected must be addressed. Do frozen conflicts entail asymmetrical warfare or vice versa? In general, the two concepts are not congruent and not related. The phenomena they refer to may occur in the same conflict, but the terms refer to distinct aspects of the situation. In fact, frozen conflicts are fought rather traditionally, usually by the armies of the parent state, the patron state, and the de facto state. Therefore, frozen conflicts are not typically cases of asymmetric warfare.¹⁰⁶²Instead, the term that has been connected with frozen conflicts is ‘hybrid warfare’, which means a mix of traditional and asymmetric warfare.¹⁰⁶³

III.Frozen Conflicts as Legal Concept?

A.Preliminary Thoughts on Concepts in Law

The position of frozen conflicts within the legal landscape can be examined from various angles. Previous chapters have situated them between war and peace and between law and politics. Subsequently, the examination of two further concepts has illustrated that other ambiguous concepts exist in international law and face problems similar to those of the term frozen conflict. This chapter assesses the strengths and weaknesses of frozen conflicts as a — S. 152 —legal concept. Therefore, firstly, we need to address some preliminary considerations regarding concepts in law. There are different kinds of concepts, each raising specific expectations, which may be evaluated as beneficial or useless to the discipline. A legal concept can help identify applicable law, mark a party’s position in court, or derive rights or actions. For example, responsibility to protect, although highly debated as discussed above, triggers humanitarian intervention. The concept is used to elicit certain actions, or rather reactions towards a situation of human suffering. In contrast, the concept of frozen conflict does not entail any action or reaction by the international community yet. Instead, it rather describes inactivity vis à vis a certain situation. Is it, therefore, a useless concept?

What defines a legal concept and what distinguishes a useful legal concept from a poor one is not as straightforward.¹⁰⁶⁴Neither is the definition of ‘concept’, a question that has been addressed throughout centuries and by various disciplines.¹⁰⁶⁵Lawyers have studied concepts only marginally and often using the approaches of social science.¹⁰⁶⁶Although to some a useful legal concept permits no ambiguity—for instance, in this view, there has to be a set of characteristics that pertains only to the concept of frozen conflicts and does ‘not describe any situation that is not a frozen conflict’¹⁰⁶⁷—, to others the very fluidity of a concept also has value, especially when thinking of concepts as a family.¹⁰⁶⁸Within such family resemblance approaches, also called prototype theory,¹⁰⁶⁹not all members of a concept have the exact same characteristics. They can be ambiguous. Wittgenstein gives the example of games: although games vary from board games to ball games to the Olympic games, they still have a whole series of similarities and relationships.¹⁰⁷⁰In Concepts for International Law, D’Aspremont and Singh stress their distinctness from words and also their ambiguity.¹⁰⁷¹The book distinguishes between concepts that designate important actors, concepts used in legal argu-

ment and judicial reasoning, concepts that designate influential and dominant projects, and core temporalized concepts in international law.¹⁰⁷²For example, the book addresses concepts such as authority, individual, civilization, democracy, rule of law, and war. Ginsburg and Stephanopoulos distinguish legal concepts both from words and from rules.¹⁰⁷³They follow Gerring’s social-scientific approach¹⁰⁷⁴and measure legal concepts according to the criteria of resonance, domain, consistency, fecundity, differentiation, causal utility, and measurability or operationalizability.¹⁰⁷⁵Yet, according to Frändberg, in theory, any concept whatsoever can be a legal concept when used in a law or legal material, for example man, woman, nuts, and percent, but the context decides whether considering these terms as legal concepts is desirable and useful.¹⁰⁷⁶He distinguishes between three types of legal concepts: law-stating concepts that state legal material content, juridical-operative concepts that regulate the use of the legal content, and mixes of both.¹⁰⁷⁷ To Von der Pfordten, concepts may be descriptive, such as road; evaluative, such as good manners; and normative, such as obligations.¹⁰⁷⁸He stresses the importance of all three types of concepts in law and compares them to the norms to which legal reasoning is often reduced. He considers concepts to be mental representations decisive for understanding the world.¹⁰⁷⁹In addition to these ideas about concepts, there is certainly also a temporal component, because concepts are not fixed once and for all: new concepts can emerge while others disappear or change due to new interpretations.¹⁰⁸⁰In short, international law is a messy world of ideas and institutions.¹⁰⁸¹ — S. 154 —For the purpose of this evaluation, it suffices to understand concepts in a broad sense. As it has become clear throughout this work that frozen conflicts do not entail rights, obligations, or actions, expectations for frozen conflict as a legal concept ought to be modest. Its potential appears to be limited. Most likely it can function as an analytical category or descriptive framework. Very pragmatically and convincingly, Frändberg supposes that a legal concept is likely one that is found in glossaries for law students.¹⁰⁸²This might be a realistic yardstick for the concept of frozen conflict, similarly to the concept of asymmetric warfare, which frequently appears in students’ textbooks of international law. Having said this, the next section will present four key strengths and two key weaknesses of frozen conflicts as a legal concept that could be found in glossaries for law students.

B.Key Strengths and Opportunities

Frozen conflict as a distinct concept in the legal landscape comes with four key strengths and opportunities. First, the concept mirrors the increasing interest in the topic. Part I of this work has shown that the term became fashionable in the 1990s and has attracted even more attraction since 2000, according to the empirical analysis of UN documents. Moreover, research on the subject has been conducted in other disciplines and even specialized research programmes have been founded, such as the frozen conflict dataset of the Peace Research Centre Prague. Furthermore, after the war in Georgia in 2008, interest in the topic increased, because it became clear that a frozen conflict may thaw at any time. Russia’s war against Ukraine since 2022 has raised interest in and awareness of frozen conflicts even further. The phrase has since been used particularly to describe future scenarios for Ukraine, and a risk has been identified of a spillover of the war into South Ossetia, Abkhazia, or Transnistria. Finally, the events in Nagorno-Karabakh in 2023 underscored the inherent risk of frozen conflicts: not only did a one-day war occur in September 2023, but in the months leading up to it, a humanitarian crisis developed in the region, and thousands of people were forced to flee.

Second, the concept creates visibility for the inherent risk of the outbreak of major violence, and for the underlying and constant suffering of the people living in the affected regions. Although interest in the topic is increasing, as explained above, frozen conflicts still seem to be a marginal topic in international law, perhaps due to their amorphous and subtle appearance not fitting traditional legal categories. Again, in 2023 Nagorno-Karabakh went through a humanitarian crisis and a one-day war with almost no reaction by the international — S. 155 —community. Frozen conflicts can be considered a constant although somehow hidden threat to peace because the use of force is possible at any moment. Frozen conflict as a legal concept correlates with understanding these conflicts as a legal problem and taking professional responsibility.

Third, the concept raises awareness of particularities. Recognizing the distinct nature of frozen conflicts by taking into account the combination of legal aspects and their sometimes-atypical manifestations can help interpret the applicable law. For example, the use of force by Azerbaijan against Nagorno-Karabakh in 2020 and 2023 must be viewed in its broad context. Solely from the perspective of territorial integrity, Azerbaijan has a monopoly on the use of force within its boundaries. Furthermore, human rights violations that occur in the regions and that have been alleged at the ECtHR must be seen in relation to the overall situation of frozen conflicts. The ECtHR incorporated this broad view by establishing a responsibility for human rights shared by both the parent state and the patron state in frozen conflicts. The concept sharpens consciousness of a situation that is not a typical occupation, nor a typical case of a people exercising self-determination, nor a typical international or non-international armed conflict, nor a typical situation that could be described as peace.

Fourth, the concept helps overcome dichotomies. As has been outlined, there is a tendency for rigid dichotomies in international law to be softened by introducing new concepts. Frozen conflicts can be regarded as another example and as an opportunity to reflect on existing categories. Easterday, Iverson, and Stahn offer a perspective on what the concept of jus post bellum could be:

Jus post bellum might serve as an instrument to overcome some of the existing normative and disciplinary biases in the international order. One of its strengths is that it creates the space to rethink entrenched dichotomies—for example, the interplay between security and human rights, law and politics, and peace and justice.¹⁰⁸³

We think the same holds true for frozen conflicts as a legal concept. It might likewise function as ‘an instrument to overcome some of the existing … biases’¹⁰⁸⁴in international law. It can also provide a space in which to rethink existing dichotomies and reflect on the limits of international law.

C.Key Weaknesses and Threats

Two key weaknesses and threats can be identified in frozen conflicts as a legal concept. First, there is a lack of consensus on a definition for frozen conflicts. Despite the use and appeal of the term, no consolidated meaning has crystallized. What the metaphor and the word ‘frozen’ refers to remains ambiguous. To some, it is the violence that has halted; to others, the peace negotiations; to yet others, it means belligerent occupation. Moreover, there is no consensus on which situations may be labelled frozen conflicts. What is clear is solely that the term was originally used for conflicts that arose after the dissolution of the Soviet Union, but its application has expanded beyond the post-Soviet context, for example to Kosovo, South Sudan prior to the present humanitarian crisis, and Northern Cyprus. The expansion can be seen as a gain of importance and attraction, but it waters down the power of the concept. Moreover, the fact that various disciplines and institutes take their siloed approaches to examine frozen conflicts can confuse and fragment the concept.¹⁰⁸⁵Because there is no single salient characteristic that frozen conflicts have in common but a bundle of legal problems, sometimes even subtle or hidden, the term is sufficiently flexible to be applied to diverse situations, and researchers from different fields can focus on different aspects.

Second, there is a lack of legal implications. The relevance of frozen conflicts as a concept in international law is not obvious if such a concept is meant to entail rights and obligations. In contrast to the concepts of international armed conflict, non-international armed conflict, and armed attack, which help identify the law applicable to a certain situation, the concept of frozen conflict does not trigger the application of any rules. There is no automatism, if A, then B; if a situation is a frozen conflict, then XY. Nor can the concept be used in court to claim a concrete right or to found judicial reasoning. It is thus not easy to apply the concept when deciding a case because it is not effective in differentiating lawful from unlawful behaviour.¹⁰⁸⁶The nature of the concept remains descriptive—which can be viewed as a weakness as well as a strength, depending on what is required of a legal concept. Compared to other descriptive concepts that are used in international law and are similarly fuzzy, such as asymmetric warfare, frozen conflict is not as widely used yet.

IV.Conclusion

To depict the relationship between international law and frozen conflicts, this part of the thesis situated the concept of frozen conflicts within the wider legal landscape. This position is determined by foundational dichotomies that persist despite being challenged by complex realities. First, the dichotomy of war and peace was examined. This dichotomy has evolved from a formalist to a factualist approach to defining the state of war, with the term ‘war’ being replaced by ‘armed conflict’. However, the binary approach distinguishing between armed conflict versus no armed conflict persists. This dichotomy has been shown to be vulnerable to instrumentalization. In frozen conflicts, Russia plays on this ambiguity by waging war without using the typical war materiel. Instead of kinetic operations, a more subtle form of warfare is applied that is not really an armed conflict, but not true peace either, which makes it difficult for international law to consider such situations.

Furthermore, frozen conflicts straddle the boundary between law and politics. Using the landscape metaphor, frozen conflicts lie at the periphery of the legal landscape that borders the political landscape. Although the relationship between law and politics is complex and has not been addressed in detail here, the important finding is that the dichotomy between law and politics remains. Law and legal decisions should ideally be resilient to the political caprices of states. Concerns have been raised that frozen conflicts are a political matter and not a legal one. However, the question whether a matter is legal or political has been demonstrated to be obsolete because it can be both simultaneously. Thus, the nature of frozen conflicts does not determine whether they are a legal or a political matter. They can be examined from either perspective. In fact, the better question is whether law or politics is better suited for dealing with frozen conflicts. It must be acknowledged that the law has its limits in resolving frozen conflicts. This is not only because the ambiguity of frozen conflicts does not fit neatly into binary categories but also because of weak enforcement mechanisms. However, we think that this reveals more about international law than about frozen conflicts. In contrast, if politics were to address these conflicts with the willingness to resolve them, it might succeed. Therefore, overall, the concept of frozen conflicts rests somewhere between law and politics.

Comparing the notion of frozen conflicts with the concepts of jus post bellum and asymmetric warfare has also contributed to placing them within the legal landscape. Both concepts are used in international law, increasingly figuring as research objects. Jus post bellum aims to compensate for the oversimplification of the binary logic in international law and to account for complex — S. 158 —realities that are no longer armed conflicts but not true peace either. Like frozen conflict, jus post bellum is thus located somewhere between existing dichotomous categories. Asymmetric warfare describes a phenomenon that emerged in the 1990s and does not neatly fit the existing legal categories of international and non-international armed conflicts. As in frozen conflicts, in asymmetric warfare at least one party instrumentalizes international law’s dichotomies and benefits from the fact that it acts in grey areas. The concept of asymmetric warfare, similarly to frozen conflict, implies no risk of hegemony or UN managerialism because it is descriptive and does not trigger any actions by the international community. Jus post bellum, asymmetric warfare, and frozen conflicts all remain ambiguous concepts lacking consolidated definitions and clear legal implications. However, this ambiguity is inherent to the aim of transgressing rigid binary categories. As counterparts to such rigidity, they cannot but be ambiguous.

The analysis of frozen conflicts’ placement within the legal landscape concluded with an evaluation of frozen conflicts as a legal concept. For the purpose of this work, a legal concept has been considered one that is likely to be found in glossaries for law students. Both strengths and weaknesses were identified. The strengths are, firstly, the increasing interest in the topic. Specialized research programmes on frozen conflicts and the war in Ukraine have both contributed to this development. Secondly, the concept enhances visibility. Despite growing interest in frozen conflicts, they remain largely overlooked in international law, probably due to the absence of a single and easily identifiable legal problem. Instead, they present a bundle of more subtle and sometimes hidden legal problems. Thirdly, the concept raises awareness of particularities, as has been shown by the ECtHR’s dealing with cases in the context frozen conflicts. Finally, it can help overcome existing dichotomies in international law and reveal limitations of the law’s binary logic. The weaknesses of the concept are its lack of a consolidated definition and the lack of legal implications. Overall, we think therefore that frozen conflicts should be viewed as a legal concept and that it would be beneficial to include them in glossaries for law students.