Topic 1: INTRODUCTION TO IHL;

Historical Development of International Humanitarian

Definition and core principles of IHL

•Definition of IHL
•IHL is a set of rules that seek to limit the humanitarian consequences of armed
conflicts. It is sometimes also referred to as the law of armed conflict or the law
of war (jus in bello). The primary purpose of IHL is to restrict the means and
methods of warfare that parties to a conflict may employ and to ensure the
protection and humane treatment of persons who are not, or no longer, taking a
direct part in the hostilities. In short, IHL comprises those rules of
international law which establish minimum standards of humanity that must be
respected in any situation of armed conflict.

Definition and core principles of IHL

•Equality of belligerents and non-reciprocity
•IHL is specifically designed to apply in situations of armed conflict. The
belligerents therefore cannot justify failure to respect IHL by invoking the harsh
nature of armed conflict; they must comply with their humanitarian obligations in
all circumstances. This also means that IHL is equally binding on all parties to an
armed conflict, irrespective of their motivations or of the nature or origin of the
conflict. A State exercising its right to self-defence or rightfully trying to
restore law and order within its territory must be as careful to comply with IHL as
an aggressor State or a non-State armed group having resorted to force in violation
of international or national law, respectively (equality of belligerents).
Moreover, the belligerents must respect IHL even if it is violated by their
adversary (non

Definition and core principles of IHL

Balancing military necessity and humanity

IHL is based on a balance between considerations of military necessity and of

humanity. On the one hand, it recognizes that, in order to overcome an adversary in
wartime, it may be militarily necessary to cause death, injury and destruction, and
to impose more severe security measures than would be permissible in peacetime. On
the other hand, IHL also makes clear that military necessity does not give the
belligerents carte blanche to wage unrestricted war. Rather, considerations of
humanity impose certain limits on the means and methods of warfare, and require
that those who have fallen into enemy hands be treated humanely at all times. The
balance between military necessity and humanity finds more specific expression in a
number of core principles briefly outlined below

Definition and core principles of IHL

•Distinction
•The cornerstone of IHL is the principle of distinction. It is based on the
recognition that “the only legitimate object which States should endeavour to
accomplish during war is to weaken the military forces of the enemy,” whereas “the
civilian population and individual civilians shall enjoy general protection against
dangers arising from military operations.” Therefore, the parties to an armed
conflict must “at all times distinguish between the civilian population and
combatants and between civilian objects and military objectives and accordingly
shall direct their operations only against military objectives.”

Definition and core principles of IHL

•Precaution
•The principle of distinction also entails a duty to avoid or, in any event,
minimize the infliction of incidental death, injury and destruction on persons and
objects protected against direct attack. Accordingly, IHL requires that, “in the
conduct of military operations, constant care shall be taken to spare the civilian
population, civilians and civilian objects.” This applies both to the attacking
party, which must do everything feasible to avoid inflicting incidental harm as a
result of its operations (precautions in attack), and to the party being attacked,
which, to the maximum extent feasible, must take all necessary measures to protect
the civilian population under its control from the effects of attacks carried out
by the enemy (precautions against the effects of attack).

Definition and core principles of IHL

•Unnecessary suffering
•IHL not only protects civilians from the effects of hostilities, it also prohibits
or restricts means and methods of warfare that are considered to inflict
unnecessary suffering or superfluous injury on combatants. As early as 1868, the St
Petersburg Declaration recognized:
•“That the only legitimate object [...] during war is to weaken the military forces
of the enemy;
•That for this purpose it is sufficient to disable the greatest possible number of
men;
•That this object would be exceeded by the employment of arms which uselessly
aggravate the sufferings of disabled men, or render their death inevitable;
•That the employment of such arms would, therefore, be contrary to the laws of
humanity.”
•Accordingly, in the conduct of hostilities, it is prohibited “to employ weapons,
projectiles and material and methods of warfare of a nature to cause superfluous
injury or unnecessary suffering.”

Definition and core principles of IHL

•Humane treatment
•One of the most fundamental rules of IHL is that all persons who have fallen into
the power of the enemy are entitled to humane treatment regardless of their status
and previous function or activities. Accordingly, common Article 3, which is
considered to reflect a customary “minimum yardstick” for protection that is
binding in any armed conflict, states: “Persons taking no active part in the
hostilities, including members of armed forces who have laid down their arms and
those placed hors de combat by sickness, wounds, detention, or any other cause,
shall in all circumstances be treated humanely, without any adverse distinction
founded on race, colour, religion or faith, sex, birth or wealth, or any other
similar criteria.” Although IHL expressly permits parties to the conflict to “take
such measures of control and security in regard to [persons under their control] as
may be necessary as a result of the war,”16 the entitlement to humane treatment is
absolute and applies not only to persons deprived of their liberty but also, more
generally, to the inhabitants of territories under enemy control.


•II. SOURCES OF IHL
•Just like any other body of international law, IHL can be found in three distinct
sources: treaties, custom, and the general principles of law. In addition, case-
law, doctrine and, in practice, “soft law” play an increasingly important role in
the interpretation of individual rules of IHL.
•Treaty law
•Today, IHL is one of the most densely codified branches of international law. In
practice, therefore, the most relevant sources of IHL are treaties applicable to
the armed conflict in question. For example, in situations of international armed
conflict, the most important sources of applicable IHL would be the four 1949
Geneva Conventions, their Additional Protocol I, and weapons treaties, such as the
1980 Convention on Certain Conventional Weapons or the 2008 Convention on Cluster
Munitions. Treaty IHL applicable in non-international armed conflicts is
significantly less developed, the most important sources being common Article 3
and, in certain circumstances, Additional Protocol II. Given that most contemporary
armed conflicts are non-international, there is a growing perception that certain
areas of treaty IHL governing these situations may

II. SOURCES OF IHL

•Custom
•While treaty law is the most tangible source of IHL, its rules and principles are
often rooted in custom, namely general State practice (usus) accepted as law
(opinio juris). Such practice has consolidated into customary law, which exists
alongside treaty law and independently of it. Customary law does not necessarily
predate treaty law; it may also develop after the conclusion of a treaty or
crystallize at the moment of its conclusion. For example, a belligerent State may
have ratified neither the 1980 Convention on Certain Conventional Weapons nor
Additional Protocol I, which prohibits the use of “weapons, projectiles and
material and methods of warfare of a nature to cause superfluous injury or
unnecessary suffering.” There is, however, a universally recognized customary
prohibition against such means and methods of warfare.21 Thus, that State would be
prohibited from using such munitions under customary IHL.

II. SOURCES OF IHL

•Custom
•The advantage of customary IHL is that it is a dynamic body of law constantly
evolving in tandem with State practice and legal opinion. Customary law can
therefore adapt much more quickly to new challenges and developments than treaty
law, any change or development of which requires inter- national negotiations
followed by the formal adoption and ratification of an agreed text. Also, while
treaties apply only to those States that have ratified them, customary IHL is
binding on all parties to an armed conflict irrespective of their treaty
obligations. Customary law is relevant not only where an existing IHL treaty has
not been ratified by a State party to an international armed conflict; it is
particularly relevant in situations of non-international armed conflict, because
these are regulated by far fewer treaty rules than international armed conflicts,
as explained above. The disadvantage of customary law is that it is not based on a
written agreement and, consequently, that it is not easy to determine to what
extent a particular rule has attained customary status. In reality, State practice
tends to be examined and customs identified by national and international courts
and tribunals tasked with the

II. SOURCES OF IHL

•Custom
•The fact that customary law is not written does not mean that it is less binding
than treaty law. The difference lies in the nature of the source, not in the
binding force of the resulting obligations. For example, the International Military
Tribunal at Nuremberg, in the trials following World WarII, held not only that the
1907 Hague Regulations themselves had attained customary nature and were binding on
all States irrespective of ratification and reciprocity, but also that individuals
could be held criminally responsible and punished for violating their provisions as
a matter of customary international law. Similarly, the ICTY has based many of its
judgments on rules and principles of IHL not spelled out in the treaty law
applicable to the case at hand but considered to be binding as a matter of
customary law.

II. SOURCES OF IHL

•General principles of law
•The third source of international law, next to treaties and custom, consists of
“the general principles of law recognized by civilized nations.” There is no agreed
definition or list of general principles of law. In essence, the term refers to
legal principles that are recognized in all developed national legal systems, such
as the duty to act in good faith, the right of self-preservation and the non-
retroactivity of criminal law. General principles of law are difficult to identify
with sufficient accuracy and therefore do not play a prominent role in the
implementation of IHL. Once authoritatively identified, however, general principles
of law can be of decisive importance because they give rise to independent
international obligations.

General principles of law

•Most notably, the ICJ has on several occasions derived IHL obligations directly
from a general principle of law, namely “elementary considerations of humanity,”
which it held to be “even more exacting in peace than in war.” Based on this
principle, the ICJ has argued that the IHL obligation of States to give notice of
maritime minefields in wartime applies in peacetime as well, and that the
humanitarian principles expressed in common Article 3 are binding in any armed
conflict, irrespective of its legal classification and of the treaty obligations of
the parties to the conflict. Moreover, the ICTY has argued that “elementary
considerations of humanity” are “illustrative of a general principle of
international law” and “should be fully used when interpreting and applying loose
international rules” of treaty law.

General principles of law

•In this context, it would be remiss not to refer to the Martens Clause, which
provides that, in cases not regulated by treaty law, “populations and belligerents
remain under the protection and empire of the principles of international law, as
they result from the usages established between civilized nations, from the laws of
humanity and the requirements of the public con- science.” The Martens Clause was
first adopted at the First Hague Peace Conference of 1899 and has since been
reformulated and incorporated in numerous international instruments. While the
extent to which specific legal obligations can be derived directly from the Martens
Clause remains a matter of controversy, the Clause certainly disproves assumptions
suggesting that anything not expressly prohibited by IHL must necessarily be
permitted.

The role of “soft law,” case-law and doctrine

•While treaties, custom and general principles of law are the only sources of
international law, the rules and principles derived from these sources often
require more detailed interpretation before they can be applied in practice. For
example, while the law makes clear that IHL applies only in situations of “armed
conflict,” the precise meaning of that term must be determined through legal
interpretation. Similarly, IHL provides that civilians are entitled to protection
from direct attack “unless and for such time as they take a direct part in
hostilities.” Again, a decision as to whether a particular civilian has lost his or
her protection depends on the meaning of the term “direct participation in
hostilities.”
•Of course, guidance on the interpretation of IHL can be given by the States
themselves as the legislators of international law. This may take the form of
unilateral reservations or declarations, or resolutions of multilateral
organizations, but also of support for non-binding instruments. Examples of such
“soft law”
II. SOURCES OF IHL
•The role of “soft law,” case-law and doctrine
•Absent such State-driven guidance, the task of interpreting IHL falls, first and
foremost, to international courts and tribunals mandated to adjudicate cases
governed by IHL, such as the ad hoc international criminal tribunals established
for specific conflicts, the International Criminal Court and, of course, the ICJ.
In addition, the teachings of the most highly qualified publicists are also
recognized as a subsidiary means of determining the law.33 Also, in view of the
special mandate of the ICRC, its Commentaries on the 949 Geneva Conventions and
their Additional Protocols are regarded as a particularly authoritative
interpretation of these treaties.

III. IHL IN THE INTERNATIONAL LEGAL ORDER

IHL is that body of international law which governs situations of armed conflict.
As such, it must be distinguished from other bodies of international law,
particularly those that may apply at the same time as IHL, but which have a
different object and purpose. The most important frameworks to be discussed in this
context are:
(1) the UN Charter and the prohibition against the use of inter-State force;
(2) international human rights law;
(3) international criminal law;
(4) the law of neutrality.

•IHL and the prohibition against the use of inter-State force

The UN Charter stipulates only two exceptions to the prohibition against the use of
inter-State force. First, Article 51 states that the prohibition does not impair a
State’s “inherent right of individual or collective self-defence if an armed attack
occurs.” In essence, this means that a State may lawfully resort to inter-State
force in self-defence to the extent that this is necessary and proportionate to
repel an armed attack. Second, Article 42 states that the Security Council may use,
or authorize the use of, inter-State force “as may be necessary to maintain or
restore international peace and security.” It must be emphasized, however, that
both exceptions derogate only from the Charter prohibition on the use of inter-
State force, but cannot terminate, diminish or otherwise modify the absolute
obligation of belligerents to comply with IHL (equality of belligerents)

IHL and human rights law

•While IHL regulates the conduct of hostilities and the protection of persons in
situations of armed conflict, international human rights law protects the
individual from abusive or arbitrary exercise of power by State authorities. While
there is considerable overlap between these bodies of law, there are also
significant differences.
Scope of application: While the personal, material and territorial applicability of
IHL essentially depends on the existence of a nexus with an armed conflict, the
applicability of human rights protections depends on whether the individual
concerned is within the “jurisdiction” of the State involved. For example, during
an international armed conflict, IHL applies not only in the territories of the
belligerent States, but essentially wherever their armed forces meet, including the
territory of third States, international airspace, the high seas, and even
cyberspace. According to

IHL and human rights law

•Scopes of protection and obligation: IHL is sometimes inaccurately described as
the “human rights law of armed conflicts.” Contrary to human rights law, IHL
generally does not provide persons with rights they could enforce through
individual complaints procedures. Also, human rights law focuses specifically on
human beings, whereas IHL also directly protects, for example, livestock, civilian
objects, cultural property, the environment and the political order of occupied
territories. Finally, human rights law is binding only on States, whereas IHL is
binding on all parties to an armed conflict, including non-State armed groups.
•Derogability: Most notably, IHL applies only in armed conflicts and is
specifically designed for such situations. Therefore, unless expressly foreseen in
the relevant treaty provisions, the rules and principles of IHL cannot be derogated
from. For example, it would not be permissible to disregard the prohibition on
attacks against the

IHL and human rights law

•Derogability: For example, during an armed conflict or a natural disaster, a
government may lawfully restrict freedom of movement in order to protect the
population in the affected areas and to facilitate governmental action aimed at
restoring public security and law and order. Only a number of core human rights,
such as the right to life, the prohibition of torture and inhuman or degrading
treatment or punishment, and the prohibition of slavery remain non-derogable even
in times of public emergency.
•Interrelation: Despite these fundamental differences, IHL and human rights law
have rightly been said to share a “common nucleus of non-derogable rights and a
common purpose of protecting human life and dignity.” As a general rule, where IHL
and human rights law apply simultaneously to the same situation, their respective
provisions do not contradict, rather they mutually reinforce each other. Thus, both
IHL and human rights la

IHL and human rights law

•Interrelation: In some areas, the interrelation between IHL and human rights law
may be less straightforward. For example, with respect to persons who do not, or no
longer, directly participate in hostilities, IHL prohibits violence to life and
person, in particular murder in all circumstances. For obvious reasons, however, it
does not provide such protection to combatants and civilians directly participating
in hostilities. Universal human rights law, on the other hand, protects all persons
against “arbitrary” deprivation of life, thus suggesting that the same standards
apply to everyone, irrespective of their status under IHL. In such cases, the
respective provisions are generally reconciled through the lex specialis principle,
which states that the law more specifically crafted to address the situation at
hand (lex specialis) overrides a competing, more general law (lex generalis).
Accordingly, the ICJ has held that, while the human rights prohibition on arbitrary
deprivation of life also

IHL and human rights law

•In other areas, the question of the interrelation between IHL and human rights may
be more complicated. For example, while treaty IHL confirms the existence of
security internment in non-international armed conflicts as well, it does not
contain any procedural guarantees for internees, thus raising the question as to
how the human rights prohibition of arbitrary detention is to be interpreted in
such situations.
•Finally, even though, in armed conflicts, IHL and human rights law generally apply
in parallel, some issues may also be exclusively governed by one or the other body
of law. For example, the fair-trial guarantees of a person who has committed a
common bank robbery in an area affected by an armed conflict, but for reasons
unrelated to that conflict, will not be governed by IHL but exclusively by human
rights law and national criminal procedures. On the other hand, the aerial
bombardment of an area outside the territorial control of the attacking
IHL and international criminal law
•In regulating the conduct of hostilities and protecting the victims of armed
conflict, IHL imposes certain duties on those involved in the conflict and
prohibits them from engaging in certain acts. In order to enforce these duties and
prohibitions, IHL obliges all parties to a conflict to take the measures necessary
to prevent and repress violations of IHL, including criminal prosecution and
sanctions. The 1949 Geneva Conventions and Additional Protocol I also identify a
series of particularly serious violations, referred to as “grave breaches” and, in
Additional Protocol I, as “war crimes,” which give rise to universal jurisdiction.
This means that any State, irrespective of its involvement in a conflict or its
relation to the suspects or victims in an alleged crime, has an international
obligation to conduct an investigation and to either prosecute the suspects or to
extradite them to another State willing to prosecute them.

III. IHL IN THE INTERNATIONAL LEGAL ORDER

•IHL and international criminal law
•In short, IHL obliges States to prevent and prosecute serious violations of IHL,
but it does not attach sanctions to these

III. IHL IN THE INTERNATIONAL LEGAL ORDER

•IHL and the law of neutrality
•The law of neutrality is traditionally regarded as part of the law of war (jus in
bello) alongside IHL. It is rooted in customary law and codified in the Hague
Conventions, Nos V and XIII, of 1907. In essence, the law of neutrality has three
aims: (a) to protect neutral States (i.e. all States that are not party to an
international armed conflict) from belligerent action; (b) to ensure neutral States
do not militarily support belligerent States; and (c) to maintain normal relations
between neutral and belligerent States. Most notably, the law of neutrality obliges
neutral States to prevent their territory, including airspace and waters subject to
their territorial sovereignty, from being used by belligerent States. If combatants
belonging to either party cross into neutral territory, they must be interned by
the neutral State; the Third Geneva Convention also requires that they be treated
as prisoners of war. The belligerents, in turn, must respect the inviolability of
neutral territory and may not move troops or convoys of ammunition or supplies
across

III. IHL IN THE INTERNATIONAL LEGAL ORDER

•IHL and the law of neutrality
•Strictly speaking, the law of neutrality applies only in international armed
conflicts. Over the course of time, however, its rationale has gradually found its
way into the practice of non-international armed conflicts as well. For example,
with regard to the standards of internment to be applied by neutral States to
combatants on their territory, the ICRC has formally stated that Hague Convention
No. V “can also be applied by analogy in situations of non-international conflict,
in which fighters either from the government side or from armed opposition groups
have fled into a neutral State.”
•By the same token, in political reality, the consequences of non-State armed
groups using the territory of a neutral State to conduct attacks against a
belligerent State are similar to those foreseen in the traditional law of
neutrality and include, most notably, the loss of the neutral territory’s
inviolability. For example, when attacks were launched by al

IV. A BRIEF HISTORY OF IHL AND SOME CONTEMPORARY CHALLENGES

•From ancient battlefields to industrialized war
•War is as old as mankind, and all civilizations and religions have tried to limit
its devastating effects by subjecting warriors to customary practices, codes of
honour and local or temporary agreements with the adversary. These traditional
forms of regulating warfare became largely ineffective with the rise of con-
scripted mass armies and the industrialized production of powerful weapons in the
course of the nineteenth century – with tragic consequences on the battle- field.
Military medical services were not equipped to cope with the massive number of
casualties caused by modern weaponry; as a result, tens of thousands of wounded,
sick and dying soldiers were left unattended after battle. This trend, which began
with the Napoleonic Wars in Europe (1803–1815) and culminated in the American Civil
War (1861–1865), set the stage for a number of influential humanitarian
initiatives, both in Europe and in North America, aimed at alleviating the
suffering of war victims and driving the systematic codification of modern IHL.

IV. A BRIEF HISTORY OF IHL AND SOME CONTEMPORARY CHALLENGES

•Towards universal codification
•Since the adoption of these first instruments, the body of treaty IHL has grown in
tandem with developments in warfare to become one of the most densely codified
branches of international law today.
•In 1906, the original Geneva Convention was extended to further improve the
condition of sick and wounded soldiers and, in 1907, the Hague Regulations
concerning the Laws and Customs of War on Land formulated the basic rules governing
the entitlement to combatant privilege and prisoner-of-war status, the use of means
and methods of warfare in the conduct of hostilities, and the protection of
inhabitants of occupied territories from inhumane treatment. After the horrors of
chemical warfare and the tragic experience of millions of captured soldiers during
the Great War (World War I), these instruments were supplemented by the Protocol
for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of
Bacteriological Methods of Warfare (1925) and, a few years later, a separate Geneva
Convention relative to the Treatment of Prisoners of War

IV. A BRIEF HISTORY OF IHL AND SOME CONTEMPORARY CHALLENGES

•Towards universal codification
•After the cataclysm of World War II, which saw massive atrocities committed not
only against wounded, captured and surrendering combatants but also against
millions of civilians in occupied territories, the 1949 Diplomatic Conference
adopted a revised and completed set of four Geneva Conventions: the Convention for
the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field (First Geneva Convention), the Convention for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second
Geneva Convention), the Convention relative to the Treatment of Prisoners of War
(Third Geneva Convention) and the Convention relative to the Protection of Civilian
Persons in Time of War (Fourth Geneva Convention). The four Geneva Conventions of
1949 are still in force today and, with 196 States Parties, have become the most
widely ratified treaties.44

IV. A BRIEF HISTORY OF IHL AND SOME CONTEMPORARY CHALLENGES

•Towards universal codification
So far, the only provision of treaty law applicable to non-international armed
conflicts had been common Article 3, which essentially requires the protection and
humane treatment of all persons who are not, or no longer, taking an active part in
hostilities. It was only in 1977 that two protocols additional to the Geneva
Conventions were adopted to further develop treaty IHL. Additional Protocol I,
“relating to the Protection of Victims of International Armed Conflicts,” not only
improves and clarifies the protections already provided by the Geneva Conventions,
it also contains the first systematic codification of IHL governing the conduct of
hostilities. It also assimilates certain wars of national liberation against
colonial domination, alien occupation and racist regimes to international armed
conflicts, thus providing members of the insurgent forces the same rights and
privileges as are enjoyed by combatants representing a sovereign State. Additional
Protocol II, “relating to the Protection of Victims of Non- International Armed
Conflicts,” strengthens and further develops the fundamental guarantees established
b

IV. A BRIEF HISTORY OF IHL AND SOME CONTEMPORARY CHALLENGES

5. Current and emerging

4.3 Privatization and civilianization of military and security activities

The armed forces have always been supported by civilians, including con- tractors
and employees of civilian government services. Indeed, except in a few very
specific cases, IHL does not prohibit the outsourcing of military and security
functions but even stipulates that civilians formally authorized to accompany the
armed forces in an international armed conflict be entitled to prisoner-of-war
status upon capture. The past decade, however, has seen an unprecedented trend
towards the outsourcing of functions traditionally assumed by State armed forces to
private military and security companies. In the recent wars in Iraq and
Afghanistan, for example, tens of thousands of private contractors were deployed,
and there were even periods when they clearly outnumbered the multinational forces
on the ground. Depending on the context, such companies may assume a wide variety
of functions, ranging from reconstruction, logistics, training and administrative
services to the provision of security for civilian and military personnel and
infrastructure, and from the maintenance and operation of complex weapon systems to
guarding and interrogating detainees. Some of their activities are so closely
related to combat operations that their personnel risk being regarded as directly
participating in the hostilities and, depending on the circumstances, even as
mercenaries.53 The privatization of military functions also raises a number of
serious humanitarian concerns. First, it must be emphasized that States cannot,
through the practice of out- sourcing, absolve themselves of their legal
responsibilities under IHL. Thus, they remain responsible for ensuring that the
private military and security companies that are contracted by them, or that
operate or are incorporated in their territory, respect all applicable laws and
regulations, including IHL. Moreover, whatever their functions or activities may
be, private contractors never fall outside the protection of IHL. In short,
contrary to popular per- ception, private military and security

4.4 New weapons technologies

•In many contemporary armed conflicts, military operations and weapon systems have
attained an unprecedented level of complexity, involving the coordination of a
great variety of interdependent human and technological resources in different
locations spread across the globe. In conjunction with the advent of new
technologies, such as remote-controlled weapons, means of cyber-warfare,
nanotechnology and increasingly autonomous weapons, this development poses a
significant challenge to the interpretation and application of IHL.
•(a) Remote-controlled drones
•For example, the systematic use of remote-controlled drones for counter- terrorist
operations in countries such as Afghanistan, Pakistan and Yemen raises questions as
to the applicability of IHL to these operations and, consequently, as to the rules
governing the use of lethal force against the persons targeted. Where IHL is
applicable, the systematic use of drones raises concerns with regard to the
reliability of the targeting information used, the exposure of the
b) Cyber-warfare
•Another relatively recent development is the expansion of military operations into
cyberspace, the so-called “fifth domain of warfare” next to land, sea, air and
space. While it is generally uncontested that IHL would also

Ongoing developments: Nanotechnology and autonomous weapons

•Other technological developments of potential concern to IHL are the introduction
of nanotechnology and increasingly autonomous weapons on contemporary battlefields.
While nanotechnology is already being used in current military operations, most
notably to enhance the performance of certain ammunitions and armourplating, the
development of fully autonomous robots capable of taking targeting decisions
independently of human involvement may still be decades away. However, this
prospect clearly raises questions as to the operational control of such weapon
systems and the legal and criminal responsibility for the harm done by them in case
of actions violating IHL. The most important observation to be made here is that
the responsibility to ensure that all means and methods used in an armed conflict
comply with IHL will always remain with the parties to that conflict. Moreover, any
individual act or omission amounting to criminal involvement in violations of IHL
will remain subject to prosecution and punishment, even if the ultimate “decision”
to commit the crime in question was taken by a machine based on programs and
algorithms rather than on real- time commands by a human operator.

4.5 Respect for IHL

•The legal and practical difficulties arising as a result of changes in the
contemporary security environment have caused confusion and uncertainty not only
about the distinction between armed conflict and law enforcement, but also about
the traditional categorization of persons as civilians and combatants and the
temporal and geographic delimitation of the “battlefield.” As most poignantly
evidenced by the controversies surrounding the legal framework governing the
various aspects of the United States's “war on terror,” that confusion and
uncertainty have also provoked doubt about the adequacy of existing IHL to cope
with the emerging security challenges of the twenty-first century. In response,
various key stakeholders have launched important processes aimed at analysing,
reaffirming and clarifying IHL in areas of particular humanitarian concern,
including, most recently, the ICRC's initiative on strengthening legal protection
for victims of armed conflicts and the joint initiative of Switzerland and the ICRC
on strengthening mechanisms for the implementation of IHL (see Textbox 9, Chapter
7.III.4.b). These processes remain ongoing, but two preliminary observations can
already be drawn from the preparatory work and initial discussions. First, there
may indeed be certain areas of IHL that require further strengthening in order to
better protect individuals exposed to contemporary armed conflicts. The most urgent
humanitarian need, however, is not to adopt new rules but rather to ensure actual
compliance with the existing legal framework.

Topic 3. SCOPE OF APPLICATION OF IHL

1.Relevance and definition of the term “armed conflict”
2.Distinction between international and non-international armed conflict
3.International armed conflicts
4.Belligerent occupation
5.Non-international armed conflicts
6.Armed conflicts subject to foreign intervention

In a nutshell
➝ Once an armed conflict exists, any action taken for reasons related to that
conflict is governed by IHL.
➝ An armed conflict exists whenever recourse is had to armed force or belligerent
occupation between States (international armed conflicts), or when protracted armed
violence takes place between governmental authorities and organized armed groups or
between such groups (non-international armed conflicts).
➝ Belligerent occupation exists to the extent, and for as long as, one State
maintains military authority over all or part of the territory of another State,
even if such occupation encounters no armed resistance.
➝ Armed conflicts involving foreign (including multinational) intervention are
deemed to be international or non-international in nature depending on whether they
involve armed confrontations between States, or between States and organized armed
groups.
➝ Legally speaking, there are no other types of armed conflict. Internal
disturbances and tensions – riots, isolated and sporadic acts of violence and
similar acts – do not amount to armed conflict.

Attempts to restrain and regulate the conduct of belligerent parties have always
been accompanied by disagreements over which situations should be governed by the
relevant rules. Precise definitions of concepts such as “war,” “armed conflict” or
“occupation” were adopted to clarify this question, but belligerents soon began to
evade their obligations on the grounds that either the situation at hand or the
opposing party had failed to meet the legal criteria required for the applicability
and protection of the law. It is therefore of particular importance to examine the
treaty terminology and customary concepts determining and delimiting the temporal,
territorial, material and personal scope of applicability of contemporary IHL.

I. RELEVANCE AND DEFINITION OF THE TERM “ARMED CONFLICT”

IHL is specifically designed to govern armed conflicts. As such, it contains
detailed provisions regulating the means and methods of warfare and the protection
of persons and objects having fallen into the power of a belligerent party. Once an
armed conflict exists, any action taken for reasons related to that conflict must
comply with IHL. Conversely, IHL does not apply to inter-State confrontations that
fall short of armed conflict, or to internal disturbances and tensions, such as
riots, isolated and sporadic acts of violence and similar acts not amounting to
armed conflict.
In the absence of an armed conflict, therefore, any difference between States and
any question of individual protection must be resolved in accordance with the law
applicable in peacetime. For example, nationals of one State who are detained in
another State will be protected by human rights law and, depending on the
circumstances, may enjoy the diplomatic and consular protection of their State of
origin or benefit from protection under inter- national refugee law. However, they
will not be entitled to the status and protection afforded by the 1949 Geneva
Conventions, such as the right of prisoners of war or civilian internees to receive
visits from the ICRC. Also, in situations not reaching the threshold of armed
conflict, any use of force or other exercise of authority by States against groups
and individuals within their jurisdiction remains governed by human rights law, and
any violence

Although the existence of an armed conflict is an absolute prerequisite for the

applicability of IHL as a whole, some of the duties it stipulates may apply already
in peacetime, and certain of its protections may extend beyond the end of an armed
conflict. For example, many weapons treaties prohibit not only the use, but also
the development, stockpiling, production and sale of certain weapons by States, and
require them to subject the development or acquisition of any weapon to a legal
review. States also have peacetime duties with respect to IHL training and
dissemination and in relation to the investigation and prosecution of serious
violations of IHL (war crimes). Moreover, persons deprived of their liberty for
reasons related to an armed conflict remain protected by IHL until they have been
released and repatriated or their status has otherwise been normalized, if
necessary even years after the end of the conflict. Likewise, IHL remains
applicable in territories that remain occupied after the cessation of active
hostilities until a political solution for their status has been found.
Despite the significant legal and humanitarian consequences triggered by the
existence of an armed conflict, treaty law provides no comprehensive and precise
definition of what constitutes an armed conflict. The interpretation and
clarification of that concept is therefore largely left to State practice,
international case-law and legal scholars.

Despite the practical similarities, however, there are decisive differences between
international and non-international armed conflicts, and this makes it
indispensable to maintain the distinction between them.
The most important difference concerns the threshold of violence required for a
situation to be deemed an armed conflict. Given that jus ad bellum imposes a
general prohibition on the use of force between States, any such use can be
legitimately presumed to express belligerent intent and to create a situation of
international armed conflict, which must be governed by IHL. By contrast, within
their own territory, States must be able to use force against groups or individuals
for the purpose of law enforcement; and the use of force by such groups or
individuals against each other or against governmental authorities generally
remains a matter of national criminal law. As a consequence, the threshold of
violence required to trigger a non-international armed conflict and, thereby, the
applicability of IHL is significantly higher than for an international armed
conflict. Another important reason for maintaining the distinction between
international and non-international armed conflict is the position taken by many
States that equating the two types of armed conflict could be perceived as
providing armed opposition groups with international status and might therefore
undermine State

It is important to note that, in terms of legal concept, the categories of

international and of non-international armed conflict are absolutely complementary
in that they cover all conceivable situations triggering the applicability of IHL.
Legally speaking, no other type of armed conflict exists. As will be shown, this
does not preclude the two types of armed conflict from coexisting, or a situation
from evolving from one type of armed conflict into another.

III. INTERNATIONAL ARMED CONFLICTS

•1. Treaty law
•The classic form of armed conflict is international in character and waged between
two or more States. Today, IHL governing situations of international armed conflict
is codified primarily in the Hague Regulations of 1907, the four 1949 Geneva
Conventions and Additional Protocol I. The treaty law is supplemented by a rich
body of customary IHL.
•Common Article 2 provides that:
•“[i]n addition to the provisions which shall be implemented in peace- time, the
present Convention shall apply to all cases of declared war or of any other armed
conflict which may arise between two or more of the High Contracting Parties, even
if the state of war is not recognized by one of them; to all cases of partial or
total occupation of the territory of a High Contracting Party, even if the said
occupation meets with no armed resistance.”

•For States that have ratified Additional Protocol I, the situations referred to in
common Article 2 also include:
•“armed conflicts in which peoples are fighting against colonial domination and
alien occupation and against racist régimes in the exercise of their right of self-
determination, as enshrined in the Charter of the United Nations and the
Declaration on Principles of International Law concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the United Nations.”
•Thus, the existence of an international armed conflict essentially depends on two
elements, namely the legal status of the belligerent parties and the nature of the
confrontation between them.

•2. Legal status of the belligerent parties

•Armed conflicts derive their international character from the fact that they occur
between High Contracting Parties to the 1949 Geneva Conventions, which necessarily
means States. States party to Additional Protocol I have further agreed to
recognize certain types of national liberation movements as “parties” to an
international armed conflict although they do not, at the time, qualify as
sovereign States under international law. Armed confrontations between parties that
are neither States nor national liberation movements cannot be regarded as
international armed conflicts but constitute either non-international armed
conflicts or other situations of violence.

3. Nature of the confrontation:“war,” “armed conflict” and “occupation”

•International armed conflicts are belligerent confrontations between two or more
States. Traditionally, States expressed their belligerent intent (animus
belligerendi) through formal declarations of war, which, ipso facto, created a
political state of war and triggered the applicability of the law of war (jus in
bello) between them, even in the absence of open hostilities. Strictly speaking,
the traditional law of war is broader than IHL in that it comprises not only
humanitarian rules, but essentially all norms governing the relations between
belligerent States. This also includes provisions on diplomatic, economic and
treaty relations, and on the legal position of neutral States. At the same time,
the traditional law of war is narrower than IHL in that it applies only during a
formal state of war between States, whereas IHL establishes minimum standards of
humanity that are applicable in any armed conflict, irrespective of the existence
of a political state of war.
•Over the course of the twentieth century, formal declarations of war became
increasingly uncommon, and the political concept of “war” was largely replaced by
the factual concept of “armed conflict.” Today, an

This means that the applicability of IHL cannot be triggered by merely erroneous or
accidental causation of harm, or by violence on the part of individuals acting
without the endorsement or acquiescence of the State they represent. Acts of this
kind may entail the legal consequences of State responsibility, such as a duty of
reparation, but do not amount to armed conflict for want of belligerent intent. In
the presence of such intent, however, even minor instances of armed violence – such
as individual border incidents, the capture of a single prisoner, or the wounding
or killing of a single person – may be sufficient for IHL governing international
armed conflicts to apply.
•A number of caveats apply in this respect. In the special case of national
liberation movements, the required threshold of violence may be more similar to
that of situations of non-international armed conflict, depending on whether the
factual circumstances more closely resemble the relationship between sovereign
States or that between a governmental authority and a non-State armed group.
Furthermore, in two cases, an international armed conflict may also be said to
exist in the absence of open hostilities. First, the applicability of IHL can still
be triggered by a formal declaration of war. Second, IHL automatically

In sum, in the absence of a formal declaration of war, belligerent intent is

derived by implication from factual conditions rather than from official
recognition of a political state of war. The existence of an international armed
conflict is determined, therefore, primarily by what is actually happening on the
ground. As a result, a situation may amount to an international armed conflict and
trigger the applicability of IHL even though one of the belligerent States does not
recognize the government of the adverse party or altogether denies the existence of
a state of war.

Ultimately, the end of an armed conflict, like its beginning, must be determined on
the basis of factual and objective criteria. In this respect, the cessation of
hostilities, a ceasefire or armistice, and even a peace treaty do not necessarily
terminate an international armed conflict; rather, when taken in conjunction with
other elements, such factors are indicative of the belligerents’ intention to bring
the armed conflict to a permanent conclusion. The decisive criterion must always be
that the armed confrontation between the belligerent parties has come to a lasting
end in circumstances that can reasonably be interpreted as a general cessation of
military operations.
•The temporal scope of an international armed conflict has to be distinguished from
the temporal scope of application of IHL rules related to those conflicts. Indeed,
the fact that a conflict has ended does not preclude certain aspects of IHL from
continuing to apply even beyond the end of the conflict. For example, persons
deprived of their liberty for reasons related to an armed conflict remain protected
by IHL until they have been released and repatriated or their status has otherwise
been normalized, and former belligerents also remain bound by obligations with a
view to restoring family links, accounting for the dead and the missing and similar
humanitarian endeavours. As the ICTY observed, “International humanitarian law
applies from the initiation of such armed conflicts and extends beyond the
cessation of hostilities

•until a general conclusion of peace is reached (...) Until that moment, inter-
national humanitarian law continues to apply in the whole territory of the warring
States (...) whether or not actual combat takes place there.”
•(b) Territorial scope of international armed conflicts
•In terms of territorial scope, the interpretation of the ICTY does not imply that
IHL cannot apply outside the territory of the belligerent parties. It is merely
intended to clarify that the applicability of IHL cannot be limited to those areas
of belligerent States where actual combat takes place, but that it extends to any
act having a nexus to the conflict (i.e. carried out for reasons related to the
conflict). Indeed, already under the traditional law of war, the relations between
belligerent States are governed by that law wherever they meet, even though the law
of neutrality may prevent them from engaging in hostilities outside their
respective territories, in international airspace or on the high seas.

IV. BELLIGERENT OCCUPATION

•1. Treaty law
•IHL governing international armed conflicts also applies “to all cases of partial
or total occupation of the territory of a High Contracting Party, even if the said
occupation meets with no armed resistance.”79 In essence, belligerent occupation
occurs when one State invades another State and establishes military control over
part or all of its territory. Accordingly, Article 42 of the Hague Regulations
states: “Territory is considered occupied when it is actually placed under the
authority of the hostile army. The occupation extends only to the territory where
such authority has been established and can be exercised.”
•Moreover, for States party to Additional Protocol I, Article 1(4) of the Protocol
stipulates that IHL governing international armed conflicts also applies to
situations where the occupied territory does not belong to a “High Contracting
Party” (i.e. a State), but to a people fighting against alien occupation in the
exercise of its right of self-determination.

•2. Prerequisite of “effective control”

•Whether a territory is occupied within the meaning of IHL is a question of fact
and, in essence, depends on whether the occupying power has established effective
control over the territory in question. The existence of occupation depends on a
State’s factual ability to assume the de facto governmental functions of an
occupying power, most notably to ensure public security, and law and order, and not
by its willingness to do so. Therefore, unless an occupying power actually loses
military control over the territory in question, therefore, it cannot escape its
obligations under IHL by choosing not to exercise effective control.80
•Effective control does not necessarily have to be exercised directly through the
armed forces of the occupying power. Belligerent occupation can also exist when a
foreign State exerts overall control over local authorities who, in turn, exercise
their direct governmental control as de facto State agents on behalf of the
occupying power. Therefore, States cannot evade their obligations under occupation
law through the use of proxies.

Article 42 of the Hague Regulations clearly states that a territory is considered

occupied only to the extent effective control has actually been established and can
be exercised. In practice, therefore, delimiting the territorial confines of an
occupied area can be extremely difficult, particularly in the case of partial
occupation or where the situation on the ground can change rapidly. In any event,
the legal consequences of belligerent occupation do not depend on a minimum
duration or minimum geographic extension of occupation, but simply on the actual
existence of effective territorial control. The inhabitants of occupied territory
are collectively considered as having fallen “into the hands” of the occupying
power and are therefore entitled to the full protection of the Fourth Geneva
Convention immediately upon establishment of effective control.

3. Invasion phase
•While the text of Article 42 of the Hague Regulations is clear that territory
cannot be considered occupied during the invasion preceding the establishment of
effective control, the extent to which the Fourth Geneva Convention applies during
that phase is less clear. According to the so-called “Pictet theory,” the Hague
Regulations are based on a strictly territorial notion of occupation, whereas the
Fourth Geneva Convention extends its protection to all individuals “who, at a given
moment and in any manner whatsoever, find themselves, in case of a conflict or
occupation, in the hands of a Party to the conflict or Occupying Power of which
they are not nationals.” Given the Convention’s focus on individual protection,
some provisions set out in Part III, Section III, on occupied territories, should
apply even during the invasion phase, commensurate with the level of control
exercised and to the extent that the civilian population has already come under the
de facto authority of the advancing hostile forces. Others argue that, prior to the
establishment of effective territorial control, only those provisions of the
Convention that are “common to the territories of the parties to the conflict and
to occupied territories” apply, thus providing a more limited framework of
protection for the population of invaded territories. Irrespective of which
approach will ultimately prevail, it should be remembered that applicable treaty

4. End of occupation
•Although some territories, such as the occupied Palestinian territory, have been
occupied for decades, the occupying power’s role as a de facto authority remains by
definition temporary. Determining the end of belligerent occupation, however, has
rightly been described as a “thorny task” fraught with political and legal issues
of significant complexity.85 In principle, there are three basic ways in which a
situation of occupation can come to an end: (a) withdrawal or loss of effective
control, (b) genuine consent to a foreign military presence, or (c) political
settlement.
•(a) Withdrawal or loss of effective control
•Of course, the most obvious way for a belligerent occupation to end is a full and
voluntary withdrawal of the occupying forces and the restoration of effective
control on the part of the local government. Alternatively, the dis- placed
territorial State may attempt to regain control over areas under hostile occupation
through renewed hostilities. The 1949 Geneva Conventions also anticipate the
possibility of hostile activities against the occupying power from within the
occupied territory, including through the formation of armed resistance

However, as soon as the ability of the occupying power to impose its military
authority is effectively eliminated for any length of time, the areas concerned can
no longer be regarded as occupied and the humanitarian obligations of the former
occupying power towards their inhabitants are limited to those of any other party
to the conflict. Situations of belligerent occupation that were ended through
voluntary or forced withdrawal include the countries occupied by Germany and Japan
in the course of World War II. A more contentious case in point is the Israeli
withdrawal from the Gaza Strip in September 2005. Although Israel no longer has a
permanent military presence in the Gaza Strip, there is ongoing controversy as to
whether and, if so, to what extent Israel’s sporadic military incursions into the
Gaza Strip, in conjunction with its enforcement of sea blockades, border closures
and air space control, entail a continuation of its obligations as an occupier
under IHL.
•The ICRC has argued that, in some specific and exceptional circumstances, an
occupying power would remain bound by certain obligations under the law of
occupation despite the physical withdrawal of its armed forces from an occupied
territory. In particular, when an occupying power retains, within such territory,
key elements of authority or other important governmental functions, the law of
occupation should continue to apply within the relevant territorial and functional
limits.

(c) Political settlement of the territorial status

•Finally, a situation of belligerent occupation can end without the withdrawal of
the occupation forces through a political settlement involving the annexation by
the occupying power of all or parts of the occupied territory or, alternatively,
the establishment of an independent State on such territory. Again, in order to be
valid, such a political settlement must be based on an international agreement
expressing the genuine consent of the territorial State as to the future legal
status of the territory in question. In principle, the required consent can be
replaced by a judgment of the ICJ where the States involved have submitted to the
Court’s jurisdiction. In the absence of consent by the territorial State, it is
further conceivable that an occupied territory could gain political independence
with the military support of the occupying power in conjunction with widespread
recognition by the international com- munity as a sovereign State. Unilateral
annexations by the occupying power, however, may be binding as a matter of national
law but have no effect on the legal status of the occupied territories under
international law. In particular, the UN Security Council has confirmed the status
of the West Bank, East Jerusalem and the Syrian Golan Heights as occupied
territories (1980).

5. Multinational administration of territories

•Recent years have seen novel forms of multinational territorial administration,
most notably the deployments by the United Nations in East Timor (United Nations
Transitional Administration in East Timor, or UNTAET, 1999–2002) and Kosovo92
(United Nations Interim Administration Mission in Kosovo/ Kosovo Force, or
UNMIK/KFOR, since 1999). This raises the question of the extent to which such
deployments could give rise to situations of belligerent occupation under IHL, or
whether the legal and policy framework governing such deployments should be shaped
by elements of the law of occupation.
•Neither UNTAET nor UNMIK/KFOR conforms neatly to the traditional concept of
belligerent occupation, in particular because both were deployed with the consent
of Indonesia and the Federal Republic of Yugoslavia respectively. Given that
Belgrade’s agreement to the deployment of UNMIK/ KFOR was obtained only after a
relentless aerial bombardment campaign, it is at least questionable whether the
subsequent consent by the Yugoslav government can be regarded as genuine. Even
coerced consent may be valid, however, as long as such coercion is legitimized by a
Chapter VII resolution of the UN Security Council, which, arguably, was the case in
the Kosovo war. Also, the international community is unlikely to start authorizing
multinational deployments

Despite the formal inapplicability of the law of occupation, however, it is clear

that both UNTAET and UNMIK/KFOR assumed full de facto governmental functions to the
exclusion of the local authorities, and that both missions also exercised effective
military control in the administered territories. In the absence of an
international legal framework specifically designed for such situations, IHL
governing belligerent occupation may provide useful elements and guidance for
determining policies with respect to issues such as maintaining public safety, and
law and order, ensuring the basic protection of persons and property, and taking
charge of penal proceedings, internment and other matters of public administration.
Thus, until a more complete legal and policy framework has been developed for
multinational territorial administration, the law of occupation should, and will,
certainly remain an important framework of reference for the translation of the
underlying UN mandates into specific policies and regulations.

•V. NON-INTERNATIONAL ARMED CONFLICTS

•The vast majority of contemporary armed conflicts are waged, not between States,
but between States and organized armed groups or between such groups – they are
non-international in character. Treaty IHL governing non- international armed
conflicts consists, first and foremost, of common Article 3 and Additional Protocol
II. A number of treaties on the regulation, prohibition or restriction of certain
types of weapon also apply in non- international armed conflicts. Last but not
least, owing to the relative scarcity of applicable treaty IHL, customary law is of
great importance for the regulation of non-international armed conflicts. Treaty
law distinguishes between non-international armed conflicts within the meaning of
common Article 3 and non-international armed conflicts falling within the
definition provided in Article 1 of Additional Protocol II.

1. Article 3 common to the 1949 Geneva Conventions

•During the negotiations preceding the adoption of the 1949 Geneva Conventions, the
proposal was made to extend the Conventions’ applicability in toto to non-
international armed conflicts.95 It soon became clear, however, that States would
agree to fully apply all four Conventions to non- international armed conflicts
only at the price of a very narrow definition of non-international armed conflict
that was highly unlikely to be met in reality. As a consequence, the applicability
of IHL to non-international armed conflicts would probably have remained the
exception instead of becoming the rule. It was therefore ultimately decided to
limit the provisions applicable in non-international armed conflicts rather than
the cases of non-international armed conflict to which IHL would apply.
Accordingly, common Article 3 simply identifies a number of key duties and
prohibitions providing a minimum of protection to all persons who are not, or who
are no longer, taking an active part in the hostilities. In return, this “miniature
Convention” must be applied “as a minimum” by each party to any “armed conflict not
of an international character.”

Common Article 3 reads as follows:

•“In the case of armed conflict not of an international character occurring in the
territory of one of the High Contracting Parties, each Party to the conflict shall
be bound to apply, as a minimum, the following provisions:
1.Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by sickness,
wounds, detention, or any other cause, shall in all circumstances be treated
humanely, without any adverse distinction founded on race, colour, religion or
faith, sex, birth or wealth, or any other similar criteria. To this end the
following acts are and shall remain prohibited at any time and in any place
whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular, humiliating and
degrading treatment;
(d) the passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly constituted court affording all
the judicial guarantees which are recognized as indispensable by civilized peoples.

The wounded and sick shall be collected and cared for.An impartial humanitarian
body, such as the International Committee of the Red Cross, may offer its services
to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means
of special agreements, all or part of the other provisions of the present
Convention.
The application of the preceding provisions shall not affect the legal status of
the Parties to the conflict.”
A non-international armed conflict within the meaning of common Article 3 does not
necessarily have to involve a government; it can also take place entirely between
organized armed groups, a scenario that is particularly relevant in areas of weak
governance, such as so-called “failed States.” In order for a non-State armed group
to be considered a “party” to a conflict, common Article 3 does not require any
recognition of belligerency by the opposing State, nor popular support, territorial
control or political motivation. As will be shown, however, the concept of “party
to an armed conflict” presupposes a minimum level of organization without which
coordinated military operations and collective compliance with IHL would not be
possible. Furthermore, in order to qualify as an “armed conflict,” non-
international confrontations must always involve violence that reaches a certain
threshold of intensity.

2. Article 1 of Additional Protocol II

•Additional Protocol II, which was adopted in 1977, develops and supplements common
Article 3. The Protocol does not modify the conditions of application of common
Article 3, but defines its own scope of application more restrictively and,
therefore, cannot serve as a generic definition of non-international armed
conflict. Article 1 of the Protocol reads:
•“1. This Protocol (...)shall apply to all armed conflicts which arenot [of
international character] and which take place in the territory of a High
Contracting Party between its armed forces and dissident armed forces or other
organized armed groups which, under responsible command, exercise such control over
a part of its territory as to enable them to carry out sustained and concerted
military operations and to implement this Protocol.
•2. This Protocol shall not apply to situations of internal disturbances and
tensions, such as riots, isolated and sporadic acts of violence and other acts of a
similar nature, as not being armed conflicts.”

•Thus, in contrast to common Article 3, Additional Protocol II applies only to

armed conflicts involving a contracting State as a party to the conflict and taking
place in the territory of that State. Moreover, part of the State’s territory must
be under the effective control of the opposition forces, thus assimilating their
role to that of a de facto authority with direct obligations not only towards the
opposing party, but also towards the inhabitants of the territory under their
control. The Protocol’s high threshold of applicability is indicative of the
continuing reluctance of governments to expand the international regulation of
internal armed conflicts unless they develop into situations comparable to
international armed conflicts in many ways.
•For the present purposes, the decisive advantages of Article 1 of Additional
Protocol II are, first, that it provides an objective threshold of factual criteria
at which the existence of a non-international armed conflict can no longer be
denied and, second, that it stipulates that situations of “internal disturbances
and tensions, such as riots, isolated and sporadic acts of violence and other acts
of a similar nature,” do not constitute armed conflicts.

In sum, given the diversity of situations involving non-international violence,

their classification as armed conflict will always depend on a careful assessment
of the concrete circumstances rather than on a uniform definition, particularly at
the lower end of the scale of intensity. Nevertheless, the existence of a non-
international armed conflict always remains a question of fact, and does not depend
on political considerations of the parties involved. In practice, the ICRC’s
confidential memoranda reminding the parties of their obligations under IHL can
play an important role, as they generally also express a view as to the legal
classification of the situation. In contentious cases, however, legally binding
classifications will generally have to be made by a court or quasi-judicial
mechanism called on to adjudicate the question as a matter of international law.

5. Temporal and territorial scope of non-international armed conflicts

•(a) Temporal scope of non-international armed conflicts
•In terms of temporal scope, non-international armed conflicts begin as soon as
armed violence occurring between sufficiently organized parties reaches the
required threshold of intensity. While these constitutive elements provide
objective criteria for the identification of a situation of armed conflict, in
political reality they are often interpreted with a certain latitude, particularly
by the government involved. While, in some contexts, States refuse to recognize the
applicability of IHL despite organized armed violence claiming thousands of victims
every year, other confrontations are readily subjected to a legal paradigm of “war”
although they appear to have more in common with law enforcement operations than
with full-blown armed conflict.
•Once a non-international armed conflict has been initiated, IHL applies until “a
peaceful settlement is achieved.”108 Here, too, various forms of settlement are
conceivable, from formal peace agreements or declarations of surrender to the
complete military defeat of either party or the gradual subsiding of armed violence
until peace and public security have been firmly re-established. In practice, the
end of a non-international armed conflict

(b) Territorial scope of non-international armed conflicts

•In terms of territorial scope, the applicability of both common Article 3 and
Additional Protocol II is restricted to armed conflicts taking place “in the
territory” of a High Contracting Party; the Protocol even requires that the
territorial State be involved as a party to the conflict. The territorial
requirement is rooted in the fact that both instruments introduced binding rules
not only for the contracting States themselves, but also for non-State armed groups
operating on their territory. The legislative authority to do so derives from, and
is limited to, the territorial sovereignty of each contracting State. It is
therefore only logical that both instruments incorp- orate a territorial link
between the conflict and the contracting State.
•Today, the territorial restriction of the scope of applicability of common Article
3 and Additional Protocol II no longer serves its original purpose. First, the four
1949 Geneva Conventions have been universally ratified, thus making the scenario of
a non-international armed conflict occurring entirely outside the territory of a
contracting State highly unlikely.

Second, even if such an armed conflict were to occur, it would still be governed by
the humanitarian provisions of common Article 3 by virtue of their recognition as
customary law and an expression of a general principle of law (“elementary
considerations of humanity”) and, thus, as universally binding irrespective of
treaty obligations. Third, whenever non-international armed conflicts involved
extraterritorial incursions with the consent of the neigh- boring State, they were
considered as part of the original non-international armed conflict. Where such
consent is absent, extraterritorial operations may provoke an international armed
conflict with the territorial State. In this regard, there is a continuing
controversy as to whether the newly triggered international armed conflict coexists
with the original non-international armed conflict or whether it subsumes the
latter, at least to the extent that it occurs on foreign territory.
•If any conceptual restriction of non-international armed conflict to the
territorial confines of one single State had existed in the minds of the drafters
of common Article 3 and Additional Protocol II, it certainly remained unspoken and
has been manifestly outlived by contemporary legal opinion and State practice. Even
though the original aim of these provisions may have been to regulate armed
conflicts occurring within the territorial con- fines of a State, the term “non-
international” armed conflict today can no longer be regarded as synonymous

At the same time, in situations of non-international armed conflict, not only does
IHL apply in areas exposed to active hostilities, it governs essentially any act or
operation carried out for reasons related to the conflict (nexus to the conflict),
regardless of territorial location. This does not mean that military action against
the enemy can lawfully be taken anytime and anywhere in the world (“global
battlefield”). Rather, in order to be lawful, any extraterritorial military action
must always comply not only with the rules and principles of IHL, but also with
those of jus ad bellum, the law of neutrality and any other relevant bodies of
international law. Ultimately, non-international armed conflicts are not
characterized by their limited or unlimited territorial scope, but by the nature
and quality of the parties involved, and by the actual occurrence of hostilities
and other acts or operations having a belligerent nexus.

VI. ARMED CONFLICTS SUBJECT TO FOREIGN INTERVENTION

Armed conflicts subject to foreign intervention are a special form of armed
conflict sometimes also less accurately referred to as “internationalized” armed
conflicts. In essence, this concept refers to a State, or coalition of States,
intervening in a pre-existing non-international armed conflict, thereby becoming a
(co-belligerent) party to that conflict.
In terms of applicable law, where a State intervenes in support of the territorial
government’s struggle against an insurgency, the relations between the insurgency
and the intervening State, just like the pre-existing conflict, will be governed by
IHL applicable to non-international armed conflicts. Where the intervening State
supports the insurgency against the territorial State, however, the situation
becomes more complex. The armed confrontations between the intervening State and
the territorial State will automatically trigger the applicability of IHL governing
international armed conflicts. The confrontations between the territorial State and
the insurgency, on the other hand, will retain their non-international character
and continue to be governed by IHL applicable to non-international armed conflicts.
In terms of applicable law, this results in the coexistence of an international and
a non-international armed conflict, a situation that is sometimes also referred to
as “double classification.” Finally, where an intervening State not only supports,
but actually directs and controls the insurgent party to such an extent that its
operations

As a general rule, the same principles of classification also apply to armed

interventions by multinational forces mandated by the UN or a regional
organization. It must be emphasized that the applicability of IHL to multi-
national forces depends on the same factual circumstances that apply to any other
force, irrespective of their international mandate and designation, and
irrespective also of the designation that may have been given to potential parties
opposing such forces. The mandate and the legitimacy of a mission entrusted to
multinational forces are issues of jus ad bellum and general international law, but
are strictly irrelevant when it comes to the applicability of IHL to multinational
operations. Therefore, where multinational forces remain under their national
command, they continue to be bound by the international obligations of their State
of origin. Where they operate under the direct command of the UN, they are
additionally required to respect IHL by virtue of the UN Secretary-General’s
Bulletin on the observance by UN forces of international humanitarian law. In the
ICRC’s view, in both cases, the resulting conflict should be regarded as being
international in character in the event of hostilities between the multinational
force and one or several other States, and non-international in character if
hostilities are conducted against organized armed groups only.