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OUTLINE SECTION 2

SCOPE OF APPLICATION OF IHL

OUTLINE SECTION 2

SCOPE OF APPLICATION OF IHL

1. A brief historical overview of IHL

2. Scope of applica on of IHL
a. De ni on of armed con icts
i. Interna onal armed con icts
1. Applicable texts
2. Types of con itcs
a. War
b. Recogni on of belligerence
c. Non-interna onal armed con ict with foreign interven on
d. Foreign forces suppor ng par es to the con ict
e. United Na ons interven ons
f. War of na onal libera on
g. Agreement between the par es
h. Occupa on
ii. Non-interna onal armed con ict
1. Intensity/level of violence
2. Iden ca on of the non-state armed group
3. Dura on
iii. Terrorism
b. Clari ca on on the applicable rules
3. Di erence between applicable rules
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1. A brief historical overview of IHL

IHL applies to two very different types of situations: IAC and NIAC. The qualification
exercise is fundamental to determining which law applies.

Historically, IHL was developed to govern IACs. It was only over time that it was
developed to cover NIACs as well.

However, still less rules for NIAC than for IAC.

International armed conflict is synonymous with war. Today, in modern IHL, it is

objective situations that are determined, which do not depend on what the State
says.

2. Scope of application of IHL

What and when are which rules applicable?

a. Definition of international armed conflicts

Definition of an international armed conflict in Common Art. 2 paragraph 1

Geneva Convention:
“In addition to the provisions which shall be implemented in peacetime, 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. The Convention shall also apply 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.”

1. Applicable texts
The four Geneva Conventions + Additional Protocol 1 (if ratified) + customary law +
HR

2. Types of conflitcs
a) Declared war
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in order to have an armed conflict you needed formal declaration of war

today it is ! de facto analysis of a situation
What do you need to have an international armed conflict? You just need use of
force
Immediately when force is used (one shot is sufficient, so many situations and
options, if you arrest members of the armed force, but in some cases for political
reasons is not applied)
Just mere use of force is enough, no need for a number of deaths, no need of
intensity

b) Recognition of belligerence
other types of situations: ! recognition of Belligerence (unnecessary in practice,
because now we have common Article 3) = developed for a state that is caught in
NIAC to recognize international statute of conflict in which it is caught
Can only be done if you have a very well organized armed group ! you need an
armed group that is well organized that is capable of respecting IHL
For this recognition, there are conditions that the doctrine (Institute of International
Law in 1900) has specified:

1) Distinct territorial existence through the control it exercises

2) Authority over this territory
3) Fighting by organised troops subject to military discipline

c) Non-international armed conflict with foreign intervention

Third type situation that falls under IAC ! NIAC with foreign intervention
! Conflict between state and non-state armed group with intervention of third state
parties, but in order to know whether the conflict will become international you need
to ask some questions:
What is the level of the intervention of the third party? What level is required
so third party becomes a party to the conflict? When is the red line crossed
(there are no ACs without 3rd party intervention but that is not always enough
to qualify)
! there is the test of boots/troops on the ground: they need to participate in
hostilities e.g.:
Providing military personnel (provide a pilot)
Deposing mine import
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State A fighting armed group AG, State B that has boots on the ground

! second test is the test whether the armed group is an agent of state B?
This is the principle of imputability
Can the action of armed group A be attributable to State B?

e.g. Balkan war (Croatia, Bosnia, Serbia). The conflict in Bosnia in which the
Bosnian Serbs were heavily supported by Serbia. If we come to the conclusion that
the actions of the armed group are attributable to the third State, then the conflict
becomes an IAC because we can say that the armed group is an organ/agent of the
intervening State and therefore State B is fighting against State A.

Two tests were developed by the international tribunals

- ICJ: In the case of USA v Nicaragua (ICJ) (1986), the question was whether
the Contras were an organ of the state of the USA, because if they were then
it would be an IAC between Nicaragua and USA. The court came to the
conclusion that it was not not, because in order to change NIAC to IAC, the
state in question had to have effective control of the GA, i.e. absolute control
at all times.

Para. 116 The Court held (see paragraph 110 above) that, even if it were
preponderant or decisive, the participation of the United States in the organisation,
training, equipping, financing and supplying of the contras, in the selection of
their military or paramilitary objectives and in the planning of all their
operations remains insufficient in itself, according to the information available to
the Court, for the acts committed by the contras in the course of their military or
paramilitary operations in Nicaragua to be attributed to the United States. All the
ways in which the United States participated referred to above, and even the
general control it exercised over a force which was extremely dependent on it,
would not in themselves mean, without further proof, that the United States
ordered or compelled the commission of the acts contrary to human rights and
humanitarian law alleged by the Applicant State. These acts could well have
been committed by members of the contra force outside the control of the
United States. For the United States to incur legal responsibility, it would in
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principle have to be established that it had effective control of the military or

paramilitary operations during which the violations in question allegedly
occurred.

It is therefore the rule of effective control that the ICJ applies to determine the
international responsibility of the State (USA). Negative answer given by the ICJ

- Some 13 years later (July 1999), the ICTY had to rule on a similar question in
the context of the conflicts in the former Yugoslavia. This time the ICTY
concluded that global control was sufficient and defined it as follows:

the state plays a role in organising, coordinating or planning the military actions
of the military group, in addition to financing, training, equipping and providing
operational support. There is therefore significant support that goes beyond
financial or logistical support, but there is no permanent operational control.

For the sake of IHL, the global control is used.

• Question 3: internationalisation. Does it make a difference if the third

State intervenes on the side of the main State or if it intervenes to
support the armed group?
For a large part of the doctrine, as soon as there is intervention by a third State,
there would be internationalisation. However, this approach would give the armed
group the status of a state, with all that this entails in terms of IHL. In practice, this is
hardly credible.

IF intervention on the part of the state: no internationalisation. Foreign troops simply

support the government in place (think of the Sahel today). Think of the support
given to the Colombian government against FARC.

If the intervention is on the side of the AG, then there is internationalisation. If the
State controls the AG, there is only an IAC conflict because the AG is an organ of the
third state.
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If the third State does not control the AG, there will be two parallel conflicts: a IAC
between the two States and a NIAC between the territorial State and the AG.

The aim is to find the legal framework that will apply to the parties to ensure
minimum protection. Always plead common art. 3

Other cases of NIAC conflicts that could be internationalised:

- NIAC exported - State pursuing AG on another territory

Discussing the consent of the third country

- Cross-border NIAC - NIAC between a State and an armed group not on

its territory
If the AG is controlled by third state: IAC

If AG is not controlled by the third country: NIAC

If no consent from the third country: IAC between the two countries

(Israel/ Hezbollah/Lebanon)

- Foreign forces supporting AG in an internal conflict

IAC in direct confrontations with these foreign forces

d) Foreign forces supporting parties to the conflict

Use of force from state A following AG1 on the ground of state B (with no consent) = iac
between A and B and niac between AG1 and B

Use of force from State A on the ground of state B (following AG1) but with the consent of
State B = niac

If AG1 is controlled by State A = iac automatically, no need for the question of consent
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If state A is in an armed conflict with AG1 = niac ! if State B intervenes besides state A = it’s
still an niac between state B and AG1 (coalition between A and B) ! if state C intervenes
besides AG1 = iac between C and B/A ! but : if AG1 is controlled by C = iac everywhere

e) United Nations interventions

If it uses force = party to the conflict so considered as a country (Chapter 7 of the UN
Charter authorizes UNSC to adopt resolution permitting the use of force on a third state’s
territory)

If they’re not a party to conflict (not using force) ! targeting a UN personal = war crime (as if
he’s a civilian) (art. 8 ICC statute) See Convention on the Safety of UN and Associated
Personnel, 1994.

f) War of national liberation

= art. 1 par. 4 Protocol I: people who are fighting against colonial occupation, racist regime,
apartheid etc., in their right to self-determination (notion of ius ad bellum) = niac normally,
but in order to provide full protection of IHL to this people fighting for their right to have a
country, iac if they made a declaration (art. 96 par 3 protocol I)

This is one of the provisions of AP1 that prevents certain States from ratifying.

g) Agreement between the parties

Art. 3 common: applies to niac ! parties can agree to have the full protection and so = iac

h) Occupation
All 4 GC applicable

= Situation when a country exercises de facto authority on people/country that is not its
territory (i.e.: Russia in Ukraine)

Sometimes it’s very close to annexation ! occupation can become an annexation

Not necessary to have a response with violence (i.e.: Nazis in Austria)

See also Art. 42 of the Regulations to the 1907 4th Hague Convention on the laws and
customs of war

b. Non-international armed conflict

Few rules applicable because of sovereignty (till 2nd WW states will not admit that
international law intervenes in the way they use force on their territory)
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1. Applicable texts
Common art. 3:
− Each party to the conflict (not referring to contracting parties) = refers to states and non-
state groups (State against AG or AG against AG = applicable to both)

Protocol 2, which is much less elaborate than Protocol 1, further develops certain
guarantees of Article 3. Applies if the party on whose territory the conflict is taking
place has ratified it.

− So any NIAC is governed by common art. 3 GC and customary law. It may also be
governed by Protocol 2 (not 1) if the State has ratified and if the armed group controls
part of the territory.

To determine if we’re confronted to a niac, those conditions need to be completed:

2. Intensity/level of violence
One shot suffices for iac =/= the case for niac because we are at the limit of situations of just
a group of criminal (i.e.: mafia) (IHL not applicable to them) or real AG (IHL applicable for
them)

➔ The violence needs to be of a certain intensity or of a certain duration if not =

HR (OSV which means other situation of violence not subject to IHL but
subject to HR and the laws of the land)

So at this stage, we need to understand that to have a NIAC you need :

➔ existence of a conflict (level of violence and/or duration)

➔ which is not international

➔ which occurs in the territory of a part of one of the High Contracting Parties

3. Identification of the non-state armed group

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After proving level of violence and duration we need to identify the parties (not needed in iac
because we have state actors): art. 1 par. 1 Protocol II

Scenario for the application of common art. 3: only need to establish that the AG is well
organized and subject to military discipline to be able to apply IHL to them (if it’s military it
has the capacity to respect IHL)

Scenario for the application of Protocol II: ratified by the state where the niac is taking place
+ niac has to be high contracting party and an armed group (not applicable to only AG
fighting against each other) + AG needs to exercise control over a part of the territory
(even a small part)

Same criteria for the ICC Statute (art. 8). Prolonged violence

So any NIAC requires the parties to be determined when the AG is examined! check the
level of organisation, the ability to ensure compliance with IHL, if there is an AG then it can
be classified as a NIAC. Common Art. 3 will apply to any NIAC. Prot II will only apply to
NIAC where the AG controls part of the territory and the State has ratified.

Determining the applicability of NIAC:

a. Need for a certain duration and/or intensity

b. Need to identify the parties to the conflict

Common Art. 3 applies to all NIAC cases

Prot. II only if 1) State has ratified, 2) CA between GA and State, and 3) if GA has control
over part of the territory.

The Rome Statute will also apply

4. Duration
It’s duration or level of violation: if one it’s completed so = niac ! not necessary to have
them both

c. Terrorism
There is a number of conventions prohibiting terrorism attacks but never manage in the
international level to define terrorism globally. In both iac or niac = impossible to attack
civilians
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You can have acts of terrorism that’ll trigger IHL : state A going to state B and shoots
civilians = terrorism ! IHL triggered because crossing the border (= iac), civilians attacked

i.e.: Military Order adopted by the President of the USA 13.11.2001

International terrorists, including members of Al Qaida, have carried out attacks against US
military and diplomatic personnel and facilities abroad and against US nationals and
property on US territory on such a scale as to create a state of armed conflict requiring the
use of force by the United States.

QUESTION: How can we come to the conclusion that this is a conflict? And what is the
nature of this conflict: IAC or NIAC? Explain.

− iac: between Afghanistan and US ! if u can prove that Al Qaida = AG is under the global
control of AFG (global control test) : in reality not the case

− niac:

1. level of violence: OK

2. Identification of the parties:

2.1. US = state: OK

2.2. Al Qaida : AG ? well enough organized : ok / subject military discipline: not really
a military organization back then = problem to qualify it as an AG ! it might vary
from one situation to another

➢ Solution: but parallel to the military order = security council: right to self-
defense for an act of aggression but applicable to states not AG

➢ Problem: the level of violence is so high, u have to do something, so a state

is allowed to use force according to public international law

➢ Might be seen as a third avenue to address extreme cases of vilence such as

the 9/11 attacks

3. Clarification on the applicable rules

− HR (applicable in all circumstances) vs IHL:

o If both applicable: = manage to interpret them in a way so they’ll be

complementary but if they’re contradictory IHL is the lex specialis

Which bodies outside the State are competent to decide which law applies in a given
situation?
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- The Security Council: whenever it decides on a situation that threatens

international peace or security, there is a qualification. Problem: Security Council
bound by right of veto of permanent members.
- The Human Rights Council: most of the time, it deals with NIAC situations, and
makes qualifications on this type of conflict. But its decisions are not binding.
- The International Court of Justice: the Nicaragua case, the Genocide
Convention case, the opinion on the Wall and the opinion on the use of nuclear
weapons are all examples of how the ICJ classifies situations.
- The International Criminal Court: when it decides to apply Article 8 (divided
between provisions on IAC and NIAC), it will necessarily have to qualify the
conflict (NIAC or IAC).
-

4. Difference between applicable rules

iac vs niac :

− one important difference: u have notion in iac that u don’t have in niac

o iac = combatant ! prisoner of war if detained by the enemy = only applicable in

iac (even if the differences are slim, this difference is important, because if it’s not
an iac =/= prisoner of war)

o niac = person participating in the hostilities

o iac = occupation: it doesn’t exist in niac

− another difference: regulation of administrative detention very detailed in IAC and not
in NIAC as explained in previous course

− for the means and methods of warfare: NIAC and IAC rules are getting more and
more closer. Nothing can justify that the same suffering be treated differently,…..

5. REASONING TO SOLVE A CASE

C.A.I. qualification:

1. Use of armed force by one State against another

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2. Did the second state agree to this use?

• Yes, so no I.A.C.
• No, C.A.I

• Application of all the rules of IHL. 4 GC, AP1, customary law and HR binding on the
country in question

C.A.N.I. qualification:

1. If no C.A.I then proceed as follows;

2. The conflict must be of sufficient intensity and duration to qualify as such. For this
criterion to be met, however, there must be some kind of response.

3. Are we in the presence of an armed group within the meaning of common Article 3
and in certain situations of Protocol II (= in the event of ratification by the State party
and compliance with the additional condition laid down in Article 1§1 - control of the
territory), namely that there is the presence of a responsible command, and a
capacity to ensure compliance with humanitarian law?
• If yes, then C.A.N.I.
o However, it is necessary to check whether another State has overall
control - see the Tadic criterion.
▪ If there is a global control, then C.A.N.I becomes C.A.I.
▪ If there is none, remain C.A.N.I.

• If not, then another violent situation is present.

• If C.A.N.I., application of article 3 common to the Geneva Conventions, Additional

Protocol II if ratified by the State party and presence of territorial control for the
armed group, and finally all customary rules.
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Other practical cases

• What about a NIAC in which
State A pursues an armed
group on the territory of State
B? Does the fact that State B
consents or not change the
situation?
• What about a NIAC in which
State A pursues an armed
group on the territory of State
B and State B has (overall)
control of the armed group?