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International Humanitarian law is a branch of law comprising rules relating to conduct of

hostilities and the protection of victims of war1. It is specifically framed to apply in periods of
armed conflict i.e it is a lex specialis.

In regulating armed conflicts, International Humanitarian Law addresses the issue of who has the
right to use armed force to attain their objectives. This is in light of the costly consequences of
war including loss of human life great damage to property and damage to human environment as

It is thus on the basis of humanitarian law that large-scale and important humanitarian actions
and assistance are carried out in various situations of violence the world over effectively
alleviating human suffering.

The humanitarian legal framework is set in motion and effectively comes into force in a situation
of armed conflict where such situation is determined on the basis of the legal qualification of
armed conflicts criterion which is set out thus;

International armed conflict

The existence of an international armed conflict is determined by the used of armed force by a
state against any foreign adversary, even if such adversary has not put up any resistance.
However, hostile intent (animals belligerendi) complemented by factors such as duration and
intensity of the violence is key for qualification as an armed conflict2.

Previously, qualification of international armed conflict as military confrontation between two or

more sovereign states proved adequate. However, this left out situations where the belligerent

Article 2(1) Common to the four Geneva Conventions of 1949 provide thus in relation to humanitarian law: “In the
event of declared war or any other armed conflict arising between two or more of the high contracting parties even if
the state of war is not recognized by one of them.”
In determining such qualification, time duration of violence may be upstaged by intensity where a single act of
violence e.g use of a weapon of mass destruction renders it irrelevant to consider duration for qualification as an
armed conflict.

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2008 Moi University Page 1
parties included authorities not constituted as sovereign states but nonetheless representing a
people in conflict3.

Non-international armed conflicts

Non-international armed conflicts are generally of a progressive nature viewed in various stages
which begin with a steady degeneration from civil peace to isolated acts of violence, collective
yet unstructured internal disturbances and tension leading to a state of emergency i.e a powder-
keg state and finally the transition to a full-fledged armed conflict4 forming the threshold for
application of non-derogable humanitarian legal norms.

In addition to duration and intensity of violence, category of armed personnel and tactics in use
in the conflict and the parties to the conflict also form basis for qualification of an armed
conflict in a non-international set up where the parties to the conflict must have a basic
hierarchical command chain sufficiently capable of implementing their obligations under the
humanitarian law.

Internationalized armed conflicts

Internationalized armed conflicts denote foreign interference in internal armed conflicts. Such
interference may take various forms including the direct intervention of a foreign state in an
internal conflict on the side of the rebels for instance. In such a case, such a conflict may qualify
as an international armed conflict since there is direct involvement of a foreign state party
against the belligerent state.

Article 1(4) Additional Protocol I (1977) includes non-state parties in an international armed conflict thus; “… an
authority representing people engaged in a struggle against colonial domination and foreign occupation and against
racist regimes in the exercise of the people’s right to self-determination”.
Celebici case, judgement of the first trial chamber of the ICTY of 16 November, 1998; “In order to distinguish
from cases of civil unrest or terrorist activities, the emphasis is on the protracted extent of armed violence and extent
of organization of parties involved”.
Article 3 additional Protocol II, qualification of non-international armed conflicts requires the parties to at least
have a basic hierarchical structure with effective control of portion of the territory under conflict.
Obligations incumbent on belligerent parties include subjection to provisions of and/or prosecution under
international law as well as domestic law of such parties as cognizable entities.

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Intervention by a foreign state in a conflict in a foreign territory through a non-state actor party
to the conflict acting on the foreign state’s behalf makes it imperative for the foreign state to
have overall control 7 over the non-state actor party to the conflict as opposed to effective control
for qualification of the conflict as an international armed conflict 9


The recent broader interpretation of international armed conflict that includes armed struggle in
the exercise of the right of people’s to self-determination has caused more questions including
whether military operations conducted by one or more states against armed non-state actors of
transnational nature could be qualified as international armed conflict, and such groups be
equated to state parties in a conflict 10

This was essentially in response to the global anti-terrorism operations led by the United States
of America, which has taken the form of extra-territorial “self-help” operations.

Extra territorial “self-help” operations refers to operations characterized by unilateral measures

adopted by one or more states alleging a legitimate right of individual or collective self-defense
against non-state actors of a transnational character.

Such operations may be directed against a foreign state with a view to bringing about the
cessation of violence and violation of law for instance the military campaign against Lebanon by
the Israeli government in pursuit of Hamas members who are allegedly responsible for terrorist
activities in Israel.

Overall control in such conflict favours qualification of the conflict as an international armed conflict, which has a
more developed legal framework.
Effective control on the other hand points to a situation where the non-state parties to the conflict are rather
independent favorably a qualification of the conflict as a non-international armed conflict which could prove
problematic as it is not well developed to cope with such winds of conflict situations.
Military and Para-military Activities in and against Nicaragua (Nicaragua V. USA)
Article 1(4) Additional Protocol I covers armed conflicts in which peoples are fighting against colonial domination
and alien occupation and against racist regimes in the exercise of their right to self-determination.

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Such operations include also those directed against individuals or groups suspected of criminal
activities affecting a state which has no means of protecting its own security other than taking
action on the foreign territory from which the threat comes.

The United States led invasion of Afghanistan in the wake of the September 11, 2001 (9/11)
attacks is a good case in point in the context of self-help operations against individuals or groups
in a foreign territory.

The use of force by states with the authorization or undercover of a universal or regional
international organization for instance the military operation conducted in 1999 by NATO
against the Federative Republic of Yugoslavia or the more recent allied invasion of Iraq with the
UN mandate in the second Gulf war characterizes extra territorial “self-help” as well as
qualifying as international armed conflicts 11.

The legal regime applicable to operations of extra territorial “self-help” nature is still in
contention. One school of thought is of the view that extra territorial ‘self-help’ does not qualify
as a conventional armed conflict situation and thus does not fall within the ambit of the
international humanitarian law but rather fall under human rights legal regime . This view
raises the question on the legal basis human rights law can be applied in an extra-territorial

The other school of thought approaches the issue of qualification of extra territorial “self-help”
by considering the role-played by the consent of the territorial state. This criterion has however
been found to be irrelevant to the matter. As such, “self-help” operations have been pigeonholed
on the one hand, to single or isolated acts or on the other, to a series of similar acts extending
over time whose legality should be derived from the application of the United Nations Charter.
On occasion of military action conducted in 1999 by North Atlantic Treaty Organisation against Federative
Republic of Yugoslavia, a number of states claimed legitimacy for their actions from the additional Protocol I and
international customary law for the states which had not ratified the said Protocol.
Following an attack on November, 4 2002 in Yemen carried out by American forces on a vehicle carrying
individuals suspected of terrorist activities the Swedish Foreign Affairs Minister termed deprivation of the right to

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This was as a result of the resistance to the endorsement of self-help operations as a possible
special legal category distinct from conventional armed conflicts.13 Therefore, effectively
stunting the development of the legal framework for extra territorial “self-help” operations
especially in respect to the use of force in combat situations 14

Use of force
Two models traditionally govern the use of force by the agents of the state namely;
Law enforcement:
This model is capable of being used in time of peace as well as in time of war, depending on the

The applicability of this model presupposes a relatively secure hold by the authority over a given
territory, which it exercises effective control ensuring the rule of law is upheld.

This model imposes relatively high standards of protection, for instance it prohibits state agents
to arbitrarily deprive individuals of their right to life-only permitting use of lethal force in the
case of:15

Self-defense or defense of a third party against an imminent threat of death or

serious injury; to prevent a particularly serious offence, which could place human
lives in grave danger;

Counter arguments to endorsement of a new special legal category for extra territorial “self-help” operations
especially terrorism include the fact that terrorism is not a new phenomenon and there are a series of international
convention criminalizing specific terrorist acts and obliging states to co-operate in their prevention and punishment.
The law of conflict needs to be adapted to become the main legal tool in dealing with acts of transnational
In respect to the use of force, this model requires law enforcement official to identify themselves as such and give
prior warning before using force save where compliance with there conditions would put their safety unduly at risk,
or would present a danger of death or serious injury to other persons or would be manifestly inappropriate or of no
use in the given circumstances.

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To proceed with an arrest under special circumstances
This model also embraces the doctrine of proportionality i.e the use of force must be appropriate
to the seriousness of the offence and must be a legitimate objective to achieve.

This model of law enforcement falls under the human rights legal regime.

Conduct of hostilities16
This model is based on the premise that, at this stage, it is too late to prevent the use of armed
violence between the protagonists and the aim is thus to restrict the use of violence by the
belligerents to the extent possible by maintaining a balance between military necessities on the
one hand and humanitarian imperatives on the other.

In this model, the members of the armed forces are authorized to attack individuals fighting for
the enemy.

However in the case of extra-territorial ‘self-help’ operations, there arises various uncertainties
especially with respect to non-state actors capable of projecting high degrees of violence
transcending state frontiers17. In this regard, authorities suffering as victims of such operations
are divided on the appropriate model to govern their response.

As such, the conduct of hostilities model applies in the event of the injured state resulting to
military action on the territory of another state where the armed groups are alleged to be. Where
the other state joins in the conflict, it only takes part in the hostilities thus effectively rendering
the conflict an issue of conduct of hostilities 18.
ICRC Expert Seminars- improving compliance with international humanitarian law :… this model is a familiar
feature in cases of situations of disturbances and tensions progressively degenerating into situations of armed
conflict whether international or non-international. It is this model that is governed by the provision of the
International Humanitarian Law i.e lex specialis.
Ibid: September 11th, 2001 and ensuring events conformed the emergence of a new phenomenon, of transnational
networks capable of inflicting deadly violence on targets in geographically distant states. The transnational, rather
than international, nature of such networks is evidenced by the fact that their activities, which are also
geographically dispersed, are not, as a rule imputable to a specific state under international rules of state
ICRC 27th Round Table on Current Problems of International Humanitarian Law:- The law enforcement paradigm,
previously applicable to the fight against terrorist acts both internationally and domestically, is no longer adequate

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In light of this, the operations are then only legitimate if directed at members of the enemy armed
belligerents for the duration of their direct participation in the hostilities19. This however, could
prove tricky in the event the terrorist group in question refuses to emerge from its hiding places
and so does not take in the armed conflict.

Uncertainty of the appropriate model for use of force is also apparent in a situation where a state
is incapable of exercising control on its territory or a part thereof on which armed group has
installed itself and invites another state to conduct actions against the said group.

The question arising in such a situation is whether the joint armed operation is in exercise of law
enforcement by the host state hence the application of the human rights legal regime or whether
such operation which is predominantly a military operation falls under the conduct of hostilities
this application of lex specialis20

In most cases, such situations tend to steadily degenerate into armed conflicts with the recent
involvement of Zimbabwe and Zambia among other African states in the DR Congo conflict on
the side of the government against the Rwanda /Uganda led rebel groups being a classic case of
the uncertainty inherent in addressing self-help operations through the dual model approach to
the use of force.

Obviously, the invitation of another state to deal with internal or transnational-armed groups in a
foreign territory adequately presupposes loss of control/authority in the territory in question.
This should therefore, effectively render the circumstances beyond reach of the law enforcement
model. It has however, been argued that such situations especially in respect to ‘anti-terrorist

because the already proven and potential magnitude of terrorist attacks qualify them as acts of war.
Ibid: in such situations of violence it has been argued that use of force should only be allowed against “enemy
combatants” in special circumstances without necessarily allowing counter-terrorist forces an uncontrolled right to
shoot on sight and at anytime.
This trail of thought could be based on the fact that law enforcement model is geared towards punitive, rather than
preventive action which is characteristic of such a joint operation.

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activities’ do not qualify as conventional armed conflicts and thus the conduct of hostilities
model should not apply either.

The proponents in this regard, argue that in case of such situations of violence, the person
suspected of belonging to the armed group must be treated, as any ordinary criminal under the
law as far as the use of force is concerned.22

As such, the state agents in this case are required to make every effort to apprehend the suspect,
only resorting to lethal force in the event of imminent danger to life, which danger must be
proved beyond reasonable doubt by the party alleging the existence of such danger and making
use of the lethal force.

This is in the backdrop of the fact that the fight against terrorism for instance, takes a clandestine
and sporadic form,23 involving conduct of operations against individuals who may be unarmed or
no longer armed. However, this line of though seems to fudge the line in the application of
human rights law which applies in law enforcement situations based on the concept of abhorring
‘arbitrary’ deprivation of the right to life typical of combat scenarios and application of lex
specialis which comes in on the onset of conflict and authorizes use of lethal force against,
enemy combatants and individuals participating directly in hostilities for the duration of their

ICRC 2003 International Humanitarian Law and challenges of contemporary Armed Conflicts Report.
Trans-national violence does not fit the definition of international armed conflict because it is not waged among
states, and does not correspond to the traditional understanding of non-international armed conflict, because it takes
place across a wide geographical area.
Ibid: Most importantly, expediency in dealing with persons suspected of acts of terrorism cannot be an excused for
extra-judicial killings, for denying individuals basic rights when they are detained, or for denying them access to
independent and regularly constituted courts when they are subject to criminal process given that terrorism is
primarily a criminal phenomenon like drug trafficking.
The anti-terrorism campaign is being waged by a multitude of means such as intelligence gathering, police and
judicial co-operation, extradition, criminal sanctions, diplomatic and economic pressure, financial investigation,
freezing of assets, efforts to control proliferation of weapons of mass destruction which do not involve the use of
armed force.

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In conclusion, therefore, it is undeniable that self-help operations involve to a large extent though
not entirely, situations of violence equitable with armed conflicts. Therefore, making
international humanitarian law the effective regime in such situations. However, the
humanitarian law in its current state may not effectively address the said issue following the
glaring ‘lacunae’ in its legal framework in the dual-aspects of: - the principle of proportionality
and the rules of precautionary measures in the achievement of military objectives and the
principle of direct participation in hostilities.

Proportionality raises the question of targeting ‘dual-use’ objects such as airports and bridges,
which in time of conflict may be of military use and thus be assessed as of achieving military
objectives. In such an eventuality, it is not in question the misery inflicted on the civilians in
general and civilian workers in such installations in particular. This was the case in the recent
Israeli ‘self-help’ operations in Lebanon ostensibly to flush out Hamas operatives, where the
operation involved military blitzes on Lebanese infrastructure ‘dual-use’ installations including
bridges and airports which frustrated humanitarian efforts in getting aid to the civilian non-

On the same limb, the target of ‘dual-use’ objects raises the issue of direct participation in
hostilities which in the humanitarian jurisprudence refers to civilians enjoying immunity from
attack unless and for such a time as they take part directly in hostilities through direct
participation in combat or active participation in military activities linked to combat. ‘Dual-use’
objects are generally manned and run by civilians who could as a result be regarded as directly
participating in hostilities thus losing their immunity from attack. A case in point is for instance,
that of a civilian truck driver making deliveries to a military base in a conflict zone such as Iraq
which could be legally construed under humanitarian law as direct participation in hostilities in
effect justifying an attack on the driver which goes against the grain of the humanitarian law in
protection of civilians caught in the conflict situations.
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Additional Protocol I & II to the 1949 Geneva Conventions (1977)

Agenda of San Remo Roundtable on ‘International Humanitarian Law and other legal
regimes Interplay in Situations of Violence; Annex I

Basic Principals on the Use of Force and Firearms by Law Enforcement Officials”
Adopted by the 8th UN congress on the Prevention of Crime and the Treatment of
Offenders, held in Havana (Cuba) from 27th August to 7th September 1990.

Dworkin, A, “The Yemeni Strike: The War on Terrorism hoes Global”>

Final Declaration of the International Conference for the Protection of Wart

Victims in 1993.

ICRC Expert Seminars, “Improving Compliance With International Humanitarian

Law,” Annex III of ICRC Report.

ICRC Expert Seminar, “Direct Participation in Hostilities Under International

Humanitarian Law,” Annex II.

ICRC (2003) International Humanitarian Law and Challenges of Contemporary

Armed Conflicts Report.

ICRC 27th Round Table on, “Current Problems of International Humanitarian Law”.

Patrinogic, J., International Humanitarian Law: Today and Tomorrow- Some Thoughts:

Vladimir, O., Implementation of International Humanitarian Law.

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