I.

Introduction to International Humanitarian Law

Jlassi’s notes from his live videos

IHL is a branch of IL which is called jus in bello of armed conflict. This law refers especially to the current
understanding of the conduct of warfare, how it is regulated by this branch of law. This law protects
individuals, combatants, non combatants and civilians. On the other hand, these rules limit the means
and methods of war. IHL is not about is it lawful or not to wage wars, that’s called jus ad bellum. This
branch of law is about how to wage a war. These are rules which have been conducted in the Geneva
conventions; and especially since the first Geneva convention of 1864 was adopted. Non combatant are
not only civilians but also those individuals who belonged to the armed force, military, but do not take
part in hostilities, can be medical personnel of the armed force, the religious personnel or anyone who
belong to the armed force. IHL sets out the rights and duties of anyone taking or no longer taking part in
hostilities.

II. Sources of IHL

Ancient sources of law vs. modern sources of law.

Ancient sources of law are limited in scope. They are geographically limited and weren’t universal rules.
Whereas modern sources of law are general in scope, universal and not limited and codified. Customary
international law.

1. Written IHL:

The difference between the convention of 1864 and the conventions that were adopted before the first
WW and the 1949 Geneva conventions: the categories protected under the 1864 Geneva Convention
were not the same as the categories protected under the Geneva conventions of 1949. The latter
replaced the 1864 Geneva conventions. 1864 GC is no longer enforced. The 1949 Geneva Convention is
enforced today and protects 4 categories of individuals; armed forces on land and at sea. The first
Geneva convention of 1949 protects the armed forces at land, the second one protects the armed forces
at sea, the wounded, sick and shipwrecked members, the third one protects the prisoners of war and
the new category which was not protected before WWI which are civilians, in 1949 they were added to
the Geneva conventions.

The developments of the conventions that protect different categories of individuals in AC started in
1907 Geneva conventions regulating the conduct of hostilities. The convention of 1907 protected
civilians but it wasn’t that coherent regime; it was not clear. It only protected civilians in occupied
territories. It didn’t protect all the categories of civilians and did not set forth a clear or determined
image or the determent set of civilians so we can say a more comprehensive regime was established by
the 4 Geneva conventions to protect civilians in the immense of territory. The other difference is that
war victims were only protected during international armed conflict when the 1864 GC was adopted.
However when the 1949 GC was adopted, accorded protection during Non international AC. NIAC is a
category of AC which is regulated by what is called the common article 3 of Geneva conventions this

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article related to the non international armed conflict, is to be followed in the four Geneva conventions.
All of the categories are protected under article 3 of the GC during NIAC.

Wars of national liberation weren’t regulated by the 4 Geneva Conventions. Yet, the GC did not protect
belligerents and Freedom fighters; this led to the adoption of the second protocol of 1977 that
recognized the wars of national liberations as a protected category. Thus, this category of internal AC
became recognized as an IAC and became protected under the second additional protocol of 1977.

2. Customary international humanitarian law

There is a difference btw customs of war and customary international humanitarian law. Customs of war
are those rules that are limited in scope, not universal, limited to only one-armed force and are not
legally binding. CIHL is legally binding.

The advantages of this source: While treaties only apply to the states that ratified them. They are fill
gapers. And for those who do not ratify the GC, they have to respect and apply CIHL.

Jus cogens; are the rules that existed before the GC and are binding on all nations. Even before the
adoption of GC, states have to respect them.

IHL Introduction & Sources

Introduction:

IHL, as the jus in bellos currently described, is imbued

with a particular sense of its history. Sometimes, international lawyers locate IHL in a long history of
codes of warfare that straddle different times and cultures.

The term IHL’ refers to the current understanding of the

jus in Bello (the laws concerning the conduct of warfare).

Conduct of warfare: the question is about how to wage war and not is waging war lawful or not ( jus
ad bellum).

How? There are rules that on the one hand * protect individuals: combatants, non-combatants and
civilians. On the other hand, these rules * limit the means and methods of war. The use of force is not
unlimited.

 The definition of IHL by the ICRC:

IHL is part of the body of IL that governs relations btw States. It aims to protect persons who are not or
are no longer taking part in hostilities, the sick and wounded, prisoners and civilians, and to define the
rights and obligations of the parties to a conflict in the conduct of hostilities.

International Committee of the Red Cross (ICRC), War and International Humanitarian Law (29 October
2010), available at www.icrc.org/eng/war-and-law/overview-war-and-law.htm

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 1- Ancient sources

There were rules protecting certain categories of victims in AC and customs concerning the means and
methods of authorized or prohibited combat during hostilities as early as 1000 BC. However, these
customs were geographically limited and there were no international (States were not yet born) or
universal rules. Characteristics of these sources: limited and not universal.

2- The birth of the modern IHL

 Conventional/written IHL

Modern IHL was born with the adoption of the 1864 GCs. Rules became written and of general
applicability. These treaties influenced also the dev of customary law.

The categories of war victims protected by IHL steadily expanded with the adoption of several
multilateral instruments.

1864 GC protected wounded and sick members of the armed forces on land. 1899 wounded, sick and
shipwrecked members of the armed forces at sea. While civilians benefitted from the protection in 1949
with the adoption of the fourth GC.

1907 Geneva Convention regulating the conduct of hostilities protected civilians in occupied territories. A
more comprehensive regime was established by the fourth GC to protect civilians in the enemy's own
territory.

War victims were only protected during IAC. It was only in 1949 with the adoption of Common article 3
to the GC to accord protection during NIAC.

New forms of wars like the Wars of National Liberation (WNL) led to the adoption of the Additional
Protocol 1977.

You will find the word common article 3 in books or articles of scholars. Why?

The 4 Geneva conventions apply to IAC. Only one provision applies to NIAC which is article 3 to be
found in the three conventions. This led then to the adoption of the second additional protocol 1977 for
internal AC.

Characteristics: Universal, codified and general.

NB: The Conventions currently in force (since 1949) have replaced the older Geneva Conventions (since
1864).

 Customary international humanitarian law

NB: customs of war and CIHL

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(In the first semester we defined CL as a GENERAL practice considered by States as LAW) customs are
not general non-binding. CIHL rules are general (NIAC/IAC) and legally binding (universal).

Treaties apply only to the States that have ratified them.

This wealth of treaty law does not regulate a large proportion of today’s armed conflicts in sufficient
detail. The primary reason for this is that the majority of current armed conflicts are non-international.

CIHL fills the gaps of conventional law. For example, it plays a role in NIAC, especially in conflicts
involving composite forces. The conduct of hostilities for example has been regulated mostly by
customary rules.

The ICRC Customary Law Study, which was published in 2005 based upon a wide survey of practice and
expert consultations identified 161 rules of CIHL out of which 136 were considered to apply both in IACs
and NIACs.

Forms of practice:

Both physical and verbal acts of States constitute practice that contributes to the creation of customary
international law. Physical acts include, for example, battlefield behaviour, the use of certain weapons
and the treatment provided to different categories of persons. Verbal acts include military manuals,
national legislation, national case-law, instructions to armed and security forces

NB: CIHL does not necessarily predate the treaty law, it may also develop after the conclusion of a
treaty. For example: A State which is not party to the 1980 convention on the prohibition of certain
types of weapons: causing superfluous injury or unnecessary suffering/ (conventional
weapons/unconventional weapons). There is a universally recognized prohibition against such means
and methods of warfare. That State will be prohibited from using such munitions under CIHL.

A Short History of International Humanitarian Law, Amanda Alexander

The term international humanitarian law first appeared in the 1970s. The new idea of an international
humanitarian law was codified in the 1977 Additional Protocols to the Geneva Conventions.
Nevertheless, many of the provisions of the Protocols remained vague and contested, and their status,
together with the humanitarian vision of the law they outlined, was uncertain for some time. It was only
at the end of the 20th century that international lawyers, following the lead of human rights
organizations, declared Additional Protocol I to be authoritative and the law of war to be truly
humanitarian.

Introduction

Sometimes, international lawyers locate international humanitarian law, as the jus in bello is currently
described, in a long history of codes of warfare that straddle*ride* different times and cultures. At other
points, international lawyers might emphasize the contribution of Henry Dunant (who created ICRC).

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These histories help to inform the current understanding of the nature and purpose of IHL. The 1977
Additional Protocols to the Geneva Conventions were the repository *store* of an appropriate array of
humanitarian principles in this new field of law. Yet, ‘IHL’ and the humanitarian understanding of the jus
in bello remained controversial for almost two decades, as states and legal commentators questioned
the Protocols’ principles and authority. At the very end of the 20th century however, practitioners of
IHL accepted the authority of Additional Protocol I and, with it, a humanitarian vision of the jus in bello.

International Humanitarian Law

The term ‘international humanitarian law’ refers to the current understanding of the jus in bello – the
laws concerning the conduct of warfare. The ICRC, which is considered to have a special relationship
with IHL as its guardian and promoter, describes it in the following manner: International humanitarian
law is part of the body of international law that governs relations between states. It aims to protect
persons who are not or are no longer taking part in hostilities, the sick and wounded, prisoners and
civilians, and to define the rights and obligations of the parties to a conflict in the conduct of
hostilities. Broadly speaking, IHL is a branch of public international law that seeks to moderate the
conduct of armed conflict and to mitigate the suffering that it causes. According to the international
lawyers, the term IHL can be used to refer to all of the rules of international law that concern armed
conflict – whether customary, conventional, Hague or Geneva.

Histories of International Humanitarian Law

There are two common ways that international lawyers think about the history of international
humanitarian law. One is the story of the humanization of war and law; the second is a story of
imperialism and oppression. The orthodox history of international humanitarian law tells the following
story. Laws of war have always existed to limit the destruction of war. this is not a Western concern only
Other cultures, such as China, Japan, India and the Islamic world, have their own traditions of rules of
warfare. However it was not until the 19th century that a movement to codify the laws of war began
and modern international humanitarian law was born.

Introducing International Humanitarian Law

Prior to the 1960s, the term ‘international humanitarian law’ was not used to describe a field of law.
Even when the term started to be used in the 1960s it still denoted quite a different understanding of
the law to its current incarnation. Before this period, common and academic usage referred first to the
‘laws of war’ and later, in the 1960s, to the ‘laws of armed conflict’ in an attempt to comprehend de
facto and internal conflicts.

Drafting International Humanitarian Law

The term international humanitarian law, its broad principles and its historical provenance may have
been established by the beginning of the 1974 Diplomatic Conference on the Reaffirmation and
Development of International Humanitarian Law Applicable in Armed Conflicts, but its actual rules
were contested throughout the Conference and continued to be questioned even after the Conference

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concluded. In the long run, commentators and states, considered the Additional Protocols to be the
framework and embodiment of a new approach to the jus in bello – international humanitarian law.

Conclusion

International humanitarian law did not begin in the mists of time. Nor was it fashioned by Dunant when
he created the ICRC. Rather, the history of international humanitarian law was forged in two rapid
periods of change. It began in the 1970s when it was suddenly posited as a field of law whose precepts
were outlined (in somewhat ambiguous terms) in the Additional Protocols to the Geneva Conventions.
The idea of an international humanitarian law, together with the acceptance of the Additional Protocols,
then faltered for almost two decades. It was only at the end of the 1990s that, suddenly and without any
formal mechanisms, Additional Protocol I became accepted as the basis for a uniquely strict
understanding of international humanitarian law as the jus in bello.

III. IHL Scope of Application

Jlassi’s notes from his live videos

When we speak of the scope of IHL we are going to analyze 4 elements about the application of IHL. The
first one is about on what it applies, material scope, on whom, the personnel scope, when it applies,
tempo scope, and where it applies, geographic scope.

1. Material scope: is about the types of armed conflict (IAC & NIAC)

IAC: exists if one state uses force of arms against another state. There are cases also where total or
partial military occupation is considered as international armed conflict. The first one is about the use of
armed force or the attack of a state against another state. The use of military force by a state against
another state or the existence of an armed conflict. The situation of an armed conflict does not depend
on the will of the state. The situation depends on the facts, it’s a factual situation. AC is factual not
objective, it is subjective, because it is irrelevant in international armed conflict whether the parties to
the conflict consider themselves to be at war with each other. The definition of IAC is found normally in
the Geneva conventions. One of the definitions of IAC is given by the judicial bodies. Notably it was
given by international tribunal of former Yugoslavia, the other one was given by the ICRC. ICRC has
commented on the Geneva Conventions, for this occasion they gave a definition of ICA. It is broader
than other definitions. According to ICRC, an international armed conflict is any difference arising
between two states and leading to the intervention of members of armed forces even if one of the
parties denies the existing of the state of war, it makes no difference how long the conflict lasts or how
much slaughter it takes place.

Different criteria of international armed conflict

International Armed Conflict

“Any difference arises between states” saying it leads to the intervention of armed forces. Here it’s not
an AC, any difference or any dispute between states does not mount to an AC. It’s not an armed conflict

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at all. It is an agreement between states on a fact, on a situation, on a rule of law, on a treaty or on a
resolution. Disagreements can be settled in court, ICJ. It becomes an armed conflict whenever it leads to
the intervention of members of armed conflict because of the difference and disagreement between
states. When one states uses violence against the other state, even if one party denies the existence of a
state of war. The existence of armed conflict and the application of IHL do not depend on a formal
declaration of war. Nowadays, the existence of an armed conflict is objective not subjective, it doesn’t
depend on a declaration of war. The other criterion given by ICRC is, it makes no difference how long the
conflict lasts or how much the slaughter takes place.

In 1977 the UN adopted the additional protocol I to the GC which includes wars of national liberation.
Wars of national liberation are considered a category of an international armed conflict thus IHL applies.
We have to bear in mind that there is a difference between war and armed conflict. The world war is
political concept which was largely replaced by the factual concept of armed conflict. Special wars are
narrower because they do not comprise hostilities between armed groups. AC is broader because it
comprises IAC and NIAC. The existence of an IAC is a question of fact and is independent on the
subjective views of the parties of the armed conflict. The adoption of the 4 Geneva Conventions marked
a significant shift away from formal preconditions. This means that after WWII we no longer talk about
formal declaration of war.

Non International Armed Conflict

NIAC is regulated by the article 3 common to the GC. The vast majority of contemporary armed conflict
is waged not between states but between states and armed groups or between such groups. This
hostilities or this type of armed conflict are non international character. They are internal armed
conflict. We can define NIAC as a confrontation between the existing governmental authority and
groups of persons, or between two groups. This armed group can be a dissident groups, it’s a part of
armed force that was separated from the formal armed force to constitute an armed group to fight
against the formal armed force. When a group is not created by the state it is informal and irregular
group. The groups created by the state are called armed forces.

The characteristics of these armed groups: they are used to define a non international armed conflict.
Those armed groups should fulfill certain criteria. The criteria developed by the international courts,
especially the international tribunal of formal Yugoslavia are: 1. the intensity of the force used by the
armed groups and the organization of these armed groups, we say an organized armed group. Starting
with the intensity of the violence used by armed groups. The intensity of the violence is a kind of
violence which is described by the international courts; the violence is called protracted violence. This
type of violence should not be confused with the use of violence against individuals in the state. The
evaluation of the intensity of the protracted violence is based on the number of civilians in combats
zones, also the involvement of the UNSC can be an indicator of the intensity of the violence. The second
characteristic of NIAC is the fact that armed groups should be 2. organized. These armed groups will be
regarded as if they were an armed force of the state. As if they were a formal group. The existence of an
organized armed group depends on the existence of a command structure and disciplinary rules and

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mechanisms. Also the existence of a headquarters, the ability of the group to gain access to weapons
and other military equipments and recruits and other military training.

2. Geographic scope: where does IHL apply?

Military operation to the conflict shall only be within the area of war. IHL applies within the territories of
the parties of the conflict. A state can attack other state on land or air or at sea.

3. Tempo scope: when does IHL apply?

IHL applies from the commencement of hostilities and is marked by the use of armed force by the
attack. It does not depend of the formal declaration of states. It ends when the use of force is ceased.
No formal declaration is needed.

4. Personal scope: on whom it applies?

IHL applies to the parties of the AC, individuals, and the combatants. For individuals IHL is about their
rights not their duties. Parties also can be international organizations like the UN forces, peacekeeping
forces are deployed in states where there is AC. Organized armed groups are also bound by IHL. They
are bound by IHL by the mere fact that the state has jurisdiction over these groups.

The scope of application of IHL (I)

Material scope

1- International Armed Conflict (IAC)

An international armed conflict exists if one State uses force of arms against another State.
This shall also apply to all cases of total or partial military occupation, even if this occupation
meets with no armed resistance (Article 2, para. 2 common to the Geneva Conventions). The
use of military force by individual persons or groups of persons will not suffice. It is irrelevant
whether the parties to the conflict consider themselves to be at war with each other and how
they describe this conflict.

The ICRC Commentary on the Geneva Conventions takes a very broad view of what constitutes
an armed conflict: “Any difference arising between two States and leading to the intervention
of members of the armed forces is an armed conflict within the meaning of Art. 2, even if one
of the parties denies the existence of a state of war. It makes no difference how long the
conflict lasts, or how much slaughter takes place”. When a US pilot was shot down and
captured by Syrian forces over Lebanon in the 1980s the United States maintained that this
incident amounted to an armed conflict and that the pilot was thus entitled to be treated as a
prisoner of war under the Third Convention.

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Article 1, para. 4, AP I, however, provides that the term includes: “...armed conflicts in which
peoples fight against colonial domination and alien occupation and against racist regimes in
the exercise of their right to 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”.

The application of international humanitarian law is not dependent on a formal declaration of

war. Formal declarations of war (Article1 HCIII) nowadays occur only very rarely.

The question of whether the parties to an armed conflict are states is objective and not a
matter to be determined by the subjective recognition policies of each party.

The application of humanitarian law in international armed conflicts does not depend on
whether an armed conflict has been started in violation of a provision of international law, e.g.
the prohibition against aggressive war. International humanitarian law applies equally to all the
parties to an armed conflict irrespective of the legality or illegality of their resort to force.

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.

2- International Armed Conflict (NIAC) (regulated by Article 3 common to the 1949

Geneva Conventions)

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.

A non-international armed conflict is a confrontation between the existing governmental

authority and groups of persons subordinate to this authority or between different groups none
of which acts on behalf of the government, which is carried out by force of arms within national
territory and reaches the magnitude of an armed confrontation or a civil war.

Characteristics: intensity and organization

- Protracted violence

“The number, duration and intensity of individual confrontations; the type of weapons and
other military equipment used; the number and calibre of munitions fired; the number of
persons and type of forces partaking in the fighting; the number of casualties; the extent of

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material destruction; and the number of civilians fleeing combat zones. The involvement of the
UN Security Council may also be a reflection of the intensity of a conflict”.

ICTY, The Prosecutor v. RamushHaradinaj et al., Trial Chamber I (Judgment), Case No. IT-04-84-
T, 3 April 2008.

- Organized armed group

Without a minimum level of organization, it is impossible to conduct coordinated military

operations and to ensure collective compliance with IHL.

“The existence of a command structure and disciplinary rules and mechanisms within the
group; the existence of a headquarters; the fact that the group controls a certain territory; the
ability of the group to gain access to weapons, other military equipment, recruits and military
training; its ability to plan, coordinate and carry out military operations, including troop
movements and logistics; its ability to define a unified military strategy and use military tactics;
and its ability to speak with one voice and negotiate and conclude agreements such as cease-
fire or peace accords”

ICTY, The Prosecutor v. RamushHaradinaj et al., Trial Chamber I (Judgment), Case No. IT-04-84-
T, 3 April 2008.

Whereas Article 3 applies to any “armed conflict not of an international character occurring in
the territory of one of the High Contracting Parties”, AP II applies only to armed conflicts
“...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' (Article 1, para. 1, AP II).

Geographic scope

Military operations of the parties to a conflict shall only be carried out in the area of war. The
area of war comprises: -the territories of the parties to the conflict as defined by the national
boundaries; -the high seas (including the air space above and the seafloor); and –exclusive
economic zones.

Personal scope

IHL binds parties to an armed conflict (duties) and individuals (rights GC IV) (example duty of
the warring party is to spare civilians, individual rights in this case is to enjoy his right to life and

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his right not to be subjected to torture or inhuman practices). Civilians enjoy immunity from
attack unless they take part in hostilities.

IHL first and foremost binds parties to an armed conflict. These parties may beStates,
international organizations or organized armed groups. The State has legislative jurisdiction
over everyone found on its territory, including armed groups.

States are bound by those treaties of IHL to which they have consented, as well as the rules of
CIL to which they have not persistently objected. While these treaties do not provide for the
possibility of IOs to become parties, such organizations are bound by CIHL by virtue of their
international legal personality, when they are a party to an armed conflict.

Temporal scope

IHL is dependent on the factual occurrence of an objective situation.

As a general rule, IHL applies from the commencement of hostilities, whether such hostilities
are interna tional or non-international in character.

IHL will cease when factual situation will cease. Formal agreements will serve as an evidence of
cessation of AC. IAC hostilities must end with a degree of stability and permanence in order for
the IAC to be terminated.

Some rules of IHL continue to apply after the AC, like to disseminate IHL and to prosecute the
criminals of war.

• IAC, traditionally a formal declaration like a peace treaty – “General close of military
operations”

• NIAC ends when a “peaceful settlement” has been reached – One party no longer exists –
Lasting cessation in armed confrontations without real risk of resumption.

Dieter FLECK, Michael BOTHE, The Handbook of International Humanitarian Law, OUP Oxford, 2013.

IHL and terrorism, Principles of IHL 6 mai copy and paste

Jlassi’s note

The applicability of IHL to terrorism. (Check ppt)

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International counterterrorism regime is built on a framework of specialized terms and conventions.
Counterterrorism is regulated by domestic law. The international framework: Resolution of the Security
Council as the main body of the UN and is the body which has the main responsibility to peace and
security. National measures should be in line with the obligations of states. They are endorsed in the GC.
Among these obligations the Security Council invites the States to apply IHL. The problem is the words
terrorism, terrorists etc have no clear definitions, and they are elusive. They can be interpreted
according to the situation. These words were used in special context. After 9/11: IHL does not recognize
a status of terrorist. In domestic law they are considered as criminals. States agree that they must be
punished by domestic law. A state is not able or unwilling to punish these persons thus other state
should and has the right under IL to prosecute these individuals. Terrorism is a transnational crime. In
the case of transnational crimes there is what it’s called extraterritorial principle that applies. This
principle means that the law of another state applies outside of its territory. Principles of territoriality
shall apply in its territory. In the case of terrorism, transnational crime, as part of the inter effort to fight
terrorism, this principle allows other states to prosecute other individuals. IHL does not recognize a
status of terrorism. It recognizes combatants and non combatants. What is the solution to this? Is the
state able to apply domestic law just because there is no status to terrorism in IHL and in the Geneva
Conventions?

Is terrorism amount to IAC? Terrorism etc were mentioned in the 4 th GC in which collective penalties and
likewise all measures of intimidations are prohibited. Here who is the actor of these acts? The
conventions protect the civilians from armed groups and armed forces, states actors and non state
actors, IAC AND NIAC. Does IHL apply to terrorism?

The first criterion is the existence of the parties of the conflict, normally two states or NLM vs. a state. In
both case IAC and NIAC these armed forces or armed groups should have a military like formation with a
certain level of structure. Is it the case of terrorist groups? The answer is a factual one. We cannot
determine these groups as armed groups without evaluated a level of organization and command
structure. That’s why many states when they fight against terrorist groups they don’t recognize these
groups as armed groups; they say they are in war against terrorism. That’s why states are unwilling to
comply with IHL in this case. In order to determine if terrorism amount to transnational armed conflict
there is an assumption that all members of the ac have the same rights and obligation under IHL. The
facts that they have the same rights and obligations led some states and organizations like the EU to
consider that they are fighting against criminals terrorist and not combatants. States react in self
defense. Since 9/11 the US acted out of self defense according to the Bush doctrine. The US considered
itself acting in the name of self defense/ national security.

E.g. Hezbollah and Hamas are considered by the US and Israel as a terrorist groups. Thus IHL does not
apply. And by other groups they are considered as freedom fights, who fight for the integrity of their
territories thus this is a case for armed conflict and IHL applies. Applying IHL depends on the situation or
the perspective of some states towards such groups.

Another criterion is the intensity and the means used.

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In order to say whether fighting against terrorism is considered as an armed conflict and whether IHL
applies we should focus on 2 points. 1. The armed groups whether it is organized and similar to a formal
official armed groups. 2. To evaluate the intensity of the violence and means used. IHL applies in the
case of terrorism is a matter of facts of the evaluation of the situations.

The principles governing IHL:

The principles governing the protection of individuals, combatants and non combatants and the use of
leans and method of war which should be limited.

1. Humanity:
2. Necessity
3. Proportionality
4. Distinction

Does IHL specifically mention terrorism? Yes, IHL specifically mentions and in fact prohibits"
measures of terrorism "and" acts of terrorism". The Fourth Geneva Convention (Article 33Article 4)
states that "Collective penalties and likewise all measures of intimidation or of terrorism are
prohibited", while Additional Protocol II prohibits "acts of terrorism" against persons not or no
longer taking part in hostilities. The main aim is to emphasise that neither individuals, nor the
civilian population may be subject to collective punishments, which, among other things, obviously
induce a state of terror. Both Additional Protocols to the Geneva Conventions also prohibit acts
aimed at spreading terror among the civilian population." The civilian population as such, as well as
individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose
of which is to spread terror among the civilian population are prohibited " (AP I, Article 51Article
13 (2) and AP II, (2)). These provisions are a key element of IHL rules governing the conduct of
hostilities i.e. the way military operations are carried out. They prohibit acts of violence during
armed conflict that do not provide a definite military advantage. It is important to bear in mind that
even a lawful attack on military targets can spread fear among civilians. However, these
provisions outlaw attacks that specifically aim to terrorise civilians, for example campaigns
of shelling or sniping of civilians in urban areas.

Do some aspects of the fight against terrorism amount to a "transnational" armed conflict?
As already mentioned IHL is only applicable in armed conflict. A central element of the notion of
armed conflict is the existence of "parties" to the conflict. The parties to an international armed
conflict are two or more states (or states and national liberation movements), whereas in non-
international armed conflict the parties may be either states and armed groups – for example, rebel
forces- or just armed groups. In either case, a party to an armed conflict has a military-like
formation with a certain level of organization and command structure and, therefore, the
ability to respect and ensure respect for IHL. The rules of IHL apply equally to all parties to an
armed conflict. It does not matter whether the party concerned is the aggressor or is acting in self-
defence. Also, it does not matter if the party in question is a state or a rebel group. Accordingly, each

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party to an armed conflict may attack military objectives but is prohibited from direct
attacks against civilians. The equality of rights and obligations under IHL enables all parties to a
conflict to know the rules within which they are allowed to operate and to rely on similar conduct
by the other side. It is the existence of at least two parties to an armed conflict and the basic
equality among them under IHL, as well as the intensity of violence involved and the means
used, which distinguishes warfare from law enforcement. Specific aspects of the fight against
terrorism launched after the attacks against the United States on 11 September 2001 amount to an
armed conflict as defined under IHL. The war waged by the US-led coalition in Afghanistan that
started in October 2001 is an example. The 1949 Geneva Conventions and the rules of customary
international law were fully applicable to that international armed conflict, which involved the US-
led coalition, on the one side, and Afghanistan, on the other side. However, much of the ongoing
violence taking place in other parts of the world that is usually described as "terrorist" is
perpetrated by loosely organized groups (networks), or individuals that, at best, share a common
ideology. On the basis of currently available factual evidence it is doubtful whether these groups
and networks can be characterised as party to any type of armed conflict, including "transnational".

Even if IHL does not apply to such acts they are still subject to law. Irrespective of the motives of
their perpetrators, terrorist acts committed outside of armed conflict should be addressed by
means of domestic or international law enforcement, but not by application of the laws of
war.

ICRC's position on terrorism

https://www.icrc.org/eng/resources/documents/faq/terrorism-faq-050504.htm

Principles of IHL

1- Humanity

The use of armed force—no matter the cause—is limited by a universal sense of human dignity.

For civilians: GC 1949, 4th, art. 27:“Protected persons are entitled, in all circumstances, to respect for
their persons, their honour, their family rights, their religious convictions and practices, and their
manners and customs. They shall at all times be humanely treated, and shall be protected especially
against all acts of violence or threats thereof and against insults and public curiosity.”

For combatants: GC 1949, 1st, article 12, “Members of the armed forces and other persons mentioned
in the following Article, who are wounded or sick, shall be respected and protected in all circumstances.
They shall be treated humanely and cared for by the Party to the conflict in whose power they may be,
without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any
other similar criteria. Any attempts upon their lives, or violence to their persons, shall be strictly
prohibited; in particular, they shall not be murdered or exterminated, subjected to torture or to
biological experiments; they shall not willfully be left without medical assistance and care, nor shall
conditions exposing them to contagion or infection be created.”

14
 2- Necessity

In an armed conflict, a belligerent may apply only that amount and kind of force necessary to defeat the
enemy. Acts of war are only permissible if they are directed against military objectives, if they are not
likely to cause unnecessary suffering.

The use of armed force to attain legitimate military objectives is lawful.

That the only legitimate object which States should endeavor to accomplish during war is to weaken the
military forces of the enemy.

Unnecessary suffering: “the employment of arms which uselessly aggravate the sufferings of disabled
men, or render their death inevitable [is] contrary to the laws of humanity”.

The object of armed conflict is to defeat the enemy force, not simply to kill as many of the enemy as
possible or to inflict the greatest possible wounds.

3- Proportionality:

International humanitarian law in armed conflicts is a compromise between military and humanitarian
requirements. Its rules comply with both military necessity and the dictates of humanity. Considerations
of military necessity cannot, therefore, justify departing from the rules of humanitarian law in armed
conflicts to seek a military advantage using forbidden means.

Example: indiscriminate attacks are prohibited (which target civilians). See article 51 Additional Protocol
of 1977.

4- Distinction

“The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may
only be directed against combatants. Attacks must not be directed against civilians.”

A corollary rule, relating to objects, rather than persons, is: “The parties to the conflict must at all times
distinguish between civilian objects and military objectives. Attacks may only be directed against military
objectives. Attacks must not be directed against civilian objects.”

Qualifications of Armed Conflict

Jlassi’s notes

15
Especially after WWI, most conflicts are internal conflicts, civil wars, non international armed conflict.
The new situations of today’s’ conflict are not covered by the CG. Those situations are not regulated by
the GC since there are many criteria it is hard to know whether IHL applies or not. AC is context
determent.

In NIAC, third parties can intervene in the conflict, join the conflict. The foreign element, State or
multinational force, the conflict is called internationalized non international armed conflict. In order to
determine this NIAC is internationalized, it’s not only a matter of, a simple intervention of the force, its
more than that. There are criteria added by the international court and tribunals which is called the
overall control- one of the criteria. The overall character was defined as being, not financing or training
the armed groups but also by preparing organizing co-ordination the military action of the armed
groups. As if they were commanding or directing they own armed forces. This new form of AC, it is not
regulated or governed by the CG. It is a case by case study. Analyses and evaluations of certain criteria
to determine and INIAC. This type of AC has been added by scholars. INIAC is also called proxy war. a
proxy war is used when an AC is conducted by two nations utilizing non state actors, at least one of the
state must employ one party to fight on its behalf.

Another type of AC which is in between of IAC and NIAC. In case the conflict is taking place at borders:
this kind of AC is called Asymmetrical Armed Conflict/ unconventional wars. (There is no equality
between the parties) E.g. the 2006 Lebanon war. Conflict between a state and a non state entity. Israel
vs. Hezbollah at the borders. Does IHL apply? When IHL applies? IHL applies only when Lebanon will be
recognizing and consenting to the intervention of Hezbollah fighting against Israel.

Geneva Conventions only regulate IAC and NIAC.

Syria case study:

FSA free Syrian army (July 2011) vs. basher’s AF (NIAC)

At first glance it is a NIAC. The intensity of the violence and organizations of the groups; are two criteria
that determine NIAC. Foreign fighters have no rights or duties in the GC. In order to verify the nature of
conflict in Syrian and investigate HR violations. From 2011 to 2015: the conflict was qualified as NIAC. As
the situation changed and a US led coalition took place in Syria, in 2017, the conflict changed into an
INIAC.

Armed conflicts qualification

16
As a rule, the applicability of the law of armed conflict (LOAC) is dependent on the existence of an armed
conflict. Situations of violence that do not amount to an ‘armed conflict’ in the legal sense are governed
by international human rights law (IHRL).

The term ‘armed conflict’ is context-dependent in that the criteria for determining the existence of an
armed conflict differ according to whether the armed violence is one fought between two or more
states (international armed conflict) or between a state and one or more organized non-state armed
groups or between two or more such groups (non-international armed conflict). 1

1- International Armed Conflict (IAC)

The term ‘armed conflict’ presupposes the existence of hostilities between the armed forces of the
belligerents. Whether a minimum level of violence is required for the hostilities between states to be
considered an armed conflict remains contested.

It makes no difference how long the conflict lasts, or how much slaughter takes place. 2

2- Non-International Armed Conflict (NIAC)

In Tadić, the International Criminal Tribunal for the Former Yugoslavia (ICTY) affirmed that a NIAC exists
when there is ‘protracted armed violence between governmental authorities and organized armed
groups or between such groups within a State’. This holding is widely accepted as establishing the two
key criteria for qualification as a NIAC: i) intensity of the hostilities; and ii) the involvement of an
organized armed group (OAG).

- Intensity of the hostilities:

The temporal and territorial expansion of violence and the collective character of hostilities;

The gravity of attacks and their recurrence;

Whether various parties were able to operate from a territory under their control;

An increase in the number of government forces;

The mobilization of volunteers and the distribution and type of weapons among both parties to the
conflict;

1
Louise Arimatsu and MohbubaChoudhury: “The Legal Classification of the Armed Conflicts in Syria,
Yemen and Libya”, International Law PP 2014/01, March 2014.
https://www.chathamhouse.org/sites/files/chathamhouse/home/chatham/public_html/sites/default/files/20
140300ClassificationConflictsArimatsuChoudhury1.pdf
2
ICRC Commentary to Article 2 of the First Geneva Convention (Jean Pictet (ed.), 1952). See also the
ICRC Commentary to Article 1 of Additional Protocol I, according to which: ‘Humanitarian law also
covers any dispute between two States involving the use of their armed forces. Neither the duration of the
conflict nor its intensity plays a role.

17
The displacement of a large number of people owing to the conflict; and whether the conflict is subject
to any relevant scrutiny or action by the UN Security Council.

- Organized armed group:

The non-state actors must be ‘armed’ to the extent that they have the capacity to mount attacks.
Although there must be some degree of organization in order to be a party to the conflict, this does not
have to reach the level of a conventional militarily unit. To determine whether this threshold has been
met, the tribunals have assessed: the organization and structure of the armed group; the adoption of
internal regulations; the nomination of a spokesperson; the issuing of orders, political statements and
communiqués…

3- “Internationalized” NIAC

In some circumstances, an armed conflict between a state and an OAG is more appropriately qualified as
an IAC given the involvement of another state in the conflict. Whether the actions of an OAG may be
attributed to another state such that a conflict is deemed international was addressed by the Tadić
Appeals Chamber Judgment in the context of the Balkan conflicts. In determining that Bosnian Serb units
were sufficiently directed by the Federal Republic of Yugoslavia to conclude that an IAC existed, the
tribunal reasoned:

“[C]ontrol by a State over subordinate armed forces or militias or paramilitary units may be of an
overall character (and must comprise more than the mere provision of financial assistance or military
equipment or training). This requirement, however, does not go so far as to include the issuing of
specific orders by the State, or its direction of each individual operation. Under international law it is by
no means necessary that the controlling authorities should plan all the operations of the units
dependent on them, choose their targets, or give specific instructions concerning the conduct of military
operations and any alleged violations of international humanitarian law. The control required by
international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party
to the conflict) has a role in organizing, coordinating or planning the military actions of the military
group, in addition to financing, training and equipping or providing operational support to that group. 3”

This kind of conflicts is closer to what has been termed by scholars as “proxy war” which is conducted
between nations utilizing non-state actors. At least one of the States must employ a third party to fight
on its behalf. The extent and type of support provided by the States to non-state actors may vary, but
financial and logistical support are normally provided. Such conflicts could be also termed as
“internationalized non-international armed conflicts” as they characterized by the intervention of the
armed forces of a foreign power.

4- Asymmetrical armed conflict

An asymmetric conflict exists when the parties to an armed conflict significantly differs in terms of
qualitative and quantitative strength (e.g. by having a military, technologic or economic advantage).

3
Tadić, AppealsChamberJudgment, paragraph 137.

18
The need for the application of IHL to conflicts between States and non-state entities beyond their
borders is demonstrated by the 2006 Lebanon war, in which Israel destroyed considerable areas of
southern and central Lebanon by military means to ward off rocket attacks by the Shia Lebanon-based
political and paramilitary organization, Hezbollah.

Israel’s military operation against Hezbollah in summer 2006 was an asymmetrical armed conflict.

If the Lebanese government had consented to Israel’s intervention on its territory, the conflict would
have constituted a non-international armed conflict between the Israel and Hezbollah.

Qualification of AC (27 mai Video)

NIAC: most of the wars waged in modern times are between states and armed groups or between
armed groups, especially after 2/11 and the Arab spring. There were problems of qualifications of
regulating the new conflicts. The GC regulates IAC and NIAC. NIAC regulated by article 3 and the
Additional Protocol II to the Geneva Conventions. They do not give clear definition to AC.

Defining NIAC from a geographical point of view is a bit problematic.

The traditional view considers NIAC as a synonym to internal conflict. In order for article 3 to be applied,
in order for the conflict to be considered as NIAC, the conflict must take place in the territory of one of
the contracting parties. Thus the modern conflicts are excluded since these conflicts take place in many
territories. The contemporary view is broader because it defines NIAC not with regard to internal
conflict. In the contemporary view, NIAC encompasses transnational conflicts, conflicts that take place
in many territories, and not especially in territory of the state fighting against another armed group like
the case of the war in Lebanon or the case of the US against Taliban and al Qaeda. The contemporary
view, falls under art 3 of the GC.

Conflicts with spillover character. The US war on Afghanistan, Taliban, al Qaeda. Transnational conflict.

The US Afghanistan conflict is also considered asymmetric conflict

Transnational conflict or extra-state conflict: those conflicts that don’t necessary don’t take place in
that state. Transnational conflict is defined as a conflict taking place in several states. This is a broader
view of art 3 of CG. Transnational Conflict taking place in several states gave us 2 scenarios, 1. US vs. al
Qaeda; exported non international armed conflict, or delocalized armed conflict. 2. Lebanese war, Israel
vs. Hezbollah: cross borders conflict. The difference is where the conflict is taking place. The similarity is
that states fights against an armed group. The difference between the 2 is that for the exported non
international armed conflict the armed group is on the territory of a third state, e.g. Afghanistan. For the
Lebanese war, the armed group is on the neighboring state.

Scholars ( they adopt art 3 the broader view of the GC) when they write about Transnational Conflicts
they tend to call these wars NIAC, why because it is clear that when the parties are the armed force of

19
the state and the armed group it is clear that it is non international armed conflict. The problem is at the
same time this conflict is taking place in more than a one territory. It’s taking place in the territory of the
state. IAC. The solution has been given by scholars; we have to focus on the consent of the state where
the conflict is taking place.

Questions:

Art 2 for IAC

ART 3 FOR NIAC

1. Is ISIS an armed groups or FF?

To defined an armed groups: first criteria, the organization of the armed group. E.g ISIS

Second, criterion, this groups should control a certain part of the territory. Hezbollah wasn’t considered
as an armed group because it didn’t control a certain part of the territory.

FF is a new concept. It came after the civil war in Syrian broke out. It was defined by the SC in 2014.

2. Whether IHL applies in internationalized non international armed conflict.

What are the rules that apply, the rules on IAC or the rules of NIAC
3. The intervention of 3rd party in NIAC. When the state uses its forces to fight on its behalf. There
are different situation or scenarios, 1. The intervention in a previously existing internal conflict:
an international NIAC. This refers to the fact where the third party is not an armed group nor
acting on behalf of the state it could be a state or an international organization like NATO. When
there is a foreign intervention in this case in order to qualify this intervention, whether it is IAC
or NIAC and what are the rules to apply in that case. We have to find out when this foreign party
is fighting it will be fighting with or against the party, against the state or the armed group. The
intervention is a direct intervention and not acting on behalf any party. Scholars said that if the
state gave its consent to the third party the rules of NIAC will be applicable, art 3 of the CG.
However without the consent of the state, the rules to be applicable are the rules of IAC.
2. The second scenario, situation, is the intervention that takes place by proxy, not a direct
intervention, a party acting on behalf of another party. Conflict between nations utilizing non
state actors. It is crucial to determine the level of control to clarify the conflict international. If
the criterion of the overall control determine that influence or intervention of the third foreign
party is internationalized. Moreover, if the situation turns out to be an internationalized non
international armed conflict we have to look at the consent of the state in order to determine
what are the rules to be applicable in this conflict. (With the state consent, NIAC rules apply and
without the consent of the state, IAC rules apply)
In the Syrian case, international or foreign interventions took place. There are indirect
intervention and direct intervention. These two types of interventions took place in Syria.

In case of Libya, it is a proxy war.

20
 In this type of conflict, the absence of consent, takes place in transnational armed conflict. It’s a
type on NIAC. Sometimes it is not a clear if its IAC or NIAC.
The first scenario of Transnational Armed Conflict which is known as transported armed conflict
delocalized armed conflict. In this situation parties continues their fight on one or more states.
Another case similar to the war on terrorism is, Israel fighting against Hezbollah, Israel fighting
on Lebanon.
Since these types of conflict are not regulated by the GC, the first view suggests a new legal
regime for this situation of Israel fighting against an armed group in another territory.
The second view whether the state gave its consent to use the force the law of NIAC applies
without consent THE rules of IAC apply.

4. Asymmetrical armed conflict: what are the rules of IHL to be applied? Israel vs. Hezbollah, US vs.
Taliban. It exists when there is a difference in quantitative and qualitative advantages.

Question 1:

- Does this mean that ISIS is considered as a loosely organized group or foreign fighters through
which it cannot be characterized as party to any type of armed conflict, including "transnational’’
and this means that IHL does not apply to such acts? IF so, why do we keep mentioning ISIS as a
party of NIAC in several examples through the lectures then?

- By the end of the last IHL lecture we said that ISIS is a party of an Internationalized NIAC, can we
consider that IHL is never applicable in Internationalized NIAC.?

1st remark:

Armed groups are distinct from armed forces.

Armed groups’ criteria of distinction:

The first criterion to define an armed group is a certain degree of organization sufficient to enable the
group to conduct sustained and concerted military operations and to impose discipline.

The second criterion is that the armed group should control a certain part of the territory. Control is
understood to mean domination of a part of the territory but it is not specified to which part of the
territory should be controlled.

The term Foreign Terrorist Fighter (FTF) is different from an armed group. This latter like DAAECH has
been already formed in Syria after the civil war has broken out along with other groups such as the Free

21
Syrian Army (that is a dissident armed group from the official Syrian Army fighting against Bashar Al-
Asad) as we saw in the previous lesson on the Syrian crisis.

The former, FTF, have been defined by the SC in 2014 as “individuals who travel to a State other than
their States of residence or nationality for the purpose of the perpetration, planning, or preparation of,
or participation in, terrorist acts or the providing or receiving of terrorist training, including in
connection with armed conflict.”

UN Security Council Resolution 2178 on Foreign Terrorist Fighters (2014).

2nd remark:

IHL applies in case of internationalized NIAC but the problem is what rules of IHL apply? Are they the
rules applicable to IAC or the rules applicable to NIAC?

 In this case we have to analyze the nature of the parties involved in the conflict, since when we
talk about internationalized NIAC, there are the parties to the conflict and the third party (a
State or an international organization like NATO).

- The first situation: the third party is supporting the national government against the armed group.
- The second situation: the third party intervenes in supporting of the armed group against the
national government.

 The first situation remains a NIAC. Therefore, the rules of NIAC will apply.
 In the second situation there are two parallel conflicts: the first is between the third party and
the national government: IAC rules apply. The second is between the armed group and the
State: NIAC rules apply.

Third remark:

As for your question concerning ISIS targeting civilians, it is not a criterion to define an armed group.
Once the aforementioned criteria are met, ISIS must respect IHL and more specifically common article 3
of the Geneva conventions applicable to NIAC. Violating the rule of distinction does not preclude the
application of NIAC laws.

Example: The application of article 4 of the 1977 Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II),
shall not affect the legal status of any party to an armed conflict. It is a fundamental principle of IHL that
all parties to a conflict must be treated on foot of equality. This equality must be respected even in the
absence of reciprocity in the application of IHL.(Even in the absence of reciprocity means even if the
armed group for example did not respect the rule of distinction not to target civilians or civil objects,
contrary to the other party which has respected the rules of IHL.)

22
Question2: Once asked by one of our classmates about NIAC and IAC and the intervention of a third
party. You answered that if there’s an AC between state and an OAG, which is a case of an NIAC, and
then the state gives its consent to another state to fight on its behalf , it is still considered as a case of
NIAC because it is still an AC between a state and OAG. And If the state did not give its consent to the
other state then it would be a case of an Internationalized NIAC or a ‘’proxy war’’. But, during the live
session specifically in 14min of the video, you said and I quote ‘’ It is called proxy war because in this
kind of wars states are using a third party to fight on its behalf‘’ .

- My question is that, according to what you said in the lecture and what scholars said, if a state is
using a third party to fight on its behalf, means that this state has already given its consent to the
third party, which means that it is still a case of an NIAC, then why would it be considered as a proxy
war?

Your question refers to the situations of an intervention of a third party to a conflict:

1- Intervention in a previously existing internal conflict:

This is the case of an internationalized NIAC where the third party is not an armed group and is not
acting on behalf of the State. The third party is a foreign party (a State or an IO), “strange” to the
conflict. In a NIAC we have two parties: the national government fighting against the armed group.
Then, when there is a foreign intervention, in this case it will fight with or against either of the parties.
No one is acting on behalf of the other.

(The Syrian conflict is a case of a previously existing internal conflict).

‫ ووقتها حسب الحاالت اللي شفناهم الفوق نطبقو قواعد‬.‫في الحالة هذي التدخل تع الدولة يكون مباشر وما يستحقش حد يحارب باسم الدولة‬
.‫النزاعا لمسلح الداخلي واال الدولي‬

2- Intervention may also take place by proxy

Proxy war is conducted between nations utilizing non-state actors. At least one of the States must
employ a third party to fight on its behalf (that’s why it is called a “proxy”).

In that case, it is then vital to determine the level of control that makes it possible to classify the armed
conflict as international. Not every form of influence necessarily leads to the conflict becoming
internationalized.

(The idea here is that proxy war can in some cases be considered as internationalized and in others not).

What leads us to determine the type of the conflict in this situation of the foreign intervention is the
criterion of “overall control”which is achieved when the foreign State has a role in organizing,
coordinating or planning the military actions of the military group:

 This is the case where this influence/intervention/role played leads to the conflict becoming
internationalized.

23
 ‫ ودخلت تحارب بل استخدمت حد آخر وفي أغلب الحاالت مجموعة مسلحة‬v‫في الحالة هذي تدخل غير مباشر خاطر الدولة ماجابتش جيشها‬
..‫والدولة هذي تقود من بعيد العمليات العسكرية وتحضرهم وتوجههم الخ‬

 But, in case, this indirect intervention does not constitute an overall control, or in other words, if
the intervention is just about financing, training and equipping or providing operational support
to the armed group, this is not considered as an internationalized NIAC (it remains a NIAC).

Example of recent proxy war: Eastern Libya is run by Khalifa Haftar and his Libyan National Army. He
is principally backed by the UAE, Egypt and Russia; and he appears to receive support from France,
Saudi Arabia and Greece. The government in Tripoli is backed by Turkey and Qatar.

Read the following article: https://www.spectator.co.uk/article/libya-is-now-the-middle-east-s-

most-important-proxy-war

Remark concerning the same question:

You mentioned the word “consent”:

This case of consent or the absence of consent takes place whenever there are: “transnational armed
conflicts”. It is at first instance a type of a NIAC but in some situations, it is not clear whether it is a NIAC
or an IAC.

First of all, transnational armed conflicts are known as ‘exported’ or ‘delocalized’ conflicts, or
‘extraterritorial’ non-international armed conflicts.

In this situation parties continue their fighting on the territory of one or more third States.

The government forces involved are pursuing the armed group seeking refuge in the territory of a
neighboring State.

Secondly, in this case, especially the example of Hezbollah, Lebanon and Israel, thisis not proxy war.
Proxy war is about the intervention of a third party on behalf of another. However, in this kind of
conflicts the State is fighting against another armed group in the territory of another State “for its own
interest”. Israel is fighting Hezbollahin Lebanon. The question of consent here is to find out the type of
the conflict and the rules applicable to it (in all the cases Lebanon never gave its consent to Israel).

 It was very doubtful whether Hezbollah’s military operations were attributable to Lebanon or to
any other State (the nature of the parties is not clear).
 But, in the case of proxy war, the nature of the parties to the conflict is clear.
 Transnational armed conflict is not confined to the territory of one State (Israel has been
attacked by Hezbollah, Lebanon has been attacked by Israel).
 Proxy war takes place in one territory involving many actors (the war in Libya takes place only in
Libya involving many proxies).

24
Going back to the 2006 Lebanon war, in which Israel destroyed considerable areas of southern and
central Lebanon by military means to ward off rocket attacks by the paramilitary organization,
Hezbollah. Here it is clear that Israel is fighting against Hezbollah: State vs. Armed group = NIAC.

But, the problem is that the conflict took place in Lebanon and that’s a territory of a sovereign State!
Thus, Israel has violated the territorial integrity of Lebanon. The conflict here is between two States =
IAC.

This gave rise to a controversy. Two opinions related to the qualification and the applicable law to
transnational armed conflict.

 The first view suggests a new legal regime. Schondorf suggests, a combination of, on the one
hand, the ‘law of non-combatants of inter-State armed conflicts’ (treatment of civilians in enemy
hands, principle of distinction) with, on the other, the ‘law of combatants of intra-State armed
conflicts’ (protection and treatment of the wounded, sick and shipwrecked, no status for
adversaries taken captive, etc.

 The second view is based on the fact whether the State in which the OAG are located has
consented to the foreign State using force against them. Where such consent exists, then the
law of NIAC will govern the conflict. = the conflict is between a State and an armed group.
However, when no such consent is given the use of force by the foreign State will be exercised
against the territorial State. = the conflict is between two States= this transforms the conflict
into IAC.

Question 3: It is mentioned that an Asymmetrical armed conflict is a conflict between States and non-
state entities beyond their borders. The illustrated example was Israel’s military operation against
Hezbollah, through which Israel considered Hezbollah as a terrorist group. Once the party considers the
other armed group as a terrorist group then IHL won’t be applicable. If it won’t be applicable it means
that the terrorist group is not a party to an armed conflict, it is not even considered as an OAG which is
one the characteristics of a party to be in an AC.

My question is, might be related to the first one as well, why would we consider the applicability of IHL
in a case of terrorism as a matter of facts of evaluation of the situation (evaluating the intensity and
means used and the organization of the group) , while it is obvious through the example above that IHL
won’t be applicable if at least one of the AG is considered as a terrorist group whether it is indeed an
OAG or not ?

In order to answer this question you have to go back to the definition of asymmetrical conflict.

An asymmetric conflict exists when the parties to an armed conflict significantly differs in terms of
qualitative and quantitative strength (e.g. by having a military, technologic or economic advantage).

25
  The first case, the Syrian conflict: this is not an asymmetrical conflict since ISIS armed group that
fulfills the criteria abovementioned: being organized and control a certain part of the territory.
(Although in some instances this armed group is called a “terrorist group” because the violated
the laws of armed conflict.)

Are the rules of IHL applicable to ISIS?

We have to answer two questions:

The first deals with the existence of armed conflict, while the second is to inquire whether the members
of the armed group are bound by the rules of IHL.

The first question: we have to evaluate the protracted armed violence between governmental
authorities and organized armed groups.

From January 2014 ISIS had taken control of parts of territory in Iraq and Syria. Later the US forces were
joined by other States (Australia, Belgium, Canada, Denmark, the Netherlands, Bahrain, and the United
Arab Emirates, later Jordan, Egypt, Turkey, Russia), and their airstrikes were extended from the territory
of Iraq to cover Syria.

Regarding command structure it can be noted that ISIS is not merely a terrorist group, but it purports to
be a terrorist state. It can also be noted that the group does very well with recruiting new members –
there are calculations that it had succeeded to recruit as many as 30 000 members from all over the
world.

The second question:

So far armed groups cannot “ratify or formally become party to IHL treaties; only States can do so. As a
result, armed groups may consider themselves technically not bound by the international obligations
specified in treaty law.

IHL binds organized armed groups, referred to by some as the majority view, holds that IHL applies to
them because the ‘parent’ state has accepted a given rule of IHL. According to this construction, the
capacity of a state to legislate for all its nationals entails the right of the state to impose upon them
obligations that originate from international law, even if those individuals take up arms to fight that
state or (an)other organized armed group(s) within it.

 However for the case of Hezbollah these criteria are not met: Hezbollah is a paramilitary group
which is not an armed force of Lebanon; it is a political party that cannot be compared to ISIS or
to an armed force. Besides, Hezbollah does not exercise control over a part of a territory since
all the territory belongs to Lebanon. So, here we have a situation where there is no equilibrium
between the two parties: Israeli armed force and a paramilitary group.

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