Tamás Hoffmann: Squaring the circle?

– International humanitarian law and

transnational armed conflicts

I. Introduction

On 15 August 20, 2007 the Ugandan defence minister, Dr. Crispus Kiyonga warned the
Democratic Republic of Congo that it might be forced to send its troops to the country if
it will not remove rebel forces of the Peoples Redemption Army (PRA), the Allied
Democratic Forces (ADF), the Lord Resistance Army and the Interahamwe that are
carrying out attacks in Uganda.1 This short piece of news perfectly illustrates the
increasingly complex nature of modern hostilities. While the law of armed conflict2
traditionally recognizes only the dichotomy of international and non-international armed
conflict applicable in the normative framework regulating armed hostilities, the reality
presents situations that do not readily fit into these categories. Foreign State involvement
is almost habitual in contemporary conflicts and a significant number of conflicts rage
between States and non-State actors not necessarily only within the confines of a
country.3
This phenomenon attracted widespread interest first during the Spanish civil war
where thousands of foreign troops fought on both sides and later during the cold war,
when the threat of mutually assured destruction prevented every direct confrontation
between the superpowers and “proxy wars” became a permanent feature of international
relations. Presently, even though the so-called “war against terror” directed the spotlight
to this question, it is still not sufficiently dealt with in academic literature. Most authors
only concern themselves with the situation of States fighting against non-State actors
abroad (e.g. the 2006 Israeli intervention to Lebanon) but that is just the tip of the
iceberg. While my analysis also takes that scenario into account, it aims to describe the
whole spectrum of such situations and find the international legal framework regulating
these atypical conflicts and demonstrate how they actually take place through case
studies.
I opted to eschew the use of terms previously accepted in academic literature to
avoid prejudging certain conflicts but I did not intend to create a new legal chategory. 4

1
Uganda: Uganda Might be Forced to Enter Congo, http://allafrica.com/stories/200708160107.html
2
Throughout the article I use the terms law of armed conflicts, international humanitarian law (IHL), laws
of war and jus in bello interchangeably.
3
According to the Uppsala Conflict Data Program, “a little over one-fifth of the international conflicts are
internationalized in the sense that outside States contribute troops to the conflict.” However, this number
can be even higher if we include transboundary conflicts between non-State actors. See Lotta Harbom,
Peter Wallenstein, Armed conflict and its international dimension 1946-2004, Journal of Peace Research,
Vol. 42, 2005, No. 5, p. 623. The Correlates of War Project estimates that the approximately 25 % of
internal conflicts include foreign interventions. See Meredith Sarkees, Correlates of War Data on War: An
Update to 1997, Conflict Management and Peace Science, Vol. 18 No. 1, 2000, pp. 123–144.
4
The notion of “internationalized non-international armed conflict” could seem an obvious choice,
however, that concept specifically pertains to civil wars characterized by the intervention of the armed
forces of a foreign State. See Hans-Peter Gasser, Internationalized non-international armed conflicts: Case
studies of Afghanistan, Kampuchea and Lebanon, American University Law Review, Vol. 33, 1983-1984,
p. 145.

1
Transnational conflict is a neutral, descriptive term that encompasses all conflicts with a
transboundary character that involve non-State actors and thus seemingly escape the
classic division of international and non-international armed conflict.5
These conflicts can be best illustrated through the assistance of the following
model. Logically, armed hostilities can involve States and non-State actors and can occur
within a single State or cross boundaries. Relying on these premises, armed conflicts can
be divided into 8 categories:6

1, Conflict between two or more States.

2, State fighting against non-State actor(s) entirely within the State.
3, Non-State actor clashing with non-State actor entirely within the State.
4, State fighting on its own territory against a domestic non-State actor which operates
from abroad.
5, State fighting on its own territory against foreign non-State actor(s).
6, State fighting against foreign non-State actors on the territory of another State with the
consent of the State.
7, State fighting against foreign non-State actors on the territory of another State without
the consent of that State.
8, Non-State actors from different countries fighting against each other crossing borders.

Conflicts No. 4-8 belong to the category of transnational conflicts. They do not fit easily
in the traditional dichotomy of the separation of international and non-international
armed conflicts. While they involve international, cross-border elements, the presence of
non-State actors also make these conflicts similar to non-international armed conflicts.7
As might be expected, in a large number of conflicts these scenarios actually take place
simultaneously.
In the following pages I will introduce the international legal framework
applicable to armed conflicts and attempt to fit transnational armed conflicts in this
system. Finally, I will analyse the application of these rules through some recent
conflicts.
5
An American author proposes the use of this term referring to a new category of armed conflict. See
Geoffrey S. Corn, Hamdan, Lebanon, and the regulation of hostilities: The need to recognize a hybrid
category of armed conflict, Vanderbilt Journal of Transnational Law, Vol. 40, 2007. International relations
scholars use the term “transnational wars” to describe wars that cross national borders without being waged
as a war between States. See Herfried Münkler, The wars of the 21st century, International Review of the
Red Cross, Vol. 58., 2003, pp. 20-21.
6
I base this model of categorization on the one suggested by Anthea Roberts. Roberts, however, only
enumerates conflicts involving States and non-State actors and does not add State consent to interventions
as a possible additional criterion. Anthea Roberts, Righting wrongs or wronging rights? The United States
and human rights post-September 11, European Journal of International Law, Vol. 15, No. 4, 2004, pp.
747-748.
7
The examination of conflicts involving UN peacekeepers is beyond the scope of this study, since due to
the special status of UN forces they do not necessarily fall within the category of conflicts between States
and non-State armed groups. For an analysis of the status of United Nations peacekeepers under
international humanitarian law see inter alia Christopher Greenwood, International humanitarian law and
United Nations military operations, Yearbook of International Humanitarian Law, Vol. 1, 1998, pp. 3-34.;
Keiichiro Okimoto, Violations of international humanitarian law by United Nations forces and their legal
consequences, Yearbook of International Humanitarian Law, Vol. 6, 2003, pp. 200-220.; Eric David,
Principes des droits international humanitaires, pp. 154-155.

2
II. The international legal framework applicable to armed conflicts

International armed conflicts

Traditionally, classical international law only regulated armed hostilities between nations.
In case of a war between sovereign States, the whole gamut of the law of war became
applicable to the conflict. However, the legal institution of war was based on formalistic
criteria and if the States engaged in hostilities denied the existence of a State of war
between them, it jeopardised the application of jus in bello. The acceptance of the Geneva
Conventions8 obviated the need for a legal State of war for the application of the laws of
war.
Article 2 common to all Geneva Conventions stipulated that:

“In addition to the provisions which shall be implemented in peacetime, the present
Convention shall apply to all cases of declared war or of any other armed conflict which
may arise between two or more of the High Contracting Parties, even if the State of war
is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory
of a High Contracting Party, even if the said occupation meets with no armed resistance.”

Even though this provision does not contain the definition of international armed
conflict, it is obvious that the concept is a factual one based on the existence of actual
hostilities between two or more States. The Commentary of the International Committee
of the Red Cross (ICRC) takes a very broad view declaring that: “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 Article 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.”9 Similarly, the International Criminal Tribunal for the
Former Yugoslavia held in the Tadić case that: “an armed conflict exists whenever there
is a resort to armed force between States…”10
Nevertheless, it is not entirely clear whether all minor hostilities between States
amount to international armed conflict. Greenwood mentions that when a US pilot was

8
The Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field of 12 August 1949, 75 UNTS 31; the Geneva Convention (II) for the Amelioration of
the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75
UNTS 85; the Geneva Convention (III) Relative to the Treatment of Prisoners of War of 12 August 1949,
75 UNTS 135; the Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War
of 12 August 1949 , 75 U.N.T.S. 287.
9
Commentary GCIV, p. 20.
10
The Prosecutor v. Tadić, Decision on the defence motion for interlocutory appeal on jurisdiction, 2
October 1995, Case No. IT-94-1-AR72, para. 70. This definition was repeatedly reaffirmed in the
jurisprudence of the ad hoc Tribunals. See inter alia The Prosecutor v. Blaskić, Judgment of 3 March 2000,
Case No. IT-95-14-T, para. 63; The Prosecutor v. Krstić, Judgment of 2 August 2001, Case No. IT-98-33-
T, para. 481.; The Prosecutor v. Kunarac et al., Judgment of 12 June 2002, Case No. IT-96-23/1-A, para.
56.; The Prosecutor v. Aleksovski, Judgment of 25 June 1999, Case No. IT-95-14/1-T, para. 8.; The
Prosecutor v. Akayesu, Judgment of 2 September 1998, Case No. ICTR-96-4-T, para. 619.; The Prosecutor
v. Rutaganda, Judgment of 6 December 1999, Case No. ICTR-96-3-T, para. 92.

3
shot down over Lebanon by Syrian forces in the 1980s, the United States maintained that
the incident qualified as armed conflict. Still, he warns that countries in general do not
treat isolated incidents, such as border clashes and naval incidents as armed conflicts
unless fighting reaches a level of intensity which exceeds that of such isolated clashes.11
In similar vein, the UK Military Manual also emphasizes that qualification depends on
circumstances, e.g. accidental border incursion by members of the armed forces or
accidental bombing of another country are not international armed conflicts.12
There have been also doctrinal disagreements regarding the notion of occupation.
Article 42 of the annexed Regulations of 1907 Hague Conventions IV States that:
“Territory is considered occupied when it is actually placed under the authority of the
hostile army.”13 The ICRC Commentary suggests that the rules of occupation should be
applicable from the moment of the invasion, even when the authority of the hostile army
is not yet established.14 However, even though there is a general tendency to apply the
rules as far as possible in areas through which the troops are passing and even on the
battlefield,15 the International Court of Justice (ICJ) categorically affirmed that the
application of the legal regime of occupation requires not only the mere stationing of
foreign troops but the fact that they have substituted their own authority for that of the
legal government.16
Although Common Article 2 of the Geneva Conventions applies only to High
Contracting Parties, i.e. States, Additional Protocol I17 extended the scope of international
armed conflicts to a limited extent to non-State actors recognizing as High Contracting
Parties groups fighting for national liberation.18 According to Article 1 (4):

“The situations referred to in the preceding paragraph include armed conflicts in which
peoples are fighting against colonial domination and alien occupation and against racist
régimes, 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.”

This provision, however, applies to a very limited number of situations, its main aim
being the support of decolonization. The other two concepts have an even narrower
scope. The term “alien occupation” is distinct from belligerent occupation and covers
11
Christopher Greenwood, Scope of application of humanitarian law, in: Dieter Fleck (ed.) The handbook
of humanitarian law in armed conflicts, OUP, 1999, p. 42.
12
The manual of the law of armed conflict – UK Ministry of Defence, O.U.P., 2004. p. 29
13
Adam Roberts and Richard Guelff (eds.) Documents on the laws of war, OUP, 3rd ed., 2000, p. 80.
14
“There is no intermediate period between what might be termed the invasion phase and the inauguration
of a stable regime of occupation. Even a patrol which penetrates into enemy territory without any intention
of staying there must respect the Conventions in its dealings with the civilians it meets”. Pictet, Geneva
Convention Commentary IV., p. 60.
15
Adam Roberts, What is a military occupation?, British Year Book of International Law, Vol. 55, 1984, p.
256.
16
The Democratic Republic of Congo v. Uganda, ICJ Reports, 2005, para. 173.
17
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of International Armed Conflicts of 8 June 1977, 1125 UNTS 3.
18
See esp. Georges Abi-Saab, Wars of national liberation and the laws of war, Annales d’Etudes
Internationales, 1972, pp. 93-117.; Antonio Cassese, Wars of national liberation and humanitarian law, in:
Studies and essays on international humanitarian law and Red Cross principles in honour of Jean Pictet,
ICRC, Martinus Nijhoff, pp. 313-324.

4
cases of partial or total occupation of a territory which has not yet been fully formed as a
State, referring principally to the Israeli occupation of the Palestinian territories.19 The
expression “racist régimes” covers cases of regimes founded on racist criteria alluding to
the apartheid regime in South Africa.20 In practice, however, this provision has never
been utilized.21
In conclusion, there seems to be a general consensus that the concept of
international armed conflict pertains to hostilities between States and incurs the
application of the full body of humanitarian law.22

Non-international armed conflicts

Before the Second World War, international law regarded civil wars as falling into the
‘domaine réservé’ of sovereign States, where international law had no role to play. The
rules of the laws of armed conflict only became applicable when the State accorded
recognition to the rebels, accepting them as equal belligerents. In this case, jus in bello
became applicable to the conflict in its entirety. Unsurprisingly, such recognition of
belligerency was sparse.23
After 1945, drawing especially from the experiences of the Spanish Civil War, the
necessity of the regulation of internal hostilities became accepted. To remedy this gap,
Common Article 3 to the Geneva Conventions was adopted as a revolutionary new piece
of international legislation.24 The Article represents an uneasy compromise between the
humanitarians seeking to extend the full body of international humanitarian law to
internal conflicts and those attempting to preserve the sovereign rights of States.25 It
appears with identical text in all four of the Geneva Conventions and constitutes a
completely separate entity from the other provisions, a “Convention in miniature.” 26 Even
though its text contains only a series of rudimentary provisions dealing with minimum
rights and obligations,27 it was hailed by the International Court of Justice as expressing

19
Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds.) Commentary on the Additional
Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Martinus Nijhoff Publishers,
1987. p. 54.
20
George H. Aldrich, The laws of war in land, American Journal of International Law, Vol. 94, 2000, p. 45.
21
The Statement of the German Federal Republic on the Turkish hostilities against the Kurdish PKK is
typical in this respect. Germany viewed the conflict as non-international armed conflict and pronounced
that Art. 1 (4) was inapplicable to the situation. Reply by the Federal Government to the written question
submitted by Bundestag member Vera Wollenberger and the parliamentary party of the Alliance
90/Greens. Reproduced in Marco Sassòli and Antoine A. Bouvier (eds.) How does law protect in war?,
Geneva, 2nd ed., Vol. II., 2006, pp. 2291-2292.
22
See e.g. the definition of Dinstein: “The law of international armed conflicts relates to hostilities carried
out between belligerent States, regardless of a declaration of war.” Yoram Dinstein, The conduct of
hostilities under the law of international armed conflict, Cambridge University Press, 2004, p. 15. See also
Christopher Greenwood, Scope of application of humanitarian law, supra note 11, p. 43.
23
Hersch Lauterpacht, Recognition and international law, CUP, 1947, pp. 175-269.; Hans Wehberg, La
guerre civile et le droit international, Recueil des Cours, Vol. 63, 1938, pp. 83-111. Present day belligerent
recognition fell into desuetude. See Eric David, Principes, supra note 7, p. 138.
24
See Lindsay Moir, The law of internal armed conflict, C.U.P., 2002, pp. 23-29.
25
Georges Abi-Saab, Non-international armed conflicts, in: International dimensions of humanitarian law,
1988, pp. 218-221.
26
Jean Pictet (ed.) Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva,
12 August 1949, ICRC, Geneva, 1958, p. 34.

5
”elementary considerations of humanity”, which are applicable in all armed conflicts.28
However, the definition of non-international armed conflict is conspicuously missing
from the text.29
Still, a number of convenient criteria were identified by the Commentary of the ICRC
summarizing the proposals that received positive feedbacks in the Diplomatic
Conference30 as follows:

“1. That the Party in revolt against the de jure Government possesses an organized
military force, an authority responsible for its acts, acting within a determinate territory
and having the means of respecting and ensuring respect for the Convention.
2. That the legal Government is obliged to have recourse to the regular military forces
against insurgents organized as military and in possession of a part of the national
territory.
3. (a) That the de jure Government has recognized the insurgents as
belligerents; or
(b) That it has claimed for itself the rights of a belligerent; or
(c) That it has accorded the insurgents recognition as belligerents for the purposes only of
the present Convention; or
(d) That the dispute has been admitted to the agenda of the Security Council or the

27
Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of
the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the
following
provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down
their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all
circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or
faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with
respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a
regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by
civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its
services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all
or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
28
”Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain rules to
be applied in the armed conflicts of a non-international character. There is no doubt that, in the event of
international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more
elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court's
opinion, reflect what the Court in 1949 called "elementary considerations of humanity." Military and
Paramilitary Activities in and against Nicaragua, (Nicaragua v. United States), Merits, ICJ Reports, 1986,
para. 218.
29
The ICRC Commentary finds this omission a positive attribute as it enables a wider scope of application.
Jean Pictet (ed.) Convention (IV), supra note 26, p. 36.
30
II.B Final Records of the Diplomatic Conference of Geneva of 1949, p. 121.

6
General Assembly of the United Nations as being a threat to international peace, a breach
of the peace, or an act of aggression.
4. (a) That the insurgents have an organization purporting to have the characteristics of a
State.
(b) That the insurgent civil authority exercises de facto authority over persons within a
determinate portion of the national territory.
(c) That the armed forces act under the direction of an organized authority and are
prepared to observe the ordinary laws of war.
(d) That the insurgent civil authority agrees to be bound by the provisions of the
Convention”.31

The legal literature envisages similar situations. The most frequently mentioned
criteria by legal publicists are organization and intensity. Thus, Schindler suggests that
hostilities have to be conducted by force of arms and exhibit such intensity that, as a rule,
the government is compelled to employ its armed forces against the insurgents instead of
mere police forces and that insurgents have to exhibit a minimum amount of
organization, i. e. be under responsible command and be capable of meeting minimal
humanitarian requirements.32
Surprisingly Pictet submits that Common Article 3 should be observed in every
case of violence because: “What Government would dare to claim before the world, in a
case of civil disturbances which could justly be described as acts of mere banditry, that,
Article 3 not being applicable, it was entitled to leave the wounded uncared for, to inflict
torture and mutilations and take hostages?”33 This reductio ad absurdum is easy to
answer: human rights law still applies in such situations and massive violations of human
rights can amount to crimes against humanity, warranting international prosecution.
Ultimately, it simply stands to reason that a rebel group has to posses a minimum level of
organisation in order to manage compliance with the rules of humanitarian law.34

31
Jean Pictet (ed.) Convention (IV), supra note 26, p. 35.
32
Dietrich Schindler, The different types of armed conflicts according to the Geneva Conventions and
Additional Protocols, Recueil des Cours, Vol. 163, 1979, p. 47. Draper suggests that an Article 3 conflict
takes place whenever “sustained troop action is undertaken against rebels, even though the rebel
organisation and control of any area is minimal, and the situation is such that the police are not able to
enforce the criminal law in a particular area by reason of rebel action.” G. I. A. D. Draper, The Geneva
Conventions of 1949, 1965. Recueil des Cours, Vol. 114. pp. 89-90.
33
Jean Pictet (ed.) Commentary (IV), supra note 26, p. 36. Following the same line of reasoning the
Hungarian Supreme Court held that Common Article 3 is applicable every time “when the population of
the State and the armed forces of the State are facing each other.” See Tamás Hoffmann, Individual
criminal responsibility for crimes committed in non-international armed conflicts – The Hungarian
jurisprudence on the 1956 volley cases,
http://www.defensesociale.org/xvcongreso/pdf/cfp/08)_Individual_criminal_responsibility_for_crimes_co
mmitted_in_non-international_armed_conflicts_Hoffmann.pdf, pp. 10-11.
34
As Moir aptly observes “The danger with Pictet’s viewpoint is that, without sufficient organisation on the
part of the insurgents, the net of application would be spread too wide, so that Article 3 would include those
conflicts which are too limited or small-scale to have been intended… Pictet would appear to have lost
sight of the fact that the provisions of common Article 3 are binding on both sides. Do we expect a
disorganised group of rioters to observe even the most basic laws of war in their relations with State
authority? The spontaneous nature of the situation and the lack of organisation or responsible control is
bound to make this highly improbable.” Lindsay Moir, The law of internal, supra note 24, p. 87.

7
 Neverheless, as a matter of policy, it is certainly commendable to extend the
application of Common Article 3 to every internal unrest as the State would suffer no
disadvantage from the unilateral application of these basic standards even when the rebel
group itself is unwilling or unable to do so.
In contrast to the broad scope of application of Common Article 3, Additional
Protocol II,35 which contains a more elaborated set of rules applicable to non-international
armed conflicts, has a much narrower field of application. Article 1 provides that:

“1. This Protocol, which develops and supplements Article 3 common to the Geneva
Conventions of 12 August 1949 without modifying its existing conditions of application,
shall apply to all armed conflicts which are not covered by Article 1 of the Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection
of Victims of International Armed Conflicts (Protocol I) and which take place in the
territory of a High Contracting Party between its armed forces and dissident armed forces
or other organized armed group which, under responsible command, exercise such
control over a part of its territory as to enable them to carry out sustained and concerted
military operations and to implement this Protocol.
2. This Protocol shall not apply to situations of internal disturbances and tensions, such as
riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being
armed conflicts.”

Accordingly, Additional Protocol II is only applicable to situations identical to full-scale

civil war and limited to armed conflicts between rebels and government, precluding every
conflict which is not limited to the territory of the State Party and which does not take
place between the government and organized armed groups.
The ICTY attempted to give the customary law definition of non-international
armed conflict. In the Tadić case the Appeals Chamber declared that: “[a]n armed
conflict exists whenever there is… protracted armed violence between governmental
authorities and organized armed groups or between such groups within a State.”36 This
definition emphasizes a certain degree of intensity and organization similarly to the
majority of the legal literature; the inclusion of the requirement of ‘protractedness’,
however, seems problematic. As rightly pointed out by Sassòli, the protracted character
cannot be the decisive criterion, since it is not foreseeable at the outset of a given conflict.
It is difficult to imagine that the obligation to respect IHL does not arise readily at the
inception of a conflict but only from that time when hostilities become protracted.37
The customary status of the Tadić definition is buttressed by its inclusion in the
Statute of the International Criminal Court,38 but the definition is still ”termed in the
35
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection
of Victims of Non-International Armed Conflicts of 8 June 1977, 1125 UNTS 609.
36
Prosecutor v. Tadic. (Jurisdiction) No. IT-94-1-AR72, Appeals Chamber. 2 October. 1995,, para.70.
37
Marco Sassòli, Transnational armed groups and international humanitarian law, Winter 2006, Program on
Humanitarian Policy and Conflict Research at Harvard University, Occasional Paper Series, No. 6, pp. 6-7.
See also the Abella case, where the Inter-American Commission on human rights found that hostilities
between an armed group and government forces lasting for a few hours constituted a non-international
armed conflict. Inter-American Commission on Human Rights, Report No. 55/97, Case No. 11.137,
Argentina, OEA/Ser/L/V/II.98, Doc. 38, December 6, 1997, www.cidh.org.
38
Article 8 (2) (f) “Paragraph 2(e) applies to armed conflicts not of an international character and thus does
not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of

8
abstract, and whether or not a situation can be described as an ’armed conflict’, meeting
the criteria of Common Article 3, is to be decided upon a case-by-case basis.”39
Nevertheless, it seems generally accepted that when organized armed groups take part in
hostilities reaching a certain level of intensity the law of non-international armed conflict
will come into play, even in the absence of an acknowledgement of the State.40

III. Transnational armed conflicts

The traditional dichotomy of international and non-international armed conflict is based

on the premise that these bodies operate in completely different contexts. However, in an
increasing number of conflicts transboundary hostilities take place without the
involvement of States on both sides. These conflicts seemingly challenge the waterproof
separation of international and non-international armed conflicts as elements of both
bodies are present – cross-border armed violence and the participation of non-State armed
groups.
In the following pages I will introduce the diverse explanations given in the
academic literature to this phenomenon and finally spell out the legal position I find the
most plausible.

1, International humanitarian law does not regulate transnational conflicts (or some
of these conflicts)

A minority of legal scholars presented the view that international humanitarian law does
not apply to conflicts which are beyond the traditional concepts of international and non-
international armed conflicts.41.These authors rely on a strict textual interpretation of the
provisions of the 1949 Geneva Conventions. According to this argumentation, the law of
international armed conflict only regulates hostilites between States, while the rules of
non-international armed conflict only apply to violence taking place within the confines
of a State since that corresponds to an “armed conflict not of an international character”.

violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a
State when there is protracted armed conflict between governmental authorities and organized armed
groups or between such groups.” It was suggested that the change of the term “armed violence” in the
Tadić judgement to “armed violence” in the ICC Statute could signify the raising of the threshold of
application but it is difficult to discern the relevance in practical application. Noëlle Quénivet, The
applicability of international humanitarian law to situations of a (counter-)terrorist nature, in Roberta
Arnold, Pierre-Antoine Hildbrand (eds.) International humanitarian law and the 21st century’s conflicts –
Changes and challenges, Edis, 2005. p. 35.
39
Prosecutor v. Rutaganda, Case ICTR-96-3, Judgment, 6 December 1999, para. 91.
40
Even though the language of Common Article 3 does not have the language limiting its application to
“organized armed groups”, it cannot be doubted that armed groups have to posses some level of
organization to comply with the obligations set forth by the provision. Nevertheless, as pointed out above,
even in the absence of the requisite organization, the parties are under obligation to follow these basic
humanitarian requirements as a matter of human rights law.
41
As Baxter famously quipped: “[t]he first line of defense against international humanitarian law is to deny
that it applies at all.” Richard Baxter, Some existing problems of humanitarian law, in The concept of
international armed conflict: Further outlook, Proceedings of the International Symposium on
Humanitarian Law, Brussels, 1974, p. 2.

9
Consequently, in situations of cross-border combat involving non-State actors the rules of
jus in bello are inapplicable.42
Such situations, when a State is carrying out military operations against a non-
State actor on the territory of another State constitute ‘extra-territorial law
enforcement’,43 i.e. cross-border police action, where the application of the norms of
humanitarian law is merely optional, a matter of policy.
While the rationale of this line of reasoning is in many respect identical to the
reasons of denying the existence of a non-international armed conflict – a fear of
providing a degree of legitimacy or even status to insurgents -, yet such concerns can
hardly explain why victims of conflicts spilling over the territory of several States should
benefit from less protection than those affected by conflicts limited to the territory of only
one State.44
As Schöndorf aptly explains: “if [it is] not armed conflict, then it is unworkable
and artificial – the law simply does not square with reality”. 45 It is indeed inconceivable
that hostilities that fall under at least the scope of non-international armed conflict when
taking place within a single country would fall into a legal gap by the fact of crossing
borders. Such an interpretation clearly contradicts the factual nature of the law of armed
conflict that aims to protect people affected by violence reaching the level of armed
conflict. Even if one accepted that the conventional rules of Common Article 3 and
Additional Protocol II cannot apply to such situtations, the very least customary
humanitarian law would continue to provide protection.46
If a certain level of violence is sufficient to qualify armed hostilities as armed
conflicts under the terms of jus in bello, it is difficult to see why the same level of
violence would not be deemed as such when it involves a transnational element. The
current tendency is the exact opposite - to attempt to broaden the scope of application of
humanitarian law partially by States, partially by humanitarian organizations.47
42
“Therefore, the bulk of humanitarian law, including that involving direct participation in hostilities, is
inapplicable to counterterrorist operations occurring outside the confines of either a non-international or an
international armed conflict… Of course, States may apply humanitarian law to their operations as a matter
of policy, but they are not obligated to do so as a matter of law.” Michael N. Schmitt, “Direct participation
in hostilities” and 21st century armed conflict, in Horst Fischer (ed.) Crisis management and humanitarian
protection, p. 523.
43
Yoram Dinstein, War, aggression and self-defence, C.U.P. (4th ed.), 2005. pp. 244-251. However, for
Dinstein this category is strictly confined to jus ad bellum and he accepts that an incursion to the the
territory of a State without the latter party’s consent constitutes an international armed conflict. For an
application of the concept in jus in bello see William K. Lietzau, Combating terrorism: Law enforcement or
war? in: Michael N. Schmitt and Gian Luca Beruto (eds.), Terrorism and international law, challenges and
responses, International Institute of Humanitarian Law and George C. Marshall European Center for
Security Studies, 2003.n pp. 75-84.
44
Marco Sassòli, Transnational…, supra note 37, p. 9.
45
Roy S. Schöndorf, Extra-State armed conflicts: Is there a need for a new legal regime?, New York
University Journal of International Law and Politics, Vol. 37, 2004. p. 28.
46
William K. Lietzau, Combating terrorism, supra note 43, p. 80.
47
Of course the rationale of these attempts are completely different. States use a bellicose rhetoric and
speak of ‘war on terror’, ‘unlawful combatants’ or ‘collateral damage’ not necessarily because they are
convinced that international humanitarian law is applicable to a certain conflict but rather out of
convenience, regarding the framework of the law of armed conflicts useful to handling conflicts against
non-State actors. Humanitarian organizations, such as the International Committee of the Red Cross on the
other hand try to broaden the scope of application of jus in bello to ensure more protection to the victims of
conflicts.

10
2, Internationalization

The second possible explanation for the qualification of transnational armed conflicts is
to categorize them as international armed conflict. As it is demonstrated below, these
explanations also vary depending on whether this is achieved as a result of military
intervention, the attribution of the acts of non-State actors to States or regarding them as
belonging to a party to the conflict. In a less sophisticated manner, it can even be
pronounced that every cross-border action necessarily constitutes an international armed
conflict.

Military intervention as a factor of internationalization

An influential current of legal scholarship argues that a foreign military intervention into
conflicts taking place in the territory of another State has an internationalizing effect on
the non-international armed conflict taking place in another country, transforms or
‘contaminates’ them, therefore all conflicts will have to be deemed as international armed
conflict.48 This theory is based on the Cold War experience of ‘wars by proxy’ where
civil wars were used as substitutes for actual conflict between the Great Powers, and
where thus both sides were supported and influenced – sometimes with direct military
involvement – by these external powers. Consequently, the theory is grounded on the
notion that foreign intervention inevitably implies control over rebel forces and thus
qualifying every conflict as international is the only way to reveal the real nature of the
entire situation.49 The existence of this doctrine seems to stem from a single policy
consideration that from the moment that the intervention reaches a certain level it
becomes artificial to maintain the distinction between the international and the internal
conflict.50
This opinion received official endorsement in the jurisprudence of the
International Criminal Tribunal for the Former Yugoslavia (ICTY). However, as it is
demonstrated below, the application of this legal doctrine in its case-law is not free from
contradictions.
48
Tom J. Farer, The humanitarian laws of war in civil strife: Towards a definition of ”international armed
conflict”, in Droit humanitaire et conflits armés, Université de Bruxelles, pp. 15-50.; Eric David, Principes,
supra note 7, pp. 148-152 and cited references. While it has been suggested that indirect participation by a
foreign foreign power in an internal conflict, expressed e.g. in the provision of supplies, arms or diplomatic
assistance, is enough to transform the entire conflict, as it is shown below, that argument was clearly
rejected.
49
José Doria, Angola: A case study in the challenges of achieving peace and the question of amnesty or
prosecution of war crimes in mixed armed conflicts, Yearbook of International Humanitarian Law, Vol. 5,
2002, p. 24
50
Eric David, Principes, supra note 7, p. 151. In this vein see the Report of the Commission of Experts
established to investigate allegations of war crimes in the former Yugoslavia which Stated that: “The
Commission is of the opinion… that the character and complexity of the armed conflicts concerned,
combined with the web of agreements on humanitarian issues the parties have concluded among
themselves, justify an approach whereby it applies the law applicable in international armed conflicts ot the
entirety of the armed conflicts in the territory of the former Yugoslavia.” Interim Report of the Commission
of Experts established pursuant to Security Council Resolution 780 (1992), UN Doc. S/25274 (25 January
1993) para. 45.

11
 The ICTY held in the Tadić Appeals Judgment that:

”[i]n case of an internal armed conflict breaking out on the territory of a State, it may
become international… if (i) another State intervenes in that conflict through its
troops…”51

Following this dictum, the Blaskić Trial Chamber categorized Croatia’s military
intervention into the hostilities between Bosnia-Herzegovina and the Croatian Defence
Council – a Bosnian Croatian insurgent group - as transforming the non-international
conflict into international armed conflict.52 This view was reiterated in the Kordić and
Čerkez53 and the Naletilić54 judgment and accordingly it is an established part of the
jurisprudence of the Tribunal.
Nevertheless, this theory seems difficult to reconcile with another finding of the
Tadić case where the Tribunal found that an armed conflict can “depending upon the
circumstances, be international in character alongside an internal armed conflict.”55 As it
is further elaborated below, the theory of parallel application legal regimes or ‘splitting’
of armed conflicts has long been accepted by the majority of scholars and gained
reinforcement in the Nicaragua judgment of the International Court of Justice.56
Accepting that international and non-international armed conflicts can co-exist in
complex scenarios, it will become increasingly difficult to determine when will a foreign
intervention ‘internationalize’ the entire conflict and when will the different hostilities
remain separate.
The proceedings intitiated by the Tribunal concerning alleged crimes committed
on the territory of Kosovo clearly illustrate this problem. While the ICTY is yet to render
judgment in cases dealing with crimes committed after the NATO intervention of 24
March 1999, the indictments suggest that the Prosecution does not consider that the
hostilities between the Serbian forces and the Albanian militants (KLA) became
international armed conflict, even though the NATO intervention was clearly of the
magnitude to internationalize the conflict.57
The legal scholarship is similarly divided in this issue. Although Cryer relying on
the ICTY jurisprudence submits that “direct military intervention which has the effect of
supporting a campaign is enough to internationalize the conflict”,58 in the specific case of
the Kosovo intervention opinions greatly vary. For instance, Fujita deems necessary to

51
The Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Appeal Judgment, 15 July 1999, para. 84.
52
Prosecutor v Blaskić, IT-95-14, Judgement, 3 March 2000, paras. 75, 76 and 94.
53
Prosecutor v Kordić and Čerkez., IT-95-14/2-T, Judgement, 26 February 2001, para. 108.
54
Prosecutor v. Naletilić et al, IT-98-34-T, Judgement, 31 March 2003, para. 194.
55
The Prosecutor v. Duško Tadić, supra note 51, para. 84.
56
Nicaragua case, supra note 28, para. 219.
57
See The Prosecutor v. Milutinović et. al. Case No. IT-05-87-PT Third Amended Joinder Indictment, 21
June 2006. The indictment includes under Count 4 “[M]urder, a violation of the laws or customs of war,
punishable under Article 3 of the Statute of the Tribunal and recognized by Article 3 (a) (1) (murder) of the
Geneva Conventions”. This implies that the Prosecution regards the whole period between 1 January 1999
and 20 June 1999 as a non-international armed conflict.
58
Robert Cryer, The fine art of friendship: Jus in bello in Afghanistan, Journal of Conflict and Security
Law, Vol. 7, 2002, p. 42.

12
establish a link between the KLA and NATO forces to find the conflict between the
Former Yugoslavia and the Albanian insurgents international.59
Similarly, Greenwood argues that: “The mere fact that a conflict between States
comes into being alongside a conflict within one of those States cannot, in and of itself,
be sufficient to make the law of international armed conflicts applicable to the latter. At
least until the end of May 1999, however, NATO kept its distance from the KLA/UCK
and even after that time it is far from clear that the relations between them were
sufficiently close for the conflict between the KLA/UCK and the FRY to be regarded as
part of the international armed conflict, rather than a separate internal conflict governed
by a different set of rules.”60 In stark contrast, Ronzitti considers that the KLA was so
close to NATO countries that the Kosovar militias, under the control of NATO, did not
represent an autonomous party to the conflict.61
As the actual application of the doctrine of military interventions seem to pose
considerable difficulties, it worth examining the actual State practice. The International
Committee of the Red Cross during the 1971 Geneva Conference of Government Experts
for the Reaffirmation and Development of International Humanitarian Law proposed a
text for further codification that was based on the assumption that acceptance of foreign
military aid by the established government constitutes an implicit recognition of
belligerency. It set forth that:

”When, in case of non-international armed conflict, one or the other party, or both,
benefits from the assistance of operational armed forces afforded by a third State, the
parties to the conflict shall apply the whole of the international humanitarian law
applicable in international armed conflicts.”62

This proposal was almost unanimously rejected by the participants. 63 Following

the failure of its proposal, the International Committee has significantly modified its
conception and the submitted a new proposition in 1972 at the Second session of
Conference of Experts. The new proposal would have allowed for the application of the
full body of international humanitarian law if the established government or both parties
to the civil war were assisted by foreign States, but not if the insurgents alone received
outside assistance.64 Nevertheless, it was still considered to favour too strongly the
insurgents and it became apparent that States wanted to avoid any reference to foreign
intervention.65

59
Hisakazu Fujita, The Kosovo conflict in light of U. N. law (jus contra bellum and jus in bello), in: Chi
Charmody, Yuji Iwasada, Sylvia Rhodes (eds.) Trilateral perspectives on international legal issues: Conflict
and coherence, The American Society of International Law, 2003. p. 258.
60
Christopher Greenwood, The applicability of international humanitarian law and the law of neutrality to
the Kosovo campaign, in: Andru E. Wall (ed.) Legal and ethical lessons of NATO’s campaign, Naval War
College, 2002. pp. 45-46.
61
Natalino Ronzitti, Commentary, ibid. p. 114.
62
International Committee of the Red Cross, Report on the Work of the Conference of Government
Experts, 1971, para. 284.
63
Dietrich Schindler, International humanitarian law and internationalized armed conflicts, International
Review of the Red Cross, 1982, p. 259.
64
International Committee of the Red Cross, Report on the Work of the Conference of Government
Experts, 1972., Vol. I, para. 2.332
65
Allan Rosas, The legal status of prisoners of war, Helsinki, 1976, p. 286

13
 In the face of this evidence of clear State practice clearly denying the hypothesis
that a foreign intervention can internationalize prior non-international conflicts, the ICTY
jurisprudence and scholarly opinion supporting this view seems to be untenable. In fact,
there is some evidence that the doctrine of internationalization have been rejected even
before World War II.66
Finally, even humanitarian considerations can militate against the acceptance of
this view. The mere fact of a foreign intervention would not give combatant privileges to
insurgents as they would still have to conform to the strict provisions stipulated in Art. 4
of GC III. If we accept that foreign intervention supporting the rebels internationalizes
the conflict, then captured rebels can be regarded as traitors for assisting the enemy even
if such cooperation has never taken place. Such a schenario could even result in the
execution of the insurgents which would obviously defeat the purpose of this concept.67
Nevertheless, there are more plausible explanations to regard the involvement of
non-State actors in hostilities as international armed conflict by having recourse to the
rules of State responsibility.

Agency – Attributing the activities of non-State actors to States

It is universally accepted that a State is only responsible for its own acts.68 The rules of
State responsibility establish the rules of attribution that ascribe acts of private actors to
States, such acts will be deemed to be committed by the States themselves. The pertinent
rules are codified in the International Law Commission’s Draft Articles on State
Responsibility and are deemed to generally reflect existing custom.69
States are held liable for the commission of an internationally wrongful act if the
conduct was exercised by a State organ,70 a person or an entity exercising elements of
governmental authority,71 or when the conduct of a person or a group is directed or
66
The Federal Social Court of the Federal Republic of Germany refused to acknowledge that Germany was
a belligerent party in the Spanish Civil War. It emphasized that: “At all events, German support was not
one of the major factors leading to the outbreak of the Civil war; On the contrary, as late as October 1936,
the German Reich still regarded the Nationalists as insurgents… When these facts are taken into account
Germany cannot be regarded as a party to the Spanish Civil War.” Spanish Civil War Pension Entitlement
Case, F. R. G., Federal Social Court, 14 Dec. 1978, ILR, 80, p. 672.
67
Yves Sandoz, International humanitarian law in the twenty-first century, Yearbook of International
Humanitarian Law, Vol. 6, 2003, p. 31. If a combatant is the national of the capturing State then he can be
deemed to have violated the duty of allegiance to his home country and thus denied to obtain prisoner of
war status and immunity from prosecution for taking part in hostilities even if he otherwise meets all the
requirements of belligerents. See Public Prosecutor v. Oie Hee Koi, 4 Dec. 1967, ILR, Vol. 42, p. 441.
68
According to the classic Statement of the Permanent Court of International Justice in the German Settlers
in Poland case: “States can only act by and through their agents and representatives”. German Settlers in
Poland, Advisory Opinion, PCIJ Series B, No. 6 (1923), p. 22.
69
James Crawford, The International Law Commission’s articles on State responsibility – Introduction, text
and commentaries, C.U.P., 2002.
70
“1. The conduct of any State organ shall be considered an act of that State under international law,
whether the organ exercises legislative, executive, judicial or any other fuctions, whatever position it holds
in the organization of the State, and whatever its character as an organ of the central government or of a
territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the internal law of the
State. “
71
“The conduct of a person or an entity which is not an organ of the State under article 4 but which is
empowered by the law of the State to exercise elements of the governmental authority shall be considered

14
controlled by the State.72 The latter scenario belongs to the so-called de facto State organs
which are acting outside the formal structure of the State but are forming part of its
effective structure.73 This rule of attribution has special significance in establishing the
existence of an international armed conflict in relation to hostilities involving non-State
actors, since if the activities of a group which exists outside the formal structure of the
State constitute the acts of the State, then logically when the armed group fights against
the forces of another State, it must be deemed to constitute an inter-State conflict.
The International Court of Justice specified the degree of necessary control over
the group in the Nicaragua case. Examining the relationship of the United States and the
contras it held that: “For this conduct to give rise to legal responsibility of the United
States, it would in principle have to be proved that the State had effective control of the
military or paramilitary operations in the course of which the alleged violations were
committed.”74 The notion of effective control requires complete dependence of the group
on the State.75 As a consequence, even though theUnited States was responsible for the
“planning, direction and control”76 given to Nicaraguan operatives, in the absence of
specific instructions the ICJ did not consider that the US had effective control over the
contras and thus the armed clashes between the contras and the Nicaraguan government
amounted to non-international armed conflict.77
The International Tribunal for the Former Yugoslavia purported to modify the
degree of control necessary for the determination of State responsibility for acts of
organized and hierarchically structured armed groups and correspondingly the application
of the law of international armed conflict. In the Tadić Appeals judgment it pronounced
that:

“The requirement of international law for the attribution to States of acts performed by
private individuals is that the State exercises control over the individuals. The degree of
control may, however, vary according to the factual circumstances of each case.”78

In determining whether the degree of control held by the FRY over the Bosnian
Serb armed forces it came to the conclusion that:

”[t]he control of the FRY authorities over these armed forces required by international
law for considering the armed conflict to be international was overall control going

an act of the State under international law, provided the person or entity is acting in that capacity in the
particular instance.”
72
“The conduct of a person or a group of persons shall be considered an act of State under international law
if the person or group of persons is in fact acting on the instructions of, or under the direction or control of
that State carrying out the conduct.”
73
Claus Kress, L’organe de facto en droit international public, réflexions sur l’imputation à l’Etat de l’acte
d’un particulier à la lumière des développements récents, Revue Générale de Droit International Public,
Vol. 105, 2001, p. 96.
74
Nicaragua case, supra note 28, pp. 64-65.
75
Nicaragua case, supra note 28, pp. 62-63, para. 110, reaffirmed in Case concerning the application of the
Convention on the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v. Serbia and
Montenegro), para. 393.
76
Nicaragua case, supra note 28, p. 51, para. 86.
77
Nicaragua case, ibid., para. 219.
78
Tadić Appeals, supra note 51, para. 117. Emphasis in the original.

15
beyond the mere financing and equipping of such forces and involving also participation
in the planning and supervision of military operations. By contrast, international rules do
not require that such control should extend to the issuance of specific orders or
instructions relating to single military actions…”79

This new concept of overall control came under heavy criticism.80 The express
refutation of the International Court’s approach in the Nicaragua case was seen by many
as an unnecessary step.81 Meron disagreed even with the reliance on the rules of
attribution found in the law of State responsibility and asserted that in the Nicaragua case
the qualification of armed conflict was not a consequence of the Stated lack of
imputability. He submitted that: “The ICJ’s conclusion that the rules of international
conflicts applied to the United States-Nicaragua relations was obvious and could have
been reached independently or even in the absence of any discussion of imputability. The
nexus between attribution and the character of the conflict found in Tadić was thus never
present in the ICJ’s discussion.”82
Nevertheless, even though State responsibility and individual responsibility are
admittedly different issues, before State responsibility or individual responsibility can be
established in a given case, the rules according to which the State or the individual should
have acted in that case have to be clarified. Only if the acts of the Nicaraguan contras had
been attributed to the US, these acts, as acts of the US against Nicaragua, were subject to
the international humanitarian law of international armed conflicts.83
The strict separation of the rules of State responsibility and individual criminal
responsibility fails to take into account the fact that the ICJ also opined that the conflict
between the Contras and the Nicaraguan forces was an internal armed conflict. It is clear
that this qualification was due to the fact that the Court did not find that the Contras acted
as agents of the US government and it is safe to assume that had it determined the
existence of effective control between them, it would have categorized the latter conflict
as international. Consequently, the qualification of the conflict was implicitly made
contingent on imputability.84

79
Ibid., para. 145. Emphasis in the original.
80
See inter alia Shabtai Rosenne, The perplexities of modern international law, Recueil des Cours, Vol.
291, 2001, pp. 129-130. Brownlie acting as the legal representative of Serbia in the Case concerning the
application of the Convention on the prevention and punishment of genocide persuasively argues that the
mere 4 cases on which the Appeals Chamber based the existence of this novel concept provide no real
justification as they do not in fact refer to this notion of State responsibility. CR 2006/16. paras. 100-110.
81
James Crawford, The International Law Commission’s articles, supra note , p. 112.
82
Theodor Meron, Classification of armed conflict in Former Yugoslavia: Nicaragua’s fallout, American
Journal of International Law, Vol. 92, 1998, p. 241. In similar vein see William Fenrick, The development
of the law of armed conflict through the jurisprudence of the International Tribunal for the Former
Yugoslavia, in: Michael N. Schmitt, Leslie C. Green (eds.) The law of armed conflict: Into the next
millennium, International Law Studies, Vol. 71, 1998. pp. 85-92.
83
Marco Sassòli, The legal qualification of the conflicts in the former Yugoslavia: double standards or new
horizons for international humanitarian law? In: International law in the post-cold war world, Routledge,
2001, p. 325.
84
Judge Shahabuddeen proposes a different reading of the Nicaragua judgment according to which the ICJ
employed a flexible test of effective control where the Contras were using force one time on their own
behalf against the government of Nicaragua, on other occasions on behalf of the United States. However,
this test would make the determination of the nature of an armed conflict even more difficult as it requires
the analysis of control over the armed groups in every single act of hostilities. Separate opinion of Judge

16
 While the concept of overall control lowers the degree of control necessary over
an armed group and thus leads to an easier determination of international armed conflict,
it seems to be based more on creative judicial law-making than actual State practice. The
International Court of Justice explicitly rejected this notion and affirmed the continued
relevance of the effective control doctrine.85

The requirement of “belonging to a party”

Beyond the effective control test, the Third Geneva Convention establishes another
approach to find that acts of armed groups fall into the category of international armed
conflict. According to Art. 4 (2) of the Third Geneva Convention members of armed
groups can obtain combatant status if they are “belonging to a party to the conflict.” 86
However, there is substantial disagreement over the interpretation of this provision in the
State practice and academic literature.
It is beyond doubt that “a certain relationship with a belligerent government is
necessary”87 but the exact nature of this relationship is uncertain. The official ICRC
Commentary submits that it is not based on a formal but a de facto relationship which
may find expression by a tacit agreement,88 therefore the requirement is simply that the
group must be fighting in support of, in concert with, or in a complementary fashion to
the government Forces.89
Nevertheless, it is indispensable that such armed groups must be accountable for
their actions.90 In any other way, if the mere support of a belligerent party from an armed
Shahabuddeen, Tadić Appeals, supra note 51, paras. 12-21.
85
The International Court of Justice explicitly rejected its applicability to the law of State responsibility
albeit emphasizing that it does not affect the question of the legal qualification of an armed conflict.
International Court of Justice, Case concerning the application of the Convention on the prevention and
punishment of genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 26 February 2007, paras.
404-406. In a recent article Cassese – defending the viability of the overall control theory – denies this
separation of general rules of State responsibility and those used to establish the nature of armed conflict
and points out that the ICJ did not cite sufficiently authorities to justify the high threshold set out by the
effective control theory. Antonio Cassese, The Nicaragua and Tadic tests revisited in the light of the ICJ
judgment on genocide in Bosnia, European Journal of International Law, Vol. 18, 2007, pp. 649-668. Still,
while the effective control theory seems to be generally accepted by legal scholars, the overall control
doctrine is rather controversial and as previously demonstrated similarly unfounded.
86
Art. 4 (A) (2) Members of other militias and members of other volunteer corps, including those of
organized resistance movements, belonging to a party to the conflict and operating in or outside their own
territory, even if this territory is occupied, provided that such militias or volunteer corps, including such
organized resistance movements, fulfil the following conditions:
that of being commanded by a person responsible for his subordinates;
that of having a fixed distinctive sign recognizable at a distance;
that of carrying arms;
that of conducting their operations in accordance with the laws and customs of war.
87
Denise Bindschedler-Robert, A reconsideration of the law of armed conflicts, The law of armed conflicts:
Report of the Conference on contemporary problems of the law of armed conflict, Carnegie Endowment,
1969, p. 40.
88
Jean Pictet (ed.), Commentary: III Geneva Convention Relative to the Treatment of Prisoners of War,
International Committee of the Red Cross, Geneva, 1960, p. 53.
89
Michael N. Schmitt, Humanitarian law and direct participation in hostilities by private contractors or
civilian employees, Chicago Journal of International Law, Vol. 5, 2005, p. 528.
90
“[l]awful combatants must act within a hierarchic framework, embedded in discipline, and subject to
supervision by upper echelons of what is being done by subordinate units in the field”. Yoram Dinstein,

17
group could be enough for that group to be regarded as belonging to that party, it could
eventually incur responsibility for States that in reality cannot control the acts of these
groups. This is the only possible interpretation to ensure the effectiveness of the
application of international humanitarian law. Based on this premise, the Israeli Supreme
Court held in the Kassem case that a subordinate relationship is necessary between the
State and the irregular armed group.91 Still, the owning of the nationality of that State
party, or the conducting of a fight against a common enemy, instead, is not a sufficient
element.”92
In practice it seems unlikely that States will ever assume responsibility for actions
of armed groups that are not officially affiliated to them. It has been suggested that the
Vietcong could be regarded as a resistance movement belonging to North Vietnam93 but
that was never officially recognized. Similar assumptions concerning the KLA belonging
to the States parties of the NATO94 or the Northern Alliance belonging to the coalition
forces95 were never affirmed by any of the countries in question.

Cross-border actions are necessarily international

The most extreme position in terms of internationalization of cross-border armed

conflicts was recently stipulated by the Israeli Supreme Court in a decision dealing with
the question of legality of targeted killings.96 Discussing the question of targeted killings
in the occupied territories the Court quoted approvingly Cassese stating that:

"An armed conflict which takes place between an Occupying Power and rebel or
insurgent groups – whether or not they are terrorist in character – in an occupied territory,
amounts to an international armed conflict."97

Relying on that passage the Israeli Supreme Court concluded that: “This law
applies in any case of an armed conflict of international character – in other words, one
The conduct of hostilities, supra note 22, p. 39.
91
”It is natural that, in international armed conflicts, the Government which previously possessed an
occupied area should encourage and take under its wing the irregular forces which continue fighting within
the borders of the country, give them protection and material assistance, and therefore a ’command
relationship’ should exist between such Government and the fighting forces, with the result that a
continuing responsibility exists of the Government and the commanders of its army for those who fight in
its name and on its behalf. It is the implementation of the rules of war that confers both rights and duties,
and consequently an opposite party must exist to bear responsibility for the acts of its forces, regular and
irregular. ... the Convention... excludes those forces – even regular armed units – which do not yield to the
authority of the State and its organs of government. The Convention does not apply to these at all.” Military
Prosecutor v. Omar Mahmud Kassem and others, in Elihu Lauterpacht (ed.) International Law Reports,
Cambridge, Grotius Publications Limited, Vol. 42, 1971, pp. 476-477.
92
Roberta Arnold, Training with the opposition: The status of the ”Free Iraqi Forces” in the US’ war
against Saddam Hussein, Zeitschrift für Öffentliches Recht und Völkerrecht, Vol. 63, 2003. pp. 638-639.
93
Henri Meyrowitz, The law of war in the Vietnamese conflict, in Richard A. Falk (ed.) The Vietnam war
and international law, Vol. 2, Princeton, 1969, p. 538.
94
Robert Cryer, The fine art of friendship, supra note 58, p. 45.
95
Natalino Ronzitti, Commentary, supra note 60, p. 114.
96
HCJ 769/02 The Public Committee Against Torture in Israel v. The Government of Israel (2006), English
translation at http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.pdf, hereinafter Targeted
killings judgment.
97
Antonio Cassese, International law, O.U.P., 2nd edition, 2005, p. 240.

18
that crosses the borders of the State – whether or not the place in which the armed
conflict occurs is subject to belligerent occupation.”98
The Court reaches this Statement in a somewhat cursory manner, without citing
any other authorities regarding the qualification of cross-border armed conflicts,
apparently convinced by Prof. Cassese’s explanation. However, the quoted section of
Cassese’s international law textbook is limited to the suggestion that armed conflict
during occupation is international conflict. The Court’s interpretation of this section to
State that any case of cross-border conflict is international as well, even without
occupation, went beyond the apparent intentions of the author.99
While this sweeping Statement endeavours to apply the law of international
armed conflict to all cases of transboundary hostilities, it is difficult to reconcile with the
established view that international armed conflicts take place between States. This
position looks especially untenable in cases of transnational conflicts between armed
groups without the involvement of States. Regarding such situations as international
armed conflict seems to be in clear contravention to the language of the Geneva
Conventions.

3. Internalization – transnational conflict as non-international

A different possible answer to the dilemma posed by transnational conflicts is to treat

every hostility that does not involve States on both sides as non-international armed
conflict, thus ‘internalizing’ the conflict. This position was most clearly spellt out by the
Supreme Court of the United States in the Hamdan case. The Court – rejecting the
argument of the US government that Common Article 3 solely applies to conflicts within
the territory of a country - held that non-international armed conflict is distinguishable
from international armed conflict in the sense that it “does not involve a clash between
nations” and that the latter phrase “bears its literal meaning.”100
This concept enjoys a certain popularity in international judicial practice. For
instance, Articles 1 and 7 of the Statute of the International Criminal Tribunal for
Rwanda extend the jurisdiction of that tribunal called to enforce, inter alia, the law of
non-international armed conflicts, to the neighbouring countries. This confirms that even
a conflict spreading across borders remains a non-international armed conflict.101
Similarly, in spite of the presence of foreign elements in the Sierra Leone conflict,
the Statute of the Sierra Leone Special Court focuses on violations of Common Article 3
and Additional Protocol II under Article 3 of the Statute of the Court, which implies that
the rules of non-international armed conflict apply to even transnational scenarios.102
98
Targeted killings judgment, supra note 96, para. 18.
99
Roy S. Schondorf, The targeted killings judgment – A preliminary assessment, Journal of International
Criminal Justice, May, 2007. p. 302.
100
Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) at http://www.supremecourtus.gov/opinions/05pdf/05-
184.pdf, p. 67. In similar vein, see the UN Commission of Enquiry on Darfur: ”It follows from the above
definition of an international armed conflict that a non-international conflict is a conflict without the
involvement of two States”. Report of the International Commission of Inquiry on Darfur to the United
Nations Secretary-General, Geneva 25 January 2005, para. 74., www.ohchr.org/english/darfur.htm
101
Marco Sassòli, supra note 37, p. 9.
102
There is no explicit reference to violations committed in international armed conflict, though “Other
serious violations of international humanitarian law” under Art. 4 of the Statute could in theory apply to
that situation. See Statute of the Special Court for Sierra Leone, 16 January 2002.

19
Accordingly, the Charles Taylor indictment only contains references to violations of the
law of non-international armed conflicts even though it submits that Charles Taylor had a
decisive role in the conflict in Sierra Leone providing the Revolutionary United Front
with assistance, encouragement and direction.103
In sum, it seems that “internal conflicts are distinguished from international armed
conflicts by the parties involved rather than by the territorial scope of the conflict,” 104
therefore military action carried out across the border can be characterized as non-
international armed conflict if it does not take place between States.

4. Parallel application of legal regimes

The most widely accepted doctrine applicable to transnational conflicts in legal

literature is the parallel application of international and non-international armed
conflicts.105 It submits that the application of the law of armed conflict is contingent on
the attitude of the States involved, not on the nature or geographical scope or activity of
an armed group. Under consistent State practice, a conflict has to be divided into its
components and international and non-international armed conflicts can exist parallel,
depending on the parties involved resulting in ‘mixed’ conflicts.106
According to this concept, a State intervening to a civil war is fighting an
international armed conflict if it clashes with the armed forces of the respective
government but an internationalized non-international armed conflict – subject to the
rules of internal armed conflict - if supporting the government engages in hostilities with
the rebel troops. However, a formal recognition from the international community of the
rebels as the legitimate government of the State will render the internationalized non-
international armed conflict to international armed conflict and vice versa.107
103
The Prosecutor v. Charles Gankay Taylor, Case No. SCSL-2003-01-I
104
Liesbeth Zegveld, Accountability of Armed Opposition Groups in International Law, C.U.P., 2002, p.
136.
105
Dietrich Schindler, The different types of armed conflicts according to th Geneva Conventions and
Additional Protocols, Recueil des Cours, Vol. 163, 1979, pp. 150-151.; Dietrich Schindler, supra note , pp.
258-264; Allan Rosas, supra note , p. 283.; René-Jean Wilhelm, Problèmes relatif à la protection de la
personne humaine par le droit international dans les conflits armés ne présentant pas un caractère
international, Recueil des Cours, Vol. 137, 1972, pp. 356-359; Denise Bindschedler-Robert, The law of
armed conflict, Carnegie Endowment for International Peace, New York, 1971, pp. 52-53; Hans-Peter
Gasser, Internationalized non-international armed conflicts, supra note 4, p. 147; Michael Bothe,
Völkerrechtliche Aspekte des Angola-Konflikts, Zeitschrift für Öffentliches Recht, Vol. 37, 1977, pp. 590-
598; Jean Salmon, Comments, in: Droit..., supra note , p. 55; Martin Hess, Die Anwendbarkeit des
humanitäres Völkerrechts, insbesonderen in gemischten Konflikten, Zürich, 1983; Remigiusz Bierzanek,
Quelques remarques sur l’applicabilité du droit international humanitaires des conflits armés aux conflits
internes internationalisés, in: Studies and essays on international humanitarian law and Red Cross
principles in honour of Jean Pictet, ICRC, Martinus Nijhoff, p. 285; José Doria, Angola, supra note 49, pp.
19-20.; Yoram Dinstein, The conduct of hostilities, supra note 22, p. 14.
106
Marco Sassòli, Transnational armed groups, supra note 37, p. 5. See e.g. the civil war in Yemen between
1962 and 1970 where royalists considered the conflict international in relation to Egyptian forces and
internal vis-à-vis the rebels. Katherine Boals, The relation of international law to the internal war in
Yemen, in: Richard A. Falk (ed.) The international law of civil war, Baltimore, 1971. p. 306.
107
See e.g. the Vietnamese intervention to Cambodia where the recognition of the new People’s Republic
of Cambodia arguably meant that the Vietnamese forces present were no longer subject to the rules
governing the international conflicts. Hans-Peter Gasser, Internationalized non-international armed

20
 The possible coexistence of separate armed conflicts was affirmed by the
International Court of Justice in the Nicaragua case, where the Court found that the
conflict between the contras and Nicaragua fell under Common Article 3 of the Geneva
Conventions, constituting a non-international armed conflict, while the actions of the
United States against Nicaragua qualified as international armed conflicts.108
Correspondingly, the ICTY pronounced that: ” …in case of an internal armed conflict
breaking out on the territory of a State, it may become international (or, depending upon
the circumstances, be international in character alongside an internal armed conflict.)”109
Apart from its acceptance in international jurisprudence, the theory holds sway
over the United Nations110 and the International Committee of the Red Cross111 as well.
Regardless of the apparent popularity of the concept, supporters of a ‘global
approach’ toward armed conflicts regarding the applicability of one set of legal regulation
to an armed conflict the only logical and desirable approach vehemently criticize it.112
Meron calls the result “a crazy quilt of norms that would be applicable in the same
conflict, depending on whether it is characterized as international or non-international.”113
Arguing from a different perspective, Kolb warns that we return to the medieval
legal conception where the application of the law did not depend on objective factors but
on the person, or more precisely on the relationship between two persons.114 However, the
application of the law still depends on status as the regulative system of the Geneva
Conventions is based on the concept of protected persons and only a distinct cast of
people – the combatants – can participate lawfully in hostilities.
The argument questioning the practicality of splitting the conflicts seems
persuasive. It is certain that the global approach would lead to less difficulties in terms of
practical application. The parallel application of the norms of international and non-
international armed conflicts leads to different obligations depending on the status of
parties to the hostilities.
Often the qualification of such complex situations is only possible in hindsight
and the determination of the conflict can change following the materialization of new
evidence. This retroactive qualification poses difficulties on the battlefield since law can
only protect the victims of war if it can be applied immediately and not after meticulous
research. From the point of view of criminal prosecution it is acceptable but not from the

conflicts, supra note 4, p. 155.

108
Nicaragua case, Merits, supra note 28, para 219.
109
Tadić Appeals, supra note 51, para. 84. For an analysis supporting this conclusion see Christopher
Greenwood, International law and the Tadić case, European Journal of International Law, Vol. 7, 1996, pp.
269-275.
110
Roberto Garretón, Special Rapporteur of the Commission on Human Rights regarded the armed conflict
in the Democratic Republic of the Congo as a complex net of “various armed conflicts, some international,
others internal and yet other internal conflicts that have been internationalized”. Robert Garretón, Report on
the situation of human rights in the Democratic Republic of the Congo submitted in accordance with
Commission on Human Rights resolution 1999/56, UN Doc. E/CN.4/2000/42, para. 20.
111
See e.g. Afghanistan: ICRC calls on all parties to conflict to respect international humanitarian law,
Communication to the Press 01/47, ICRC,Geneva, 24 October 2001. at www.icrc.org
112
For references on the ‘global approach’ see James G. Stewart, Towards a single definition of armed
conflict in international humanitarian law: A critique of internationalized armed conflict, International
Review of the Red Cross, Vol. 85, 2003, p. 337. and references cited.
113
Theodor Meron, Classification of armed conflict, supra note 52, p. 238.
114
Robert Kolb, Ius in bello – Le droit international des conflits armés, Bruylant, 2003, p. 89.

21
direction of actual application. Sceptics argue that this conundrum involves a choice
between a theory that cannot work and a practice that is not justified.115
Nevertheless, this choice is nothing but illusiory. The theory of parallel
application of legal regimes seem to be strongly entrenched in practice and legal
scholarship. Moreover, it might possibly be the only logical interpretation of the system
of international humanitarian law that is based on the distinction between international
and non-international armed conflicts. Although the characterization of a mixed conflict
will inevitably present difficulties, as I demonstrate below, even the absence of
immediate qualification does not necessarily causes gaps in legal protection.

5. Global war on terror – New rules for a new conflict?

Before the terrorist attacks of 11 September 2001, States usually denied the applicability
of international humanitarian law to the fight against terrorism.116 Terrorism was
generally dealt with in the framework of domestic criminal regulation. However, the
phenomenon of engaging in transboundary hostilities with military force against non-
State actors is not unprecedented. The 1837 British action against the Caroline
streamer,117 the Fenian invasion force entering Canada from US territory on 1 June 1866
fighting for an independent Ireland118 or the 1916 US military expedition to Mexico119 are
all examples of such situations.120
Still, the unprecedented magnitude of the 11 September terrorist acts has
seemingly fundamentally changed the legal regulation in this field. President George W.
Bush made an oral ‘declaration of war’ on Al Qaeda121 and according to the official
American doctrine even though the worldwide hostilities with terrrorist were regulated by

115
James G. Stewart, Towards a single definition, supra note 112, p. 335.
116
In ratifying 1977 Geneva Protocol I in 1998, the United Kingdom made a Statement that the term
“armed conflict” denotes “a situation which is not constituted by the commission of ordinary crimes
including acts of terrorism whether concerted or in isolation.” See www.icrc.org Still, the UK Government
eventually accepted to apply certain international legal standards, even some from the main body of the
four 1949 Geneva Conventions. Adam Roberts, The laws of war in the war on terror, Israel Yearbook on
Human Rights, Vol. 32, 2003, p. 204.
117
James A. Green, Docking the Caroline: Understanding the relevance of the formula in contemporary
international law concerning self-defense, Cardozo Journal of International and Contemporary Law, Vol.
14, 2006, pp. 433-434.
118
Michael H. Hoffmann, Quelling unlawful belligerency: The juridical status and treatment of terrorists
under the laws of war, Israel Yearbook on Human Rights, Vol. 31, 2001, pp. 172-174.
119
John Bassett Moore, A digest of international law as embodied in diplomatic discussions, treaties and
other international agreements, international awards, Government printing office, 1906, pp. 418-424.
120
While the non-State actors concerned cannot necessarily be deemed as terrorist organizations by modern
standards, as it is further elaborated below the fight against terrorist organizations does not constitute a
different category of conflict, the differentia specifica is the same as in other instances of transnational
conflicts - the presence of transnational non-State actors. This is the only solution that conforms to the
spirit of IHL depending on the existence of an armed conflict. Otherwise conflicting definitions of the
notion of terrorism could pose insurmountable hurdles to the application of the law of armed conflict. For
potential definitions of terrorism see inter alia Philippe Klein, Le droit international à l’épreuve du
terrorisme, Recueil des Cours, Vol. 321, 2006, pp. 227-267.; Roberta Arnold, The ICC as a new instrument
for repressing terrorism, Transnational Publishers, 2004, pp. 3-7 and the cited footnotes.
121
Avril McDonald, Declarations of war and belligerent parties: International law governing hostilities
between States and transnational terrorist networks, Netherlands International Law Review, Vol. 54, 2007,
pp. 279-314.

22
jus in bello, the persons participating in terrorist organizations could not enjoy the
protection of the Geneva Conventions.122
According to the Department of Defense:

“The current conflict is not an international war between Nation States, but rather a
conflict between a Nation State and a non-governmental organization. At the same time,
the current conflict is not a civil war under Article 3, because it is a conflict of “an
international character” rather than an internal armed conflict between parties contending
for control over a government or a territory.”123

This global war on terror represents a completely new approach to tackling the
problem of terrorism. While the existence of a ‘State of war’ would have significance
under US domestic law which could in part explain such categorization by the US
leadership,124 as a question of legal semantics the language it is not necessarily
adequate.125
It is beyond doubt that acts of terrorism, if committed in the context of an armed
conflict, are violations of international humanitarian law.126 On the other hand, isolated
terrorist activities do not reach the threshold of an armed conflict. 127 The contradiction is
only apparent. The threshold of applicability of IHL is in no way linked to the question
whether certain actions are deemed as acts of terrorism. Terrorism as a crime or social
phenomenon might be subject to differing definitions but as far as IHL is concerned this
debate is moot.128
Consequently, if the activity of terrorist groups meets the requirements of
applicability of humanitarian law, there is no reason not to apply these rules to the

122
Memorandum, President of the United States, to Vice President, et al., subject: Humane Treatment of al
Qaeda and Taliban Detainees, 7 February 2002.
123
Memorandum for William J. Haynes II., General Counsel, Department of Defense from John Yoo,
Deputy Assistant Attorney General and Robert J. Delabunty, Special Counsel, Re: Application of Treaties
and Laws to al Qaeda and Taliban detainees, 9 January 2002.
124
Jinks points out that the categorization of fight against terrorism as ‘war’ could have significant domestic
legal consequences such as the possibility in the United States for the President to assert extraordinary war
powers. However, this fact cannot in any way influence the applicability of the regulatory framework of
international humanitarian law. Derek Jinks, The applicability of the Geneva Conventions to the “Global
war on terror”, Vanderbilt Journal of International Law, Vol. 46, 2005-2006, p. 170.
125
Frédéric Mégret, ‘War’? Legal Semantics and the Move to Violence, European Journal of International
Law, Vol. 13, 2002, pp. 361-400.
126
The Special Court for Sierra Leone indicts Charles Taylor under Count 1 for “Acts of terrorism, a
violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II” See The
Prosecutor v. Charles Gankay Taylor, Case No. SCSL-2003-01-I, paras. 5-8. See also Prosecutor v. Galić,
Case No. IT-98-29-T, 5 December 2003.
127
Tadić, IT-94-1-T, Judgment, 7 May 1997, para. 572.
128
Noëlle Quénivet, The applicability of international humanitarian law, supra note 38, p. 26.

23
conflict.129 That is beside the question whether the law of armed conflicts is the most
effective tool – or at least a good tool – in counter-terrorist operations.130
In this respect, the rhetoric on the global war on terror is misconceived as it places
all terrorist acts in the context of a single armed conflict. However, it is debatable
whether the whole conflict with Al-Qaeda can constitute an armed conflict.
Furthermore, the ‘global war on terror’ has a consequence that presents a new
challenge to international humanitarian law. States have an increasing tendency to label
as ‘terrorist’ all acts of warfare committed by opposition groups in the course of a non-
international armed conflict.131 While this designation is usually employed to deprive
these groups any legitimacy they might enjoy by the international public opinion, this
tactic can also lead to the denial of protection granted by jus in bello.
Even when the States affected by terrorist activities accept the applicability of the
rules of armed conflict, the practical application is jeopardised by the fact that terrorist
forces rarely observe the laws of war, that can weaken the counterterrorist forces’
resolve, given the low expectation of reciprocity and the tendency on some part of the
public to overlook any breaches by their own forces.132 Still, there can be strong
prudential considerations that militate in favour of observing legal standards such as
securing public and international support, maintaining discipline and high professional
standards and assisting reconciliation and future peace.133
As reaffirmed by the US Supreme Court in the Hamdan case, the rules of non-
international armed conflict are applicable to such conflicts if the hostilities reach the
required threshold of intensity.134 These rules are well suited to this kind of conflict as
they are not based on a concept of combatant status and the legal consequences arising
thereof. Consequently captured terrorists do not enjoy immunity from criminal
prosecution for acts lawful under humanitarian law and do not have to be released at the
end of the armed conflict.135

129
The ICRC holds the same position: “When armed violence is used outside the context of an armed
conflict in the legal sense or when a person suspected of terrorist activities is not detained in connection
with any armed conflict, humanitarian law does not apply. Instead, domestic laws, as well as international
criminal law and human rights govern.” The relevance of IHL in the context of terrorism. ICRC Official
Statement, 1 July 2005. See similarly Christopher Greenwood, War, terrorism and international law,
Current Legal Problems, Vol. 56, 2003, p. 525.
130
Jinks persuasively argues that: “As a conceptual matter, the propriety of any given conflict has no
bearing on whether the conflict exists. Moreover, it is perverse to argue that a poorly justified war is free of
legal constraints that would (presumably) govern wars fought for more sound reasons”. Derek Jinks, The
applicability, supra note 124, p. 171.
131
Jelena Pejic, Terrorist acts and groups: A role for international law? British Year Book of International
Law, Vol. 75, 2004. p. 75.
132
Adam Roberts, The laws of war in the war on terror, supra note 116, p. 202.
133
Adam Roberts, Ibid., p. 206.
134
The qualification could however in real situations become extremely complicated. On 6 November 2002,
an unmanned American Predator drone operating out of a US base in Djibouti killed an alleged terrorist and
five other passengers of a car in Yemen. Even though that action was part of the ‘global war on terror’, it is
not at all certain whether there was connection between the terrorists and the Al Qaeda and if that
connection existed whether it was sufficient to transform the activities in Yemen to a non-international
armed conflict. See Brian Whitaker, Oliver Burkeman, Killing probes the frontiers of robotics and legality,
The Guardian, 6 November 2002.; Noëlle Quénivet, The applicability of international humanitarian law,
supra note 38, p. 49.
135
Jelena Pejic, Terrorist acts and groups, supra note 131, p. 85.

24
 Nevertheless, it has been submitted that an additional category of armed conflict
should regulate hostilities with terrorist groups. Schöndorf proposes as lex ferenda the
acceptance of a new category of armed conflict – extra-State armed conflicts - where a
mixture of the rules of international and non-international armed conflicts would apply to
internationalized situations.136 While the acceptance of a new regulation could in theory
assist in the qualification of transnational armed conflicts, in reality it would probably
even compound the existing problems.
A third category of armed conflicts would add to the existing objective difficulties
in classifying situations under humanitarian law and involve the risk that States
confronted with the other two categories invoke the existence of the new third category,
especially if, as one may fear, the latter provides limited protection to the enemy.137

6. Unified rules

The last proposed solution to the problem of transnational armed conflicts is the
abandoning of the classical dichotomy of international and non-international armed
conflict and the use of a single, uniform law for all armed conflicts.138
It is undeniable that the last two decades brought about a gradual blurring of this
distinction whereby many of the rules previously pertaining solely to international armed
conflicts became applicable also in internal hostilities.139 Following the innovative
jurisprudence of the ICTY, “States are chipping away at the two-legged edifice of the
laws of armed conflict.”140
This process is clearly reflected in the Statute of International Criminal Court,
where the majority of breaches of humanitarian law are penalized regardless of the fact
whether the criminal act was committed in an international or a non-international

136
Roy S. Schöndorf, Extra-State armed conflicts: Is there a need for a new legal regime?, New York
University Journal of International Law and Politics, Vol. 37, 2004, pp. 1-78.
137
Marco Sassòli, Transnational armed groups, supra note 37, p. 25.
138
James G. Stewart, supra note 112, pp. 313-350; Emily Crawford, Unequal before the law: The case for
the elimination of the distinction between international and non-international armed conflicts, Leiden
Journal of International Law, Vol. 20, 2007, pp. 441-465.
139
According to Judge Cassese: “[s]ince the 1930s, there has been a gradual blurring of the distinction
between the customary international law rules governing international conflicts and those governing
internal conflicts. Put another way, there has been a convergence of two bodies of international law with
the result that internal strife is now governed to a large extent by the rules and principles which had
traditionally only applied to international conflicts. …regarding the formation of customary international
law rules to protect those who are not taking part in hostilities, … this convergence has come about due
largely to the following factors: (1) the increase in the number of civil conflicts; (2) the increase in the level
of cruelty of internal conflicts; (3) the increasing interdependence of States; (4) the influence of universal
human rights standards. The Appeals Chamber then turned to the extension of the rules regarding methods
and means of warfare to internal armed conflicts and concluded that a similar blurring had occurred. In
short, certain norms apply as customary international law to internal and international conflicts alike.”
United Nations Memorandum from President Cassese to Members of the Preparatory Committee on the
establishment of an International Criminal Court on the definition of war crimes and general principles of
criminal law as reflected in the International Tribunal’s jurisprudence, 22 March 1996, para. 11.
140
Sonja Boelaert-Suominen, Grave breaches, universal jurisdiction and internal armed conflicts: Is
customary law moving towards a uniform enforcement mechanism for all armed conflicts?, Journal of
Conflict and Security Law, Vol. 5, No. 63, 2000, p. 102.

25
setting.141 The UN Secretary-General Bulletin reaffirms this tendency as it does not link
the applicability of the principles to the qualification of armed conflict.142 This silent
evolution is supposed to have reached a point, where – at least according to the ICRC’s
recent study on customary international humanitarian law143 - most of the rules of
international armed conflict are applicable to internal conflicts as well.144 The adherents
of the uniform approach want to take this process to the logical conclusion by the
abolishing of any distinction between these two bodies of law. Unfortunately, State
practice is not supporting this contention.
States have been traditionally always extremely hesitant to grant rights to
insurgents, deeming that as a limitation of their sovereignty. When in 1978 the
Norwegian delegation put forward the idea of the creation of a single protocol for all
armed conflicts at the Conference of Government Experts, that proposal was soundly
defeated145 and the establishment of a unified regulation was never attempted again.
It is indeed “difficult to justify, on grounds of logic, a different regime of criminal
responsibility for an act depending solely on whether it was committed in an international
or a non-international armed conflict. But that is what States did…” 146 Logic, while an
important factor in the interpretation of existing rules is not a source of international law.
Although it would be beneficial to construct a logical system of legal regulation,
international law often reflects uneasy compromises between conflicting State interests
that can lead illogical results. Consequently, while this distinction might be illogical, it
still embodies lex lata.147
In addition, there are valid arguments that actually caution against the creation of
a new single regime. An uniform regime could even result in the decreasing application
of humanitarian law, defeating the rationale of its creation. Absent an independent
authority to decide such matters, the determination of the existence of an armed conflict
will be left to the State concerned. Without careful management it could lead to the
situation where the unified body of law would be applied only to high intensity conflicts,

141
For a detailed comparison of war crimes see Knut Dörmann, Elements of war crimes under the Rome
Statute of the International Criminal Court, ICRC, Cambridge, 2003, pp. 439-487.; Heike Spieker, The
International Criminal Court and non-international armed conflicts, Leiden Journal of International
Law,Vol. 13, 2000, pp. 395-425.
142
Paolo Benvenuti, Le respect du droit international humanitaire par les forces des Nations Unies: La
circulaire du Secrétaire général, Revue Générale de Droit International Public, Vol. 105, 2001, pp. 362-363.
143
Jean-Marie Henckaerts and Louise Doswald-Beck (eds.), Customary international humanitarian law,
Vol. I.: Rules, Vol. II.: Practice, CUP, 2005.
144
For a critical view however, see Yoram Dinstein, The ICRC Customary International Humanitarian Law
Study, Israel Yearbook on Human Rights, Vol. , 2006, pp. 1-15.; Tamás Hoffmann, Dr. Opinio juris and
Mr. State practice: The strange case of international customary humanitarian law, Annales Universitatis
Scientiarium Budapestinensis de Rolando Eötvös Nominatae Sectio Iuridica. pp. 373-394. Supporting its
conclusions see Dieter Fleck, International accountability for the violations of ius in bello: The impact of
the ICRC study on customary international humanitarian law, Journal of Conflict & Security Law, Vol. 11,
2006, pp. 179-199.
145
Ibid., 1971, para. 133; 1972, Vol. I, para. 0.14 ff. and 2.71. Official Records of the Diplomatic
Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in
Armed Conflicts, Geneva 1974-1977, p. 203, 207.
146
Colin Warbrick and Peter Rowe, The International Criminal Tribunal for the Former Yugoslavia: The
decision of the Appeals Chamber on the Interlocutory Appeal on jurisdiction in the Tadic case,
International and Comparative Law Quarterly, Vol. 45, 1996, p. 698.
147
Robert Cryer, The fine art of friendship, supra note 58, p. 41.

26
with the attendant danger that once again, internal conflicts would be effectively
excluded from the practical operation of humanitarian law.148
Finally, the amalgamation of the law of international and non-international armed
conflict can never be perfect as “in a civil war there is a always the built-in distinction
between combatants who fight for the central (constitutionally legal) Government and
those who rise against it. The latter are viewed as traitors…”149 Moreover, some rules
pertaining to international conflict would be ill-fit to a non-international armed conflict. It
is obvious that the rules of occupation cannot be completely applied to civil wars as the
regulation of occupation is based on the notion of temporary administration of a territory
without the infringements of sovereign rights. It is difficult to imagine how that could be
applied in its entirety to an internal conflict, for instance the injunctions against changing
existing laws or the dismissal of members of the public administration.
Besides, it is not absolutely clear what the benefits of this approach would be.
Apart from the tremendous problems incurred by the drafting and general acceptance of a
new Additional Protocol, the situation on the ground would only change for the better if
these regulations were actually complied with. But then, it would be much easier and
pragmatic to attempt to persuade governments to apply the rules of non-international
armed conflicts.
Still, some countries have effectively abolished the distinction on the ground. For
instance, the armed forces of the United States150 and Germany151 apply the rules of
international humanitarian law irrespective of the type of conflict. Similarly, the
Canadian Armed Forces apply in such manner the “spirit and principles” of humanitarian
law.152 Yet, while this regulation reflects policy considerations to ensure the respect of
IHL to the fullest possible extent, these countries still maintain the traditional dichotomy
with regard to the determination of combatant status.

Application of international humanitarian law in transnational armed conflicts

Following the perusal of the existing theories about transnational conflicts, I submit that
the existing rules of international humanitarian law are adequate to address the
complexities of such situations.

148
Lindsay Moir, Towards the unification of international humanitarian law? In Richard Burchill, Nigel D.
White, Justin Morris (eds.) International conflict and security law, C.U.P., 2005, pp. 126-127.
149
Yoram Dinstein, The system of status groups in international humanitarian law, in: International
humanitarian law facing new challenges, Springer-Verlag, 2007, pp. 149-150.
150
DoD Law of War Program, Department of Defense, Directive Number 2311.01E para. 4.1, 9 May 2006.
“Members of the DoD Components comply with the law of war during all armed conflicts, however such
conflicts are characterized, and in all other military operations”.
151
Dieter Fleck (ed.) The handbook of humanitarian law, supra note , pp. 48-49., para. 211.
152
See Canadian Forces Doctrine Manual: The Law of Armed Conflict at the Operational and Tactical
Level B-GJ-005-104/FP-021 17-1, para. 1702 (13 August 2001) available at
http://www.forces.gc.ca/jag/training/publications/law_of_armed_conflict/loac_2004_e.pdf “[T]oday a
significant number of armed conflicts in which the CF may be involved are non-international in nature. As
Stated, the law applicable to such conflicts is limited. It is CF policy, however, that the CF will, as a
minimum, apply the spirit and principles of the LOAC during all operations other than domestic
operations”;

27
 The underlying assumption is that even cross-border conflicts can be qualified as
non-international armed conflict as in international law it is not the border that
determines the nature of a dispute, but rather the identity of the parties. 153 Consequently,
if the conflict is not taking place between two States – either between actual State armed
forces, or between armed groups that are under the effective control of a State or belong
to a party to the conflict – it is necessarily a non-international armed conflict if it reaches
the required level of intensity.
International and non-international armed conflicts can take place in parallel at
the same time. If a country intervenes into a civil war raging in another country, its armed
forces may well be fighting a non-international conflict with armed groups not belonging
to the State and an international armed conflict with the State forces.
In this conceptual framework State consent to intervention is not a significant
factor for the qualification of a conflict. Even if State A denies consent to armed activities
on its territory by State B against non-State actors, it will not necessarily transform the
conflict into a single international armed conflict between States. Unless State A actively
engages in the conflict by clashing with the troops of State B, the conflict will remain a
non-international armed conflict between State B and the non-State actors.154
The sole importance of State consent is in the determination of occupation. If
State A exercises authority over a part of the territory of State B, without the latter party’s
consent, then it inevitably amounts to occupation, which is an international armed
conflict. In that case, there is a concurrent non-international armed conflict between State
B and the non-State armed groups and an international armed conflict between State B
and State A, arising from the fact of the occupation, even in the absence of actual armed
violence between the two countries. Obviously, concocted scenarios, such as forged
invitations, cannot be taken into account.155
This model could incur resistance because of its perceived lack of realism.
Cassese submits that: ”[t]he fact that the terrorist organizations and their members do not
act in the name of a State does not turn the struggle against them into a purely internal
State conflict.”156 However, while there are undeniable differences between classic civil
wars and cross-border actions against non-State actors, there is no reason not to apply the
law of non-international armed conflict to these scenarios. If the mere fact of crossing a
frontier line transformed an essentially non-international armed conflict to an
international one, that would result in a real loss of realism. To regard hostilities between
two non-State armed groups in a transnational setting as international armed conflicts
even in the complete absence of involvement of States would border on the absurd.
A more substantial criticism could be directed towards the actual application of
this framework. If every complex transnational armed conflict has to be divided into its
components resulting in multiple armed conflicts then the complexity of the task of

153
Orna Ben-Naftali and Keren Michaeli, Public Committee against Torture in Israel v. Government of
Israel, American Journal of International Law, Vol. 101, 2007, p. 463.
154
This is reinforced by the 2005 Rules of Engagement for the American soldiers in Iraq which allows for
crossing the international borders even in the absence of the consent of the host States in pursuit of
insurgents. USA, IRQ, MCFI//20151003, para. 3.D (U).
155
W. Michael Reisman and James Silk, Which law applies to the Afghan conflict?, American Journal of
International Law, Vol. 82, 1988, pp. 481-483.
156
Antonio Cassese, International law, supra note 97, p. 420.

28
qualification could be debilitating for forces involved in hostilities on the ground.157 Even
in international criminal proceedings, with the benefit of hindsight it can cause
difficulties to find the proper legal qualification, so it could be almost impossible for
soldiers when actual fighting is taking place.
Nevertheless, this problem can be practically solved if in cases of controversy,
States opted to apply as a matter of policy at least the law of non-international armed
conflict to the situation. Although this proposition could be seen as challenging the
fundamental principle that the object and purpose of IHL is to be as extensive as possible,
in reality it could often be the only way to ensure compliance with the law of armed
conflict. There has been such tendency in earlier cases.158
Since a number of States will always be reluctant to qualify hostilities with armed
groups as international armed conflict, fearing that it will grant the insurgents legitimacy
and find unacceptable the possibility that fighters killing their soldiers could receive
combatant privileges and even prisoner of war status, in reality this could be the only way
to persuade them to apply the rules of humanitarian law at all.
The application of the rules of non-international armed conflict could alleviate
these concerns and the level of protection would not be significantly diminished. It is
now generally accepted that the major rules of conduct of hostilities under customary law
are almost identical in both bodies of law and Art. 75 of Additional Protocol I enunciates
general norms of humane treatment that apply to a given conflict irrespective of its
qualification.159 Of course, outside the heat of action, a later requalification of the
situation could result in the application of the law of international armed conflict.

IV. Case studies:

As a means of juxtaposing the envisaged theoretical framework with reality, the

following section will describe a number of recent conflicts where the transnational
element was present.

The 2006 intervention of Israel in Lebanon against the Hezbollah

On 12 July 2006, the military wing of Hezbollah, 160 known as Islamic Resistance, crossed
into Israel and attacked an Israeli patrol, killing 8 Israeli soldiers and capturing 2. As an
answer, Israel took recourse to military force: thousands of Israeli troops entered southern
157
James G. Stewart, Towards a single definition of armed conflict, supra note 112, p. 327.
158
Felix Ermacora, Special Rapporteur appointed by the United Nations Commission on Human Rights to
examine the human rights situation in Afghanistan considered the Afghan conflict in 1985 “one of a non-
international armed character within the meaning of Article 3 of the Geneva Conventions” as due to the
extraordinary nature of hostilities he could not conclusively determine whether the conflict was
international or non-international. Felix Ermacora, Report on the situation of human rights in Afghanistan
prepared in accordance with Commission on Human Rights resolution 1985/38, UN Doc. E/CN.4/1986/24.
pp. 42-48.
159
Michael J. Matheson, The United States position on the relation of customary international law to the
1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International
Law and Policy, vol. 2, 1987, pp. 427-428.
160
There is no consistent English translation. In some official documents it is also written as Hizbullah or
Hizbollah.

29
Lebanon, which had been under Hezbollah control and the Israeli air force attacked
targets allegedly connected to the Islamist organization, including the Beirut International
Airport. In the meantime, Hezbollah launched a rocket campaign, indiscriminately
targeting Israeli towns. During the 34-day hostilities, 1191 Lebanese were killed and
4400 injured in Israeli attacks and 43 Israeli civilians died from Hezbollah rockets. 161 The
conflict finally came to an end on 14 August 2006, when a ceasefire was concluded under
UN aegis.
The determination of the conflict is fraught with difficulties, many of which stem
from the uncertain status of Hezbollah. Hezbollah, as other militant Islamist
organizations, is a multi-faceted entity possessing both political and military factions and
participating in many levels in the Lebanese society. According to the general perception,
Hezbollah is not a State organ,162 but it participates in the Lebanese government and at
the time of the hostilities exercised exclusive control over parts of Lebanese territory.163
The connection of Hezbollah with the Lebanese State seemed uncertain in the
beginning of the conflict. On July 2006 Prime Minister Olmert declared that: "This
morning's events were not a terrorist attack, but the action of a sovereign State that
attacked Israel for no reason and without provocation. The Lebanese government, of
which Hizbullah is a member, is trying to undermine regional stability. Lebanon is
responsible and Lebanon will bear the consequences of its actions."164
Apart from the responsibility of Lebanon, Israel also emphasized Iranian and
Syrian involvement,165 finally however it concluded that it was fighting only against

161
Israel/Lebanon: Out of all proportion – Civilians bear the brunt of the war, Amnesty International,
November 2006, p. 5-6.
162
Enzo Cannizzaro, Entités non-étatiques et régime international de l’emploi de la force – Une étude sur le
cas de la réaction israélienne au Liban, Révue Généralé de Droit International Public, Vol. 111, 2007, pp.
335-339.
163
Early, Larger than a party, yet smaller than a State – Locating Hezbollah’s place within Lebanon’s State
and society, World Affairs, p. 115. The fact that the presence of Hezbollah in Lebanon prevented the
Lebanese government from exercising its full sovereignty over parts of its territory was recognized by even
the Security Council which expressed its concern about this fact in 2004. See SC Res. 1559 (2004). At the
end of hostilities, it emphasized “the importance of the control of the Government of Lebanon over all
Lebanese territories…for it is to exercise its full sovereignty, so that there will be no weapons without the
consent of the Government of Lebanon and no authority other than that of the Government of Lebanon”.
SC Res. 1701 (2006)
164
http://www.mfa.gov.il/MFA/Government/Communiques/2006/PM+Olmert+-
+Lebanon+is+responsible+and+will+bear+the+consequences+12-Jul-2006.htm
165
Foreig Deputy Minister Gideon Meier pronounced on 13 July 2006 that: "Lebanon is not the only
responsible party. Hizbullah would not be able to operate in Lebanon without clear Syrian sponsorship. Iran
is the main benefactor of the Hizbullah. It provides funding, weapons and directives for this terrorist
organization. For all practical purposes, Hizbullah is merely an arm of the Teheran Jihadist regime. Israel
views Hamas, Hizbullah, Syria and Iran as primary elements in the Axis of Terror and Hate threatening not
only Israel but the entire world.”
http://www.mfa.gov.il/MFA/About+the+Ministry/MFA+Spokesman/2006/Statement+by+Foreign+Ministr
y+Deputy+DG+Gideon+Meir+13-Jul-2006.htm

30
Hezbollah.166 Lebanon from its part consistently denied any connection to the attacks
carried out by the militants although regarded the Israeli attacks as aggression.
The conflict was never officially legally characterized by any of the States
involved. The contention that Israel committed an aggression could imply that the
conflict was perceived as an international armed conflict between the two countries by
Lebanon. Israel, on its part, never denied the existence of an armed conflict, but failed to
qualify it in any way.167 The government reiterated its commitment to the fundamental
rules of humanitarian law, emphasizing the observance of the rule of proportionality168
and that it would limit its attacks to military objectives.169 Nevertheless, the high number
of civilian casualties led to the general view that Israel has exceeded the limits of
proportionality and the plight of the civilian population cannot be explained by military
necessity.170 Even accepting that Israel might have breached the rules regulating the
conduct of hostilities, it never denied the existence of an armed conflict and legal
obligation to comply with jus in bello.171
Hezbollah, on the other hand, seemed to have rejected the need to comply with
any legal obligations arising from humanitarian law. Even though in the beginning of the
conflict its representatives stated that they target mainly military objectives, their later
communiqués asserted that Hezbollah targeted Israeli towns and villages indiscriminately
as reprisals against Israeli actions.172
The international community has largely remained silent on this issue. The
Security Council never made any reference to the type of the hostilities although it did
suggest to regard the conflict to exist essentially between Israel and the Hezbollah. 173 The
only UN body to have expressly taken a position was the Human Rights Council. The
Commission of Inquiry on Lebanon Report stated that the conflict amounted to
international armed conflict because Hezbollah was a militia belonging to Lebanon under

166
On July 16 a Cabinet Communique emphasized that: "Israel is not fighting Lebanon but the terrorist
element there, led by Nasrallah and his cohorts, who have made Lebanon a hostage and created Syrian- and
Iranian-sponsored terrorist enclaves of murder."
http://www.mfa.gov.il/MFA/Government/Communiques/2006/Cabinet+Communique+16-Jul-2006.htm
On July 19 Foreign Minister Livni declared that: "Israel is fighting to eliminate the threat posed by the axis
of terror and hate: Hizbullah, Hamas, Syria and Iran. Specifically, Israel is fighting to end the control of the
Hizbullah over the lives of both Lebanese and Israelis.";
http://www.mfa.gov.il/MFA/Government/Speeches+by+Israeli+leaders/2006/Joint+press+conference+by+
FM+Tzipi+Livni+and+EU+Envoy+Javier+Solana+19-Jul-2006.htm
167
Of course, theoretically the Supreme Court ruling in the Targeted Killings case did mean that the conflict
was an international armed conflict as a matter of Israeli law. See supra note 96.
168
Ministry of Foreign Affairs, ‘Responding to Hezbollah attacks from Lebanon: Issues of proportionality –
legal background, 25 July 2006,
http://www.mfa.gov.il/MFA/Government/Law/Legal+Issues+and+Rulings/Responding+to+Hizbullah+atta
cks+from+Lebanon-+Issues+of+proportionality+July+2006.htm
169
Israel/Lebanon: Out of all proportion, supra note 161, p. 17.
170
Ibid., pp. 28-64.
171
The assessment of the Israeli conduct is exacerbated by the conflicting data regarding civilian casualties.
As Hezbollah militants did not always distinguish themselves from the civilian populations, some of the
casualties can possibliy be either of them.
172
Civilians under assault – Hezbollah’s rocket attacks on Israel in the 2006 war, Human Rights Watch,
August 2007, pp. 10-14.
173
In Resolution 1701 the Security Council expressed its concern at “the continuing escalation of hostilities
in Lebanon and Israel since Hizbollah’s attack on Israel on 12 July 2006”.

31
Article 4 (2) (b) of Geneva Convention IV.174 However, this evaluation seems to be
somewhat odd in light of the fact that Lebanon has consistently refused to acknowledge
any control over Hezbollah and the Security Council repeatedly declared that Lebanon
does not have authority over South Lebanon.175
Certain non-governmental organizations have also expressed their opinions in this
question. Human Rights Watch concluded that the law of non-international armed
conflict is applicable between Israel and Hezbollah,176 while Amnesty International did
not make a clear determination, citing different international instruments as embodiments
of customary norms.177
In conclusion, State practice is inconsistent regarding the qualification of this
conflict. According to the theoretical framework used in this article, the laws of non-
international armed conflict apply to the hostilities between Israel and Hezbollah as
Lebanon does not have effective control over Hezbollah, it is not a State organ and does
not belong to Lebanon. However, to the extent that Israeli forces effectively exercised
authority over southern Lebanese territory, an international armed conflict existed
betweeen Israel and Lebanon.

The 2003 intervention in Iraq

On 18 March 2003, the United States and the United Kingdom in coalition with other
States attacked Iraq. In a course of weeks the coalition overthrew the regime of Saddam
Hussein and consolidated its authority over the territory of Iraq. The Pentagon declared
the end of major hostilities on April 14, which was reaffirmed by President Bush on 1
May announcing “the end of major combat operations.”178 In a letter dated 8 May 2003
the Security Council was notified that “the United States, the United Kingdom and
Coalition Partners, acting under existing command and control arrangements through the
Commander of the Coalition Force, have created the Coalition Provisional Authority ... to
exercise powers of government temporarily.” 179 This act was affirmed by the Security
Council in Resolution 1483 which requested the Authority to administer Iraq in a manner
consistent with the UN Charter to ”promote the welfare of the Iraqi people.”180
In November 2003 a specific timetable was agreed upon between the Coalition
Provisional Authority and the Iraqi Governing Council on the political transition of Iraq
and on 28 June 2004 authority was formally transferred from the CPA to the Iraqi Interim

174
Report of the Commission of Inquiry on Lebanon established by the Human Rights Council, paras. 51-
57.
175
SC Res. 1559 (2004); SC Res. 1701 (2006)
176
“Unless Hezbollah forces are considered to be either a part of the Lebanese armed forces, or
demonstrated allegiance to such forces, or were under the direction or effective control of the government
of Lebanon, there is a basis for finding that hostilities between Israel and Hezbollah are covered by the
humanitarian law rules for a non-international armed conflict.” Civilians under assault, supra note 172, p.
21.
177
Israel/Lebanon: Out of all proportion, supra note 161, pp. 8-13.
178
Sean D. Murphy, Contemporary practice of the United States relating to international law: Use of
military force to disarm Iraq, American Journal of International Law, Vol. 97, 2003, pp. 426-427.
179
UN Doc. S/2003/538
180
SC Res. 1383 (2003)

32
Government.181 During this period an insurgency broke out against the occupying powers
but the violence rapidly transformed to a fight between Shiite and Sunni militias.
The intensity of hostilities did not diminish after the transfer of sovereignty. In
April 2004 alone, for instance, US forces suffered more casualties than during the entire
invasion phase. The civilian population is particularly gravely affected by the sectarian
violence.182
Two phases of the conflict merit particular attention: the first phase is the period
before the transfer of sovereignty, and the second is from 28 June 2004 until the end of
the insurgency.
The first period was clearly dominated by an international armed conflict between
the coalition States and Iraq. Even though the Iraqi armed forces were quickly defeated,
the ensuing fighting between the militias and the occupation forces still took place within
the tenets of this international armed conflict.183 On the other hand, the erupting sectarian
violence evidently reached the threshold of intensity of non-international armed conflict,
consequently this period is characterized by a parallel international and non-international
armed conflict.
The question of applicable law in the second phase is somewhat controversial,
depending on the interpretation of Security Resolution 1546. In an unprecedented way,
the recognition of Iraqi sovereignty by the resolution had a constitutive rather than
declarative character in light of the fact that the situation on the ground remained
effectively unchanged.184
The text of the resolution itself only alludes to the obligations of the forces in Iraq
to comply with international humanitarian law, without specifying the body of applicable
norms. The letter of the then US Secretary of State, Colin Powell explicitly refers to
“obligations under the law of armed conflict, including the Geneva Conventions.” 185 Wall
submits that the Coalition Forces believed that an international armed conflict continued
in Iraq even after the transfer of full sovereignty to the Iraqi Interim Government on 28
June 2004 as Security Council Resolution 1546 granted the mandate for internment
where it is necessary for imperative reasons of security. The use of language from the law
of occupation after 28 June 2004 could thus be an evidence of the international nature of
the armed conflict in Iraq.186 Nevertheless, this view seems unlikely in light of the actual
Statements of Coalition authorities.
181
SC Res. 1546 (2004)
182
Different institutions circulate conflicting data regarding the number of civilian casualties. Between
2003 and 2006, approximately 50,000 people were killed according to the Iraqi Body Count. See
www.iraqbodycount.org The Iraqi Minister of Health held that the figure could reach 150,000,
http://news.bbc.co.uk/2/hi/middle_east/6135526.stm; while a study by the Johns Hopkins University
Bloomberg School of Public Health estimated that the number of violent death exceeds 600,000.
www.thelancet.com
183
Still, the militia combatants probably were not entitled to have combatant status as they did not belong to
a party to the conflict under Art. 4 (2) of GC III.
184
Daniel Thürer and Malcolm MacLaren, “Ius post bellum” in Iraq: A challenge to the applicability and
relevance of international humanitarian law?, in: Klaus Dicke (ed.) Weltinnenrecht : Liber amicorum Jost
Delbrück, p. 772.
185
SC Res. 1546 (2004)
186
Andru E. Wall, Prosecuting insurgents and terrorists in Iraq, Israel Yearbook on Human Rights, Vol. ,
2006, pp. 186-187. However, it could also be argued that necessity of obtaining such right from the
Security Council signals that the Coalition Forces did not posses it in the first place, i.e. that the conflict
was not international anymore.

33
 Roberts takes a more nuanced approach, suggesting that no matter how the
conflict is characterized, the Resolution allows for the applications of the rules of
international armed conflict.187 A third line of reasoning suggests that while the hostilities
should be qualified as non-international armed conflict, the substance of the law of
occupation could be used to supplement the more rudimentary provisions relating to
conduct of hostilities and taking of prisoners.188
This latter explanation seems to give the most persuasive answer. Even though the
American forces do not specify the conflict,189 it is obvious that the multinational force
stays in Iraqi territory with the explicit authorization of the Iraqi government, hence the
situation in Iraq cannot be deemed as occupation. Consequently, the hostilities between
the militias and the multinational force and the militias should be qualified as non-
international armed conflict.
However, Resolution 1546 and a recent Security Council resolution adopted on 10
August 2007, refers again to the Geneva Conventions and the Hague Regulations,190
which leads to the conclusion that the hostilities between the multinational forces and the
militias are such non-international armed conflicts where the rules of occupation also
apply, extending the scope of the applicable legal framework. Nevertheless, the internal
conflict between the militias still remains a classic case of non-international armed
conflict.

The 2001 intervention in Afghanistan

Following the terrorist attacks of 11 September 2001, the United States identified Al
Qaeda as the responsible organization and on 7 October 2001 in a coalition attacked
Afghanistan after the ruling Taliban regime refused to extradite the Al Qaeda leadership.
The Taliban had been engaged for years in a civil war with the Northern
Alliance,191 but were on the brink of victory at the time of the intervention. 192 The
coalition troops with the support of the Northern Alliance have rapidly taken control over
most of the territory of Afghanistan, and an Afghan Interim Authority on 22 December
2001 was inaugurated with a six-month mandate. In January 2002 the International
Security Assistance Force (ISAF) was established to assist the government in maintaining
security in Kabul and surrounding areas.193
At the end of the tenure of the Interim Authority, the Loya Jirga (Grand Assembly
of tribal leaders) was convened in Kabul in June 2002, resulting in the establishment of

187
Adam Roberts, The end of occupation: Iraq 2004, International and Comparative Law Quarterly, Vol.
54, 2005, pp. 47-48.
188
Knut Dörmann and Laurent Colassis, International humanitarian law and the Iraq conflict, German
Yearbook of International Law, Vol. 47, 2004, p. 313.
189
Following charges against marines the Marine Corps announced that “All Marines are trained in, and are
expected to fully comply with the Law of Armed Conflict”, without stipulating the type of the conflict.
Press Statement by Col. Stewart Navarre, Haditha Iraq Investigation (Dec. 21, 2006),
http://www.usmc.mil/lapa/Iraq/Haditha/Haditha-Press-Statement-061221.htm
190
SC Res. 1770 (2007)
191
Northern Alliance is the colloquial term for the “United Islamic Front for the Salvation of Afghanistan”.
192
For a background of the conflict see Rüdiger Wolfrum and Christiane E. Philipp, The status of the
Taliban: Their obligations and rights under international law, in Joachim A. Frowein and Rüdiger Wolfrum
(eds.) Max Planck Yearbook of United Nations Law, Vol. 6, 2002, pp. 559-567.
193
SC Res. 1368 (2001)

34
Transitional Government on 19 June.194 Presidential elections took place in October
2004195, followed by general parliamentary elections on 18 September 2005.196 Even
though the Afghan government enjoys widespread international recognition and support,
the Taliban-led insurgency has not been subdued. The clashes are constant and
intesifying which is underlined by the fact that the rate of violence has become at least 20
percent higher in 2007 than in the previous year.197
The conflicts taking place in Afghanistan can be split to different parts. A non-
international armed conflict between the Taliban and Northern Alliance forces had been
going on for years before the intervention of the US-led coalition. It is somewhat
controversial, whether the nature of this conflict had changed with the intervention.
There seemed to have been a close relationship between the Northern Alliance
and the coalition forces. The American Secretary of State, Donald Rumsfeld emphasized
that the US enjoyed a “relationship with all of those elements on the ground” in view of
supply of food, ammunitions and of assistance with overhead targeting. 198 However, the
Northern Alliance did not seem to be dependent on the US forces and even acted on its
own initiatives,199 which suggests that the Taliban-Northern Alliance conflict remained an
internal one, irrespective of foreign intervention.
The Coalition-Taliban conflict had been subject to much controversy. The Taliban
government was never officially recognized by the international community, 200 but
exercising control over 90 percent of Afghanistan’s territory, it was undeniably the de
facto government of Afghanistan.201 This led to debate whether the hostilities between the
coalition forces and the Taliban can be qualified as international armed coflict.
However, on 7 February 2002 the White House announced that the Taliban are
covered by the Geneva Conventions, implying that the conflict was an international
armed conflict. The US did not accept the applicability of the Geneva Conventions to the
Al Qaeda fighters.202 This leads to the conclusion, that the conflict between the Coalition
and the Al Qaeda can be categorized as a non-international armed conflict.203

194
Karzai names transitional Afghan cabinet, The Guardian, 19 June 2002.
195
Declan Walsh, Karzai urged to tackle warlords after poll win, The Guardian, 4 November 2004.
196
Carlotta Galla and Somini Sengupta, Afghan voters take next step to democracy, The New York Times,
19 September 2005.
197
Report of the Secretary-General pursuant to Securit Council Resolution 1746 (2007) – The situation in
Afghanistan and its implications for international peace and security, UN Doc. A/62/345 – S/2007/555,
para. 7.
198
Donald Rumsfeld, Press briefing with General Pace, 30 November 2001.
199
Robert Cryer, The fine art of friendship, supra note 58, pp. 46-47.
200
Security Council resolutions repeatedly referred to the Taliban as “faction” instead of government. See
e.g. SC Res. 1333 (1999)
201
Rüdiger Wolfrum and Christiane E. Philipp, The status of the Taliban, supra note 192, pp. 584-586.
202
White House, Office of the Press Secretary, Fact Sheet: Status of detainees at Guantanamo, 7 February
2002. The United States refused to grant prisoner of war status to the captured Taliban fighters, relying on a
dubious interpretation of Art. 4 of GC III. For the question of prisoner of war status in the Afghan conflict
see inter alia William H. Taft IV, The law of armed conflict after 9/11: Some salient features, Yale Journal
of International Law, Vol. 28, 2003, p. 319; Gábor Róna, Interesting times for international humanitarian
law: Challenges from the war on terror, Fletcher Forum of World Affairs, Vol. 27, 2003, p. 55; Marco
Sassòli, The status of persons held in Guantánamo under international humanitarian law, Journal of
International Criminal Justice, Vol. 2, 2004, p. 96.
203
See the Hamdan v. Rumsfeld, supra note 100. For a contrary view, see Adam Roberts, The laws of war
in the war on terror, supra note 116, p. 209.

35
 This interpretation is shared by the International Committee of the Red Cross.
Although generally the ICRC avoids qualifying an ongoing conflict, calling on the parties
instead to apply international humanitarian law to the fullest possible extent, in this case
it gave a precise legal characterization. In a message to the Afghan authorities the ICRC
indicated that the civil war in Afghanistan was governed primarily by the provisions
applicable to non-international armed conflicts.204 A further ICRC Statement explicitly
held that “combatants captured by enemy forces in the international armed conflict
between the Taliban and the US-led coalition must be treated in accordance with the
Third Geneva Convention,”205 implying that other aspects of the hostilities did not rise to
the level of international armed conflict.
The final phase of the conflict is also somewhat unclear. The exact date from
which the coalition forces carried out military action in Afghanistan with the consent of
an independent Afghan government is difficult to determine. The opinion of the ICRC
seems reasonable in this question as well. In November 2002 the International Committee
issued a communication stating that from 19 June 2002 onwards the armed conflict in
Afghanistan was no longer an international armed conflict but an internal one,206 owing to
the establishment of the Transitional Afghan Government. Accordingly, the present fight
of the Afghan government and the ISAF against the Taliban and Al Qaeda forces have to
be qualified as non-international armed conflict as they evidently reach the requisite
intensity.

Turkish military actions in Iraq against the Kurdish Labour Party

In 1984, the Kurdish Labour Party (PKK) began a violent campaign for an independent
Kurdish State targeting the Turkish government and perceived Kurdish collaborators.
These attacks and the ensuing retaliation resulted in thousands of casualties. In an attempt
to root out the insurgency, the Turkish government used military force including air
strikes and – according to some estimates – forcibly relocated more than two million
people.207
The PKK – taking advantage of the substantial Kurdish majority in northern Iraq
– used the area near the Turkish border in Iraq as a basis for military operations. Until
2003 Turkey undertook regular cross-border actions into northern Iraq to eliminate these
bases. The most significant military operation took place between 19 March and 16 April
1995,208 and involved 35000 Turkish troops penetrating to a depth of 40 km along a 240
km front.209 In April 2000 Turkey entered into northern Iraq afresh with thousands of

204
ICRC, Memorandum to Afghan Government, September 2001, cited by Adam Roberts, The laws of war
in the war on terror, ibid., p. 211, fn. 34.
205
Afghanistan: ICRC calls on all parties to conflict to respect international humanitarian law,
Communication to the Press 01/47, ICRC,Geneva, 24 October 2001. at www.icrc.org
206
ICRC, Aide-Memoire to US, 19 November 2002, cited by Adam Roberts, The laws of war in the war on
terror, supra note 116, p. 211, fn. 36.
207
U.S. cluster bombs for Turkey?, Human Rights Watch Report, Vol. 6., No. 19., December 1994.
208
Observations of the Government of Turkey on the application made by Halima Musa Issa and others to
the European Court of Human Rights (31821/96) (on file with author).
209
UN Doc. S/1995/540

36
troops in pursuit of PKK troops.210 Moreover, since 1997 an estimated 5000 Turkish
soldiers have occupied a fifteen-kilometer deep strip along Turkey’s border with Iraq.211
Following the intensification of PKK cross-border activities from Iraqi bases, the
Turkish Parliament approved a resolution on 17 October 2007 with overwhelming
majority authorizing the sending of troops into northern Iraq to confront the Kurdish
rebels.212 Ever since, Turkish fighter jets have been flying bombing sorties up to 50
kilometers inside Iraq, and special commandos have launched raids at least 10 kilometers
into Iraq.213
Before 1991, the incursions were carried out with the tacit agreement of Iraq,214
however, following the Turkish support of the coalition forces liberating Kuwait, Iraq
repeatedly protested against the violations of its sovereignty by the Turkish armed forces,
sometimes even labelling it as aggression.215
Turkey in return consistently emphasized its commitment to the sovereignty and
territorial integrity of Iraq and that its actions are undertaken solely for the purpose of
fighting against a terrorist group. In a letter to the Security Council, it Stated that

“[i]t is an incontrovertible fact that a terrorist organization is using northern Iraq to

launch terrorist attacks across the border and is targeting innocent people… The singular
aim of the temporary danger zone declared along the strip of land parallel to the Turkish-
Iraqi border is to bar the infiltration of terrorist elements into Turkey from Iraq… The
declaration of the temporary danger zone cannot in any way be a violation of the
territorial integrity of Iraq, as Turkey has neither any claim of sovereignty over this area,
nor is there a question of military occupation… Therefore the Turkish Government
categorically rejects the claim that the legitimate security measures taken by Turkey
against terrorist activities originating from northern Iraq, and targeting Turkish territory
and population, aim at violating Iraqi soverignty or constitute military aggression.”216

This position has been reiterated over the course of times. As recently as 31
October 2007, the Turkish foreign minister, Ali Babacan reaffirmed that if Turkey sent its
troops into Iraq, "any cross-border attack would be aimed at hitting terrorist bases and
would not be an invasion."217 He underlined that declaring that in case the Turkish army
crosses the border, it would try to avoid confronting the self-governing Kurdish
leadership of northern Iraq.218
Similarly, Iran also engaged in using military force against Kurdish troops in Iraq
and justified the shelling and aerial bombardment of suspected fighters of the Kurdish
210
Keesing’s Record of World Events, p. 43532.
211
Turkey and war in Iraq: Avoiding past patterns of violation, Human Rights Watch Briefing Paper, March
2003.
212
Sebnem Arsu and Sabrina Tavernise, Turkey resolves to give go-ahead to raids in Iraq, New York
Times, 18 October 2007.
213
Owen Matthews and Seth Colter Walls, It’s not about the West, Newsweek, 5 November 2007.
214
Christine Gray and Simon Olleson, The limits of the law on the use of force: Turkey, Iraq and the Kurds,
Finnish Yearbook of International Law, Vol. XII., 2001, p. 378.
215
See inter alia UN Doc. S/23152, UN Doc. S/23141, UN Doc. S/23153, UN Doc. S/23152, UN Doc.
S/23183 and UN Doc. A/51/438.
216
UN Doc. A/51/468
217
Matthew Weaver, Turkey defends cross-border raids against guerillas, Guardian, 1 November, 2007.
218
Christopher Torchia, Turks: Not seeking fight with Iraqi Kurds, Washington Post, 2 November 2007.

37
Democratic Party of Iran (KDPI) and the Mujahedin-e Khalq Organisation (MKO) by
relying on the right of self-defence under Article 51 of the UN Charter against terrorist
groups.219
The qualification of these transnational actions has never been undertaken by
Turkey. Turkey in general denied the existence with of an armed conflict with the
Kurdish insurgents, characterizing its operations as counter-terrorism.220 Accordingly, the
cross-border actions were justified as hot pursuit operation, not conducted against
innocent civilians.221
While the referral to this concept reaffirms the Turkish view that the fight against
the PKK is purely a law-enforcement action, its adequacy is highly dubious. The concept
of hot pursuit is codified in the law of the sea. It allows for the pursuit of a foreign ship
out of territorial waters into the high seas for the infringement of the laws of the coastal
State.222 Hot pursuit on land however, is a problematic concept. 223 Although the US
refered to it in the early 20th century as a justification to pursue Mexican bandits across
the border224 State practice clearly demonstrates that it is only allowed with the express
consent of the States involved as embodied in an international agreement. 225 As a result,
“it would seem that no such right is recognized under customary international law.”226
While Turkey denies the applicability of international humanitarian law to the
conflict,227 the Kurdish Labour Party evidently accepts it as the regulatory framework.
The leader of the PKK, Öcalan declared in 1995 that the Party made a declaration under

219
See e.g. UN Doc. S/25843, where Iran affirmed that the actions were taken “In response to these armed
attacks from inside Iraq and in accordance with Article 51 of the Charter of the United Nations, the fighter
jets of the Islamic Republic Air Force carried out a brief, necessary and proportionate operation against the
military bases of the terrorist group where the recent armed attacks had originated.” The Iranian and
Turkish military operations seem to be sometimes coordinated. See Michael Howard, Kurds flee homes as
Iran shells Iraq’s northern frontiers, Guardian, 18 August, 2006.
220
David Turns, At the “vanishing point” of international humanitarian law: Methods and means of warfare
in non-international armed conflicts, German Yearbook of International Law, Vol. 45, 2002, p. 133.
221
Costas Antonopoulos, The Turkish military operation in northern Iraq of March-April 1995 and the
international law on the use of force, Journal of Armed Conflict Law, Vol. 1, 1996, p. 33.
222
Article 23 of the 1958 Geneva Convention on the High Seas stipulates that:
“The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State
have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit
must be commenced when the foreign ship or one of its boats is within the internal waters or the territorial
sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or
the contiguous zone if the pursuit has not been interrupted…”
This rule has been reaffirmed with similar content in Art. 111 of the 1982 United Nations Convention on
the Law of the Sea. For an elaborate study on the concept see Nicholas M. Poulantzas, The right of hot
pursuit in international law, Sijthoff, 1969.
223
Andrew J. Luttig, The legality of the Rhodesian military operations inside Mozambique: the problem of
hot pursuit on land, South African Yearbook of International Law, Vol.3., 1977, pp. 136-149.
224
Amos S. Hershey, Incursions into Mexico and the right of hot pursuit, American Journal of International
Law, Vol. 13, 1919, pp. 557-569.
225
Nicholas M. Poulantzas, The right of hot pursuit in international law, supra note 222, pp. 15-16.
226
Frank Wooldridge, Hot pursuit, in Rudolph Bernhard (ed.) Encyclopedia of Public International Law,
Vol. II., 1995, p. 882.
227
The rules of engagement issued to the military could clarify whether Turkey accepts to apply certain
norms of IHL in practice, but these documents are classified. Notification of Dr. Sadi Cayci, exchange of e-
mails in October 2007.

38
Art. 96 of Additional Protocol I to formally accede to it. However, that application was
not accepted by the international community.228
Nevertheless, due to the intensity of the conflict, it seems certain that the
hostilities against the PKK on the territory of Turkey qualify as non-international armed
conflict.229 This conflict does not change because of crossing the border.230 Still, if the
Turkish army exercises effective control over the territory of any portion of Iraq, then
technically the existing non-international armed conflict is supplemented with an
international armed conflict between Turkey and Iraq, in the absence of the consent of
Iraqi to the Turkish military operations on its soil. This analysis applies to the possible
Iranian military actions as well.

Ethiopian intervention in Somalia

In 1991, the central authority in Somalia has almost completely broken down, making the
country a textbook example of a ‘failed State.’231 Competing warlords fought for control
with Ethiopian and Eritrean support until in 2004 the UN-backed Transitional Federal
Government officially took the helm.232 In June 2006, an alliance of Islamic militant
organizations, the Union of Islamic Courts (UIC) took control of a signifant part of
southern and central Ethiopia with the aim of establishing an Islamic State.233
Following an Ethiopian military incursion on 20 July 2006, the UIC declared a
holy war against Ethiopia and low intensity fighting took place between their troops both
in Somalia and in Ethiopia. Ethiopia claimed that the Union of Islamic Clerics was
actively supporting the insurgency in the Ogaden region. Finally, a resolution from the
Ethiopian Parliament on 30 November authorized the government to take any necessary
measures against the UIC invasion, while the Union of Islamic Clerics proclaimed on 8
December that it was fighting with Ethiopian troops on Somali territory.234
On 24 December 2006 Ethiopia officially announced the launch of military
operations against the Union o f Islamic Clerics.235 In the meantime, at least 2000 Eritrean
soldiers were reported fighting on the side of the UIC. The United States also became
involved in the conflict by launching airstrikes against various Islamist targets on 7 and 8
January 2007236 and the US Navy patrolled the Somali coast to cut off potential escape
routes from the Islamists.237
228
Michel Veuthey, Learning from history: Accession to the conventions, special agreements and unilateral
declarations, in Relevance of international humanitarian law to non-State actors : Proceedings of the Bruges
Colloquium : 25th-26th October 2002, College of Europe, 2003, p. 144.
229
Sadi Cayci, The conduct of hostilities in low-intensity and internal conflicts, www.avsam.org
230
Turkey itself does not show any distinction between fighting the insurgents in Turkey or in Iraq.
231
Abdullah A. Mohamoud, State collapse and post-conflict development in Africa: The case of Somalia
(1960-2001), Purdue University Press, 2006.
232
UN Security Council, Report of the Monitoring Group for Somalia pursuant to Security Council
Resolution 1676 (2006), S/2006/913, 22 November 2006 pp. 11-21.
233
Zeray W. Yihdeg, Ethiopia’s military action against the Union of Islamic Courts and others in Somalia:
Some legal implications, International and Comparative Law Quarterly, Vol. 56, 2007, p. 667.
234
Timeline Ethiopia-Somalia, BBC News, 1 Jan 2007,
http://news.bbc.co.uk/go/pr/fr/-/1/hi/world/africa/6159735.stm
235
Jeffrey Gentleman, Ethiopia hits Somali targets, declaring war, The New York Times, 25 December
2006.
236
This time it’s revenge, Economist, 11 January 2007.
237
US deploys forces to capture fleeing Somali Islamists, Agence France-Presse, 3 January 2007.

39
 Ethiopia officially declared the end of the military operation on 9 January and
began to withdraw its troops on 18 January 2007. Despite that, a number of Ethiopian
troops remained deployed in Somalia and were participating in the neutralization of
remaining resistance. In particular, fierce fighting has taken place in the capital,
Mogadishu,238 where widespread violations of IHL on all sides of the conflict were
reported, such as indiscriminate or disproportionate attacks against civilian objectives and
summary executions.239
The Transitional Federal Government officially never qualified the conflict but
talked about fighting against terrorist forces.240 Similarly, Ethiopia relied on the right of
self-defence, without mentioning the applicable norms of jus in bello.241 The Security
Council also refrained from determining the legal nature of the conflict, emphasizing
only its condemnation of “all acts of violence and extremism inside Somalia, and
expressing its concern regarding the continued violence inside Somalia.”242
The sole available legal qualification of the conflict was given by the Human
Rights Watch. While certainly not an authoritative Statement, their view of the hostilities
as a non-international armed conflict because Ethiopian forces were acting on the
invitation and in coalition with the transitional government seems correct.243
Moreover, there were periods of international armed conflict between Ethiopia
and Eritrea if the reports of Eritrean troops supporting the UIC are reliable. However, the
US airstrikes against perceived Al Qaeda targets falls outside the purview of international
humanitarian law as the brevity and relative low-intensity of the attacks do not reach the
required threshold of a non-international armed conflict.

The Democratic Republic of Congo – A case ‘par excellence’ of mixed conflicts

The Democratic Republic of Congo244 suffered two civil wars in quick succession with
heavy foreign involvement. The country has long been in the focal point of ethnic
violence between different tribes, not limited to the territory of the country.245
On 1 October 1990, the Rwandan Patriotic Front launched an offensive against
the Rwandan Habyarimana regime, crossing into Rwanda from bases in Uganda. Upon
the request of Habyarimana, 300 French troops from bases in the Central African

238
UN Office for the Coordination of Humanitarian Affairs, Situation Report: Somalia, April 27, 2007,
http://www.reliefweb.int/rw/rwb.nsf/db900SID/EVOD-72NHDZ?OpenDocument
239
Human Rights Watch, Shell-shocked – Civilians under siege in Mogadishu, Vol. 19, No. 12(A), August
2007, pp. 102-104.
240
“This in turn led to the upsurge of Terrorist Network Groups in Mogadishu, under the cover name of the
Islamic Courts Union, fully supported, backed and financed by Foreign Extremist Al-Qaeda connected
Legionaries of different nationalities”. Letter dated 13 June 2007 from the Ministry of Foreign Affairs of
the Permanent Mission of Somalia addressed to the President of the Human Rights Council, UN Doc.
A/HRC/5/G/13
241
Zeray W. Yihdeg, Ethiopia’s military action, supra note 233, p. 668.
242
SC Res. 1772 (2007). (Emphasis in the original.)
243
Human Rights Watch, Shell-shocked, supra note 239, p. 97.
244
The official name of the country was Zaire before 1997.
245
For an extensive account of the historic background of the conflict see David Renton, David Seddon,
Leo Zeilig, The Congo: Plunder and resistance, Zed Books, 2007.; Thomas Turner, The Congo wars:
conflict, myth and reality, Zed Books, 2007.

40
Republic and Zairean forces of President Mobutu’s presidential guard, halted the RPF
offensive.246
Following the 1994 genocide in Rwanda, millions of refugees of mainly Hutu
origin fled to neighbouring States. In eastern and southern Zaire, Hutu extremists and the
Interahamwe, the organisers of the genocide, regrouped their dispersed forces consisting
of 30000 fighters from Habyarimana’s vanquished army. The Hutu army used north Kivu
as its power base and took over the camps in the region and the surrounding areas.
To counter that potential menace, Rwanda supported the Alliance des Forces
Démocratiques pour la Libération du Congo (AFDL), an umbrella organisation for
Congolese Tutsis, led by Laurent Kabila.
In September 1996 the Banyamulenge – ethnically Tutsis – started a rebellion
against the ruling Seko regime, supported by Rwandan and Burundi soldiers and with
substantial Ugandan backing. The AFDL took the lead and by May 1997 Kabila’s force
took Kinshasa, finishing the first phase of civil war.
However, on 27 July 1998 Kabila expelled the Rwandan army, initiating
“Africa’s first world war,”247 lasting for 4 years. A new anti-Kabila coalition was formed
from the Congolese Rally for Democracy (CRD) supported by Rwanda, Uganda and the
Banyamulenge.
By 1999, Uganda and Rwanda had parted company and were fighting each other
in the north and east of the Congo. That left the region divided by rebel groups, funded
by a new alliance of neighbouring countries. The parties involved in the conflict finally
reached an agreement, which was signed by delegates in Pretoria on 17 December, 2002.
By the end of 2002, all Angolan, Namibian, and Zimbabwean troops had withdrawn from
the DRC.
Rwandan troops had officially withdrawn from the Democratic Republic of
Congo in October 2002, although there were continued, unconfirmed reports that
Rwandan soldiers and military advisers remained integrated with militias in eastern DRC.
The Pretoria Accord was formally ratified by all parties on April 2, 2003 in Sun City,
South Africa and Ugandan troops withdrew from the DRC in May 2003.248
Despite the supposed cessation of hostilities, massacres continued in eastern
Congo, in the Ituri region, during 2003-2004. The conflict was in part ethnically
motivated, especially the hostilities between Hutu and Tutsi militias but also due to the
activities of armed groups supported by Rwanda and Uganda fighting for access to
mineral resources. However, since the July 2006 presidential election the violence has
significantly subsided.
Nevertheless, the presence of armed groups is still tangible in the Democratic
Republic of Congo, and some of these groups, such as the Lord’s Resistance Army, carry
out their activities in other countries but reside – sometimes temporarily in the
Democratic Republic of Congo which can potentially destabilize the region of the Great

246
Mel McNulty, From intervened to intervenor: Rwanda and military intervention in Zaire/DRC, in: Oliver
Furley, Roy May (eds.) African interventionist States, Ashgate, 2001. p. 177.
247
The expression was coined by Susan Rice, US Assistant Secretary of State for Africa. Lynne Duke,
Mandela, Mobutu, and Me, New York: Doubleday, 2003, p. 237.
248
For a chronology of events see François Goemans, Chronologie des événements majeurs et évolution du
mandat de la Monuc, in Ludovic Andreacola et alia (eds.) Les humanitaires en guerre – Sécurité des
travailleurs humanitaires en mission en RDC et Burundi, pp. 21-27;

41
Lakes.249 Even today the human rights situation remains worrying, particularly in the
eastern part of the country and northern Katanga, where national and foreign militias and
the armed forces of the DRC are committing massive human rights violations.250
The conflict demanded a horrible toll on human lives. According to the estimates
of the International Rescue Committee, 3.8 million people died in the period 1998 to
2004, the overall majority of whom were not killed by violence but died as a result of
war.251
The parties to the conflict demonstrated blatant disregard for the norms of
international humanitarian law. During the conflicts, practically no prisoners were
taken252 and reports tell a practice of widespread sexual violence, tens of thousands of
women falling victim to rape and sexual assault.253
The conflict is especially difficult to characterize as it involved ethnic violence
from different non-State actors acting both within and outside the borders and the
involvement of numerous foreign troops. Not surprisingly, the participating States did not
attempt to give a legal qualification.
While the Security Council expressed its concern about the situation and
condemned the violations in a series of resolutions, it still failed to qualify the conflict.254
Still, not all UN organs remained silent on this issue. Roberto Garretón, Special
Rapporteur of the UN Commission on Human Rights on the situation of human rights in
the Democratic Republic of the Congo characterized the conflict in Congo in 1999 as an
internal conflict with the participation of foreign armed forces.255
The International Criminal Court chose a somewhat ambiguous approach in the
Lubanga case.256 It did not conclusively determine the legal nature of the conflict,
choosing to indict Lubanga for war crimes of enlisting, conscripting and using child
soldiers committed both in international and in non-international armed conflict.257
The Pre-Trial Chamber decision however pronounced that: “Due to the status of
the Republic of Uganda as an occupying power, the armed conflict in Ituri can be
characterised as international between July 2002 and June 2003.”258 This interpretation
seems to discard completely the established doctrine of parallel application of legal
regimes as it considers the fact of existence of an international armed conflict to
automatically transform a non-international armed conflict. As it was demonstrated
above, this view is unacceptable.

249
SC Res. 1653 (2006)
250
Titinga Frédéric Pacéré, Report of the independent expert on human rights in the Democratic Republic
of Congo, 21 February 2007, UN Doc. A/HRC/4/7.
251
B. Coghlan, R. Brennan et al., Mortality in the Democratic Republic of Congo: Results from a
nationwide survey conducted April-July 2004, Melbourne and New York: Burnet Institute, International
Rescue Committee, 2004.
252
Auguste Mampuya, Responsabilité et reparations dans le conflit des Grands-Lacs au Congo-Zäire,
Revue Générale de Droit International, Vol. 108, 2004. p. 685.
253
Amnesty International, Democratic Republic of Congo: Mass rape – time for remedies.
254
See inter alia SC Res. 2355 (2001), SC Res. 1445 (2002), SC Res. 1468 (2003), SC Res. 1493 (2003).
255
Roberto Garrazón, Report on the situation of human rights in the Democratic Republic of the Congo,
UN Doc. E/CN.4/1999/31, para 41.
256
The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Pre-Trial Chamber Decision, 29 January
2007.
257
The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Warrant of arrest, 10 February 2006.
258
The Lubanga case, supra note 256, para. 220.

42
 The conflicts in the DRC fall into every possible category introduced throughout
this article. The intervention of foreign States into the conflict resulted in international
armed conflict as far as they were fighting the armed forces of other States, militias
belonging to States or occupying territories. In the same time, militias fighting with other
non-State actors both within the DRC and beyond its borders were engaging in a non-
international armed conflict, unless the respective non-State actors were under the
effective control of States. In that case that conflict also amounted to international armed
conflict.

V. Conclusions

The phenomenon of transnational armed conflicts has come to dominate modern

conflicts, causing substantial difficulties in determining their legal nature and finding the
applicable legal regime. In this article I attempted to give an adequate legal framework
firmly entrenched in theory and State practice. Unfortunately, while the elements of this
framework are beyond doubt accepted by States, as it has been demonstrated in the actual
conflicts States have repeatedly refrained from determining the nature of hostilities,
sometimes even denying the applicability of humanitarian law.
Still, in practice the real problem is not the conflicting theories of legal
characterization but the blatant disregard to comply with even the elementary
considerations of humanity embodied in Common Article 3. The overwhelming majority
of the serious violations of international humanitarian law could be avoided if States only
applied the elementary norms of non-international armed conflict.
However, that does not mean that there is no need to distinguish between
international and non-international armed conflicts. While on the battlefield the
protection of the victims of war is fulfilled by the application of the basic norms that exist
with the same content in both fields, subsequently, the characterization of the conflict can
have paramount significance, such as the granting of prisoner of war status or the
determination of criminality of certain acts.259 In that respect, this article could be a useful
addition to the existing scholarship.

259
Liesbeth Zegveld, Dutch cases on torture committed in Afghanistan – The relevance of the distinction
between internal and international armed conflict, Journal of International Criminal Justice, Vol. 4, 2006,
pp. 878-880.

43