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Typology of armed conflicts in international humanitarian law: legal concepts and actual situations

Published online by Cambridge University Press:  10 September 2009

Sylvain Vité
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Abstract

Although international humanitarian law has as its aim the limitation of the effects of armed conflict, it does not include a full definition of those situations which fall within its material field of application. While it is true that the relevant conventions refer to various types of armed conflict and therefore afford a glimpse of the legal outlines of this multifaceted concept, these instruments do not propose criteria that are precise enough to determine the content of those categories unequivocally. A certain amount of clarity is nonetheless needed. In fact, depending on how the situations are legally defined, the rules that apply vary from one case to the next. By proposing a typology of armed conflicts from the perspective of international humanitarian law, this article seeks to show how the different categories of armed conflict anticipated by that legal regime can be interpreted in the light of recent developments in international legal practice. It also reviews some actual situations whose categorization under existing legal concepts has been debated.

Type
Typology of armed conflicts
Information
International Review of the Red Cross , Volume 91 , Issue 873: Typology of armed conflicts , March 2009 , pp. 69 - 94
Copyright
Copyright © International Committee of the Red Cross 2009

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References

1 The same field of application was also retained for other instruments of international humanitarian law, in particular Additional Protocol I (see Art. 1(3)).

2 International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment (Appeals Chamber), 15 July 1999, para 84: ‘It is indisputable that an armed conflict is international if it takes place between two or more States. In addition, 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) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State.’

3 Ibid., para 137. On this point, see also International Court of Justice (ICJ), Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, 26 February 2007, para 404. Without adopting a definitive position on the matter, the Court accepted that the criterion of overall control may be ‘applicable and suitable’ as a means of determining whether or not an armed conflict is international. For a discussion of this issue, see Cassese, A., ‘The Nicaragua and Tadic Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’, European Journal of International Law, Vol. 18, No. 4, 2007, pp. 649–668.CrossRefGoogle Scholar

4 ICTY, Prosecutor v. Tadic, Judgment (Appeals Chamber), above note 2, para 137; see also paras 120 and 131. See also ICTY, Prosecutor v. Naletilic, Case No. IT-98-34-T, Judgment (Trial Chamber), 31 March 2003, para 198. For an analysis of this case law, see J.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, No. 850, pp. 323 ff.; A. Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law: A Study on Thresholds of Applicability, Thesis, University College, Galway, 2007, pp. 229 ff.

5 See, for example, Arts. 4, 5 and 6 of the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 22 August 1864.

6 See J. Pictet et al. (eds), Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field: Commentary, Geneva, ICRC, 1952, p. 32; R. Kolb, Ius in bello, Le droit international des conflits armés, Basel/Brussels, Helbing and Lichtenhahn/Bruylant, 2003, pp. 72 ff.

7 J. Pictet et al. (eds), above note 6, p. 34; see also Schindler, D., ‘The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols’, The Hague Academy Collected Courses, Vol. 63, 1979-II, p. 131Google Scholar; H.-P. Gasser, ‘International Humanitarian Law: an Introduction’, separate print from Humanity for All: the International Red Cross and Red Crescent Movement, Henri Dunant Institute, Geneva, 1993, p. 24; E. David, Principes de droit des conflits armés, Bruylant, Brussels, 2008, p. 122; Kolb, above note 6, p. 73.

8 H.-P. Gasser, above note 7, pp. 22–23.

9 Some authors argue, however, that a distinction must be established between international armed conflict (reaching a certain level of intensity) and other forms of hostile actions amounting to ‘incidents’, ‘border clashes’ or ‘skirmishes’ only. See International Law Association, Draft Report, Initial Report on the Meaning of Armed Conflict in International Law, Rio de Janeiro Conference, 2008, pp. 9–10 and 23–24.

10 ICTY, Prosecutor v. Tadic, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para 70. See also ICTY, Prosecutor v. Mucić et al. (Čelebići Camp), Case No. IT-96-21, Judgment (Trial Chamber), 16 November 1998, para 184: ‘le recours à la force armée entre États suffit en soi à déclencher l'application du droit international humanitaire’. This definition has since been taken up by other international bodies. See for example: Commission of Inquiry on Lebanon, Report pursuant to Human Rights Council resolution S-2/1, A/HRC/3/2, 23 November 2006, para 51.

11 For the opposite view, see David, above note 7, p. 127.

12 Additional Protocol I, Art. 1(4).

13 See the section on the law of non-international armed conflicts below. See also M. Bothe, K.J. Partsch, W.A. Solf, New Rules for Victims of Armed Conflicts, Martinus Nijhoff, The Hague, 1982, pp. 45–52.

14 See, in particular, D. Schindler, above note 7, pp. 133–144; Y. Sandoz et al. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff, Geneva/The Hague, 1987, paras 66–118; E. David, above note 7, pp. 184–198.

15 For a more detailed study of the notion and the law of occupation, see Y. Dinstein, The International Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009; R. Kolb, S. Vité, Le droit de l'occupation militaire: perspectives historiques et enjeux juridiques actuels, Bruylant, Brussels, 2009; Y. Arai-Takahashi, The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law, Martinus Nijhoff, The Hague, 2009.

16 See, in particular: Bothe, M., ‘Beginning and End of Occupation’, Current Challenges to the Law of Occupation, Proceedings of the Bruges Colloquium, 20–21 October 2005, No. 34, Autumn 2004, pp. 28–32.Google Scholar See also E. Benvenisti, The International Law of Occupation, Princeton University Press, Princeton, 1993, p. 4. The author defines occupation as ‘the effective control of power (be it one or more states or an international organisation, such as the United Nations) over a territory to which that power has no sovereign title, without the volition of the sovereign of that territory’.

17 See, in particular, United Kingdom Ministry of Defence, The Manual of the Law of Armed Conflict, Oxford University Press, Oxford, 2004, para 11.3; ICJ, Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, para 173; ICTY, Prosecutor v. Naletilic, above note 4, para 217; Roberts, A., ‘What is Military Occupation?’, British Yearbook of International Law, Vol. 55, 1984, pp. 249 and 300.CrossRefGoogle Scholar

18 See United Kingdom Ministry of Defence, above note 17, para 11.3.1. See also ICTY, Prosecutor v. Tadic, Case No. IT-94-1-T, Judgment (Trial Chamber), 7 May 1997, para 584: ‘the relationship of de facto organs or agents to the foreign Power includes those circumstances in which the foreign Power “occupies” or operates in certain territory solely through the acts of local de facto organs or agents’ (our emphasis).

19 ICTY, Prosecutor v. Blaskic, Case No. IT-95-14-T, Judgment (Trial Chamber), 3 March 2000, para 149; ICTY, Prosecutor v. Naletilic, above note 4, paras 181–188, 197–202.

20 See, in particular: United Nations Security Council, Res. 884, 12 November 1993; United Nations General Assembly, Res. 62/243, 14 March 2008; Council of Europe Parliamentary Assembly, Res. 1416 (2005).

21 Common Article 3(1).

22 See ICTY, Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, above note 10, para 70.

23 Additional Protocol II, Art. 1(2). Although this quote is taken from Additional Protocol II, it is accepted that the threshold established is also valid for conflicts covered by common Art. 3. See ICRC, How is the term ‘Armed Conflict’ defined in international humanitarian law?, Opinion Paper, March 2008, p. 3. See also ICTY, Prosecutor v. Limaj, Case No. IT-03-66-T, Judgment (Trial Chamber), 30 November 2005, para 84.

24 ICTY, Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, above note 10, para 70.

25 See ICTY, Prosecutor v. Tadic, Judgment (Trial Chamber), above note 18, para 561–568, especially para 562. See also ICTY, Prosecutor v. Limaj, above note 23, para 84; ICTY, Prosecutor v. Boskoski, Case No. IT-04-82, Judgment (Trial Chamber), 10 July 2008, para 175. These criteria have since been taken up by other international bodies. See, in particular, International Criminal Tribunal for Rwanda (ICTR), ICTR, Prosecutor v. Rutaganda, Case No. ICTR-96-3, Judgment (Trial Chamber I), 6 December 1999, para 93; International Commission of Inquiry on Darfur, Report Pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005, para 74–76. In the Haradinaj case, the ICTY adopted a slightly different position, stating that the notion of ‘protracted armed violence’ must therefore be understood broadly. It does not cover the duration of the violence only, but also covers all aspects that would enable the degree of intensity to be evaluated. The ICTY also seems to equate this notion with that of intensity. (ICTY, Prosecutor v. Haradinaj, Case No. IT-04-84-T, Judgment (Trial Chamber), 3 April 2008, para 49. For a doctrinal consideration of this point, see A. Cullen, above note 4, pp. 179 ff.

26 ICTY, Prosecutor v. Haradinaj, above note 25, para 49; ICTR, Prosecutor v. Rutaganda, above note 25, para 93. In his Commentary on the Geneva Conventions, Pictet suggests, by way of indication, a series of criteria that may be taken into account in this evaluation (see Pictet, above note 6, pp. 49–50).

27 See R. Pinto (rapporteur), ‘Report of the Commission of experts for the study of the question of aid to the victims of internal conflicts’, International Review of the Red Cross, February 1963, especially pp. 82–83: ‘The existence of an armed conflict, within the meaning of article 3, cannot be denied if the hostile action, directed against the legal government, is of a collective character and consists of a minimum amount of organisation. In this respect and without these circumstances being necessarily cumulative, one should take into account such factors as the length of the conflict, the number and framework of the rebel groups, their installation or action a part of the territory, the degree of insecurity, the existence of victims, the methods employed by the legal government to re-establish order, etc.’ For a review of the indicative factors taken into account by the ICTY in its case law, see ICTY, Prosecutor v. Boskoski, above note 25, para 177. See also ICTY, Prosecutor v. Limaj, above note 23, para 168; ICTY, Prosecutor v. Haradinaj, above note 25, para 49.

28 ICTY, Prosecutor v. Haradinaj, above note 25, para 60.

29 For a review of the indicative factors taken into account by the ICTY in its case law, see ICTY, Prosecutor v. Boskoski, above note 25, paras 199–203. See also ICTY, Prosecutor v. Limaj, above note 23, paras 94–134; ICTY, Prosecutor v. Haradinaj, above note 25, para 60.

30 Additional Protocol II, Art. 1(2).

31 ICRC, Protection of Victims of Non-International Armed Conflicts, Document presented at the Conference of government experts on the reaffirmation and development of international humanitarian law applicable in armed conflicts, Vol. V, Geneva, 24 May–12 June 1971, p. 79. This definition was also taken up in the Commentary on the Additional Protocols: see Y. Sandoz et al. (eds), above note 14, para 4475.

32 Y. Sandoz et al. (eds), above note 14, para 4476. For a further review of internal disturbances and internal tensions, see especially A. Eide, ‘Internal Disturbances and Tensions’, International Dimensions of Humanitarian Law, UNESCO, Paris, 1988, pp. 279–295; H.-P. Gasser, ‘Humanitarian Standards for Internal Strife – A Brief Review of New Developments’, International Review of the Red Cross, No. 294, May–June 1993, pp. 221–226; Aolain, F. Ni, ‘The Relationship between Situations of Emergency and Low-Intensity Armed Conflict’, Israel Yearbook on Human Rights, Vol. 28, 1998, pp. 97–106Google Scholar; R. Abi-Saab, ‘Le droit humanitaire et les troubles internes’, Liber Amicorum Georges Abi-Saab, Martinus Nijhoff, The Hague, 2001, pp. 477–493.

33 See the subsection on “‘Exported’ non-international armed conflicts” below.

34 Bruderlein retains, for example, three main characteristics for the definition of an armed group, i.e. (a) a basic command structure; (b) recourse to violence for political ends; (c) independence from State control (C. Bruderlein, The Role of Non-state Actors in Building Human Security: The case of Armed Groups in Intra-state Wars, Centre for Humanitarian Dialogue, Geneva, May 2000). See also D. Petrasek, Ends and Means: Human Rights Approaches to Armed Groups, International Council on Human Rights Policy, Geneva, 2000, p. 5.

35 ICTY, Prosecutor v. Limaj, above note 23, para 170.

36 Additional Protocol II, Art. 1(2).

37 Additional Protocol II, Art. 1(1). On this point, see M. Bothe, K.J. Partsch, W.A. Solf, above note 13, pp. 626 ff.

38 Momtaz considers that it is not necessary for the parties concerned to set up an administrative structure similar to that of a State. He adds that the criterion of territorial control must be evaluated in accordance with the nature of the envisaged obligations. For some of those obligations that are related to respect for fundamental rights, ‘control of part of the territory could prove to be unnecessary’ (D. Momtaz, ‘Le droit international humanitaire applicable aux conflits armés non internationaux’, The Hague Academy Collected Courses, No. 292, 2002, p. 50, ICRC translation).

39 L. Moir, The Law of Internal Armed Conflict, Cambridge University Press, Cambridge, 2002, p. 106.

40 Y. Sandoz et al. (eds), above note 14, para 4467.

41 Ibid.

42 Ibid., para 4461; Bothe, Partsch and Solf, above note 13, p. 627.

43 Additional Protocol II, Art. 1(1).

44 Y. Sandoz et al. (eds), above note 14, para 4454; L. Moir, above note 39, p. 101.

45 Rome Statute of the ICC, Art. 8(2)(c) and (e), respectively.

46 Rome Statute of the ICC, Arts. 8(2)(d) and (f), respectively.

47 This definition is based on the case law of the ICTY, which deemed that ‘an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’ (ICTY, Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, above note 11, para 70 (our emphasis)).

48 Meron, T., ‘The Humanization of Humanitarian Law’, American Journal of International Law, Vol. 94, 2000, p. 260CrossRefGoogle Scholar; M. Bothe, ‘War Crimes’, in A. Cassese et al. (eds), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 423; Cullen, A., ‘The Definition of Non-international Armed Conflict in the Rome Statute of the International Criminal Court: An Analysis of the Threshold of Application Contained in Article 8(2)(f)’, Journal of Conflict and Security Law, Vol. 12, No. 3, 2007, p. 445.Google Scholar

49 The wording of paragraph (2)(f) is the outcome of an initiative launched by Sierra Leone, the aim of which was to reach a compromise between delegations in favour of introducing a list of war crimes applicable to non-international armed conflicts and those against it. An initial proposal in that direction, submitted by the ‘Bureau of the Committee of the Whole’, consisted of limiting the field of application of the crimes in para (2)(e) by taking up the criteria elaborated in Art. 1(2) of Additional Protocol II (A/CONF.183/C.1/L.59). As agreement could not be reached on that proposal, Sierra Leone suggested the text that was ultimately retained. The aim was to appease the delegations that were opposed to introducing war crimes into the law of non-international armed conflict, while avoiding a threshold as high as that in Additional Protocol II (A/CONF.183/C.1/SR.35, para 8). See A. Cullen, above note 48, pp. 419–445.

50 A. Bouvier, M. Sassòli (eds), How Does Law Protect in War?, Vol. 1, Geneva, ICRC, 2006, p. 110; R. Provost, International Human Rights and Humanitarian Law, Cambridge University Press, Cambridge, 2002, pp. 268 f.; W.A. Schabas, An Introduction to the International Criminal Court, Cambridge University Press, Cambridge, 2007 (3rd edn), p. 116. See also the more balanced position of E. David, who considers that, strictly speaking, para (2)(f) does not create a third category of non-international armed conflict, but ‘that broader concept of armed conflict replaces that of Additional Protocol II by way of lex posterior’ (David, above note 7, p. 137, ICRC translation).

51 International Criminal Court, Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06-803, Decision on the confirmation of charges (Pre-Trial Chamber I), 29 January 2007, paras 229–237, especially 234.

52 This new category also poses certain problems. There is no objective criterion that makes it possible to state when the required minimum duration is reached. In addition, the question is raised of the legal regime to be applied during the period in which the fighting may not yet be considered ‘sufficiently protracted’ for it to be classified as a non-international armed conflict within the meaning of that definition. Must a retroactive application of international humanitarian law be envisaged in that case?

53 Roberts, above note 17, p. 249.

54 Israeli Prime Minister's Office, Cabinet Resolution Regarding the Disengagement Plan: Addendum A – Revised Disengagement Plan – Main Principles, 6 June 2004, available at http://www.mfa.gov.il/MFA/Peace+Process/Reference+Documents/Revised+Disengagement+Plan+6-June-2004.htm#A (last visited 9 July 2009).

55 Ibid.

56 See the Note by the United Nations Secretary-General: Situation of human rights in the Palestinian territories occupied since 1967, UN Doc. A/61/470, 27 September 2006, para 6. See also Report on the situation of human rights in the Palestinian Territories occupied by Israel since 1967, J. Dugard, Special Rapporteur, E/CN.4/2006/29, 17 January 2006, paras 6 ff.

57 Israeli Prime Minister's Office, above note 54, Chapter 1: Background – Political and Security Implications.

58 For a more detailed analysis of the powers still being exercised by Israel following its withdrawal from Gaza, see Gisha – Legal Center for Freedom of Movement, Disengaged Occupiers: The Legal Status of Gaza, January 2007, pp. 29 ff, available at: http://www.gisha.org/UserFiles/File/Report%20for%20the%20website.pdf (last visited 13 July 2009).

59 Situation of human rights in the Palestinian territories occupied since 1967, UN Doc. A/61/470, 27 September 2006, para 7. See also the Report of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in the Palestinian Territories occupied by Israel since 1967 (E/CN.4/2006/29, 17 January 2006). See also C. Bruderlein, ‘Legal Aspects of Israel's Disengagement Plan Under International Humanitarian Law’, Legal and Policy Brief, Harvard University Program on Humanitarian Policy and Conflict Research, November 2004, pp. 10–11; Bockel, A., ‘Le retrait israélien de Gaza et ses conséquences sur le droit international’, Annuaire Français de Droit International, Vol. 50, 2005, p. 23Google Scholar; Scobbie, I., ‘Is Gaza Still Occupied Territory?’, Forced Migration Review, Vol. 26, 2006, p. 18.Google Scholar

60 See Y. Shany, Faraway, so Close: The Legal Status of Gaza after Israel's Disengagement, The Hebrew University of Jerusalem International Law Forum, Research Paper No. 12-06, August 2006, p. 19. See also Roberts, above note 17, p. 300; H.-P. Gasser, ‘Belligerent Occupation’, in The Handbook of Humanitarian Law in Armed Conflicts, D. Fleck (ed), Oxford University Press, Oxford, 1995, p. 243; M. Bothe, ‘Occupation, Belligerent’, Encyclopedia of Public International Law, Vol. 3, Elsevier, Amsterdam, 1997, p. 764.

61 ICJ, Case concerning Armed Activities on the Territory of the Congo, above note 17, para 173.

62 By way of example, see Art. 43 of the 1907 Hague Regulations and Arts. 55, 56 and 59 of the Fourth Geneva Convention.

63 See Schindler, D., ‘International Humanitarian Law and Internationalized Internal Armed Conflicts’, International Review of the Red Cross, No. 230, 1982, pp. 255–264.CrossRefGoogle Scholar

64 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, ICJ Reports 1986, para 219.

65 I. Detter, The Law of War, Cambridge University Press, Cambridge, 2000, p. 49; E. David, above note 8, p. 175.

66 ICRC, Protection of Victims of Non-International Armed Conflicts, above note 31, pp. 17 ff.

67 ICRC, Report on the Work of the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, ICRC, Geneva, August 1971, pp. 50 ff., especially paras 301 ff.

68 See, for example: United Nations Secretary-General, Fourth special report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo, S/2008/728, 21 November 2008, paras 13 and 25.

69 See the subsection on ‘War and international armed conflict’ above.

70 See, in particular, D. Shraga, ‘The UN as an Actor Bound by International Humanitarian Law’, in L. Condorelli et al. (eds), The United Nations and International Humanitarian Law, Pedone, Paris, 1996, p. 333; P. Benvenuti, ‘The Implementation of International Humanitarian Law in the Framework of UN Peace-Keeping’, in European Commission Humanitarian Office, Law in Humanitarian Crises: How Can International Humanitarian Law Be Made Effective in Armed Conflicts?, Office for the Official Publications of the European Communities, Luxembourg, 1995, pp. 96 f.; C. Emanuelli, ‘United Nations forces and humanitarian law’, in L. Condorelli et al. (eds), The United Nations and international humanitarian law, Paris, Pedone, 1996, pp. 357 ff.; R. Kolb, Droit humanitaire et opérations de paix internationales, Bruylant, Brussels, 2006, pp. 57 ff.

71 H. McCoubrey, N.D. White, The Blue Helmets: Legal Regulation of United Nations Military Operations, Dartmouth, Aldershot, 1996, p. 172; L. Condorelli, ‘Le statut des forces des Nations Unies et le droit international humanitaire’, in Les casques bleus: policiers ou combattants?, C. Emanuelli (ed), Wilson et Lafleur Itée, Montreal, 1997, p. 110; Tittemore, B., ‘Belligerents in Blue Helmets: Applying International Humanitarian Law to United Nations Peace Operations’, Stanford Journal of International Law, Vol. 33, 1997, p. 110Google Scholar; J. Pejic, ‘Status of Armed Conflicts’, in E. Wilmshurst and S. Breau (eds), Perspectives on the ICRC Study on Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2007, p. 94. Some authors also suggest that international humanitarian law be revisited with a view to adapting it to the distinctive characteristics of multinational forces. For an attempt to do so, see R. Kolb, above note 70, pp. 65 ff.

72 See, in particular, Schöndorf, R.S., ‘Extra-State Armed Conflicts: Is there a Need for a New Legal Regime?’, New York University Journal of International Law and Politics, Vol. 37, No. 1, 2004, pp. 61–75Google Scholar; Corn, G.S., ‘Hamdan, Lebanon, and the Regulation of Armed Conflict: The Need to Recognize a Hybrid Category of Armed Conflict’, Vanderbilt Journal of Transnational Law, Vol. 40, No. 2, March 2007.Google Scholar

73 See, in particular, Schöndorf, above note 72, pp. 41 ff.

74 Ibid., pp. 45 ff.

75 See D. Jinks, ‘September 11 and the Laws of War’, Yale Journal of International Law, Vol. 28, 2003, pp. 36 f.; M. Sassòli, ‘Transnational Armed Groups and International Humanitarian Law’, Occasional Paper Series, Harvard University, Winter 2006, Number 6, p. 9; Cerone, J., ‘Jurisdiction and Power: The Intersection of Human Rights Law and the Law of Non-International Armed Conflict in an Extraterritorial Context’, Israel Law Review, Vol. 40, No. 2, 2007.CrossRefGoogle Scholar

76 ICRC, How is the term ‘Armed Conflict’ defined in international humanitarian law?, above note 23, p. 3. See also Moir, above note 39, p. 31.

77 David considers that an international armed conflict exists when the armed group claims to represent the State and has the support of a section of the population (David, above note 7, p. 127).

78 Corn refers to these situations as ‘transnational armed conflicts’ and suggests that the ‘foundational principles of the law of armed conflict’ be applied to them, i.e. essentially, common Article 3 and some principles governing the conduct of hostilities (Corn, above note 72).

79 For more details of the circumstances and the course of this conflict, see Commission of Inquiry on Lebanon, Report pursuant to Human Rights Council resolution S-2/1, A/HRC/3/2, 23 November 2006.

80 Ibid., paras 50–62.

81 J. Pictet et al. (eds), Geneva Convention III Relative to the Treatment of the Prisoners of War: Commentary, ICRC, Geneva, 1960, p. 57.

82 ICTY, Prosecutor v. Tadic, Judgment (Appeals Chamber), above note 2, para 94.

83 Ibid.

84 See, in particular, Identical letters dated 13 July 2006 from the Chargé d'affaires a.i. of the Permanent Mission of Lebanon to the United Nations addressed to the Secretary-General and the President of the Security Council, A/60/938-S/2006/518, 13 July 2006.

85 See David, above note 7, p. 156.

86 L. Zegveld, Accountability of Armed Opposition Groups in International Law, Cambridge University Press, Cambridge, 2002, p. 136.

87 Fourth Geneva Convention, Art. 4(1) and (2).

88 See note 78 above.

89 See J.C. Yoo, J.C. Ho, ‘The Status of Terrorists’, UC Berkeley School of Law, Public Law and Legal Theory Research Paper No. 136, 2003. Jinks also considers that the attacks of 11 September 2001 constitute a non-international armed conflict between the United States of America and Al Qaeda and that common Article 3 is therefore applicable in this case (Jinks, above note 75, pp. 11 f. and 30 ff.).

90 See Schöndorf, above note 72; Corn, above note 72; R.D. Sloane, ‘Prologue to a Voluntarist War Convention’, Boston University School of Law, Working Paper No. 07-09. Balendra seems to suggest an additional option that would consist of having recourse to a variable definition of armed conflict: that definition would be narrow when international humanitarian law and the international human rights law do not concur and broad when they do (Balendra, N., ‘Defining Armed Conflict’, Cardozo Law Review, Vol. 29, No. 6, 2008).Google Scholar

91 M. Kenney, ‘The Challenge of Eradicating Transnational Criminal Networks: Lessons from the War on Drugs’, Paper prepared for delivery at the 2002 annual meeting of the American Political Science Association; D.M. Luna, ‘Narco-Trafficking: What Is the Nexus With the War on Terror?’, 8 October 2008, available at http://merln.ndu.edu/archivepdf/terrorism/state/110828.pdf (last visited 9 July 2009).

92 See J. Pejic, ‘Terrorist Acts and Groups: a Role for International Law?’, British Yearbook of International Law, 2004, pp. 85 ff.

93 See, in particular, ICRC, International humanitarian law and the challenges of contemporary armed conflicts, Excerpt of the Report prepared by the International Committee of the Red Cross for the 28th International Conference of the Red Cross and Red Crescent Geneva, December 2003, pp. 232 ff. See also Pejic, above note 92, pp. 85 ff.; Sassòli, above note 75, pp. 10–11.

94 Sassòli, above note 75, p. 9.

95 Supreme Court of the United States, Hamdan v. Rumsfeld, 548 US 557 (2006), pp. 65–69.