¹ See Commission of Inquiry on Lebanon, Report of the Commission of Inquiry on Lebanon, UN HRC, 3d Sess., UN Doc. A/HRC/RES/3/3 (2006) at para. 40.

² Ibid. (“large parts of Lebanese civilian infrastructure, including roads, bridges … [the] Beirut Airport, ports, water and sewage treatment plants, electrical facilities, fuel stations, commercial structures, schools and hospitals, as well as private homes” were targets of attack by Israel. As a result, over 900,000 people in Lebanon were displaced, while an estimated 1,191 were killed and 4,409 injured, with children accounting for one-third of the casualties. In Israel, the toll was “43 civilian deaths, 997 injuries, 6,000 homes affected, and 300,000 persons … displaced by Hezbollah’s attacks” at paras. 76–78).

³ Gregory, Derek, “Death of the Civilian?” Editorial (2006) 24 Environment and Planning D 633 at 633.CrossRefGoogle Scholar

⁴ The qualifier “transnational” is used to distinguish non-state from “international” or state-sponsored terrorism. Non-state actors committing terrorist attacks in the territory of other states will be considered transnational terrorism for the purposes of this article. Such groups can be located in one state or many.

⁵ Consider, for example, the Israel-Hamas conflict in Gaza from 27 December 2008 to 18 January 2009. The United States has claimed — and acted upon — the right to strike terrorist organizations located in Pakistan near the border with Afghanistan should Pakistan prove unwilling or unable to eliminate the threat of attacks in Afghanistan. Turkey has used military force against Kurds in northern Iraq; and Columbia attacked members of the Revolutionary Armed Forces of Colombia located in Ecuador in March 2008.

⁶ International Commission of Jurists, Berlin Declaration, 28 August 2004, <http://icj.org/IMG/pdf/Berlin_Declaration.pdf>.

⁷ Security Council (SC) Resolution 1618, UN SCOR, UN Doc. S/RES/1618 (2005), preamble [emphasis added]; SC Resolution 1822, UN SCOR, UN Doc. S/RES/1822 (2008), preamble [emphasis added].

⁸ Bolton, John R., Remarks on the Draft Resolution on the Middle East, New York City, 13 July 2006, <http://www.state.gov/p/io/rls/rm/68972.htm>.Google Scholar

⁹ The term “innocent civilian” will be used in contrast to individuals who engage in terrorist attacks or armed conflicts, as they arguably retain the status of “civilian” despite their potential participation in an armed conflict with a state. See Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02 (11 December 2006) at paras. 31–-40 and the authorities referred to therein [Targeted Killings].

¹⁰ “Transnational” highlights the aspects distinguishing these conflicts from “international” or “non-international” armed conflicts — although the conflict transcends national boundaries, the opposing parties are not states. See Corn, Geoffrey S., “Hamdan, Lebanon, and the Regulation of Hostilities: The Need to Recognize a Hybrid Category of Armed Conflict” (2007) 40 Vand. J. Transnat’l L. 295 Google Scholar (uses the term “transnational”); Schondorf, Roy, “Extra-State Armed Conflicts: Is There a Need for a New Legal Regime?” (2004) 37 N.Y.U.J. Int’l L. & Pol. 1 Google Scholar (uses the term “extra-state”); Rona, Gabor, “Interesting Times for International Humanitarian Law: Challenges from the ’War on Terror’” (2003) 27 Fletcher Forum of World Affairs 55 at 58Google Scholar (“to avoid confusion with [‘international armed conflict’] a term whose use connotes state action, it would be better to speak of this type of armed conflict as ‘interstate’ or ‘transnational’”).

¹¹ See the discussion in note 216.

¹² Consider, e.g., Abi-Saab, Georges, “The Proper Role of International Law in Combating Terrorism” (2002) 1 Chinese J. Int’l L. 305 at 306CrossRefGoogle Scholar (Georges Abi-Saab, a former judge of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia [ICTY], believes that the events of 11 September 2001 triggered a “shock of recognition” regarding the risk of terrorism that previously had been contemplated but not truly understood); Greenwood, Christopher, Essays on War in International Law (London: Cameron May, 2006) at 409 Google Scholar (“while international terrorism did not begin on that day, the scale of the attacks, the loss of life which they caused, and the means with which they were carried out set them apart from all prior terrorist atrocities no matter how awful”); International Committee of the Red Cross (ICRC), International Humanitarian Law and the Challenges of Contemporary Armed Conflict (Geneva: ICRC, 2003) at 17 [ICRC Report 2003] (recognizing the rise of “transnational networks capable of inflicting deadly violence on targets in geographically distant states”).

¹³ See, e.g., SC Resolution 1373, UN SCOR, UN Doc. S/RES/1373 (2001).

¹⁴ In 1934, member states of the League of Nations discussed drafting a convention outlawing terrorism. This led to the adoption of the Convention on the Prevention and Punishment of Terrorism in 1937, which defined terrorism as: “[a]ll criminal acts directed at a State and intended or calculated to create a state of terror in the minds of particular persons or groups of persons or the general public,” but it never entered into force due to an inability to approve this definition. See United Nations Counter-Terrorism Committee, The Role of the Counter-Terrorism Committee and its Executive Directorate in the International Counter-Terrorism Effort, <http://www.un.org/terrorism/pdfs/fact_sheet_1.pdf> [Counter-Terrorism FactSheet]. In 1994, a UN General Assembly (UNGA) Resolution defined terrorism as “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes” and provided that such acts were “in any circumstances unjustifiable whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious, or other nature.” See Measures to Eliminate International Terrorism, GA Res. 49/60, UN GAOR 49th Sess., UN Doc. A/RES/49/60 (1994).

¹⁵ United Nations High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, UN Doc. A/59/565 (2004) at para. 164.

¹⁶ Annan, Kofi, In Larger Freedom: Towards Development, Security and Human Rights for All, UN Doc. A/59/2005 (2005)Google Scholar at para. 91.

¹⁷ Counter-Terrorism Fact Sheet, supra note 14.

¹⁸ Such concern is illustrated by the saying: “One man’s terrorist is another man’s freedom fighter.”

¹⁹ Duffy, Helen, The “War on Terror” and the Framework of International Law (New York: Cambridge University Press, 2005) at 40.CrossRefGoogle Scholar

²⁰ Thirteen international agreements address specific acts of terrorism, including the International Convention for the Suppression of Terrorist Bombings; the International Convention for the Suppression of the Financing of Terrorism; and the International Convention for the Suppression of Acts of Nuclear Terrorism: see UN, International Instruments to Counter Terrorism. To view all of these conventions, see United Nations, <http://www.un.org/terrorism/instruments.shtml>; Barnridge, Robert P. Jr., Non-State Actors and Terrorism: Applying the Law of State Responsibility and the Due Diligence Principle (The Hague: T.M.C. Asser Press, 2008) at 121–22.CrossRefGoogle Scholar

²¹ Higgins, cited in Duffy, supra note 19 at 18.

²² Dupuy, Pierre-Marie, “State Sponsors of Terrorism: Issues of Responsibility,” in Bianchi, Andrea, ed., Enforcing International Law Norms against Terrorism (Portland: Hart, 2004) at 5.Google Scholar

²³ Ibid.

²⁴ ICRC Report 2003, supra note 12 at 7 (“whatever the motives, intentional and direct attacks against civilians in armed conflict … are strictly prohibited under IHL. So are acts or threats of violence the primary purpose of which is to spread terror among the civilian population. Outside of armed conflict, acts of violence aimed against civilians are crimes under international and domestic criminal laws”).

²⁵ State Responsibility for Internationally Wrongful Acts, UN GAOR, 56th Sess., Annex, Agenda Item 162, UN Doc. A/RES/56/83 (2001), art. 1 [Articles on State Responsibility].

²⁶ Regarding customary status, see Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), [1986] I.C.J. Rep. 14 at para. 205 [Nicaragua]; as a matter of treaty, Charter of the United Nations, at art. 2(1).

²⁷ As will be explored later in this article, international humanitarian law (IHL) traditionally applies during armed conflicts that arise between states (as international armed conflicts) or between a state and non-state actor contained within the territory of the state (a non-international armed conflict).

²⁸ ICRC Report 2003, supra note 12 at 8.

²⁹ See, e.g., note 5 in this article.

³⁰ This prohibition is recognized as a matter of treaty and customary law. See, e.g., Kellogg-Briand Pact, 27 August 1928, 46 U.S. Stat. 2343, art. 1 (the parties agree to “renounce [war] as an instrument of national policy in their relations with one another”); Charter of the United Nations, art. 2(4) (“[a]ll members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the United Nations”). The customary status of this prohibition was confirmed by the International Court of Justice (ICJ) and may be considered jus cogens. See Nicaragua, supra note 26 at para. 190. See also Sassoli, Marco and Bouvier, Antoine A., eds. How Does Law Protect in War? 2nd edition (Geneva: ICRC, 2006) vol. 1 at 104 Google Scholar (“Today the use of force between States is prohibited by a peremptory rule of international law”).

³¹ Ibid. UN Charter, arts. 51 and 42. The right to use force in self-defence has been recognized as a principle of customary international law, see Nicaragua, supra note 26 at para. 181.

³² The ICJ recognized the lex specialis character of IHL in Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] I.C.J. Rep. 226 at para. 25 [Nuclear Weapons].

³³ See, e.g., Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (New York: Cambridge University Press, 2004) at 9 CrossRefGoogle Scholar (The earliest such instrument is the 1856 Paris Declaration Respecting Maritime Law).

³⁴ See Henckaerts, Jean-Marie and Doswald-Beck, Louise, eds., Customary International Humanitarian Law (Cambridge: Cambridge University Press, 2005).CrossRefGoogle Scholar The importance of customary law was highlighted in 1899 through “Martens Clause” in the preamble of the Convention with Respect to the Laws and Customs of War on Land, 29 July 1899, Avalon Project, Yale Law School, <http://avalon.law.yale.edu/19th_century/hague02.asp> [Hague Convention]. The Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 U.N.T.S. 609 [Additional Protocol II] contains a modern version (“In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from custom, from the principles of humanity and from the dictates of public conscience,” at art. 1 (2)); see also ibid. at 7.

³⁵ See Dinstein, supra note 33 at 13 (this approach “was never really justified”).

³⁶ Nuclear Weapons, supra note 32 at para. 75.

³⁷ Regarding “military necessity,” see, e.g., Instructions for the Government of Armies of the United States in the Field (Lieber Code), 24 April 1863, <http://www.icrc.org/ihl.nsf/FULL/110?OpenDocument> (“[m]ilitary necessity admits of all direct destruction of life or limb of ‘armed’ enemies, and of other persons whose destruction is incidentally ‘unavoidable’ in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy … Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God … Military necessity does not admit of cruelty — that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult,” arts. 15–16).

³⁸ The four 1949 Geneva Conventions superseded the previous 1929 Geneva Conventions: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field (first drafted in 1864 and revised and replaced in 1906 and 1929) and the Geneva Convention Relative to the Treatment of Prisoners of War. Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 U.N.T.S. 31; Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 U.N.T.S. 85; Geneva Convention III Relative to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S. 135; Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 U.N.T.S. 287 [Geneva Convention IV]. Of particular importance to this study is Geneva Convention IV. Regarding ratification status, see ICRC, The Geneva Conventions: The Core of International Humanitarian Law, <http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/genevaconventions>.

³⁹ Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 U.N.T.S. 3 [Additional Protocol I]; Additional Protocol II, supra note 34.

⁴⁰ Sassoli and Bouvier, supra note 30, vol. 1 at 123.

⁴¹ ICRC, supra note 38 ( 168 states have ratified the Additional Protocol I and 164 states have ratified Additional Protocol II). Regarding customary status, see Henckaerts and Doswald-Beck, supra note 34. A third additional protocol exists: Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem, 8 December 2005.

⁴² Green, Leslie C., The Contemporary Law of Armed Conflict, 3rd edition (Manchester: Manchester University Press, 2008) at 53.Google Scholar

⁴³ See, e.g., Dinstein, supra note 33 at 5 (“[b]reaches of [IHL] cannot be justified on the ground that the enemy is responsible for commencing the hostilities in flagrant breach of the jus ad bellum”); Neuman, Gerald L., “Humanitarian Law and Counterterrorist Force” (2003) E.J.I.L. 283 at 284.Google Scholar See especially Additional Protocol I, supra note 39 at preamble (“[t]he provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or the causes espoused by or attributed to the Parties to the conflict”). Although IHL applies to all parties in a conflict, this is not to say that the obligations will always be identical. In certain circumstances, IHL obligations may vary to a degree between parties to the same conflict (for example, when a state has ratified the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction banning the use of land mines but another state has not and it continues to use them without violating IHL).

⁴⁴ See Green, supra note 42 at 23.

⁴⁵ See, e.g., Sassoli and Bouvier, supra note 30 at 297 (when a state takes counter-measures against another state for a breach of an international obligation, “[t]hose measures must themselves conform to IHL,” while reprisals against protected persons and the civilian population by parties to a conflict are prohibited).

⁴⁶ See Green, supra note 42 at 66.

⁴⁷ See Corn, supra note 10 at 307 (Common Article 3 was “a major step forward in humanitarian regulation of conflict”). The significance of Common Article 3 will be explored in more detail later in this article.

⁴⁸ See Sandoz, Yves et al., eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC: Geneva, 1987)Google Scholar at para. 1348; Zegveld, Liesbeth, Accountability of Armed Opposition Groups in International Law (Cambridge: Cambridge University Press, 2002) at 143 CrossRefGoogle Scholar (“the absence of a definition of an internal armed conflict in Common Article 3 proved to leave states too much freedom in their determination of the applicability of the law”). As will be discussed later in this article, a result is that there may be non-international armed conflicts to which only Common Article 3 applies and those to which both Common Article 3 and Additional Protocol II apply.

⁴⁹ Regulations Respecting the Laws and Customs of War on Land, annexed to Hague Convention Respecting the Laws and Customs of War on Land, 18 October 1907, 36 Stat. 2277, 187 C.T.S. 227 [Hague Regulations]; ICRC Report 2003, supra note 12 at 8–9.

⁵⁰ The only widely accepted exceptions are wars of national liberation and cases of complete or total occupation of the territory of one state by another. See, e.g., Sassoli and Bouvier, supra note 30 at 109 (“[d]uring the Diplomatic Conference that lead to the adoption of the two Additional Protocols of 1977, this conception [limiting international armed conflict to States] was challenged and it was finally recognized that ’wars of national liberation’ should also be considered international armed conflicts”); Geneva Convention IV, supra note 38, art. 2 (the Geneva Conventions 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”).

⁵¹ Uhler, Oscar et al., Commentary on the Geneva Conventions of 12 August 1949, vol. 4 (ICRC: Geneva, 1958) at 19.Google Scholar

⁵² See ibid. (“[i]t makes no difference how long the conflict lasts, or how much slaughter takes place”). However, see ICRC, Summary Report of 27thRound Table: International Humanitarian Law and Other Legal Regimes: Interplay in Situations of Violence (The Hague: ICRC, 2003) at 3 (an argument may be made that a de minimis exception exists regarding the scale and intensity for an armed conflict so that minor border incursions and skirmishes between states would not amount to an armed conflict).

⁵³ See, e.g., Schmitt, Michael N., “‘Direct Participation in Hostilities’ and 21st Century Hostilities,” in Fisher, Horst et al., eds., Crisis Management and Humanitarian Protection (Berlin: BWV, 2004) 505 at 523, <http://www.michaelschmitt.org/images/Directparticipationpageproofs.pdf>.Google Scholar

⁵⁴ See, e.g., Articles on State Responsibility, supra note 25, ch. 2 (a state is responsible for conduct that is attributable to it); Schondorf, supra note 10 at 37.

⁵⁵ See Corn, supra note 10 at 304.

⁵⁶ Sassoli, Marco, Transnational Armed Groups and International Humanitarian Law, Occasional Paper Series no. 6 (Harvard University: Program on Humanitarian Policy and Conflict Research, 2006) at 5 Google Scholar [emphasis added]; see also Somer, Jonathan, “Acts of Non-State Armed Groups and the Law Governing Armed Conflict” ASIL Insights (24 August 2006), <http://www.asil.org/insights060824.cfm> Google Scholar (“[i]f the acts of Hezbollah are deemed attributable to a state, the conflict is considered to be international and the Geneva Conventions will apply in their entirety”).

⁵⁷ Rona, supra, note 10 at 58; see also Jinks, Derek, “September 11 and the Laws of War” (2003) Y.J. Int’l L. 1 at 12Google Scholar (“[a]bsent proof that al Qaeda acted on behalf of a state or that a state has recognized al Qaeda as a ’belligerent,’ the only potentially applicable body of law [to the acts of 11 September] is the law of war governing internal armed conflicts”).

⁵⁸ ICRC, Opinion Paper: How Is the Term “Armed Conflict” Defined in International Humanitarian Law? (March 2008), <http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict-article-170308/$file/Opinion-paper-armed-conflict.pdf> at 1 [emphasis added].

⁵⁹ See, e.g., Commission of Inquiry, supra note 1 at paras. 8–9 (“[t]he hostilities that took place from 12 July to 14 August constitute an international armed conflict to which conventional and customary international humanitarian law and international human rights law are applicable … the Commission highlights its sui generis nature in that active hostilities took place only between Israel and Hezbollah fighters”). Compare Corn, supra note 10 at 305 (“neither Israel nor Lebanon took the position that the hostilities fell into the category of international armed conflict”). It is not apparent, however, that they took the opposite position. See Government of Israel, Preserving Humanitarian Principles While Combating Terrorism, April 2007, <http://www.mfa.gov.il/MFA/Terrorism-+Obstacle+to+Peace/Terrorism+from+Lebanon-+Hizbullah/Preserving+Humanitarian+Principles+While+Combating+Terrorism+-+April+2007.htm> (Israel did not classify the conflict, but “held itself bound to apply the principles of humanitarian law”).

⁶⁰ Anderson, Kenneth, Is the Israel-Hezbollah Conflict an International Armed Conflict? <http://kennethandersonlawofwar.blogspot.com/2006/07/is-israel-hezbollah-conflict.html> >Google Scholar (he concludes that if Lebanon’s armed forces were involved in the fighting, the armed conflict between Israel and Lebanon would have been international, while the conflict between Israel and Hezbollah would not). Human Rights Watch endorses this position and that of Somer, supra note 56, see Human Rights Watch, “Civilians under Assault: Hezbollah’s Rocket Attacks on Israel in the 2006 War” (2007) 19(3) Human Rights Watch Reports at 21 (“[a]t least to the extent of armed hostilities between the states of Israel and Lebanon and Israeli control over Lebanese territory, the 2006 conflict was an international armed conflict”).

⁶¹ Somer, ibid.

⁶² Ibid.

⁶³ Regarding the application of IHL in failed states, see Sassoli and Bouvier, supra note 30, vol. 2 at 770–75.

⁶⁴ Geneva Convention IV, supra note 38, art. 3; Additional Protocol II, supra note 34, art. 1.

⁶⁵ Additional Protocol II, supra note 34, art. 1(1) (“[t]his Protocol … shall apply to all armed conflicts which are not covered by Article 1 of [Additional 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 groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol” [emphasis added]).

⁶⁶ Ibid., art. 1(2).

⁶⁷ The current conflict in Afghanistan may be considered a non-international armed conflict, as international forces are engaged in a conflict against insurgents with the consent of the current Afghanistan government. Although beyond the scope of this article, such situations may raise difficult questions regarding the IHL obligations that apply, as State B may be party to Additional Protocol II when State A is not.

⁶⁸ Schondorf, supra note 10 at 52–53; Sassoli, supra note 56 at 2 (“the fact remains that most armed conflicts are either clearly international or clearly noninternational”).

⁶⁹ Jinks, supra note 57 at 38–41. Since a later section of this article will explore the argument that a new category of armed conflict is necessary, this part will largely canvass rather than critically evaluate these positions.

⁷⁰ See Geneva Convention IV, supra note 38, art. 3; Additional Protocol II, supra note 34, art. 1(1).

⁷¹ See, e.g., Balendra, Natasha, “Defining Armed Conflict” (2008) 29 Cardozo L. Rev. 2461 at 2469Google Scholar; Schmitt, supra note 53 at 523 (“[n]either the Common Article [3] nor the additional Protocol [II] applies … to a conflict in which a shadowy group of terrorists from multiple countries targets a government or its citizens globally”); Schondorf, supra note 10 at 50 (“[l]egislative history … support[s] the view that the provision’s purpose was to deal only with armed conflicts within the territorial boundaries of a high contracting party”); Rona, supra note 10. Due to its universality, Common Article 3 would apply when a non-international armed conflict arises in any state, but Additional Protocol II would be limited to states parties to the treaty.

⁷² Jinks, supra note 57 at 40.

⁷³ Uhler et al., supra note 51 at 41–42 [emphasis added].

⁷⁴ Schmitt, Michael N. et al., The Manual on the Law of Non-International Armed Conflict with Commentary (San Remo, Italy: International Institute of Humanitarian Law, 2006) at 2 Google Scholar (non-international armed conflicts do not “encompass conflicts extending to the territory of two or more States”).

⁷⁵ Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 3, art. 8(2)(f) [emphasis added] [Rome Statute].

⁷⁶ Schondorf, supra note 10 at 50. This argument may be less persuasive because, on its face, Common Article 3 does not require the territorial state to be the one that is using force during an armed conflict.

⁷⁷ See note 65, in contrast to Common Article 3. Additional Protocol II provides that it applies only when the territorial state is engaged in an armed conflict with a non-state actor that has reached a threshold level of organization and exerts control over a portion of the state’s territory.

⁷⁸ See, e.g., Schondorf, supra note 10; Uhler et al., supra note 51; Green, supra note 42 at 343 (“[a] non-international armed conflict has traditionally been one in which the governmental authorities are opposed by groups within that state seeking to overthrow those authorities by force of arms”); Cerone, John P., “Status of Detainees in Non-International Armed Conflict, and Their Protection in the Course of Criminal Proceedings: The Case of Hamdan v. Rumsfeld ” ASIL Insight, 14 July 2006, <http://www.asil.org/insights060714.cfm> Google Scholar (“the paradigm case of non-international armed conflict is internal conflict, e.g., a civil war”); Gabor Rona, “When Is a War Not a War? The Proper Role of the Law of Armed Conflict in the ‘Global War on Terror” (presentation at the International Action to Prevent and Combat Terrorism in Copenhagen, 15 March 2004), <http://www.icrc.org/web/eng/siteeng0.nsf/html/5XCMNJ> (“[w]hen the ‘war on terror’ amounts to the use of armed force within a State, between a State and a rebel group or between rebel groups within the State, the situation may amount to a non-international armed conflict” [emphasis in original]); Institute of International Law, Resolution on the Application of IHL and Fundamental Human Rights in Armed Conflicts in which Non-State Entities are Parties (Berlin, 1999), online: <http://www.idi-iil.org/idiE/resolutionsE/1999_ber_03_en.PDF> (“the expression ’armed conflicts in which non-State entities are parties’ means internal armed conflicts between a government’s armed forces and those of one or several nonState entities, or between several non-State entities” [emphasis added]).

⁷⁹ Uhler et al., supra note 51 at 41–42. The criteria are discussed later in note 106.

⁸⁰ Manual of the Law of Armed Conflict, at para. 3.5, cited in Green, supra note 42 at 73 [emphasis added].

⁸¹ Schmitt et al., supra note 74 at 2 [emphasis added] (it is noted that this wording is not conclusive as requiring non-international armed conflicts to be civil wars. The manual’s commentary does not directly address the nature of a transnational armed conflict: “Non-international armed conflicts do not include conflicts in which two or more States are engaged against each other … When a foreign State extends its military support to the government of a State within which a non-international armed conflict is taking place, the conflict remains noninternational in character. Conversely, should a foreign State extend military support to an armed group acting against the government, the conflict will become international in character”).

⁸² ICRC, Opinion Paper, supra note 58 at 5 [emphasis in original].

⁸³ An alternative interpretation may be that these provisions simply show that another state cannot be engaged against the state government for the conflict to remain non-international and not necessarily require the state government to be involved. For other ambiguous statements, see note 78 in this article; see also ibid.

⁸⁴ See Sassoli, supra note 56 at 9.

⁸⁵ Statute of the International Tribunal for Rwanda, Annex to SC Resolution 955, UN SCOR, UN Doc. S/Res/955 (1994), arts. 1, 7; see Sassoli, supra note 56 (the ICTR Statute “confirms that even a conflict spreading across borders remains a non-international armed conflict”). However, see Rome Statute, supra note 75, as the Rome Statute appears to maintain the traditional territorial limitation for non-international armed conflicts.

⁸⁶ Zegveld, supra note 48 at 136. Although Zegveld’s characterization may resolve the territorial issue, it is unclear whether she would consider that an outside state could be a party to an armed conflict with a non-state armed group and maintain the internal/non-international classification.

⁸⁷ Sassoli, Marco, “Use and Abuse of the Laws of War in ‘The War on Terrorism’” (2004) 22 Law & Inequality 195 at 201Google Scholar; see also ICRC, supra note 58 at 1.

⁸⁸ Cerone, supra note 78 (“international authorities including the [ICJ] and the [ICTY] … interpret the phrase ’conflict not of an international character’ as being residual, covering any armed conflict that is not inter-state”); compare notes 98 and 99 (the ICTY has arguably recognized the territorial requirement of a non-international armed conflict).

⁸⁹ Nicaragua, supra note 26 at para. 218; see Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), [1949] I.C.J. Rep. 4 at 22 [emphasis added]. The court further stated in Nicaragua that, “general principles of humanitarian law include a particular prohibition [on encouraging violations the principles in Common Article 3], accepted by States and extending to activities which occur in the context of armed conflicts, whether international in character or not” at para. 255 [emphasis added].

⁹⁰ See Nicaragua, supra note 26 at paras. 217–18.

⁹¹ Hamdan v. Rumsfeld, 548 U.S. 557 (2006) at 67 [Hamdan] (Justice Stevens further noted that “[Common Article 3] … affords some minimal protection … to individuals … who are involved in a conflict ’in the territory’ of a signatory”). Since every armed conflict must occur within the territory of a signatory due to the universality of the Geneva Conventions, Stevens J. may arguably have been noting the potential territorial limitation of Common Article 3. Hamdan may be of limited support for resolving the classification of transnational armed conflicts because the Court did not discuss the requirements of an “armed conflict” and did not rule on the argument raised by the US government that its conflict with al Qaeda in Afghanistan was distinct from its conflict with the Taliban and was unique because of its extra-territorial character, see Hamdan at 65–66.

⁹² Jinks, supra note 56 at 40.

⁹³ Schondorf, supra note 10 at 50–51.

⁹⁴ Ibid. at note 131.

⁹⁵ Sassoli, supra note 87 at 220.

⁹⁶ Meron, Theodor, Humanization of International Law (Boston: Martinus Nijhoff, 2006) at 29.Google Scholar

⁹⁷ ICRC Report 2003, supra note 12 at 18.

⁹⁸ Prosecutor v. Tadic, IT-94-1 , Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995) (ICTY, Appeals Chamber) [Tadic case] at paras. 67 and 70 [emphasis added]. This definition appears on its face to support the traditional classification of international and non-international armed conflicts, see the discussion earlier in this article.

⁹⁹ Boelaert-Suominen, Sonja, “The Yugoslavia Tribunal and the Common Core of Humanitarian Law Applicable to All Armed Conflicts” (2000) 13 Leiden J. Int’l L. 619 at 632.CrossRefGoogle Scholar

¹⁰⁰ See Rome Statute, supra note 75, art. 8(2)(f).

¹⁰¹ Boelaert-Suominen, supra note 99 at 635.

¹⁰² Rona, supra note 10 at 62–63. See Sassoli, supra note 56 at 7 (protracted armed violence cannot be the appropriate threshold because “it is not foreseeable at the outset of a given conflict” and “[i]t 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”). Supporting the argument that intensity may suffice, the Inter-American Commission on Human Rights held that IHL applied to a conflict lasting only two days, see Abella (Argentina), 18 November 1997, Doc. OEA/Ser.L/V/II.98 doc. 6 rev. (1998). See ICRC, supra note 58 at 5 (“[t]he armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organisation”) [emphasis in original].

¹⁰³ ICRC Report 2003, supra note 12 at 19.

¹⁰⁴ Additional Protocol II, supra note 34, art. 1(1).

¹⁰⁵ See Sandoz et al., supra note 48 at para. 4454 (since Common Article 3 applies simultaneously, it will continue to apply even if a non-international armed conflict fails to meet the criteria of Additional Protocol II); Sassoli and Bouvier, supra note 30 at 90 (“[i]t should be noted that this fairly restrictive definition [found in Additional Protocol II] applies only to Protocol II. The definition does not apply to Article 3 common to the Geneva Conventions. Practically, there are thus situations of non-international armed conflict to which only Article 3 will apply, the level of organization of the dissidents groups being insufficient for Protocol II to apply”).

¹⁰⁶ Uhler et al., supra note 51 at 35–36 (“(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 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 organisation purporting to have the characteristics of a State, (b) That the insurgent civil authority exercises de facto authority over persons within a determinate territory, (c) That the armed forces act under the direction of the organized civil 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”).

¹⁰⁷ Boelaert-Suominen, supra note 99 at 634.

¹⁰⁸ Ibid. [emphasis in original].

¹⁰⁹ Rona, supra note 10 at 55–74.

¹¹⁰ Ibid. at 60. Such consistency is to be expected in light of the fact that Rona was serving as a legal advisor in the Legal Division of the ICRC at the time of his writing; see also Duffy, supra note 19 at 219 (an essential factor for the existence of any armed conflict is the “resort to force between two or more identifiable parties”) [emphasis added].

¹¹¹ Ibid. at 62. That is not to say that the end must be identified for IHL to be triggered, although it should be eventually identifiable as certain obligations cease and arise at the end of an armed conflict.

¹¹² ICRC Report 2003, supra note 12 at 19.

¹¹³ Regarding Al-Qaeda, its operations in Afghanistan may be sufficiently organized for it to be considered a party to the conflict notwithstanding the fact that its “cells” worldwide may not be so organized.

¹¹⁴ ICRC Report 2003, supra note 12 at 20 (“[i]n some instances the violence involved will amount to a situation covered by IHL … while in others, it will not”).

¹¹⁵ The fact that there are two sets of rules that apply to international and noninternational armed conflict has been subject to significant criticism, and arguments have been made that there should be a single definition of armed conflict in order for the distinction between international and non-international armed conflicts to be discarded. See, e.g., Stewart, James G., “Towards a Single Definition of Armed Conflict in International Humanitarian Law: A Critique of Internationalized Armed Conflict” (2003) 85 Int’l Rev. Red Cross 313.CrossRefGoogle Scholar Despite this concern, many of the protections provided to victims of war in international armed conflicts also apply during non-international armed conflicts as part of customary IHL. See Henckaerts and Doswald-Beck, supra note 34.

¹¹⁶ Under IHRL, a state may be required to show that it was absolutely necessary for it to use lethal force against suspected terrorists based in another state, which is not required under IHL; see Kretzmer, David, “Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?” (2005) 16 E.J.I.L. 171.Google Scholar

¹¹⁷ See, Corn, supra note 10; Schondorf, supra note 10; but see Rona, supra note 10.

¹¹⁸ McKeogh, Colm, Innocent Civilians: The Morality of Killing in War (Ghippenham, UK: Palgrave, 2002) at 2.CrossRefGoogle Scholar

¹¹⁹ Ibid. at 5.

¹²⁰ Ibid. at 155.

¹²¹ Ibid. at 165.

¹²² See, e.g., Duner, Bertil, “Disregard for Security: The Human Rights Movement and 9/11,” in Ranstorp, Magnus and Wilkinson, Paul, eds., Terrorism and Human Rights (New York: Routledge, 2008) 78 at 79Google Scholar (“[t]here is a certain tendency among leading human rights [nongovernmental organizations] to take the other side of the relationship — security against terrorism — rather lightly”).

¹²³ Commission of Inquiry, supra note 1 at para. 82.

¹²⁴ Meron, Theodor, “Cassese’s Tadic and the Law of Non-International Armed Conflicts,” in Vorah, Lal Chand et al., eds., Man’s Inhumanity to Man: Essays in Honour of Antonio Cassese (The Hague: Kluwer Law International, 2003) at 536 Google Scholar (as a result of the jurisprudence of the ICTY, “there has been a broadening of international law applicable to non-international armed conflicts, often through elimination of the distinctions between international and non-international armed conflicts”).

¹²⁵ Prosecutor v. Tadic, IT-94-1, Judgment (15 July 1999) (ICTY, Appeals Chamber) at para. 97 [Tadic (Merits)].

¹²⁶ Prosecutor v. Delalic et al. (Celebici Camp), IT-96-21-T (20 February 2001) (ICTY, Appeals Chamber) at para. 172 [Delalic] (“[i]n light of the fact that the majority of the conflicts in the contemporary world are internal, to maintain a distinction between the two legal regimes and their criminal consequences in respect of similarly egregious acts because of the difference in nature of the conflicts would ignore the very purpose of the Geneva Conventions, which is to protect the dignity of the human person”) [emphasis added]; see Meron, supra note 96 at 33.

¹²⁷ Henckaerts and Doswald-Beck, supra note 34.

¹²⁸ ICRC Report 2003, supra note 12 at 16 (“[t]he Study confirms that the principle of distinction, the definition of military objectives, the prohibition of indiscriminate attacks, the principle of proportionality and the duty to take precautions in attack are all part of customary international law, regardless of the type of armed conflict involved”).

¹²⁹ Dinstein, supra note 33 at 16.

¹³⁰ Ibid. at 9, 17 (such concern was first codified in the 1868 St Petersburg Declaration: “[T]he progress of civilization should have the effect of alleviating as much as possible the calamities of war”).

¹³¹ See, e.g., Green, supra note 42.

¹³² Gardam, Judith Gail, “Proportionality and Force in International Law” (1993) 87 A.J.I.L. 395.Google Scholar

¹³³ Watkin, Kenneth, Combatants, Unprivileged Belligerents and Conflicts in the 21st Century Background Paper (Cambridge, MA: Program on Humanitarian Policy and Conflict Research, Harvard University, 2003) at 6.Google Scholar

¹³⁴ Hague Convention, supra note 34, art. 25.

¹³⁵ Ibid., preamble. See Ticehurst, Rupert, “The Martens Clause and the Laws of Armed Conflict” (1997) 317 Int’l Rev. Red Cross 125.CrossRefGoogle Scholar

¹³⁶ Ticehurst, supra note 135.

¹³⁷ Nuclear Weapons, supra note 32 (Shahbuddeen J. (dissent)).

¹³⁸ Beier, J. Marshall, “Discriminating Tastes: ‘Smart’ Bombs, Non-Combatants, and Notions of Legitimacy in Warfare” (2003) 34 Security Dialogue 418.CrossRefGoogle Scholar

¹³⁹ Ibid.

¹⁴⁰ Gregory, supra note 3 at 634.

¹⁴¹ Ibid.

¹⁴² See Additional Protocol I, supra note 39, art. 50(1) (“[a] civilian is any person who does not belong to one of the categories of persons referred to in Article 4A(1), (2), (3) and (6) of the Third Convention [certain prisoners of war] and Article 43 of this Protocol [armed forces]”). See also Uhler et al., supra note 51 at 21 (although “civilian” remained undefined in the Geneva Conventions, this should not be understood as a lack of concern for humanity: “it must not be forgotten that the Conventions [were] drawn up first and foremost to protect individuals, and not to serve State interests”). Gregory, supra note 3 at 634.

¹⁴³ Henckaerts and Doswald-Beck, supra note 34 at 17, “rule 5.”

¹⁴⁴ Ibid.

¹⁴⁵ Declaration of St Petersburg, 29 November 1868 (Avalon Project, Yale Law School), <http://avalon.law.yale.edu/19th_century/decpeter.asp>, preamble.

¹⁴⁶ Henckaerts and Doswald-Beck, supra note 34 “rule 1” at 3 (although the authors do not clearly state this in Rule 1, it is qualified by the fact that civilians who are directly participating in hostilities may be lawful targets of attack).

¹⁴⁷ See ibid. This customary status has been recognized by the ICJ and other international tribunals. Nuclear Weapons, supra note 32 at paras. 61 and 434.

¹⁴⁸ Additional Protocol I, supra note 39 (Art. 48 identifies the “basic rule”: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives”). Regarding customary status, see Henckaerts and Doswald-Beck, supra note 34, “rule 7” at 25, 27–28 (although a similar codification of this rule was dropped from the draft of Additional Protocol II prior to its acceptance, “it has been argued that the concept of general protection [of civilians] in Article 13(1) of [Additional Protocol II] is broad enough to cover it” in non-international armed conflicts. They support the conclusion that the principle of distinction applies in non-international armed conflicts with treaties dealing with the conduct of hostilities during non-international armed conflicts concluded after Additional Protocol II, numerous military manuals, national legislation, state practice, and the Nuclear Weapons case).

¹⁴⁹ Additional Protocol I, supra note 39, art. 52(2).

¹⁵⁰ Henckaerts and Doswald-Beck, supra note 34, “rule 8” at 29–32.

¹⁵¹ Additional Protocol I, supra note 39, art. 52(2).

¹⁵² Sassoli, Marco, Legitimate Targets of Attack under IHL, Background Paper (Cambridge, MA: Program on Humanitarian Policy and Conflict Research, Harvard University, 2004) at 3 Google Scholar [emphasis in original].

¹⁵³ Ibid.

¹⁵⁴ Additional Protocol I, supra note 39, art. 51 (4) (the protocol expressly prohibits indiscriminate attacks and identifies, but does not limit, such attacks as: “(a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by [the] Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction”); see Henckaerts and Doswald-Beck, supra note 34 at 41 ([t]he Mexico delegation stated that art. 51 “cannot be the subject of any reservations whatsoever since these would be inconsistent with the aim and purpose of Protocol I and undermine its basis”).

¹⁵⁵ Henckaerts and Doswald-Beck, supra note 34, “rule 12” at 40.

¹⁵⁶ See Additional Protocol I, supra note 39 (the requirement for proportionality in attack is codified with respect to international armed conflicts in arts. 51(5) (b) and 57); see also Henckaerts and Doswald-Beck, supra note 34 at 48–49 (although not specifically mentioned in Additional Protocol II with respect to non-international armed conflicts, “it has been argued that [the principle of proportionality] is inherent to the principle of humanity which was explicitly made applicable to the Protocol in its preamble and that, as a result, the principle of proportionality cannot be ignored in the application of the Protocol” to non-international armed conflicts. The conclusion that the principle of proportionality applies during non-international armed conflict as customary IHL is supported by its codification in treaties subsequent to the adoption of Additional Protocol II, its widespread inclusion in military manuals, pleadings of states before the ICJ in Nuclear Weapons, the jurisprudence of international judicial organs, and the fact that, “[n]o official contrary practice was found [in the ICRC study] with respect to either international or non-international armed conflicts”).

¹⁵⁷ Henckaerts and Doswald-Beck, supra note 34 at 46, “rule 14.”

¹⁵⁸ Ibid. at 66–67.

¹⁵⁹ Gardam, supra note 132 at 409.

¹⁶⁰ Ibid. at 407.

¹⁶¹ Henckaerts and Doswald-Beck, supra note 34 at 49.

¹⁶² Sandoz et al., supra note 48 at para. 2209. This temporal element is contested, as “concrete and direct” does not necessarily equate to immediate or soon.

¹⁶³ Gardam, supra note 132 at 407.

¹⁶⁴ See ibid (“[f]irst, proportionality is a factor in the selection of the target. If civilian losses are inevitable, because of either the intermingling of civilian and military targets or the dual character of the target itself, these must be balanced against the military advantage. Second, the means and methods of attack must be assessed. Some weapons are more likely to involve indiscriminate damage than others … Finally, even if these requirements are met, the conduct of the attack itself must not be negligent and involve unnecessary civilian casualties”).

¹⁶⁵ Sandoz et al., supra note 48 at para. 2212.

¹⁶⁶ Ibid. at para. 2213.

¹⁶⁷ Consider, e.g., the attack by Israel against the home of a Hamas leader, Nizar Rayyan, during the 2008–9 Israel-Hamas conflict, in which Rayyan, his four wives, and nine of his children were killed. Kershner, Isabel, “In Broadening Offensive, Israel Steps Up Diplomacy,” New York Times (2 January 2009) at A6Google Scholar; see also Targeted Killings, supra note 9 at para. 8 (On 22 July 2002, Israel destroyed the house of wanted terrorist Salah Shehade, killing him, his wife and family, and twelve neighbours). Further difficulty may also arise during counter-terrorist activity because non-state terrorists may not be considered “combatants” under IHL but, rather, civilians who lose their immunity from attack when they directly participate in hostilities. See, e.g., Targeted Killings, supra note 9; and Schmitt, supra note 53.

¹⁶⁸ Sandoz et al., supra note 48 at paras. 2208–9.

¹⁶⁹ Rona, supra note 10 at 66.

¹⁷⁰ Henckaerts and Doswald-Beck, supra note 34 at 51 , “rule 15.”

¹⁷¹ Additional Protocol I, supra note 39, art. 57.

¹⁷² State practice in such circumstances is evident from the 2006 Israel-Hezbollah conflict and the 2008–9 conflict between Israel and Hamas, as Israel used leaflets and telephone calls to warn civilians of attacks.

¹⁷³ See, e.g., Additional Protocol I, supra note 39 at art. 51 (8) (“[a]ny violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians”).

¹⁷⁴ Schmitt, Michael N., “Asymmetrical Warfare and International Humanitarian Law,” in von Heinegg, Wolff Heintschel and Epping, Volker, eds., International Humanitarian Law Facing New Challenges: Symposium in Honour of Knut Ipsen (New York: Springer, 2007) 11 at 23.CrossRefGoogle Scholar

¹⁷⁵ Ibid. at 22.

¹⁷⁶ Henckaerts and Doswald-Beck, supra note 34 at 337–40, “rule 97.”

¹⁷⁷ This does not mean that a state will be automatically barred from attacking the object being shielded. Involuntary human shields must be factored into the proportionality consideration. If the target is a valid military objective, it may be possible for the state to attack it and not violate IHL as long as the resulting civilian casualties are not disproportionate to the valid military objective sought.

¹⁷⁸ Schmitt, supra note 174 at 27; voluntary human shields would be lawful targets of attack because their activities constitute direct participation in hostilities.

¹⁷⁹ Ibid. at 47–48 (“when asymmetry disrupts the presumption [that the parties to an armed conflict will abide by the rules of IHL] and one side violates the agreed rules, the practical incentive for compliance by the other fades. Instead, IHL begins appearing as if it operates to the benefit of one’s foes. When that happens, the dictates of the law appear out of step with reality, perhaps even ’quaint’ … [T]he real danger is not so much that the various forms of asymmetry will result in violations of IHL. Rather, it is that asymmetries may unleash a dynamic that undercuts the very foundations of this body of law”).

¹⁸⁰ See the discussion earlier in this article; see also Franck, Thomas M., “Criminals, Combatants, or What? An Examination of the Role of Law in Responding to the Threat of Terrorism” (2004) 98 A.J.I.L. 686 Google Scholar (“Al Qaeda — to take the most prominent example [of a terrorist group] — does not readily fit the mold of either a crime family or an enemy state. Yet it is in response to these models that national criminal laws and international laws of war have been developed” at 686).

¹⁸¹ See, e.g., Corn, supra note 10; and Schondorf, supra note 10.

¹⁸² See, e.g., Rona, supra note 10.

¹⁸³ It may be argued that states would be bound to abide by their obligation under IHRL to not deprive individuals arbitrarily of the right to life when using extraterritorial force against suspected or known terrorists, as the right arguably ranks as a peremptory norm of international law. See, e.g., Kretzmer, supra note 116 at 184–85; Provost, Rene, International Humanitarian Law and Human Rights (New York: Cambridge University Press, 2002) at 19–21 CrossRefGoogle Scholar; Quénivet, Noëlle, “The Right to Life in International Humanitarian Law and Human Rights Law,” in Arnold, Roberta and Quénivet, Noëlle, eds., International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law (Boston: Martinus Nijhoff, 2008) 331 at 331Google Scholar; Schmid, Alex P., “Terrorism and Human Rights: A Perspective from the United Nations,” in Ranstorp, and Wilkinson, , supra note 122, 19 at 19–20.Google Scholar

¹⁸⁴ See, e.g., Rona, supra note 10.

¹⁸⁵ Ibid. at 64.

¹⁸⁶ Ibid. at 58–59 (“[a]n international armed conflict is one in which two or state are parties to the conflict” while non-international “historically … involv[e] rebels within a state against the state or other rebels”).

¹⁸⁷ Ibid. at 57 (“[i]n return for these protections [that IHL provides], humanitarian law elevates the essence of war — killing and detaining people without trial — into a right, if only for persons designated as ’privileged combatants’”).

¹⁸⁸ Ibid. at 58.

¹⁸⁹ See Balendra, supra note 71 at 2494 (IHL may be considered more protective than IHRL, because it: (1) imposes binding obligations on a non-state actor who is party to a conflict, whereas IHRL is only binding upon states; (2) provides for individual criminal responsibility for the commission of war crimes, whereas IHRL is enforceable only against state entities; and (3) imposes obligations from which states and non-state actors cannot lawfully derogate, whereas IHRL may be derogated from in certain circumstances).

¹⁹⁰ Ibid. at 2497.

¹⁹¹ Ibid. at 2498.

¹⁹² Ibid. It may be argued, however, that IHL could provide increased protection for innocent civilians because it explicitly requires the consideration of collateral damage when a state uses force, unlike IHRL.

¹⁹³ Ibid. at 2498 (given the increased potential for violations of the right to life, some commentators maintain that targeted strikes “presumptively violate the principle of proportionality under IHL because of the potential risk to civilians”); see, e.g., Proulx, Vincent-Joel, “If the Hat Fits, Wear It, If the Turban Fits, Run for your Life: Reflections on Indefinite Detention and Targeted Killing of Suspected Terrorists” (2005) Hastings L.J. 801.Google Scholar An argument in favour of apply IHL, however, is that it would provide a means of finding non-state actors liable under international criminal law, which is not possible under IHRL.

¹⁹⁴ See Rona, supra note 10 at 69 (“[t]here is little evidence that domestic and international laws and institutions of crime and punishment are not up to the task when terrorism and the War on Terror do not rise to the level of armed conflict. But there are powerful reasons to conclude that the application of humanitarian law in those circumstances would do more harm than good”).

¹⁹⁵ Wippman, David, “Do New Wars Call for New Laws?” in Wippman, David and Evangelista, Matthew, eds., New Wars, New Laws? Applying the Laws of War in the 21st Century (Ardsley, NY: Transnational, 2005) 1 at 1–2.Google Scholar

¹⁹⁶ Ibid. at 2.

¹⁹⁷ Ibid. at 3.

¹⁹⁸ Corn, supra note 10.

¹⁹⁹ See ibid. at 321 and 329 (“operations such as those launched by Israel against Hezbollah defy categorization as either international or internal armed conflicts,” however, “[t]he prospect of an unregulated battlefield is simply unacceptable in the international community — a fact that is demonstrated by the response to [this] conflict in Lebanon”).

²⁰⁰ Ibid. at 299.

²⁰¹ Nuclear Weapons, supra note 32 at para. 78.

²⁰² Corn, supra note 10 at 338–39.

²⁰³ Meron, supra note 96 at 27.

²⁰⁴ Ibid. at 27–28.

²⁰⁵ Proportionality has been recognized by the ICJ as a principle of customary international law applicable when a state uses force in self-defence. See Nuclear Weapons, supra note 32 at para. 41; Nicaragua, supra note 26 at para. 176; and Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), [2003] I.C.J. Rep. 161 at paras. 73–77.

²⁰⁶ Treating jus ad bellum separately from jus in bello, the recourse to the use of force against a terrorist group based in another state would fall under the scope of Article 2 (4) of the UN Charter as “international relations” because it involves the use of cross-border force, despite the fact that the force is not directed at the territorial state’s armed forces and the territorial state is not a party to any resultant armed conflict.

²⁰⁷ Corn, supra note 10 at 346 (the authorization to employ force based on the “status” of an enemy reflects the fact that a State’s armed forces are not limited under IHL to using force only in self-defence and is a means Corn proposes to distinguish the deployment of armed forces by a state during an armed conflict from deployments for other international purposes (such as peace-keeping operations), where the armed forces are only entitled to use force in self-defence).

²⁰⁸ See, e.g, Kretzmer, supra note 116 at 178–79 (the use of lethal force is arguably not “arbitrary” and therefore not contrary to the right to life guaranteed under IHRL provided that the use of lethal forces is absolutely necessary to protect the state’s civilians from unlawful violence by the target); Balendra, supra note 71 at 2505.

²⁰⁹ See the discussion earlier in this article.

²¹⁰ See the discussion earlier in this article.

²¹¹ Sassoli and Bouvier, supra note 30 at 141–42; see Schondorf, supra note 10 at 56.

²¹² See Corn, supra note 10 at 348 (he notes that vesting “undeserved status or legitimacy” remains “a critical concern for national security decision-makers”).

²¹³ Schondorf, supra note 10 at 55.

²¹⁴ Ibid. at 64. Although such an approach would result in increasing the protection of civilians because it would limit the ability of the state to use force, it may run the controversial risk of conflating jus ad bellum and jus in bello.

²¹⁵ Ibid. at 77–78. In light of the fact that some states would desire to “roll back” the restrictions on their actions during armed conflicts, even a “successful” attempt could be a cause for concern.

²¹⁶ See, e.g., the US position in Hamdan, supra note 91 (arguing that Common Article 3 would not apply to its armed conflict with Al-Qaeda) and Israel’s argument in Targeted Killings, supra note 9 at para. 11 (that there is a category of persons under IHL known as “unlawful combatants” to which the protections of IHL do not apply: “These are people who take active and continuous part in an armed conflict, and therefore should be treated as combatants, in the sense that they are legitimate targets of attack, and they do not enjoy the protections granted to civilians. However, they are not entitled to the rights and privileges of combatants, since they do not differentiate themselves from the civilian population and since they do not obey the laws of war”).

²¹⁷ See Sassoli, supra note 87 at 220–21 (“[a] new law [applicable to transnational armed conflicts] would inevitably create a third category … adding to the existing difficulties in classifying situations under the laws of war”).

²¹⁸ Consider, e.g., Pakistan’s position regarding the ongoing US strikes in its territory: Azzetti, Mark M. and Sanger, David E., “Obama Expands Missile Strikes Inside Pakistan,” New York Times (20 February 2009), <http://www.nytimes.com/2009/02/21/washington/21policy.html>. Google Scholar

²¹⁹ They are similar, for example, because a state uses force in another state’s territory, and the logistics of hostilities are the same because the targets are located abroad, see Schondorf, supra note 10 at 35–36.

²²⁰ Ibid. at 27.

²²¹ Commission of Inquiry, supra note 1 at para. 9 (the commission noted the “sui generis” character of the conflict because Lebanon did not engage in the hostilities occurring in its territory).

²²² The argument states raise in denying the application of such things as combatant status and prisoner of war rights to non-state actors engaged in a noninternational armed conflict with a state is that it would grant legitimacy to such actors and their cause. Potential legitimacy may arise because non-state actors enjoying combatancy status could be entitled to lawfully engage in armed conflict.

²²³ See Additional Protocol I, supra note 39, art. 43(2) (“combatants” are members of the armed forces of a party to a conflict (other than medical personnel and chaplains), who “have the right to directly participate in hostilities”); Henckaerts and Doswald-Beck, supra note 34 at 395 (prisoner of war (POW) status does not exist in non-international armed conflicts). Without combatancy status, non-state actors cannot claim POW status if apprehended (even during an international armed conflict where this status exists), cannot lawfully engage in combat, and may be liable for prosecution as a result of their participation. Although not benefiting from combatancy status, such persons are not without protection under IHL. If in the power of the opposing party, such individuals would retain rights as persons hors de combat, which are protected as “fundamental guarantees” under customary IHL including the rights to humane treatment, not to be subject to torture, and so on. See Henckaerts and Doswald-Beck, supra note 34 at 299 and on. Although the ability for states to lawfully engage in targeting of suspected and known terrorists based in other states and the status of non-state actors who engage in hostilities with a state in the context of transnational terrorism are important issues, they will not be examined in this article in detail. For discussions of these issues, see Targeted Killings, supra note 9 and Schmitt, supra note 53.

²²⁴ See, e.g., Garraway, Charles H.B., “25 Years of the Two Additional Protocols: Their Impact on the Waging of War; Challenges from New Types of Armed Conflicts,” in Ravasi, Guido and Berto, Gian Luca, eds., Proceedings of the 26th San Remo Round Table, 2002 (Milan: Edizioni Nagard, 2004) 145 at 152 and 154Google Scholar (“there is little incentive to comply with international law if all it is saying is that ‘You remain a criminal. However, if you insist on being a criminal, this is how to be a good criminal’ … By labeling those who engage in asymmetric warfare as criminals and international outlaws, we actually remove any incentive for them to conform [to IHL]”) [emphasis in original].

²²⁵ Given that non-state terrorist groups use tactics that are, by their nature, contrary to IHL, it may be unlikely that extending combatancy status to such actors would result in their compliance with IHL. This position is arguably more persuasive in other armed conflicts involving non-state armed groups — particularly for groups seeking independence — whereby IHL compliance can be a mechanism to strengthen the group’s claim to legitimacy despite their concurrent characterization as criminal by the state against which they are fighting. Such conflicts, however, may already qualify as “international.” See Additional Protocol I, supra note 39, art. 1 (4) (Additional Protocol I applies to, and may provide combatant status for, non-state actors engaged in “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination”).

²²⁶ See the discussion earlier in this article. See Delalic, supra note 126 at para. 184 (“the existence of armed force between States is sufficient of itself to trigger the application of [IHL]”).

²²⁷ Schondorf, supra note 10 at 38–40.

²²⁸ Corn, supra note 10 at 329.

²²⁹ Schondorf, supra note 10 at 40.

²³⁰ See the discussion earlier in this article.

²³¹ See the discussion earlier in this article.

²³² See the discussion at note 218.

²³³ See, e.g, Sassoli, supra note 87 at 220 (“any revision [of IHL] introduces the risk that States will take advantage of it to weaken rather than strengthen their obligations and the corresponding rights of war victims”).

²³⁴ Schondorf, supra note 10 at 59.

²³⁵ Sassoli, supra note 87 at 220

²³⁶ Just as recognizing a new category of transnational armed conflict would require state acceptance, so too would achieving the proposed clarification/expansion of non-international armed conflicts. Although the traditional or paradigmatic non-international armed conflict is an internal civil war, state practice coupled with opinio juris could support applying the rules of non-international armed conflict as the plain words of Common Article 3 arguably provide: to armed conflicts that are not international (that is, state-to-state) in character. States could indicate through formal statements that the rules of non-international armed conflicts apply — as a matter of law — to these situations. Such statements could build upon the decisions in Nicaragua and Hamdan as support for applying the fundamental principles of IHL to all armed conflicts even if they fall outside of the common understandings of the traditional categories. An important step could be for states to revise their military manuals to ensure that their armed forces are clearly bound to apply the rules of non-international armed conflicts to such situations. As the ICRC study has shown, these manuals provide a useful means of identifying customary IHL. Although doing so may be difficult due to the political nature of the issue, states could also pass a resolution in the UN General Assembly indicating their understanding of non-international armed conflicts as a residual category. Since states have proven to be concerned that the fight against transnational terrorism can threaten the rights of innocent civilians, there may be sufficient support for such a resolution so that it could be passed with a significant majority so that — although non-binding — it could arguably reflect widespread state opinio juris despite the fact that state practice may be nascent because these types of armed conflicts remain relatively rare.

²³⁷ Megret, Frederic, “’War’? Legal Semantics and the Move to Violence” (2002) 13 E.J.I.L. 361 at 391.Google Scholar

²³⁸ See Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, General Assembly Resolution 60/147, UN GAOR 60th Sess. UN Doc. A/Res/60/147 (2006).

²³⁹ Quoted in Schmid, supra note 183.