1 IGADF, Inspector-General of the Australian Defence Force Afghanistan Inquiry Report, 2020 (Brereton Report), publicly redacted version available at: www.defence.gov.au/about/reviews-inquiries/afghanistan-inquiry (all internet references were accessed in April 2023).

2 In the words of the Report, this “is not a finding, on balance of probability let alone to a higher standard”; rather, it is said to be “analogous to a finding that there are reasonable grounds for a supposition” (ibid., Chap. 1.01, para. 22, Chap. 1.04, para. 37). Noting that the IGADF Inquiry was not confined to evidence that would be admissible in a court of law, and that there may not be admissible evidence to prove a matter beyond reasonable doubt in such a court (Chap. 1.01, para. 23, Chap. 1.04, para. 39), the Report nonetheless states that “findings that there is ‘credible information’ of a war crime have not been lightly reached. Generally, the Inquiry has required eye-witness accounts, corroboration, persuasive circumstantial evidence, and/or strong similar fact evidence, for such a finding” (Chap. 1.01, para. 24). The Report subsequently states that “the Inquiry has generally adopted the approach that unless there is a reasonable prospect of a criminal investigation obtaining sufficient evidence to charge a particular person with a specified crime, it has not made a finding that there is ‘credible information’ that the person has committed the crime” (Chap. 1.04, para. 42).

3 Ibid., Chap. 1.01, para. 15.

4 The Report specifies that an identified twenty-three incidents concerned the killing of thirty-nine individuals and the cruel treatment of two, and involved twenty-five current or former ADF personnel as either principals or accessories, “some on a single occasion and a few on multiple occasions”. Ibid., Chap. 1.01, para. 16.

5 Ibid., Chap. 1.01, paras 21, 74.

6 Chief of the Defence Force, “Statement on IGADF Afghanistan Inquiry”, 19 November 2020, available at: https://news.defence.gov.au/media/media-releases/chief-defence-force-statement-igadf-afghanistan-inquiry.

7 Scott Morrison, Linda Reynolds and Peter Dutton, “Joint Statement on IGADF Inquiry”, 12 November 2020, available at: www.minister.defence.gov.au/minister/lreynolds/statements/joint-statement-statement-igadf-inquiry.

8 See, further, the OSI website, available at: www.osi.gov.au. Importantly, the OSI's mandate is not limited to investigating the individuals and incidents referred to it as a result of the recommendations of the Brereton Report. In March 2023, a former ADF member was charged with one count of the war crime of murder. This is the first war crime charge of murder to be laid against a serving or former ADF member under Australian law. The individual is expected to be the first of multiple persons to be charged with war crimes as a result of the OSI investigation. See OSI, “Former Australian Soldier Charged with War Crime”, media release, 20 March 2023, available at: www.osi.gov.au/news-resources/former-australian-soldier-charged-war-crime.

9 See, further, Australian Department of Defence, “Defence Response”, available at: www.defence.gov.au/about/reviews-inquiries/afghanistan-inquiry/defence-response.

10 At the International Criminal Court Assembly of States Parties meeting in December 2020, then-president Chile Eboe-Osuji made specific comment on the Brereton Report and the Australian government's initial response thereto and said: “So far, these developments promise much as a correct demonstration of the doctrine of complementarity at work. There is, indeed, seldom a war in which a soldier does not commit a war crime, much to the embarrassment of their commanding officers. This is so, however disciplined the armed force in question. It is a show of leadership in the ethos of the rule of law for the national authorities concerned to conduct the appropriate inquiry and take disciplinary and prosecutorial action against the culprits. Australia deserves all the credit for the promise of being an exemplar in this regard.” Chile Eboe-Osuji, “Valedictory Statement and End of Mandate Overview Including Remarks Delivered at the Opening of the 19th Session of the Assembly of States Parties”, 14 December 2020, available at: https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP19/2020-ASP-Valedictory-Statement.pdf.

11 Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II).

12 See below notes 59–69 and accompanying text.

13 See, for example, the Geneva Academy's Rule of Law in Armed Conflict database, available at: https://geneva-academy.ch/research/rule-of-law-in-armed-conflicts-rulac.

14 Pfanner, Toni, “Editorial”, International Review of the Red Cross, Vol. 91, No. 873, 2009, p. 5CrossRefGoogle Scholar.

15 Principally, AP II, Art. 1(1); Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, 17 July 1998 (entered into force 1 July 2002) (Rome Statute), Art. 8(2)(d), 8(2)(f).

16 It is broadly agreed that the customary definition of a NIAC (which also establishes the applicability of Article 3 common to the four Geneva Conventions (common Article 3, CA3)) is that set out in International Criminal Tribunal for the former Yugoslavia (ICTY), The Prosecutor v. Duško Tadić, Case No. IT-940101A, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2 October 1996, para. 70, which defined a NIAC as existing whenever there is “protracted armed violence between governmental authorities and organised armed groups or between such groups within a State”.

17 See, for example, ICTY, The Prosecutor v. Fatmir Limaj, Isah Musliu and Haradin Bala, Case No. IT-03-66-T, Judgment (Trial Chamber), 30 November 2005, para. 86; ICTY, The Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, Case No. IT-04-84-T, Judgment (Trial Chamber), 3 April 2008, para. 49; ICTY, The Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-T, Judgment (Trial Chamber), 10 July 2008, paras 177, 178, 183; ICTY, The Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-A, Judgment (Appeals Chamber), 19 May 2010, paras 22, 177; ICTY, The Prosecutor v. Vlastimir Đorđević, Case No. IT-05-87/1-T, Judgment with Confidential Annex (Trial Chamber), 23 February 2011, para. 1523.

18 International Committee of the Red Cross (ICRC), Report on the Work of the Preliminary Conference of National Red Cross Societies for the Study of the Conventions and of Various Problems Relative to the Red Cross, Geneva, July 26–August 3, 1946, pp. 14–15, available at: https://library.icrc.org/library/docs/CD/CSN_1946_CONFPRE_ENG_01.pdf; ICRC, Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims, Geneva, 14–26 April 1947), pp. 8–9; ICRC, Revised and New Draft Conventions for the Protection of War Victims, Approved and Amended by the 17th International Red Cross Conference, Geneva, 1948, Art. 2, pp. 9–10, available at: https://library.icrc.org/library/docs/CI/CI_1948_PROJET_ENG_01.pdf; Final Record of the Diplomatic Conference of Geneva of 1949, Vol. 2, Section B, Federal Political Department, Berne, 1949, Special Committee of the Joint Committee, Summary Records of 41 Meetings, Reports to the Joint Committee and Report to the Plenary Assembly, pp. 40–50, 78–79, 82–84, 93–95, 97–102, 107–109, 120–129, available at: https://library.icrc.org/library/docs/CD/CD_1949_ACTES_ENG_25.pdf, and Minutes of the Plenary Meetings, pp. 268–269, 325–339, available at: https://library.icrc.org/library/docs/CD/CD_1949_ACTES_ENG_29.pdf.

19 Boyd Van Dijk, Preparing for War: The Making of the Geneva Conventions, Oxford University Press, Oxford, 2020, pp. 116–117, 122, 124, 125, 103, 134, 143.

20 As expressed by the ICTY Appeals Chamber, “States preferred to regard internal strife as rebellion, mutiny and treason coming within the purview of national criminal law and, by the same token, to exclude any possible intrusion by other States into their own domestic jurisdiction. This … was clearly sovereignty-oriented and reflected the traditional configuration of the international community, based on the coexistence of sovereign States more inclined to look after their own interests than community concerns or humanitarian demands”. ICTY, The Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision (Appeals Chamber), 2 October 1995, para. 96; Kretzmer, David, “Rethinking the Application of IHL in Non-International Armed Conflicts”, Israel Law Review, Vol. 42, No. 1, 2009, pp. 21–22CrossRefGoogle Scholar.

21 Jean Pictet (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 1: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952, pp. 43–44; Bothe, Michael, Partsch, Karl Josef and Solf, Waldemar A., New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, 2nd ed., Martinus Nijhoff, The Hague, 2013, pp. 693–694CrossRefGoogle Scholar; Aoláin, Fionnuala Ní, “The Relationship Between Situations of Emergency and Low-Intensity Armed Conflict”, Israel Yearbook on Human Rights, Vol. 28, 1998, pp. 100–101Google Scholar; B. Van Dijk, above note 19, pp. 114–116, 118, 122, 132. This accounts for the inclusion of paragraph 4 of CA3, which provides that “[t]he application of the preceding provisions shall not affect the legal status of the Parties to the conflict”.

22 Akande, Dapo, “Classification of Armed Conflicts: Relevant Legal Concepts”, in Elizabeth Wilmshurst (ed.), International Law and the Classification of Conflicts, Oxford University Press, Oxford, 2015, p. 37Google Scholar; Milanovic, Marko and Hadzi-Vidanovic, Vidan, “A Taxonomy of Armed Conflict”, in Christian Henderson and Nigel White (eds), Research Handbook on International Conflict and Security Law, Edward Elgar, Cheltenham, 2013, pp. 268–269Google Scholar; Cullen, Anthony, The Concept of Non-International Armed Conflict in International Humanitarian Law, Cambridge University Press, Cambridge, 2010, p. 57CrossRefGoogle Scholar; D. Kretzmer, above note 20, pp. 21–22.

23 J. Pictet (ed.), above note 21, p. 50.

24 Paragraph 2 of Article 1 further specifies that the Protocol does not apply “to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts”.

25 On the distinction between NIACs governed by CA3 and customary IHL and those to which AP II also applies, see Yves Sandoz, Christophe Swinarski and Bruno Zimmerman (eds), Commentary on the Additional Protocols to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987 (ICRC Commentary on the APs), paras 4447, 4453, 4457; Junod, Sylvie, “Additional Protocol II: History and Scope”, American University Law Review, Vol. 33, No. 1, 1983, pp. 35–38Google Scholar; International Law Association, Use of Force Committee, Final Report on the Meaning of Armed Conflict in International Law, The Hague, 2010, pp. 12–13; Schindler, Dietrich, The Different Types of Armed Conflict According to the Geneva Conventions and Protocols, Hague Academy of International Law, The Hague, 1979, pp. 148–149Google Scholar; Jinks, Derek, “September 11 and the Laws of War”, Yale Journal of International Law, Vol. 28, 2003, pp. 26–27Google Scholar; Pejic, Jelena, “Status of Armed Conflicts”, in Elizabeth Wilmshurst and Susan Breau (eds), Perspectives on the ICRC Study on Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2007, pp. 87–88Google Scholar; Vité, Sylvain, “Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations”, International Review of the Red Cross, Vol. 91, No. 873, 2009, pp. 75–80CrossRefGoogle Scholar; A. Cullen, above note 22, pp. 102–107; Graham, David, “Defining Non-International Armed Conflict: A Historically Difficult Task”, International Law Studies, Vol. 88, 2012, p. 47Google Scholar; Sivakumaran, Sandesh, The Law of Non-International Armed Conflict, Oxford University Press, Oxford, 2012, pp. 182–192Google Scholar; D. Akande, above note 22, pp. 51–56; Yoram Dinstein, Non-International Armed Conflicts in International Law, Cambridge University Press, Cambridge, 2014, pp. 38–48; M. Milanovic and V. Hadzi-Vidanovic, above note 22, pp. 24–28; Marco Pedrazzi, “Additional Protocol II and Threshold of Application”, in Fausto Pocar and Gian Luca Beruto (eds), International Institute of Humanitarian Law: The Additional Protocols 40 Years Later: New Conflicts, New Actors, New Perspectives; 40th Round Table on Current Issues of International Humanitarian Law, Milan, FrancoAngeli, 2018, pp. 48–51; Jann Kleffner, “The Legal Fog of Illusion: Three Reflections on Organisation and Intensity as Criteria for the Scope of the Law of Non-International Armed Conflict”, International Law Studies, Vol. 95, 2019, pp. 163–164; Marco Sassòli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, Edward Elgar, Northampton, 2019, pp. 180–184; International Criminal Tribunal for Rwanda (ICTR), The Prosecutor v. Jean-Pierre Akayesu, Case No. ICTR-96-4-T, Judgment (Trial Chamber), 2 September 1998, para. 618; ICTR, The Prosecutor v. George Rutaganda, Case No. ICTR-96-3-T, Judgment and Sentence (Trial Chamber), 6 December 1999, para. 94.

26 This process arguably reached a high point with the adoption of the 2005 World Summit Outcome Document, paras 138–139 of which articulate States’ understanding of the Responsibility to Protect. 2005 World Summit Outcome Document, UNGA Res. 60/1, 16 October 2005.

27 See, further, Tom Kaden and Christoph Günther, “Shifting Recognition Orders: The Case of the Islamic State”, in Anna Geis, Maéva Clément and Hanna Pfeifer (eds), Armed Non-State Actors and the Politics of Recognition, Manchester University Press, Manchester, 2021, p. 88.

28 Eliav Lieblich, International War and Civil Wars: Intervention and Consent, Routledge, London, 2013, p. 50; M. Milanovic and V. Hadzi-Vidanovic, above note 22, pp. 306–307; M. Sassòli, above note 25, p. 183; D. Kretzmer, above note 20, pp. 21–25; McLaughlin, Rob, “Legal-Policy Considerations and Conflict Characterisation at the Threshold between Law Enforcement and Non-International Armed Conflict”, Melbourne Journal of International Law, Vol. 13, No. 1, 2012, pp. 104–105Google Scholar; Radin, Sasha and Coats, Jason, “Autonomous Weapons Systems and the Threshold of Non-International Armed Conflict”, Temple International and Comparative Law Journal, Vol. 30, No. 1, 2016, pp. 138–139Google Scholar.

29 Kreß, Claus, “Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts”, Journal of Conflict and Security Law, Vol. 15, No. 2, 2010, p. 260CrossRefGoogle Scholar.

30 Michael N. Schmitt and Sean Watts, “The Decline of International Humanitarian Law Opinio Juris and the Law of Cyber Warfare”, Texas International Law Journal, Vol. 50, Symposium Issue 2, 2015; Sivakumaran, Sandesh, “Making and Shaping the Law of Armed Conflict”, Current Legal Problems, Vol. 71, No. 1, 2018CrossRefGoogle Scholar; Stappert, Nora, “A New Influence of Legal Scholars? The Use of Academic Writings at International Criminal Courts and Tribunals”, Leiden Journal of International Law, Vol. 31, No. 4, 2018CrossRefGoogle Scholar; McDougall, Carrie, “The Other Enemy: Transnational Terrorists, Armed Attacks and Armed Conflicts”, in Leila Nadya Sadat (ed.), Seeking Accountability for the Unlawful Use of Force, Cambridge University Press, Cambridge, 2018, pp. 245–251Google Scholar; Dörmann, Knut, “The Role of Nonstate Entities in Developing and Promoting International Humanitarian Law”, Journal of Transnational Law, Vol. 51, No. 3, 2018Google Scholar.

31 For an explanation of this phenomenon, see the position of US and Australian legal advisers: Koh, Harold, “The Legal Adviser's Duty to Explain”, Yale Journal of International Law, Vol. 41, No. 1, 2016Google Scholar; Egan, Brian, “International Law, Legal Diplomacy and the Counter-ISIL Campaign: Some Observations”, International Law Studies, Vol. 92, 2016, pp. 244-245Google Scholar; John Reid, “Ensuring Respect: The Role of State Practice in Interpreting the Geneva Conventions”, ILA Reporter, 9 November 2016, available at: https://ilareporter.org.au/2016/11/ensuring-respect-the-role-of-state-practice-in-interpreting-the-geneva-conventions-john-reid/.

32 This may not necessarily correspond to a willingness to concede publicly that a NIAC is in existence: as Rob McLaughlin has explained in detail, there are “significant political, social, operational, reputational and economic consequences that flow from a characterisation decision”. R. McLaughlin, above note 28, p. 107.

33 Brereton Report, above note 1, Chap. 1.10, para. 11; see also para. 14.

34 Ibid., Chap. 1.10, para. 12.

35 Ibid., Chap. 1.10, para. 16.

36 Ibid., Chap. 1.10, para. 19.

37 Ibid., Chap. 1.10, para. 21. It is noted that Sections 268.70 and 268.72 of the Commonwealth Criminal Code were amended by the Criminal Code Amendment (War Crimes) Act 2016 (Cth) at the end of 2016, with the effect of narrowing the scope of the offences such that they now exclude actions taken against members of an organized armed group (in addition to persons not taking an active part in the hostilities). The controversial amendments only had prospective effect and thus do not apply to the conduct that is the subject of the Brereton Report.

38 Brereton Report, above note 1, Chap. 1.10, para. 11. An additional fourteen paragraphs set out the applicable crimes under the Commonwealth Criminal Code, with a following fifteen paragraphs concerning accessorial liability, and four paragraphs devoted to defences, before the chapter turns to consider the role of the Attorney-General and the International Criminal Court in war crimes prosecutions, and finally the Defence Force Discipline Act 1982 (Cth). Compare this, for example, to the fifty-nine pages devoted to a historical review of Australia's approach to allegations of war crimes in Chapter 1.08 of the Report.

39 See, for example, Michael N. Schmitt, “Targeting and International Humanitarian Law in Afghanistan”, Israel Yearbook on Human Rights, Vol. 39, 2009, pp. 100–101; Robin Geiß and Michael Siegrist, “Has the Conflict in Afghanistan Affected the Rules on the Conduct of Hostilities?”, International Review of the Red Cross, Vol. 93, No. 881, 2011, pp. 13–15; Annyssa Bellal, Gilles Giacca and Stuart Casey-Maslen, “International Law and Armed Non-State Actors in Afghanistan”, International Review of the Red Cross, Vol. 93, No. 881, 2011, pp. 51–52.

40 UNSC Res. 1386, 20 December 2001.

41 Lindsey Cameron et al., “Article 3 – Conflicts Not of an International Character”, in ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd ed., Geneva, 2016, para. 404.

42 Ibid., para. 446; Tristan Ferraro, “The ICRC's Legal Position on the Notion of Armed Conflict Involving Foreign Intervention and on Determining the IHL Applicable to this Type of Conflict”, International Review of the Red Cross, Vol. 97, No. 900, 2015, p. 1231. According to Ferraro, for an intervening State to become a party to a NIAC, the following conditions must be satisfied: “(1) there is a pre-existing NIAC taking place on the territory where the third power intervenes; (2) actions related to the conduct of hostilities are undertaken by the intervening power in the context of that pre-existing conflict; (3) the military operations of the intervening power are carried out in support of one of the parties to the pre-existing NIAC; and (4) the action in question is undertaken pursuant to an official decision by the intervening power to support a party involved in the pre-existing conflict.”

43 Marten Zwanenburg, “Remarks at the ‘Peace Forces at War: Implications under International Humanitarian Law’ Panel”, Proceedings of the Annual Meeting of the American Society of International Law, vol. 108, 2014, p. 152.

44 Australian Department of Defence, “Changes to Middle East Operations Now in Place”, media release, 30 June 2014, available at: https://web.archive.org/web/20140826120544/http://news.defence.gov.au/stories/2014/06/operational-restructure-middle-east-region/.

45 Australian Department of Defence, “Minister for Defence Visit to Afghanistan”, media release, 3 September 2014, available at: www.minister.defence.gov.au/media-releases/2014-09-03/minister-defence-minister-defence-visit-afghanistan.

46 Australian Department of Defence, “Minister for Defence – ADF Completes Training Mission in Afghanistan”, media release, 2 October 2015, available at: www.minister.defence.gov.au/media-releases/2015-10-02/minister-defence-adf-completes-training-mission-afghanistan.

47 It is acknowledged that while the temporal scope of the IGADF Inquiry was 2005 to 2016, the chronology of events investigated dates from 2006 to 2013: see Brereton Report, above note 1, Chap. 1.01, Annex B.

48 US Supreme Court, Hamdan v. Rumsfeld, 548 US 557 (2006), 2006.

49 The case concerned a successful constitutional challenge to the legality of the military commissions established to try detainees at Guantanamo Bay on the basis that the Bush administration did not have authority to set up the commissions without congressional authority because they did not comply with the US Uniform Code of Military Justice or the Geneva Conventions. The US government controversially argued that the Geneva Conventions did not apply because the conflict between the United States and Al-Qaeda (in the context of which Hamdan had been captured and detained, and which the US government sought to distinguish from its conflict with the Taliban) was “international in scope” and thus did not qualify as a conflict not of an international character under CA3, and fell outside common Article 2 (which establishes the applicability of the balance of the Conventions) because that provision only applies to conflicts between States party to the Conventions. The Supreme Court did not consider the merits of the government's submissions in relation to common Article 2 because it found that at least CA3 was applicable on the basis that “[t]he term ‘conflict not of an international character’ is used here in contradistinction to a conflict between nations”: ibid., p. 67. While the decision has been widely welcomed for rejecting the US government's argument that a conflict with a transnational terrorist organization is unregulated by IHL because it falls outside the traditional IAC/NIAC dichotomy, it has been criticized for failing to engage in any detail on the complex issues relating to the classification of armed conflicts under common Articles 2 and 3 generally or the US engagement in hostilities in Afghanistan in particular: see, for example, Fionnuala Ní Aoláin, “Hamdan and Common Article 3: Did the Supreme Court Get It Right?”, Minnesota Law Review, Vol. 91, No. 5, 2007, p. 1523; Eran Shamir-Borer, “Revisiting Hamdan v. Rumsfeld's Analysis of the Laws of Armed Conflict”, Emory International Law Review, Vol. 21, 2007, p. 601. The decision does not consider the customary status of CA3 as a whole, nor does it consider the application of that article to States other than the United States.

50 L. Cameron et al., above note 41, paras 473, 510; Jelena Pejic, “The Protective Scope of Common Article 3: More than Meets the Eye”, International Review of the Red Cross, Vol. 93, No. 881, 2011, pp. 11–17; Nils Melzer, Targeted Killing in International Law, Oxford University Press, Oxford, 2008, pp. 258–259; M. Milanovic and V. Hadzi-Vidanovic, above note 22, p. 31.

51 International Court of Justice, Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1987, p. 14, para. 218; ICTY, Tadić, above note 16, para. 128; ICTR, Akayesu, above note 25, para. 608; Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005, Rules 87, 88, 89, 90, 92, 96, 100, 109, 110, available at: https://ihl-databases.icrc.org/en/customary-ihl; Françoise Hampson, “Fundamental Guarantees”, in E. Wilmshurst and S. Breau (eds), above note 25, pp. 289–292, 299. Indeed, the Rome Statute's travaux préparatoires document the fact that a majority of States consider not only that CA3 prohibitions have attained customary status, but also that their violation amounts to a crime under customary international law: see, for example, Hermann von Hebel and Darryl Robinson, “Crimes within the Jurisdiction of the Court”, in Roy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute, Kluwer International, The Hague, 1999, pp. 89, 104, 123; William A. Schabas, An Introduction to the International Criminal Court, Cambridge University Press, Cambridge, 2001, p. 23; Michael Bothe, “War Crimes”, in Antonio Cassese, Paola Gaeta and John R. W. D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 379; Andreas Zimmermann and Robin Geiß, “Article 8, Para 2(c)–(f) and Para 3: War Crimes Committed in an Armed Conflict not of an International Character”, in Otto Triffterer and Kai Ambos (eds), Rome Statute of the International Criminal Court: A Commentary, 3rd ed., Bloomsbury, London, 2016, pp. 542–543; Eva La Haye, War Crimes in Internal Armed Conflicts, Cambridge University Press, Cambridge, 2008, pp. 52–53.

52 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I).

53 The extent of hostilities is indicated by the high number of persons killed and wounded year on year: see Neta C. Crawford, “Update on the Human Costs of War for Afghanistan and Pakistan, 2001–mid-2016”, Costs of War Project, Watson Institute of International and Public Affairs, Brown University, August 2016, https://watson.brown.edu/costsofwar/files/cow/imce/papers/2016/War%20in%20Afghanistan%20and%20Pakistan%20UPDATE_FINAL_corrected%20date.pdf.

54 Estimates for different years vary, but tend to range from 15,000 to 80,000. See, for example, Gilles Dorronsoro, “Waiting for the Taliban in Afghanistan”, Carnegie Endowment for International Peace, 20 September 2012, available at: https://carnegieendowment.org/2012/09/20/waiting-for-taliban-in-afghanistan-pub-49419 (estimating 50,000 members in 2012); Nagamine, Yoshinobu, The Legitimization Strategy of the Taliban's Code of Conduct: Through the One-Way Mirror, Palgrave Macmillan, New York, 2015, pp. 22–23CrossRefGoogle Scholar (estimating 15,000–40,000 in 2012).

55 Shah, Niaz A., “The Taliban Layeha for Mujahidin and the Law of Armed Conflict”, International Humanitarian Legal Studies, Vol. 3, No. 1, 2012, pp. 207–210Google Scholar; Peter Bergen, “U.S. Intelligence Briefing: Taliban Increasingly Effective”, Foreign Policy, 25 January 2010, available at: http://edition.cnn.com/2010/WORLD/asiapcf/01/25/afghanistan.taliban/index.html; Farrell, Theo and Giustozzi, Antonio, “The Taliban at War: Inside the Helmand Insurgency, 2004–2012”, International Affairs, Vol. 89, No. 4, 2013, pp. 855–867CrossRefGoogle Scholar; Johnson, Thomas H. and Dupee, Matthew C., “Analysing the New Taliban Code of Conduct (Layeha): An Assessment of Changing Perspectives and Strategies of the Afghan Taliban”, Central Asian Survey, Vol. 31, No. 1, 2012, pp. 85–86CrossRefGoogle Scholar.

56 Y. Nagamine, above note 54, pp. 27–43, 92–101, Annex III; Munir, Muhammad, “The Layha for the Mujahideen: An Analysis of the Code of Conduct for the Taliban Fighters under Islamic Law”, International Review of the Red Cross, Vol. 93, No. 881, 2011CrossRefGoogle Scholar; N. Shah, above note 55, pp. 192–229; T. H. Johnson and M. C. Dupee, above note 55, pp. 77–91. I am grateful to Azadah Mariam Raz Mohammad for sharing information regarding the Layeha for Mujahideen with me.

57 Percentage estimates vary year-on-year, but appear to be at least 30%. See, for example, Ken Silanian, “Taliban Control of Afghanistan Highest since U.S. Invasion”, NBC News, 30 January 2016, www.nbcnews.com/news/us-news/taliban-control-afghanistan-highest-u-s-invasion-n507031.

58 See, for example, A. Bellal, G. Giacca and S. Casey-Maslen, above note 39, pp. 56–58; M. Munir, above note 56, p. 84; Dapo Akande, “Afghanistan Accedes to the Additional Protocols to Geneva Conventions: Will APII Govern the Conflict in Afghanistan?”, EJIL: Talk!, 30 June 2009, available at: www.ejiltalk.org/afghanistan-accedes-to-additional-protocols/; UN Assistance Mission in Afghanistan and UN Office of the High Commissioner for Human Rights, Afghanistan: Annual Report 2011: Protection of Civilians in Armed Conflict, Kabul, February 2012, p. iii, available at: https://unama.unmissions.org/sites/default/files/unama_poc_report_final_feb_2012.pdf. The press release issued by the ICRC on the occasion of the Afghan government's accession to AP II also implies that it expected the Protocol to be immediately implemented: ICRC, “Afghanistan Accedes to Additional Protocols I and II in Historic Step to Limit Wartime Suffering”, media release, 24 June 2009, available at: www.icrc.org/en/doc/resources/documents/news-release/2009-and-earlier/afganistan-news-240609.htm.

59 J. Pejic, above note 25, p. 92.

60 S. Vité, above note 25, p. 80.

61 A. Bellal, G. Giacca and S. Casey-Maslen, above note 39, pp. 60–61.

62 Ibid.

63 N. Melzer, above note 50, p. 257; Turns, David, “Jus ad Pacem in Bello? Afghanistan, Stability Operations and International Law Relating to Armed Conflict”, Israel Yearbook on Human Rights, Vol. 39, 2009, p. 230Google Scholar.

64 D. Akande, above note 22, p. 55.

65 R. Geiß and M. Siegrist, above note 39, p. 16.

66 Bradley, Martha M., “Classifying Non-International Armed Conflicts: The ‘Territorial Control’ Requirement under Additional Protocol II in an Era of Complex Conflicts”, Journal of International Humanitarian Legal Studies, Vol. 11, No. 2, 2020, pp. 358–363, 383CrossRefGoogle Scholar. The focus of Bradley's article is on “spillover conflicts”, but she also contemplates scenarios where foreign AP II States Parties intervene in an AP II NIAC.

67 Dinstein, Yoram, Non-International Armed Conflict in International Law, 2nd ed., Cambridge University Press, Cambridge, 2021, p. 117CrossRefGoogle Scholar.

68 Andrew Clapham, “Defining Armed Conflicts under the Additional Protocols: Is there a Need for Further Clarification?”, in F. Pocar and G. L. Beruto (eds), above note 25, p. 38.

69 Ibid., p. 39.

70 Vienna Convention on the Law of Treaties, 1155 UNTS 331, 23 May 1969 (entered into force 27 January 1980).

71 M. M. Bradley, above note 66, pp. 359–360.

72 Ibid., p. 360.

73 Ibid., p. 368.

74 Ibid.

75 Ibid., p. 69.

76 Ibid., p. 360 fn. 56.

77 The Brazilian Proposal (Doc. CDDH/I/79, 21 March 1974, reproduced in Official Records of the Diplomatic Conference on the Reaffirmation and Development of the International Humanitarian Law Applicable in Armed Conflict, Vol. 4, Federal Political Department, Berne, 1978, p. 8, available at: https://library.icrc.org/library/docs/CD/CD_1977_ACTES_ENG_04.pdf) reads in full: “Redraft of Article 1 as follows: ‘Article 1, scope of the present Protocol: 1. The present Protocol shall apply to armed conflicts not covered by Article 2 common to the Geneva Conventions of August 12, 1949, relating to the protection of victims of international armed conflicts, in which, on the territory of a High Contracting Party: (a) Organized armed forces or other organized armed groups under a responsible and identifiable authority and clearly distinguished from the civilian population, perform acts hostile to the established authorities to which the latter respond by using their armed forces; and (b) Forces hostile to the government exert continuous and effective control over a non-negligible part of the territory. 2. The foregoing provisions do not modify the conditions governing the application of Article 3 common to the Geneva Conventions of 12 August 1949.’ In relation to the travaux préparatoires, see above notes 80–86 and accompanying text.

78 It is acknowledged that Bradley characterizes her interpretive conclusion as “distressful” and notes that “over time the lex lege ferenda could offer greater protection by extending the application of Additional Protocol II”: M. M. Bradley, above note 66, p. 383.

79 A. Bellal, G. Giacca and S. Casey-Maslen, above note 39, p. 61.

80 Draft Additional Protocols to the Geneva Conventions of 12 August 1949, June 1973, reproduced in Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Vol. 1, Part 3, Federal Political Department, Berne, 1978, available at: https://library.icrc.org/library/docs/CD/CD_1977_ACTES_ENG_01.pdf.

81 These are reproduced in Official Records of the Diplomatic Conference, Vol. 4, above note 77, pp. 6–10.

82 See proposals by Indonesia (Doc. CDDH/I/32, 12 March 1974, reproduced in ibid., p. 7), the German Democratic Republic (Doc. CDDH/I/88, 11 September 1974, reproduced in ibid., p. 8), Norway (Doc. CDDH/I/218, 17 February 1975, reproduced in ibid., p. 9) and the Philippines (Doc. CDDH/I/231, 26 February 1975, reproduced in ibid., p. 10).

83 Committee I Report, Doc. CDDH/219/Rev.1, reproduced in Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Vol. 10, Federal Political Department, Berne, 1978, p. 21, paras 88–90, available at: https://library.icrc.org/library/docs/CD/CD_1977_ACTES_ENG_10.pdf.

84 Ibid., paras 91–92.

85 ICRC Commentary on the APs, above note 25, para. 4446.

86 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Federal Political Department, Berne, 1978, available at: https://library.icrc.org/library/search/Notice/2374. See also ICRC Commentary on the APs, above note 25, paras 4453, 4457; Nils Melzer and Etienne Kustner, International Humanitarian Law: A Comprehensive Introduction, ICRC, Geneva, 2019, pp. 68–69; A. Cullen, above note 22, pp. 88–96; D. Graham, above note 25, p. 47; D. Jinks, above note 25, pp. 26–27.

87 See AP II, Art. 5(2).

88 See ibid., Art. 8.

89 See Brereton Report, above note 1, Chap. 1.01, Annex B. It is difficult to be precise given the redactions in the public version of the Report (which include the day and month of different incidents investigated, meaning that a count of incidents from 2010 could include some occurrences that pre-date the entry into force of AP II for Afghanistan), but of the sixty-two incidents or issues investigated, eleven (or 18%) are dated from 2006–09, and fifty-one (or 82%) from 2010–13.

90 See, for example, ICTY, Tadić, above note 16, paras 98, 117, 126; ICTR, Akayesu, above note 25, paras 609–610; ICTY, The Prosecutor v. Pavle Strugar, Miodrag Jokić and Others, Case No. IT-01-42-AR72, Decision on Interlocutory Appeal (Appeals Chamber), 22 November 2002, para. 10; ICTY, The Prosecutor v Dario Kordić and Mario Čerkez, Case No. IT-95-14/2, Decision on the Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdictional Reach of Articles 2 and 3 (Trial Chamber), 2 March 1999, para. 31.

91 Brereton Report, above note 1, Chap. 1.01, Annex A, p. 49, “Chief of Defence Force Direction to Inspector-General of the Australian Defence Force – Concerns Regarding Special Operations Command”, 14 December 2016, para. 2.

92 ICRC, “Criminal Repression”, How Does Law Protect in War?, available at: https://casebook.icrc.org/law/criminal-repression.

93 C. McDougall, above note 30, pp. 235–245.

94 See above notes 30–32 and accompanying text.

95 George Brandis, “The Right of Self-Defence against Imminent Armed Attacks in International Law”, lecture delivered at the T. C. Beirne School of Law, University of Queensland, 11 April 2017, p. 12, available at: https://tinyurl.com/2s43zpvb.

96 H. Koh, above note 31. As Koh puts it, “[t]o participate in a system of international law, nations owe each other explanations of why they believe their national conduct comports with global norms and follows not from mere expedience but from a sense of legal obligation (opinio juris). By laying out her government's legal theory in public, the legal adviser shoulders the nation's responsibility to give its citizens, the media, legal communities, and legislators, as well as the international legal community, a fuller opportunity to assess the legal theory offered to authorize a given action and to test the government's present and future actions in light of that theory” (p. 190).

97 This term was borrowed by Brandis from Mureinik, Etienne, “A Bridge to Where? Introducing the Interim Bill of Rights”, South African Journal on Human Rights, Vol. 10, No. 1, 1994, p. 32CrossRefGoogle Scholar.

98 G. Brandis, above note 95, p. 12.

99 Ibid., p. 13.

100 Carrie McDougall, “The Application of APII to States Intervening in NIAC”, Conference on Non-International Armed Conflict, Asia Pacific Centre for Military Law, Melbourne Law School, University of Melbourne, 19 March 2015.

101 Brereton Report, above note 1, Chap. 1.02, para. 18.

102 Ibid., Chap. 1.01, paras 19, 67, Chap. 1.04, paras 22, 45, 50, Chap. 3.01, paras 18, 19, Chap. 3.03, Annex A, “Special Operations Command: Leadership and Ethics Review”, para. 50.