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Counterterrorism and the risk of over-classification of situations of violence

Published online by Cambridge University Press:  15 October 2021

Abstract

Richard Baxter famously stated that “the first line of defence against international humanitarian law is to deny that it applies at all”. While “under-classification” remains an issue today, a parallel trend needs to be acknowledged. This is the tendency to over-classify situations of violence, especially in relation to transnational terrorist organizations such as the so-called Islamic State group or Al-Qaeda. This tendency stems from practical difficulties inherent in the changing operational environment. The last few years have witnessed a proliferation of armed non-State actors that are labelled or designated as terrorists (e.g., in Iraq, Syria, Mali, Nigeria and Yemen). Terrorist groups are characterized by opaque, often volatile organizational structures and tend to operate in decentralized networks rather than clear hierarchies. The formation of splinter groups, changing alliances, temporary reunification and even open hostility among former allies are common phenomena. This complex factual situation has led to the proliferation of theories of conflict classification, many of them arguing in favour of more flexible classification via the loosening of existing standards. Because international humanitarian law is in many respects less protective than international human rights law, particularly regarding the rules on the use of force and detention, classifying a situation of violence as an armed conflict when the threshold has not been met is a problem that should not be underestimated. In this article, we revisit the criteria of intensity and organization, as well as the related matter of the role of motives in conflict classification, considering conflicts involving armed groups described as terrorists. Our goal is to identify minimum requirements that could diminish the risk of over-classification by various stakeholders.

Type
Research Article
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of the ICRC

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Footnotes

*

This article is based on research conducted as part of Gloria Gaggioli's project on “Preventing and Combating Terrorism and Violent Extremism: Towards a Legal-Empirical Approach”, funded by the Swiss National Science Foundation. The views expressed here are the authors’ own and do not reflect the position of any institutions with which they are affiliated.

References

1 Richard Baxter, “Some Existing Problems in Humanitarian Law”, in The Concept of International Armed Conflict: Future Outlook, Proceedings of the International Symposium of Humanitarian Law, Brussels, 1974, p. 2.

2 For example, such has been the position of the Russian Federation and Turkey towards the conflicts with Chechen insurgents and the Kurdistan Workers’ Party, respectively, and this was reflected in these States’ submissions to the European Court of Human Rights (ECtHR) in cases related to these situations. See, for example, ECtHR, Ergi v. Turkey, Appl. No. 66/1997/850/1057, 28 July 1998; ECtHR, Isayeva v. Russia, Appl. No. 57950/00, 24 February 2005; ECtHR, Isayeva, Yusupova and Bazayeva v. Russia, Appl. Nos 57947/00, 57948/00, 57949/00, 24 February 2005; ECtHR, Aslakhanova and Others v. Russia, Appl. Nos 2944/06, 8300/07, 50184/07, 332/08, 42509/10, 18 December 2012.

3 “Islamist Cleric Anwar Al-Awlaki Killed in Yemen”, BBC News, 30 September 2011, available at: www.bbc.com/news/world-middle-east-15121879 (all internet references were accessed in September 2021).

4 After a late 2018 bomb attack against a tourist bus in Giza, Egyptian forces claimed to have killed forty alleged terrorists in Giza and Northern Sinai. See “Egypt Police ‘Kill 40 Militants’ in Raids after Tourist Bus Blast”, BBC News, 29 December 2018, available at: www.bbc.com/news/world-middle-east-46708695. As far as the authors of this article are aware, Egypt has not publicly stated its views on the use of force paradigm governing the raids, but the operation was aimed at eliminating “militants” rather than arresting suspected criminals as required under law enforcement.

5 A concise restatement of the problem of over-classification is offered by Sassòli, who notes that “States try to ‘overclassify’ a situation as an armed conflict in order to apply IHL even where it does not apply”. Sassòli, Marco, “The Implementation of International Humanitarian Law: Current and Inherent Challenges”, Yearbook of International Humanitarian Law, Vol. 10, 2007, p. 50CrossRefGoogle Scholar.

6 Eric Talbot Jensen, “Targeting of Persons and Property”, in Geoffrey S. Corn et al., The War on Terror and the Laws of War: A Military Perspective, Oxford University Press, Oxford, 2015, p. 86.

7 See Alkaff, Syed Huzaifah Bin Othman and Mahzam, Remy, “Islamic State after the Fall of Mosul and Raqqa: Impact on Organisation and Propaganda”, Counter Terrorist Trends and Analyses, Vol. 10, No. 1, 2018Google Scholar.

8 See Geneva Academy of International Humanitarian Law and Human Rights (Geneva Academy), “Non-International Armed Conflicts in Mali”, available at: www.rulac.org/browse/conflicts/non-international-armed-conflits-in-mali#collapse2accord.

9 See Geneva Academy, “Non-International Armed Conflicts in Libya”, available at: www.rulac.org/browse/conflicts/non-international-armed-conflicts-in-libya#collapse2accord.

10 See Geneva Academy, “Non-International Armed Conflicts in Yemen”, available at www.rulac.org/browse/conflicts/non-international-armed-conflicts-in-yemen#collapse2accord.

11 See, for example, Rogier Bartels, “The Organisational Requirement for the Threshold of Non-International Armed Conflict Applied to the Syrian Opposition”, Armed Groups and International Law, 9 August 2012, available at: https://armedgroups-internationallaw.org/2012/08/09/the-organisational-requirement-for-the-threshold-of-non-international-armed-conflict-applied-to-the-syrian-opposition/; Ashley Deeks, “Common Article 3 and Linkages between Non-State Armed Groups”, Lawfare, 4 October 2017, available at: www.lawfareblog.com/common-article-3-and-linkages-between-non-state-armed-groups; Vaios Koutroulis, “Classifying Contemporary Conflicts: The Challenge of Coalitions of Non-State Armed Groups and/or States”, in Legal Challenges for Protecting and Assisting in Current Armed Conflicts, 20th Bruges Colloquium, 2019; Marten Zwanenburg, “Addressing the Threat Posed by Coalitions of Non-State Armed Groups: A State Perspective”, in Legal Challenges for Protecting and Assisting in Current Armed Conflicts, 20th Bruges Colloquium, 2019; Jelena Nikolić, Thomas de Saint Maurice and Tristan Ferraro, “Aggregated Intensity: Classifying Coalitions of Non-State Armed Groups”, Humanitarian Law and Policy Blog, 7 October 2020, available at: https://blogs.icrc.org/law-and-policy/2020/10/07/aggregated-intensity-classifying-coalitions-non-state-armed-groups/; Adil Ahmad Haque, “Triggers and Thresholds of Non-International Armed Conflict”, Just Security, 29 September 2016, available at: www.justsecurity.org/33222/triggers-thresholds-non-international-armed-conflict/; and many others.

12 Buchanan, Allen and Keohane, Robert O., “Toward a Drone Accountability Regime”, Ethics & International Affairs, Vol. 29, No. 1, 2015, p. 16Google Scholar.

13 Margulies, Peter, “Networks in Non-International Armed Conflicts: Crossing Borders and Defining ‘Organized Armed Group’”, International Law Studies, Vol. 89, 2013, p. 57Google Scholar.

14 See, in this regard, Gloria Gaggioli, The Use of Force in Armed Conflicts: Interplay Between the Conduct of Hostilities and Law Enforcement Paradigms, International Committee of the Red Cross (ICRC), Geneva, 2013.

15 See, for example, Human Rights Committee, General Comment No. 35, “Article 9 (Liberty and Security of Person)”, UN Doc. CCPR/C/GC/35, 16 December 2014, paras 15, 66. See also ECtHR, Hassan v. United Kingdom, Appl. No. 29750/09, 16 September 2014, para. 106; UK Supreme Court, Serdar Mohammed (Respondent) v. Ministry of Defence (Appellant), [2017] UKSC 2, 17 January 2017, paras 99–109; and, more generally, Els Debuf, Captured in War: Lawful Internment in Armed Conflict, Hart Publishing, Oxford, 2013.

16 Social sciences support the notion that the radicalization of non-State groups often arises as a reaction to the actions of others, including States. See McCauley, Clark and Moskalenko, Sophia, “Mechanisms of Political Radicalization: Pathways Toward Terrorism”, Terrorism and Political Violence, Vol. 20, No. 3, 2008CrossRefGoogle Scholar; Marc Sageman, Turning to Political Violence: The Emergence of Terrorism, University of Pennsylvania Press, Philadelphia, PA, 2017; Tom Parker, Avoiding the Terrorist Trap: Why Respect for Human Rights is the Key to Defeating Terrorism, World Scientific Press, London, 2019.

17 International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v. Duško Tadić, Case No. IT-94-1, Decision (Appeals Chamber), 2 October 1995, para. 70.

18 See, for example, ICTY, Prosecutor v. Fatmir Limaj, Haradin Bala and Isak Musliu, Case No. IT-03-66-T, Judgment (Trial Chamber), 30 November 2005, para. 84; ICTY, Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, Case No. IT-04-84-T, Judgment (Trial Chamber), 3 April 2008, paras 32 ff.

19 See 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 (2016 Commentary on GC I), para. 434.

20 It should be recalled that there exists no universally accepted definition of terrorism (or terrorist groups) in international law, although a number of groups have been individually designated as terrorist by States and/or the UN Security Council; these include the Taliban, Al-Qaeda and IS. See, for example, UNSC Res. 1267, 15 October 1999; UNSC Res. 1373, 28 September 2001; UNSC Res. 2253, 17 December 2015. On the lack of a definition of terrorism, see Antonio Cassese, International Criminal Law, Oxford University Press, Oxford, 2003, pp. 125–126; Ben Saul, Defining Terrorism in International Law, Oxford University Press, Oxford, 2006; Marco Sassòli, “La définition du terrorisme et le droit international humanitaire”, Revue Québecoise de Droit International, Special Issue, 2007; Gilles Ferragu, Histoire du terrorisme, Éditions Perrin, Paris, 2014; Anthony Richards, Conceptualizing Terrorism, Oxford University Press, Oxford, 2015; Ben Saul (ed.), Research Handbook on International Law and Terrorism, Edward Elgar, Cheltenham, 2020. For a human rights perspective on counterterrorism, see Louise Doswald-Beck, Human Rights in Times of Conflict and Terrorism, Oxford University Press, Oxford, 2011; Martin Scheinin, “Terrorism”, in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds), International Human Rights Law, Oxford University Press, Oxford, 2018, pp. 585–586. For an overview of existing counterterrorism treaties, see O'Donnell, Daniel, “International Treaties against Terrorism and the Use of Terrorism during Armed Conflict and by Armed Forces”, International Review of the Red Cross, Vol. 88, No. 864, 2006, pp. 854856CrossRefGoogle Scholar. For international jurisprudence, see, in particular, Special Tribunal for Lebanon, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I, Decision (Appeals Chamber), 16 February 2011, paras 83–113.

21 International Court of Justice (ICJ), Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, 27 June 1986, ICJ Reports 1986, para. 218. See also Robert Kolb and Richard Hyde, An Introduction to the International Law of Armed Conflicts, Hart Publishing, Oxford, 2008, p. 261.

22 Common Article 3, para. 1 (emphasis added).

23 2016 Commentary on GC I, above note 19, paras 422, 429.

24 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 (1952 Commentary on GC I), p. 49; cf. 2016 Commentary on GC I, above note 19, paras 422–437.

25 Notably in the Tadić, Delalić, Haradinaj, Limaj and Boškoski cases, on which we focus in this section.

26 See, for example, ICTY, Limaj, above note 18, paras 93 ff.

27 See Ilya Sobol, “Judicial Practices of Identifying Non-International Armed Conflicts: An Inquiry into Normative Status and Use of ‘Indicative Factors’”, LLM Thesis, Geneva Academy, 2018, p. 20; cf. Jann K. Kleffner, “The Legal Fog of an Illusion: Three Reflections on ‘Organization’ and ‘Intensity’ as Criteria for the Temporal Scope of the Law of Non-International Armed Conflict”, International Law Studies, Vol. 95, 2019, pp. 168 ff.

28 ICTY, Haradinaj, above note 18, paras 63 ff.

29 Ibid., paras 32ff.

Ibid

30 I. Sobol, above note 27, pp. 16 ff.

31 ICTY, Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-T, Judgment (Trial Chamber), 10 July 2008, para. 194. See also ICRC, How is the Term “Armed Conflict” Defined in International Humanitarian Law?, Geneva, 2008, p. 5; 2016 Commentary on GC I, above note 19, para. 423 (“The ICRC has expressed its understanding of non-international armed conflict, which is based on practice and developments in international case-law, as follows: Non-international armed conflicts are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State [party to the Geneva Conventions]. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organisation”).

32 ICTY, Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgment (Appeals Chamber), 15 July 1999, para. 120.

33 ICTY, Limaj, above note 18, para. 132.

34 ICTY, Haradinaj, above note 18, para. 69.

35 Ibid., para. 89. Beyond international criminal courts and tribunals, the Inter-American Commission on Human Rights (IACHR) in Abella v. Argentina – the famous Tablada case – also decided that it sufficed for the armed group to be “relatively organized”; see IACHR, Juan Carlos Abella v. Argentina, Case No. OEA/Ser.L/V/II.98, 18 November 1997 (Tablada), para. 152.

Ibid

36 ICTY, Limaj, above note 18, paras 88–89.

37 The Trial Chamber held that “Article 8(2)(f) [of the Rome Statute of the ICC] does not incorporate the requirement that the organised armed groups were ‘under responsible command’ …. Instead, the ‘organized armed group’ must have a sufficient degree of organisation, in order to enable them to carry out protracted armed violence.” ICC, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment (Trial Chamber), 14 March 2012, para. 536.

38 Ibid., para. 537.

Ibid

39 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977: Commentary, ICRC, Geneva, 1987, para. 4470.

40 See, for example, J. Nikolić, T. de Saint Maurice and T. Ferraro, above note 11: “IHL requires that the parties to armed conflicts have the capacity to conduct military operations and to apply IHL rules.” Cf. M. Sassòli, above note 5, p. 56; see also Sassòli, Marco and Shany, Yuval, “Should the Obligations of States and Armed Groups under International Humanitarian Law Really Be Equal?”, International Review of the Red Cross, Vol. 93, No. 882, 2011, pp. 425436CrossRefGoogle Scholar.

41 Droege, Cordula, “Get Off My Cloud: Cyber Warfare, International Humanitarian Law, and the Protection of Civilians”, International Review of the Red Cross, Vol. 94, No. 886, 2012, p. 550CrossRefGoogle Scholar; see also 2016 Commentary on GC I, above note 19, para. 429.

42 ICC, Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, Judgment (Trial Chamber), 7 March 2014, para. 1185.

43 See, for example, Wilhelm, René-Jean, “Problèmes relatifs à la protection de la personne humaine par le droit international dans les conflits armés ne présentant pas un caractère international”, Recueil des Cours, Hague Academy of International Law, Vol. 137, 1972, pp. 347348Google Scholar; Dietrich Schindler, “The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols”, Recueil des Cours, Hague Academy of International Law, Vol. 163, 1979, p. 147; C. Droege, above note 41, p. 550; Gaggioli, Gloria, “Targeting Individuals Belonging to an Armed Group”, Vanderbilt Journal of Transnational Law, Vol. 51, No. 3, 2020, p. 908Google Scholar.

44 See, for example, 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), Art. 1(2); 2016 Commentary on GC I, above note 19, para. 431. See also ICTY, Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgment (Trial Chamber), 7 May 1997, para. 562, stating that the criteria of organization and intensity “are used solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law”.

45 Daniel Muñoz-Rojas and Jean-Jacques Frésard, The Roots of Behaviour in War: Understanding and Preventing IHL Violations, ICRC, Geneva, 2020, p. 13.

46 See Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities, ICRC, Geneva, 2009, pp. 32 ff.

47 See above note 40; AP II, Art. 1(1); Tilman Rodenhäuser, “Armed Groups, Rebel Coalitions, and Transnational Groups: The Degree of Organization Required from Non-State Armed Groups to Become Party to a Non-International Armed Conflict”, Yearbook of International Humanitarian Law, Vol. 19, 2016, pp. 14 ff.

48 See, in particular, R. Bartels, above note 11.

49 For example, Patrick B. Johnson et al., Foundations of the Islamic State: Management, Money and Terror in Iraq, 2005–2010, RAND Corporation, Santa Monica, CA, 2016, pp. 68–69; Sinno, Abdulkader H., “Armed Groups’ Organizational Structure and Their Strategic Options”, International Review of the Red Cross, Vol. 93, No. 882, 2011, p. 316CrossRefGoogle Scholar.

50 Rohan Gunaratna and Aviv Oreg, “Al Qaeda's Organizational Structure and Its Evolution”, Studies in Conflict and Terrorism, Vol. 33, No. 12, 2010, p. 1045.

51 “Hierarchical terrorist organizations are more akin to conventional armies or guerrilla movements. They use unconventional battlefield tactics, but their organization centralizes authority from the top down”: P. B. Johnson et al., above note 49, p. 69.

52 Ibid., p. 69.

Ibid

53 R. Gunaratna and A. Oreg, above note 50, p. 1045.

54 Phil Williams, “Transnational Criminal Networks”, in John Arquilla and David Ronfeldt (eds), Networks and Netwars: The Future of Terror, Crime, and Militancy, RAND Corporation, Santa Monica, CA, 2001, pp. 72–74.

55 Fiona Terry and Brian McQuinn, The Roots of Restraint in War, ICRC, Geneva, 2018.

56 Ibid., p. 46.

Ibid

57 Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/S-17/2/Add.1, 23 November 2011, paras 97 ff.

58 Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/21/50, 16 August 2012, paras 21 ff.

59 See Geneva Academy, “Non-International Armed Conflicts in Syria”, available at: www.rulac.org/browse/conflicts/non-international-armed-conflicts-in-syria#collapse3accord.

60 “Guide to the Syrian Opposition”, BBC News, 17 October 2013, available at: www.bbc.com/news/world-middle-east-15798218.

61 Ghaith Abdul-Ahad, “Al-Qaida Turns Tide for Rebels in Battle for Eastern Syria”, The Guardian, 30 July 2012, available at: www.theguardian.com/world/2012/jul/30/al-qaida-rebels-battle-syria.

62 On the decentralized character of the group, see Charles Lister, The Free Syrian Army: A Decentralized Insurgent Brand, Brookings Institution, Washington, DC, 2016.

63 See R. Bartels, above note 11 (assuming that the FSA is an OAG and deriving from this assumption the idea that the factor regarding the existence of a disciplinary system is not a must). See also our contrasting opinion above regarding the need to consider the existence of an accountability mechanism as a minimum requirement based on a teleological interpretation of the law.

64 On the FSA/SNA as a banner organization or a “loose alliance of rebel groups”, see Geneva Academy, above note 59.

65 See Aymenn Al-Tamimi, “The Evolution in Islamic State Administration: The Documentary Evidence”, Perspectives on Terrorism, Vol. 9, No. 4, 2015, p. 118.

66 Ibid., p. 123.

Ibid

67 Guillaume N. Beaurpere, “ISIS and Protracted War: Why Violent Extremists Persist in the Face of Defeat”, Counter Terrorist Trends and Analyses, Vol. 6, No. 8, 2014, p. 6.

68 See, for example, “Islamic State Fighter Estimate Triples – CIA”, BBC News, 12 September 2014, available at: www.bbc.com/news/world-middle-east-29169914.

69 Jacob N. Shapiro and David A. Siegel, “Moral Hazard, Discipline, and the Management of Terrorist Organizations”, World Politics, Vol. 64, No. 1, 2012, p. 51.

70 See UNSC Res. 2253, 17 December 2015.

71 See, for example, A. Al-Tamimi, above note 65; J. N. Shapiro and D. A. Siegel, above note 69.

72 See Alastair Reed, Al Qaeda in the Indian Subcontinent: A New Frontline in the Global Jihadist Movement?, International Centre for Counter-Terrorism, 2016, pp. 10 ff. See also Mapping Militants, “Al Qaeda in the Indian Subcontinent”, Stanford University, available at: https://cisac.fsi.stanford.edu/mappingmilitants/profiles/al-qaeda-indian-subcontinent-aqis.

73 For the functioning of the Red Army Faction, its organization and the way it was considered by the West German authorities, see Reinhard Rauball, Die Baader-Meinhof-Gruppe, De Gruyter, Berlin, 1973, pp. 29–42; Karrin Hanshew, Terror and Democracy in West Germany, Cambridge University Press, New York, 2012, pp. 111 ff., 160 (the latter recalling that State representatives “insisted on trying the members of the RAF as simple criminals rather than grant them special recognition as political combatants”).

74 “The movement, never very hierarchical, is more dispersed than ever, with many leaders in the Adamawa mountains, Cameroon, and Niger. Its isolated leader, the violent Abubakar Shekau, probably has little daily control over cells, and it is fragmenting into factions, including the relatively sophisticated Ansaru, which focuses more on foreign targets.” International Crisis Group, Curbing Violence in Nigeria (II): The Boko Haram Insurgency, 3 April 2014, p. ii.

75 Ibid., pp. 21 ff. Notably, the report recalls (p. 22) that “in the past four years [Boko Haram] has split into many factions with varying aims, to the point that some believe it is too fragmented to present a common front for dialogue” (emphasis added).

Ibid

76 According to the International Crisis Group report, “[l]ately [Boko Haram] has evolved into pure terrorism, with targeting of students attending secular state schools, health workers involved in polio vaccination campaigns and villages supporting the government”: Ibid., p. ii.

77 See, in this regard, G. Gaggioli, above note 43, p. 901.

78 Trishia Billiones, “Maute Group Not Accredited by Terror Group ISIS, Says Analyst”, ABS-CBN News, 25 May 2017, available at: https://news.abs-cbn.com/focus/05/25/17/maute-group-not-accredited-by-terror-group-isis-says-analyst.

79 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts: Recommitting to Protection in Armed Conflict on the 70th Anniversary of the Geneva Conventions, Geneva, 2019 (2019 Challenges Report), p. 10.

80 See Pavle Kilibarda and Gloria Gaggioli, “Globalization of Non-International Armed Conflicts”, in Mark Lattimer and Philip Sands (eds), The Grey Zone: Civilian Protection between Human Rights and the Laws of War, Hart Publishing, London, 2018.

81 Marco Sassòli, International Humanitarian Law: Rules, Controversies and Solutions to Problems Arising in Warfare, Edward Elgar, Cheltenham, 2019, p. 181; cf. 2016 Commentary on GC I, above note19, para. 415.

82 ICTY, Haradinaj, above note 18, para. 49.

83 See M. Sassòli, above note 81, p. 182.

84 In the Tablada case, the IACHR found that armed violence lasting no more than two days amounted to a NIAC between Argentinian forces and an insurgent group; see IACHR, Tablada, above note 35.

85 ICTY, Haradinaj, above note 18, para. 49. For comparison, see similar factors used in other ICTY case law, such as ICTY, Limaj, above note 18, paras 135 ff.; ICTY, Boškoski, above note 31, paras 177 ff.; ICTY, Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo, Case No. IT-96-21-T, Judgment (Trial Chamber), 16 November 1998, paras 188 ff.; ICTY, Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgment (Appeals Chamber), 17 December 2004, paras 333–341.

86 See 2016 Commentary on GC I, above note 19, para. 236.

87 See in this regard the theory advanced by Jean Pictet in the 1952 Commentary on Common Article 3, which also takes into account a list of exigent factors to establish the existence of a “genuine” armed conflict. 1952 Commentary on GC I, above note 24, pp. 49 ff.

88 AP II, Art. 1(2).

89 ICRC, above note 31, p. 3.

90 See, for example, J. K. Kleffner, above note 27, p. 2169: “While this is not to suggest that one-sided armed violence – for instance, the killing of civilians or destruction of civilian objects – cannot also feature in the intensity analysis for determining the existence of a NIAC, fighting between the parties is a quintessential precondition, and as such, a determinative factor.”

91 2019 Challenges Report, above note 79, p. 51.

92 A. A. Haque, above note 11.

93 “[L]e conflit armé interne, aux yeux des experts, est celui qui met en présence les forces armées organisées du gouvernement établi et du parti insurgé. Cette dernière notion implique que le gouvernement établi, pour faire face aux hostilités dirigées contre lui, doit recourir non seulement aux forces de police normalement chargées du maintien de l'ordre, mais à de véritables forces armées”: R.-J. Wilhelm, above note 43, pp. 347–348.

94 This is not to say that law enforcement officials cannot engage in hostilities, but the continued deployment of the police using force according to law enforcement standards seems indicative of the fact that the State does not believe that there is as of yet a need for more extreme measures to contain the situation.

95 Some NIACs have historically involved naval confrontations on the high seas, and confrontations could hypothetically take place in outer space as well; however, the asymmetry characterizing most conflicts between States and non-State actors largely confines them to land warfare in territories belonging to one or more States.

96 Hans-Peter Gasser, “International Humanitarian Law: An Introduction”, in Hans Haug (ed.), Humanity for All: The International Red Cross and Red Crescent Movement, Henry Dunant Institute, Geneva, 1993, p. 555.

97 The question of consent by the territorial State may figure in this analysis as a factual consideration, but unlike for jus ad bellum, it is not constitutive of the intervening State's obligations under IHL or IHRL.

98 See Oona A. Hathaway, Rebecca Crootof, Daniel Hessel, Julia Shu and Sarah Weiner, “Consent Is Not Enough: Why States Must Respect the Intensity Threshold in Transnational Conflict”, University of Pennsylvania Law Review, Vol. 165, No. 1, 2016, pp. 23 ff. and 40 in particular (arguing that, if intensity were not required for an intervening State, it would be allowed to use force in a way that would be impossible for the territorial State; if, however, the intervening State is acting upon the invitation of the territorial State regarding an existing “domestic” NIAC, there is no need for this criterion to be met separately by the intervener). For the idea that the intensity criterion for an extraterritorial NIAC may be higher in order to respect the territorial State's sovereignty, see Radin, Sasha, “Global Armed Conflict? The Threshold of Extraterritorial Non-International Armed Conflicts”, International Law Studies, Vol. 89, 2013, pp. 736737Google Scholar.

99 See Center for Strategic & International Studies, Backgrounder: Jama'at Nasr al-Islam wal Muslimin (JNIM), 2018, available at: https://tinyurl.com/fvnxvhmp.

100 J. Nikolić, T. de Saint Maurice and T. Ferraro, above note 11.

101 Philip Kleinfeld, “Jihadis, Vigilantes, and Demoralised Troops: A Who's Who in Burkina Faso's Spiralling Crisis”, The New Humanitarian, 9 March 2020, available at: www.thenewhumanitarian.org/analysis/2020/03/09/who-is-who-burkina-faso-crisis.

102 See Jason Pack, Rhiannon Smith and Karim Mezran, The Origins and Evolution of ISIS in Libya, Atlantic Council, 2017, pp. 12 ff.; Henrik Gråtrud and Vidar Benjamin Skretting, “Ansar al-Sharia in Libya: An Enduring Threat”, Perspectives on Terrorism, Vol. 11, No. 1, 2017.

103 See McGregor, Andrew, “Anarchy in Azawad: A Guide to Non-State Armed Groups in Northern Mali”, Terrorism Monitor, Vol. 15, No. 2, 2017Google Scholar.

104 Christof Heyns, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, UN Doc. A/68/382, 13 September 2013, para. 60; “Co-Belligerents”, in John P. Grant and J. Craig Barker (eds), Encyclopaedic Dictionary of International Law, Oxford University Press, Oxford, 2009 (“In strictness, co-belligerents are simply States engaged in a conflict with a common enemy, whether in alliance with each other or not”); Ingber, Rebecca, “Co-Belligerency”, Yale Journal of International Law, Vol. 42, No. 1, 2017Google Scholar.

105 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950), Art. 4(2): “Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.”

106 Columbia District Court, Hamlily v. Obama, 616 F Supp 2d 63, 2009, pp. 74–75.

107 See Nathalie Weizmann, “Associated Forces and Co-belligerency”, Just Security, 24 February 2015, available at: www.justsecurity.org/20344/isil-aumf-forces-co-belligerency/; A. Deeks, above note 11; V. Koutroulis, above note 11, p. 13; M. Zwanenburg, above note 11, p. 27.

108 It may be argued that the necessity requirement which we discussed for intensity would be met ipso facto for another group if it has already been met for one group, but this may not necessarily be the case: for example, the other group might be active in a part of a State's territory where the State's capacity to maintain law and order is unhampered by the ongoing NIAC against a different group elsewhere. And most importantly, the bilateral projection of violence (armed clashes) would still have to exist separately, in addition to necessity.

109 For example, before the United States entered the Second World War in 1941, it had already lost its neutrality for commercially favouring the United Kingdom, but was still not considered a belligerent itself: see R. Kolb and R. Hyde, above note 21, pp. 277 ff.

110 “One only attains co-belligerent status by violating the law of neutrality, i.e., the duty of non-participation and impartiality. … If those duties are violated, then the adversely affected belligerent is permitted to take reprisals against the ostensibly neutral party”: Columbia District Court, Hamlily, above note 106, p. 75.

111 V. Koutroulis, above note 11, pp. 18–19.

112 Ibid., p. 18.

Ibid

113 See Raphaël van Steenberghe and Pauline Lesaffre, “The ICRC's ‘Support-Based Approach’: A Suitable but Incomplete Theory”, Questions of International Law, Vol. 59, 2019, pp. 16–18; see also M. Zwanenburg, above note 11, p. 31 (Zwanenburg disagrees with the “cumulative approach” regarding AP II application).

114 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.

115 2016 Commentary on GC I, above note 19, para. 446 (emphasis in original).

116 “[A]ctions such as logistical support involving the transportation of the troops of one of the belligerents on the front line, the provision of intelligence used immediately in the conduct of hostilities and the involvement of members of the third power in planning and coordinating military operations conducted by the supported party are all types of support that fall within the scope of application of the ICRC's position – in the same way as direct involvement by the intervening power in combat operations does – because they have a bearing on the applicability ratione personae and ratione materiae of IHL”: T. Ferraro, above note 114, p. 1231. See also M. Zwanenburg, above note 11, pp. 26–27.

117 M. Zwanenburg, above note 11.

118 T. Ferraro, above note 114, p. 1231; the ICRC refers to the involvement of a “third power”.

119 R. van Steenberghe and P. Lesaffre, above note 113, p. 11.

120 See Columbia District Court, Hamlily, above note 106, pp. 68 ff.

121 See, inter alia, A. Deeks, above note 11; M. Zwanenburg, above note 11, p. 28; R. van Steenberghe and P. Lesaffre, above note 113, pp. 19 ff.

122 N. Melzer, above note 46, pp. 46 ff.

123 A. Deeks, above note 11.

124 Ibid.

Ibid

125 M. Zwanenburg, above note 11, p. 28.

126 Van Steenberghe and Lesaffre examine this issue and, while arguing in favour of this approach, accept that it should in such situations have a broader scope than when discussing individuals and targeting: see R. van Steenberghe and P. Lesaffre, above note 113, pp. 19 ff.

127 J. Nikolić, T. de Saint Maurice and T. Ferraro, above note 11.

128 2019 Challenges Report, above note 79, p. 51.

129 J. K. Kleffner, above note 27, pp. 172 ff.

130 See Chiara Redaelli, “A Common Enemy: Aggregating Intensity in Non-International Armed Conflicts”, Humanitarian Law and Policy Blog, 22 April 2021, available at: https://blogs.icrc.org/law-and-policy/2021/04/22/common-enemy/.

131 Sandesh Sivakumaran, “International Humanitarian Law”, in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds), International Human Rights Law, Oxford University Press, Oxford, 2018, p. 508.

132 See, in particular, Andrew Clapham, Human Rights Obligations of Non-State Actors, Oxford University Press, Oxford, 2006; Katharine Fortin, The Accountability of Armed Groups under Human Rights Law, Oxford University Press, Oxford, 2017.

133 ICJ, Nicaragua, above note 21, para. 219.

134 ICTY, Tadić, above note 32, paras 84, 162 (here, the Tribunal does not even consider the NIAC threshold once it has attributed the conduct of an OAG to a foreign State – the conflict is ipso facto an IAC).

135 Robert Kolb, Ius in bello: Le droit international des conflits armés, Helbing & Lichtenhahn, Basel, 2003, paras 175 ff.

136 For positions advocating internationalization, see Eric David, Principes de droit des conflits armés, Bruylant, Brussels, 2002, p. 152; Stewart, James G., “Towards a Single Definition of Armed Conflict in International Humanitarian Law: A Critique of Internationalized Armed Conflict”, International Review of the Red Cross, Vol. 85, No. 850, 2003Google Scholar. For an opposing view, see the current ICRC position on conflicts with “double classification” in T. Ferraro, above note 114.

137 See, for example, H.-P. Gasser, above note 96, p. 555: “The members of [OAGs] – whether described as insurgents, rebels, revolutionaries, secessionists, freedom fighters, terrorists, or by similar names – are fighting to take over the reins of power, or to obtain greater autonomy within the State, or in order to secede and create their own State.” For similar views, see Claude Bruderlein, The Role of Non-State Actors in Building Human Security: The Case of Armed Groups in Intra-State Wars, Centre for Humanitarian Dialogue, 2000, pp. 8 ff.; David Petrasek, Ends & Means: Human Rights Approaches to Armed Groups, International Council on Human Rights Policy, 2000, p. 6; Kleffner, Jann K., “The Applicability of International Humanitarian Law to Organized Armed Groups”, International Review of the Red Cross, Vol. 93, No. 882, 2011, p. 450CrossRefGoogle Scholar; Ugarizza, Juan E. and Craig, Matthew J., “The Relevance of Ideology to Contemporary Armed Conflicts: A Quantitative Analysis of Former Combatants in Colombia”, Journal of Conflict Resolution, Vol. 57, No. 3, 2012Google Scholar.

138 See, for example, Sylvain Vité, “Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations”, International Review of the Red Cross, Vol. 91, No. 873, 2009, p. 78: “Some observers add a further condition to the notion of non-international armed conflict. They suggest that account needs to be taken of the motives of the non-governmental groups involved. This type of conflict would thus cover only groups endeavouring to achieve a political objective. ‘Purely criminal’ organizations such as mafia groups or territorial gangs would thus be eliminated from that category and could in no way then be considered as parties to a non-international armed conflict. However, in the current state of humanitarian law, this additional condition has no legal basis.” Cf. Dapo Akande, “Classification of Armed Conflicts: Relevant Legal Concepts”, in Elizabeth Wilmshurst (ed.), International Law and the Classification of Conflicts, Oxford University Press, Oxford, 2012.

139 2016 Commentary on GC I, above note 19, para. 484.

140 P. Williams, above note 54, p. 74.

141 Linda Robinson, Gordon Witkin, Matthew Cooper and Scott Minerbrook, “New Target: The Cali Cartel”, US News & World Report, 23 December 1991.

142 Ibid.

Ibid

143 For example, the United Self-Defence Forces of Colombia, apart from being a drug trafficking group, was specifically created to fight left-wing paramilitaries threatening drug cartel interests in the country.

144 The lively discussion on “drug wars” and IHL is still ongoing in academic circles, with many controversies as to whether such conflicts may amount to NIACs: on this topic, see, for example, Sánchez, Andrea Nill, “Mexico's Drug ‘War’: Drawing a Line Between Rhetoric and Reality”, Yale Journal of International Law, Vol. 38, No. 2, 2013, p. 467Google Scholar; Comer, Carrie A. and Mburu, Daniel M., “Humanitarian Law at Wits’ End: Does the Violence Arising from the ‘War on Drugs’ in Mexico Meet the International Criminal Court's Non-International Armed Conflict Threshold?”, Yearbook of International Humanitarian Law, Vol. 18, 2015Google Scholar; Geneva Academy, “Two New Non-International Armed Conflicts in Mexico Involving the Sinaloa Drug Cartel”, 10 March 2020, available at: www.geneva-academy.ch/news/detail/314-two-new-non-international-armed-conflicts-in-mexico-involving-the-sinaloa-drug-cartel; “Do the Laws of Armed Conflict Apply to Drug-Related Violence?”, debate held at Colombia Law School, 11 February 2013, available at: https://www.hr-dp.org/print/206.

145 Ulf Brüggemann, Al-Qaeda and the Islamic State: Objectives, Threat, Countermeasures, Federal Academy for Security Policy, 2016, p. 3.

146 See Bean, Hamilton and Buikema, Ronald J., “Deconstituting Al-Qa'ida: CCO Theory and the Decline and Dissolution of Hidden Organizations”, Management Communication Quarterly, Vol. 29, No. 4, 2015CrossRefGoogle Scholar.

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