The Fight Against the Islamic State and Jus in Bello

1 The Islamic State is also referred to as the Islamic State of Iraq and al-Sham (ISIS), the Islamic State of Iraq and the Levant (ISIL) or Daesh; see Irshaid, ‘Isis, Isil, IS or Daesh? One group, many names’, BBC News, 2 December 2015, available at www.bbc.com/news/world-middle-east-27994277.

2 See Bartels, R., ‘Transnational Armed Conflict: Does it Exist?’, in Scope of Application of International Humanitarian Law, Proceedings of the 13th Bruges Colloquium, (2013) 43 Collegium 114, at 115–17; Von der Groeben, C., Transnational Conflicts and International Law (2014), 25 ff.; Duffy, H., The ‘War on Terror’ and the Framework of International Law (2015), 351–2.

3 d'Aspremont, J. and de Hemptinne, J., Droit International Humanitaire, (2012), 72 ; Sassoli, M. and Olson, L.M., ‘The relationship between international humanitarian and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflicts’, (2008) 90 International Review of the Red Cross 599 , at 601.

4 See Henckaerts, J.-M. and Doswald-Beck, L., Customary International Humanitarian Law (2005), Vol. I: Rules. One hundred and forty-two IHL rules out of the 161 identified as customary are applicable both to IACs and NIACs.

5 Bellinger, J.B. and Haynes, W.J., ‘A US government response to the International Committee of the Red Cross study Customary International Humanitarian Law’, (2007) 89 International Review of the Red Cross 443 .

6 1998 Rome Statute of the International Criminal Court, 2187 UNTS 90, Arts. 8(2)(a) –(2)(c), 8(2)(e) (‘Rome Statute’).

7 Ibid., Arts. 8(2)(b)(ii), 8(2)(b)(iv).

8 For example, Australia, Belgium, Canada, France, and the United Kingdom.

9 Journalists in the UK and Canada have voiced allegations that the intervening states’ airstrikes have caused more civilian casualties than the states parties to the coalition are ready to admit. See the Airwars project, which tracks the international war against ISIL and other groups in Iraq and Syria and assesses the claims of civilian casualties, available at airwars.org. See also A. Ross, ‘Hundreds of civilians killed in US-led air strikes on Isis targets – report’, Guardian, 3 August 2015, available at www.theguardian.com/world/2015/aug/03/us-led-air-strikes-on-isis-targets-killed-more-than-450-civilians-report; T. Sawa, L. Fortune and G. Bdiwe, ‘Coalition bombing linked to 48 allegations of civilian casualties in Iraq, Syria’, CBC News, 30 October 2015, available at www.cbc.ca/news/world/fifth-estate-canada-airstrikes-record-coalition-1.3296285.

10 For example, the Human Rights Council's Commission of Inquiry on Syria. However, it is reported that the Commission will not investigate airstrikes in Syria by foreign nations. See, S. Malo, ‘U.N. war crimes team will not investigate foreign air strikes in Syria’, Reuters, 16 December 2015, available at news.trust.org//item/20151216230747-x1ept.

11 ‘Tunisia attack on Sousse beach “kills 39”’, BBC News, 27 June 2015, available at www.bbc.com/news/world-africa-33287978.

12 M. Ghobari and M. Mukhashaf, ‘Suicide bombers kill 137 in Yemen mosque attacks’, Reuters, 20 March 2015, available at www.reuters.com/article/us-yemen-attack-bomb-idUSKBN0MG11J20150320.

13 UN Security Council, Security Council Press Statement on Libya, UN Doc. SC/12194, 8 January 2016.

14 ‘Attaques à Paris: le point sur l'enquête et le déroulé des attaques’, Le Monde, 13 November 2015, available at www.lemonde.fr/societe/article/2015/11/13/fusillade-meurtriere-a-paris_4809485_3224.html.

15 A. A. Jackson, ‘ISIS in the United States: Which Legal Regime Applies?’, Just Security, 11 January 2016, available at www.justsecurity.org/28745/isis-united-states-legal-regime-applies/.

16 C. Droege, ‘The interplay between international humanitarian law and international human rights law in situations of armed conflict’, (2007) 40 Israel Law Review 310, at 344. According to Droege ‘International humanitarian law accepts the use of lethal force and tolerates the incidental killing and wounding of civilians not directly participating in hostilities, subject to proportionality requirements. In human rights law, on the contrary, lethal force can only be resorted to if there is an imminent danger of serious violence that can only be averted by such use of force’. This is without prejudice to the issue of the extraterritorial application of HR treaties or to the debate about whether IHL rules relating to the conduct of hostilities may be considered as lex specialis with respect to HRL.

17 US Department of Defense, Operation Inherent Resolve, Strikes in Iraq and Syria, available at www.defense.gov/News/Special-Reports/0814_Inherent-Resolve.

18 See e.g., Human Rights Council, Report of the independent international commission of inquiry on the Syrian Arab Republic, UN Doc. A/HRC/27/60, 13 August 2014, at 4–5.

19 L. Sly, ‘Al Qaeda force captures Fallujah amid rise in violence in Iraq’, Washington Post, 3 January 2014, available at www.washingtonpost.com/world/al-qaeda-force-captures-fallujah-amid-rise-in-violence-in-iraq/2014/01/03/8abaeb2a-74aa-11e3-8def-a33011492df2_story.html.

20 ICRC, ‘Iraq: Civilians and medical facilities bear brunt of fighting in Fallujah’, News Release 14/87, 26 May 2014, available at www.icrc.org/eng/resources/documents/news-release/2014/05-26-iraq-fallujah-medical-civilian.htm.

21 T. Coghian and D. Haynes, ‘Isis declares the creation of its own Islamic state’, The Times, 30 June 2014, available at www.thetimes.co.uk/tto/news/world/middleeast/iraq/article4133916.ece.

22 Letter dated 25 June 2014 from the Permanent Representative of Iraq to the United Nations addressed to the Secretary-General, UN Doc. S/2014/440, 25 June 2014; Letter dated 20 September 2014 from the Permanent Representative of Iraq to the United Nations addressed to the President of the Security Council, UN Doc. S/2014/691, 22 September 2014.

23 US Department of Defense, Statement by Pentagon Press Secretary Rear Admiral John Kirby on Airstrikes in Iraq, News Release No. NR-419-14, 8 August 2014, available at archive.defense.gov/Releases/Release.aspx?ReleaseID=16878.

24 See US Department of Defense, supra note 17.

25 The states that have conducted airstrikes in Iraq – and still do so – include Australia, Belgium, Canada, Denmark, France, Jordan, the Netherlands, and the UK. See US Department of Defense, supra note 17.

26 See, among many, ICTY, Prosecutor v. Limaj et al., Judgement, Case No. IT-03-66-T, T.Ch., 30 November 2005, para. 84; ICTY, Prosecutor v. Haradinaj et al., Judgement, Case No. IT-04-84-T, T.Ch. I, 3 April 2008, para. 38; ICTY, Prosecutor v. Boškoski and Tarčulovski, Judgement, Case No. IT-04-82-T, T.Ch. II, 10 July 2008, para. 175. See also David, E., Principes de droit des conflits armés (2012), at 133–41; d'Aspremont and de Hemptinne, supra note 3, at 66–70; Sivakumaran, S., The law of non-international armed conflict (2012), at 164–80. While these conditions are relevant for applying both Common Article 3 and the 1977 Second Additional Protocol to a NIAC, additional conditions need to be fulfilled in order for the 1977 Additional Protocol to be applied. As it will be shown below, this protocol is not applicable in this case; see Section 2.2.1.

27 For the intensity of the conflict, these factors include ‘the number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the intensity of a conflict’. See ICTY, Haradinaj 2008 Trial Judgement, supra note 26, para. 49. For further references, see ICTY, Boškoski and Tarčulovski 2008 Trial Judgement, supra note 26, paras. 177–8. As to the organization of the parties, relevant for dissident armed groups, the indicative factors identified by the ICTY, include ‘the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords’. ICTY, Haradinaj 2008 Trial Judgement, supra note 26, para. 60. For further references, see ICTY, Boškoski and Tarčulovski 2008 Trial Judgement, supra note 26, paras. 199–203.

28 Sandoz, Y. et al. (eds.), Commentary on the Additional protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), 1355 , para. 4475.

29 Ibid., at 1354, para. 4473.

30 ICRC, Annual Report 2014 (2015), 480.

31 van Steenberghe, R., ‘La légalité de la participation de la Belgique à la lutte armée contre l'Etat islamique en Irak’, (2015) 134 Journal des Tribunaux 641, at 651–2; Shany, Y., Cohen, A. and Mimran, T., ‘ISIS: Is the Islamic State a State?’, The Israel Democracy Institute, 14 September 2014, available at en.idi.org.il/analysis/articles/isis-is-the-islamic-state-really-a-state/; A.-L. Chaumette, ‘Daech, un “Etat” islamique?’, (2014) LX Annuaire français de droit international 71 .

32 According to the well-established case-law of international criminal tribunals, the control required in order for armed groups to be considered as acting on behalf of a state for the purposes of applying IHL (designated as ‘overall control’) is defined as having ‘a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group’. For a recent confirmation of this definition, ICC, Prosecutor v. Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute, Case No. ICC-01/04-01/06, T.Ch. I, 14 March 2012, para. 541 with further references.

33 Article 2 common to the four 1949 Geneva Conventions; see Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, 75 UNTS 31, at 32.

34 ICC, Prosecutor v. Bemba, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, 15 June 2009, para. 246; ICC, Prosecutor v. Mbarushimana, Decision on the confirmation of charges, ICC-01/04-01/10-465-Red, PTC I, 16 December 2011, paras. 101-2. The ICRC asserts that ‘[t]here have been numerous instances in which assisting States, which are fighting in the territory of a non-neighbouring host State alongside its armed forces against one or more organized armed groups, have accepted the applicability of Common Article 3 and of other relevant provisions of IHL to this type of conflict’; ICRC, International humanitarian law and the challenges of contemporary armed conflicts, Report prepared for the 32^nd International Conference of the Red Cross and the Red Crescent, Doc. 32IC/15/11, 31 October 2015, at 15, available at www.icrc.org/en/document/international-humanitarian-law-and-challenges-contemporary-armed-conflicts.

35 See, the intervention of the representative of Mali before the Security Council, UN Security Council, 6905^th meeting, UN Doc. S/PV.6905, 22 January 2013, at 6. See also Mali – Statement by M. François Hollande, President of the Republic, following the select defence council, 12 January 2013, available at basedoc.diplomatie.gouv.fr/vues/Kiosque/FranceDiplomatie/kiosque.php?fichier=baen2013-01-14.html. For more similar statements, see Christakis and Bannelier, ‘French Military Intervention in Mali: It's Legal but . . . Why? Part I’, EJIL Talk!, 24 January 2013, available at www.ejiltalk.org/french-military-intervention-in-mali-its-legal-but-why-part-i/#more-7483.

36 C. Landais, ‘Entre l'application du droit et les hostilités, cadre légal et règles d'engagement’, Intervention at a Round Table on La distinction entre conflits armés internationaux et non-internationaux: défis pour le DIH?, 4 September 2015, at 1–6, available at www.iihl.org/wp-content/uploads/2015/11/Landais.pdf.

37 ICRC, International Humanitarian Law and the challenges of contemporary armed conflicts, Report, 31IC/11/5.1.2, October 2011, at 10, available at app.icrc.org/e-briefing/new-tech-modern-battlefield/media/documents/4-international-humanitarian-law-and-the-challenges-of-contemporary-armed-conflicts.pdf. See also D. Akande, ‘Classification of Armed Conflicts: Relevant Legal Concepts’, in E. Wilmshurst (ed.), International Law and the Classification of Conflicts (2012), 32 at 62.

38 Also, in a joint report covering the period from 11 September to 10 December 2014, the OHCHR and the UN Assistance Mission for Iraq (UNAMI) asserted that the coalition states intervening in Iraq were parties to a NIAC, without undertaking any evaluation of whether the conditions for the existence of a NIAC were fulfilled with respect to each state of the coalition. See, OHCHR – Human Rights Office of UNAMI, Report on the Protection of Civilians in Armed Conflict in Iraq: 11 September – 10 December 2014, at 3 and 17, available at www.ohchr.org/Documents/Countries/IQ/UNAMI_OHCHR_Sep_Dec_2014.pdf.

39 And possibly circumvent IHRL as well, if the invited states reject the extraterritorial application of IHRL.

40 ‘Turkish troops go into Iraq to train forces fighting Isis’, Guardian, 4 December 2015, available at www.theguardian.com/world/2015/dec/04/turkish-troops-iraq-train-forces-fighting-isis.

41 ‘Prime Minister Dr. Haider Al-Abadi: I did not ask any country to send foreign ground troops, and we will treat any sent as hostile act’, Prime Minister's Media Office, 3 December 2015, available at pmo.iq/pme/press2015en/3-12-20152en.htm; ‘Iraq summons Turkish ambassador over troops near Mosul’, BBC News, 5 December 2015, available at www.bbc.com/news/world-middle-east-35012902.

42 S. Kalin, ‘Turkey to stop sending soldiers to Iraq after Baghdad protests’, Reuters, 6 December 2015, available at www.reuters.com/article/us-mideast-crisis-iraq-turkey-idUSKBN0TP0LC20151206.

43 UNSC, Letter dated 11 December 2015 from the Permanent Representative of Iraq to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/963, 14 December 2015, at 2.

44 The violation of jus ad bellum does not ipso facto mean that the situation will be classified as an IAC. Indeed, the material scope of application of Art. 2(4) of the UN Charter and the one of Common Art. 2 are not identical. Thus, in view of the distinction between jus ad bellum and jus in bello, the facts of each conflict need to be analyzed twice: once in order to determine whether jus ad bellum is violated and a second time in view of determining what the classification of the conflict is; see Koutroulis, V., ‘ Jus ad/contra bellum ’, in van Steenberghe, R., (ed.), Droit international humanitaire: un régime spécial de droit international? (2013), 174–8.

45 ‘IS conflict: Turkey withdraws some troops from Iraq camp’, BBC News, 14 December 2015, available at www.bbc.com/news/world-middle-east-35091674.

46 S. Hameed and E. Toksabay, ‘Iraqi PM says Turkey not respecting agreement to withdraw troops’, Reuters, 30 December 2015, available at www.reuters.com/article/us-mideast-crisis-iraq-turkey-idUSKBN0UD1GJ20151230.

47 On consent see infra notes 71–2 and accompanying text.

48 Speaking before the UN Security Council, the representative of Iraq asked the Council to ‘condemn the Turkish occupation and [its] illegal incursion’ in Iraqi territory. See, UNSC, 7589th meeting, UN Doc. S/PV.7589, 18 December 2015, at 3.

49 The ICRC customary law study does not distinguish between NIACs as defined in Common Article 3 and NIACs as defined in Additional Protocol II. According to Pejic, this is because ‘it was found that states did not make such a distinction in practice’. See, J. Pejic, ‘The Protective Scope of Common Article 3: More than Meets the Eye’, (2011) 93 International Review of the Red Cross 189, at 191.

50 See, e.g., the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 2056 UNTS 211, Art. 1(1)(a); 2008 Convention on Cluster Munitions, 2688 UNTS 39, Art. 1(1)(a).

51 1954 Convention for the Protection of Cultural Property in the Event of an Armed Conflict, 249 UNTS 240, Art. 19.

52 1999 Second Protocol to The Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, 2253 UNTS 172, Art. 22(1).

53 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of non-international armed conflicts (Protocol II), 1125 UNTS 609, Art. 1(1).

54 See also van Steenberghe, supra note 31, at 647.

55 Australia, Belgium, Canada, France, Jordan, the Netherlands, and the UK are all parties to the 1977 Second Additional Protocol. Belgium, Canada, Jordan and the Netherlands are also parties to the 1999 Protocol. Iraq is a party to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and, therefore, the Convention does apply to all its states parties operating in Iraq in the context of the conflict with ISIL. For a full list of state parties to IHL treaties, see, ICRC, State parties to the following international humanitarian law and other related treaties as of 26 Jan 2016, available at www.icrc.org/ihl.

56 2001 Amendment to the Convention on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects.

57 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects (with Protocols I, II and III), 1342 UNTS 137, Art. 5(2)–(3).

58 This is of course without prejudice to the obligations stemming from the relevant applicable rules of customary IHL.

59 Human Rights Council, Report of the independent international commission of inquiry on the Syrian Arab Republic, UN Doc. A/HRC/24/46, 18 August 2013, at 6, para. 33.

60 Ibid., at 30, para. 3.

61 Human Rights Council, August 2014 Report of commission of inquiry on Syria, supra note 18, at 5, para. 16.

62 Ibid., at 4–5, paras. 10, 16.

63 US White House, Office of the Press Secretary, Statement by the President on Airstrikes in Syria, 23 September 2014, available at www.whitehouse.gov/the-press-office/2014/09/23/statement-president-airstrikes-syria. According to this statement, the US’ allies are Saudi Arabia, the United Arab Emirates, Jordan, Bahrain, and Qatar. On 16 March 2015, with the exception of Qatar, the same countries are mentioned as having conducted airstrikes against ISIL in Syria. See, US Department of Defense, Operation Inherent Resolve Airstrike Videos Now Available, Media Release No. 20150302, 16 March 2015, available at www.defense.gov/Portals/1/features/2014/0814_iraq/CENTCOM-Media-Advisory-Airstrike-Video-in-Support-of-Operation-Inherent-Resolve.pdf. On 3 February 2016, Australia, Canada, France, Turkey, and the UK were included among the countries having participated in the airstrikes in Syria. See US Department of Defense, Operation Inherent Resolve, supra note 17.

64 See, speeches by the Russian Minister of Foreign Affairs and the Syrian representative, UNSC, 7572th meeting, UN Doc. S/PV.7527, 30 September 2015, at 4 and 30 respectively. See also Russian Federation, Ministry of Foreign Affairs, ‘Foreign Minister Sergey Lavrov's opening remarks at talks with UN Special Envoy on Syria Stefan de Mistura, Moscow October 13, 2015’, Press service – Statements and speeches by Minister of Foreign Affairs Sergey Lavrov, 13 October 2015, available at www.mid.ru/en/press_service/minister_speeches/-/asset_publisher/7OvQR5KJWVmR/content/id/1845813; ‘Syria conflict: Putin defends Russia's air strikes’, BBC News, 12 October 2015, available at www.bbc.com/news/world-middle-east-34502286.

65 For the definition of ‘overall control’, see supra note 32.

66 Human Rights Council, Report of the independent international commission of inquiry on the Syrian Arab Republic, UN Doc. A/HRC/25/65, 12 February 2014, at 7–8 (paras. 25, 28, 33), 9 (para. 41), 10 (para. 50), 11 (paras. 60–1), 12 (paras. 70–1), 13–14 (paras. 79, 80, 84), 18 (paras. 119–20, 123–6).

67 Cf. the factors relevant for determining that the hostilities are of sufficient intensity in order for a situation to be classified as a NIAC, supra note 27. The control of territory, towns and villages is explicitly cited as a relevant factor by the ICTY; see, ICTY, Limaj 2005 Trial Judgement, supra note 26, paras. 143, 146, 158, 163; ICTY, Boškoski and Tarčulovski 2008 Trial Judgement, supra note 26, para. 177; ICTY, Prosecutor v. Đorđevic, Public Judgement with Confidential Annex Volume I of II, Case No. IT-05-87/1-T, T.Ch. II, 23 February 2011, para. 1523.

68 Amnesty international also considers Russia to be party to the NIAC in Syria. See, Amnesty International, ‘Civilian objects were not damaged’: Russia's Statements on its Attacks in Syria Unmasked, 23 December 2015, at 24, available at www.amnesty.org/en/documents/mde24/3113/2015/en/. The fact that Russian airstrikes are intentionally directed against other armed groups (such as Jabhat al-Nusra) also makes Russia a party to the NIACs opposing the Syrian government to those groups.

69 See supra notes 34–9 and accompanying text.

70 The US Central Command that is in charge of Operation Inherent Resolve has referred explicitly to the application of IHL to the coalition's operations. See, US Central Command, CJTF-OIR Completes Civilian Casualty Investigation, News Release No. 20150506, 21 May 2015, available at www.centcom.mil/news/news-article/ctjf-oir-completes-civilian-casualty-investigation; US Central Command, Jan. 15: U.S. Central Command releases results of Iraq and Syria civilian casualty assessments, News Release No. 20160115-02, 15 January 2016, available at www.centcom.mil/news/press-release/jan.-15-u.s.-central-command-releases-results-of-iraq-and-syria-civilian-ca; US Central Command, Jan 22: CENTCOM releases results of Iraq and Syria civilian casualty assessments, News Release No. 20160122-04, 22 January 2016, available at www.centcom.mil/news/press-release/jan-22-centcom-releases-results-of-iraq-and-syria-civilian-casualty-assessm; US Central Command, Jan. 29: U.S. Central Command releases results of Iraq and Syria civilian casualty assessments, News Release No. 20160129-05, 29 January 2016, available at www.centcom.mil/news/press-release/jan.-29-u.s.-central-command-releases-results-of-iraq-and-syria-civilian-ca. Canada has also confirmed that IHL applies to its operations in Syria; Government of Canada, Royal Canadian Air Force, First airstrike conducted in Syria under Operation Impact, News Article, 9 April 2015, available at www.rcaf-arc.forces.gc.ca/en/article-template-standard.page?doc=first-airstrike-conducted-in-syria-under-operation-impact/i89a1pdr.

71 See the contribution by Bannelier-Christakis, this Symposium, doi: 10.1017/S0922156516000303.

72 Akande, supra note 37, at 73.

73 See, among many, Hoffmann, T., ‘Squaring the Circle? International Humanitarian Law and Transnational Armed Conflicts’, in Matheson, M.J. and Momtaz, D. (eds), Rules and Institutions of International Humanitarian Law Put to the Test of Recent Armed Conflicts (2010), 217, at 253–4; Paulus, A. and Vashakmadze, M., ‘Asymmetrical war and the notion of armed conflict: a tentative conceptualization’, (2009) 91 International Review of the Red Cross 95, at 111–12.

74 Apparently, this was also the view of Israel and Lebanon with respect to the classification of the 2006 Israel/Hezbollah conflict. See, Human Rights Council, Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled ‘Human Rights Council’ – Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council resolution S-2/1, UN Doc. A/HRC/3/2, 23 November 2006, paras. 59, 62. This view was endorsed by the Commission, ibid., paras. 55–60. See also Supreme Court of Israel, The Public Committee against Torture in Israel et al. v. The Government of Israel et al., Supreme Court of Israel, 13 December 2006, HCJ 769/02, para. 18; Stewart, J., ‘The UN Commission of Inquiry on Lebanon: A Legal Appraisal’, (2007) 5 Journal of International Criminal Justice 1039, at 1042–3; Bianchi, A. and Naqvi, Y., International Humanitarian Law and Terrorism (2011), 79 .

75 See among many, Sassoli, M., ‘Transnational Armed Groups and International Humanitarian law’, Program on Humanitarian Policy and Conflict Research, Harvard, (2006) 6 Occasional Paper Series 1, at 8–9 ; Pejic, J., ‘Extraterritorial targeting by means of armed drones: Some legal implications’, (2014) 96 International Review of the Red Cross 67 , at 78; Vité, S., ‘Typology of armed conflicts in international humanitarian law: legal concepts and actual situations’, (2009) 91 International Review of the Red Cross 69, at 89–90 ; Sivakumaran, supra note 26, at 232.

76 See Corn, G.S., ‘Hamdan, Lebanon, and the Regulation of Armed Hostilities: The Need to Recognize a Hybrid Category of Armed Conflict’, (2006) 40 Vanderbilt Transnational Law Journal 295 ; Schöndorf, R.S., ‘Extra-State Armed Conflicts: Is There a Need for a New Legal Regime?’, (2004) 37 New York University Journal of International Law and Politics 26 .

77 Corn, G.S. and Talbot Jensen, E., ‘Transnational Armed Conflict: A “Principled” Approach to the Regulation of Counter-Terror Combat Operations’, (2009) 42 Israeli Law Review 46 , at 50.

78 Akande, supra note 37, at 73–7; Sassoli, supra note 75, at 5; Stewart, supra note 74, at 1042–3.

79 See Geneva Convention (I), supra note 33, at 32.

80 Baxter, R.R., ‘The Duties of Combatants and the Conduct of Hostilities (Law of The Hague)’, in UNESCO, International Dimensions of Humanitarian law (1988), at 95 , 98. Art. 2(2) was included in the Conventions in order to cover situations of occupation without any hostilities whatsoever, such as the occupation of Czechoslovakia by Germany before the Second World War. See ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136, at 175, para. 95. See also V. Koutroulis, Le début et la fin de l'application du droit de l'occupation (2010), 26–9.

81 According to the US Department of Defense, on 5 February 2016, more than 3,500 strikes were conducted on Syrian territory (around 3,300 by the US alone and some 200 by the other states participating in the coalition). See US Department of Defense, Operation Inherent Resolve, supra note 17.

82 F. Szesnat and A.R. Bird, ‘Colombia’, in Wilmshurst (ed.), supra note 37, at 236–7.

83 Such an approach implies that the same actions with the same consequences on the targeted state have different legal consequences depending on the intention of the attacking state. See, Akande supra note 37, at 75. See also Pejic, supra note 75, at 77–8.

84 Kolb, R., Advanced Introduction to International Humanitarian Law (2014), at 96–8; Koutroulis, supra note 80, at 24.

85 See, UK Ministry of Defence, The Manual of the Law of Armed Conflict (2004), 29; Ferraro, T., ‘The applicability and application of international humanitarian law to multinational forces’, (2015) 95 International Review of the Red Cross 561 , at 576; Bartels, supra note 2, at 118.

86 N. Lubell, ‘The War (?) against Al-Qaeda’, in Wilmshurst (ed.), supra note 37, at 432–3.

87 Koutroulis, V., ‘And Yet It Exists: In Defence of the “Equality of Belligerents” Principle’, (2013) 26 LJIL 449 ; Sassoli, M., ‘ Ius ad Bellum and Ius in Bello – The Separation between the Legality of the Use of Force and Humanitarian Rules to Be Respected in Warfare: Crucial or Outdated?’, in Schmitt, M.N. and Pejic, J. (eds.), International Law and Armed Conflict: Exploring the Faultlines – Essays in honour of Yoram Dinstein (2007), 241 ; Roberts, A., ‘The equal application of the laws of war: a principle under pressure’, (2008) 90 International Review of the Red Cross 931 .

88 Lubell, supra note 86, at 432.

89 Ibid.

90 ILC, Draft articles on the responsibility of States for internationally wrongful acts, 2001 YILC, Vol. II (Part II), at 72–4.

91 This reasoning conflates the two sets of rules especially because it implies, a contrario, that when jus ad bellum is not violated, an IAC does not exist. See Koutroulis, supra note 44, at 174–8.

92 The same applies with, for example, the criteria for statehood. A tribunal or scholar may apply these criteria in order to determine whether an entity may be considered to be a state or not. This determination will necessarily affect both the application of jus ad bellum and jus in bello. This analysis does not conflate jus ad bellum with jus in bello any more than taking into account consent does.

93 ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, [2005] ICJ Rep. 168, at 196–7, para. 45. The declarations and opinions of certain judges confirm that the equality of belligerents principle had not escaped the Court's mind when dealing with the legal issues in the case. Ibid., at 321, para. 58 (Judge Kooijmans, Separate Opinion) and at 358–9, para. 4 (Judge ad hoc Verhoeven, Declaration).

94 Ibid., at 196–9, paras. 42–54 and 209–12, paras. 92–105.

95 Ibid., at 227, para. 165.

96 Ibid., at 227 ff., paras. 167 ff, and 239 ff, paras. 205 ff.

97 For the same classification of the 2006 conflict between Israel and Hezbollah taking place within the territory of Lebanon, see I. Scobbie, ‘Lebanon 2006’, in Wilmshurst (ed.), supra note 37, at 408, 410; Duffy, supra note 2, at 351–2.

98 See supra note 63.

99 See the contribution by Tsagourias, this Symposium, doi: 10.1017/S0922156516000327.

100 Indeed, in its news releases, the US Central Command refers jointly to airstrikes committed against ISIL in Iraq and Syria.

101 Vité, supra note 75, at 72.

102 See supra notes 49–50 and accompanying text.

103 See, e.g., 1954 Convention on Cultural Property, supra note 51, Art. 19. States Parties to the Convention include Syria, Jordan, Saudi Arabia, Bahrain and the US. However, the United Arab Emirates and the UK are not. The 1999 Protocol to the Convention does not apply to Syria for the same reasons for which it does not apply to Iraq: Syria is not a party to the Protocol and, thus, the NIAC against ISIL does not occur ‘within the territory of one of the Parties’ as required by Art. 22(1).

104 US Central Command, U.S. Military, Partner Nations Conduct Airstrikes Against ISIL in Syria, News Release No. 20140929, 24 September 2014, available at www.centcom.mil/news/news-article/u.s.-military-partner-nations-conduct-airstrikes-against-isil-in-syria.

105 Henckaerts and Doswald-Beck, supra note 4.

106 See for example, Bellinger and Haynes, supra note 5, at 461 (relating to the prohibition of anti-personnel use of exploding bullets).

107 Rome Statute, supra note 6.

108 Ibid.

109 See supra notes 11–14 and relevant text. See also UNSC, Report of the Secretary-general on the threat posed by ISIL (Da'esh) to international peace and security and the range of United Nations efforts in support of Member States in countering the threat, UN Doc. S/2016/92, 29 January 2016, at 2, para. 5.

110 See supra notes 25 and 63 and accompanying text.

111 According to a report published by the UN Counter-Terrorism Committee on December 2015, ‘more than 25.000 foreign fighters from more than 100 member States have travelled to Iraq and the Syrian Arab Republic, primarily to join terrorist entities such as ISIL, the Nusrah Front and cells, affiliates, splinter groups and derivative entities of Al-Qaida’. UNSC, Letter dated 15 December 2015 from the Chair of the Security Council Committee established pursuant to resolution 1373 (2001) concerning counter-terrorism addressed to the President of the Security Council, UN Doc. S/2015/975, 29 December 2015, at 24, para. 78.

112 UNSC, 2016 Report of the Secretary-general on ISIS, supra note 109, at 3, para. 7.

113 See supra note 16 and accompanying text.

114 ICTY, Prosecutor v. Tadic, Decision on the Defence motion for interlocutory appeal on jurisdiction, Case No. IT-94-1, A.Ch., 2 October 1995, para. 69.

115 Ibid., at para. 70.

116 ICTY, Prosecutor v. Tadic, Opinion and Judgement, Case No. IT-94-1-T, T.Ch., 7 May 1997, para. 573; ICTY, Prosecutor v. Delalic et al. (Celebici), Judgement, Case No. IT-96-21-T, T. Ch., 16 November 1998, paras. 185 and 193-4; ICTY, Prosecutor v. Blaskic, Judgement, Case No. IT-95-14-T, T.Ch., 3 March 2000, paras. 69-70; ICTY, Prosecutor v. Kordic and Kerkez, Judgement, Case No. IT-95-14/2-T, T.Ch., 26 February 2001, para. 27; ICTY, Prosecutor v. Kunarac et al., Judgement, Case No. IT-96-23 & IT-96-23/1-A, A.Ch., 12 June 2002, para. 57; ICTY, Prosecutor v. Halilovic, Judgement, Case No. IT-01-48-T, T.Ch. I, Sect.A, 16 November 2005, para. 26; ICTY, Limaj 2005 Trial Judgement, supra note 26, para. 84: ‘The geographic . . . framework of this test [i.e. the definition of a NIAC] is also settled jurisprudence: crimes committed anywhere in the territory under the control of a party to a conflict . . . fall within the jurisdiction of the Tribunal’; ICTR, Prosecutor v. Akayesu, Judgement, Case No. ICTR-96-4-T, T.Ch., 2 September 1998, paras. 635–6.

117 Chesney, ‘Guest Post from the ICRC's Daniel Cahen Responding to My Post on SYRIA/LOAC’, Lawfare, 17 July 2012, available at www.lawfareblog.com/guest-post-icrcs-daniel-cahen-responding-my-post-syrialoac.

118 See, among many, H. Olásolo, Unlawful Attacks in Combat Situations: From the ICTY's Case Law to the Rome Statute (2008), 52; Moir, L., ‘The Concept of Non-International Armed Conflict’, in Clapham, A. et al., The 1949 Geneva Conventions: A Commentary (2015), 391 , at 404; Henderson, I., ‘Civilian Intelligence Agencies and the Use of Armed Drones’, (2010) 13 Yearbook of International Humanitarian Law 133, at 154–6; Gray, C., ‘The Meaning of Armed Conflict: Non-international Armed Conflict’, in O'Connell, M.E. (ed.), What Is War? An Investigation in the Wake of 9/11 (2012), 69, at 88–9; Pejic, supra note 75, at 94–5.

119 Kretzmer, D. et al., ‘“Thou Shall Not Kill”: The Use of Lethal Force in Non-International Armed Conflicts’, (2014) 47 Israel Law Review 191 .

120 ICTY, 1995 Tadić decision, supra note 114, paras. 68–9.

121 Ibid., para. 68. Blank also notes that the ICTY ‘explicitly viewed LOAC's protective obligations as potentially far greater in geographic reach than the exercise of authority inherent in the conduct of hostilities’. See, Blank, L.R., ‘Debates and Dichotomies: Exploring the Presumptions Underlying Contentions About the Geography of Armed Conflict’, (2013) 16 Yearbook of International Humanitarian Law 297 , at 307. See also K. Fortin, ‘Syria and the geographical scope of international humanitarian law: moving towards a localised approach?’, Armed Groups and International Law, 2 October 2012, available at armedgroups-internationallaw.org/2012/10/02/syria-and-the-geographical-scope-of-international-humanitarian-law-moving-towards-a-localised-approach/.

122 Fortin, ibid.

123 Henderson, supra note 118, at 155.

124 See Droege, C., ‘Elective affinities? Human rights and humanitarian law’, (2008) 90 International Review of the Red Cross 501 , at 535; Fortin, supra note 121.

125 For example, it is reported that Sweden originally considered that IHL was applicable only in some areas of Afghanistan but then changed its position and accepted that the conflict extends even to areas where the rebel groups’ capability for conducting attacks is limited compared to other parts of the country. Denmark, Norway and Hungary are reported as viewing the situation in Afghanistan to be an armed conflict without any indication of geographical limits. See Engdahl, O., ‘Multinational peace operations forces involved in armed conflict: who are the parties?’, in Mujezinovic Larsen, K. et al. (eds.), Searching for a ‘Principle of Humanity’ in International Humanitarian Law (2013), 234–6.

126 ICRC's Daniel Cahen cited by Chesney, supra note 117.

127 Sassoli and Olson, supra note 3, at 613: ‘[i]n a ‘battlefield-like’ situation, arrest is virtually always impossible without exposing the government forces to disproportionate danger. A fighter presents a great threat to life, even if that threat consists of attacks against armed forces. The immediacy of that threat might be based not only on what the targeted fighter is expected to do, but also on his or her previous behaviour. In such situations, lethal force could therefore be used, even under human rights law’ (notes omitted).

128 Melzer, N., Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2009), 33 : ‘under IHL, the decisive criterion for individual membership in an organized armed group is whether a person assumes a continuous function for the group involving his or her direct participation in hostilities’.

129 According to the ICRC, direct participation in hostilities is composed of three constitutive elements: threshold of harm, direct causation and belligerent nexus. See, ibid., at 46–64 (recommendation V and commentary).

130 ‘Iraq violence: More than 60 people killed in bombings’, BBC News, 5 October 2015, available at www.bbc.com/news/world-middle-east-34447851.

131 For example, Iraq is party to the 1966 International Covenant on Civil and Political Rights. See list of states parties to the Covenant, available at treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-4&chapter=4&lang=en.

132 Melzer, supra note 128, at 80.

133 See, for example, ECHR, McCann and others v. UK, Appl. No. 18984/91, Gd.Ch., judgment, 27 September 1995, paras. 147–50, 192–214; Isayeva v. Russia, Appl. No. 57950/00, judgment, 24 February 2005, paras. 179–201; Abuyeva and others v. Russia, Appl. No. 27065/05, judgment, 2 December 2010, paras. 196–203; Finogenov and others v. Russia, Appl. No. 18299/03 and 27311/03, judgment, 20 December 2011, paras. 227–36; Abakarova v. Russia, Appl. No. 16664/07, judgment, 15 October 2015 (referral to the Grand Chamber pending), paras. 83–91.

134 Sassoli and Olson, supra note 3, at 614.

135 Melzer, supra note 128, at 77.

136 Ibid., at 80.

137 Ibid., at 80–1.

138 Ibid., at 81.

139 See the practice cited in the 2009 ICRC interpretative guidance, Melzer, supra note 128, at 79 and 81, notes 251, 216, and 220.

140 See, the scholars cited by R. Goodman, ‘The Power to Kill or Capture Enemy Combatants’, (2013) 24 EJIL 819, at 820, footnote 8.

141 Ibid., at 819–53; A. Bellal and L. Doswald-Beck, ‘Evaluating the Use of Force During the Arab Spring’ (2011) 14 Yearbook of International Humanitarian Law 3, at 31.

142 This case concerns the NIAC between the states parties to the coalition and ISIL. It is therefore independent from the IAC between the coalition states operating in Syrian territory and Syria.

143 Lubell, N. and Derejko, N., ‘A Global Battlefield? Drones and the Geographical Scope of Armed Conflict’, (2013) 11 Journal of International Criminal Justice 65, at 70 . For the same view, in favour of the application of IHL to the territory of states involved in an extraterritorial NIAC, see Arimatsu, L., ‘Territory, Boundaries and the Law of Armed Conflict’, (2009) 12 Yearbook of International Humanitarian Law 157, at 178 ; Kleffner, J., ‘Scope of Application of International Humanitarian law’, in Fleck, D. (ed.), The Handbook of International Humanitarian Law (2013), 56–7.

144 J. Mullen and M. Haddad, ‘“France is at war,” President François Hollande says after ISIS attack’, CNN, 17 November 2015, available at edition.cnn.com/2015/11/16/world/paris-attacks/; ‘Hollande maintien sa position: « La France est en guerre »’, Le Monde, 16 November 2015, available at www.lemonde.fr/attaques-a-paris/video/2015/11/16/hollande-maintient-sa-position-la-france-est-en-guerre_4811152_4809495.html.

145 G. Botelho et al., ‘2 killed, 8 held after France raid, but suspected ringleader's status unknown’, CNN, 19 November 2015, available at edition.cnn.com/2015/11/18/world/paris-attacks/.

146 ICRC, supra note 34, at 14. See also Pejic, supra note 75, at 97.

147 See the statement by Mrs. Christine Beerli, Vice-President of the ICRC: ‘States must follow letter and spirit of IHL’, Statement, 16 April 2015, available at www.icrc.org/en/document/icrc-vice-president-states-must-follow-letter-and-spirit-ihl.

148 For example, the use of riot control agents may be excluded. See, 1992 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 1974 UNTS 317, Art. I(5). See, W.H. Boothby, The Law of Targeting (2012), 267; David, supra note 26, at 390–1.

149 See, for example, Council of the European Union, Council Framework Decision of 13 June 2002 on combatting terrorism (2002/475/JHA), OJEC L 164/3. The decision sets down a list of terrorist offences. The eleventh paragraph of the decision's preamble explicitly excludes actions by armed forces during an armed conflict from the scope of the decision: ‘Actions by armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of these terms under that law . . . are not governed by this Framework Decision’. Incorporating this paragraph into Belgian law, Article 141 bis of the Belgian Criminal Code excludes such actions from the scope of application of terrorist offences. See Loi du 19 décembre 2003 relative aux infractions terroristes, Moniteur Belge, 29 December 2003, 61689, at 61691.

150 See, for example, US Department of Justice, Lawfulness of a Lethal Operation Directed Against a US Citizen Who Is a Senior Operational Leader of Al-Qaeda or an Associated Force, White paper, 2011, available at msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf.

151 See, for example, Sivakumaran, supra note 26, at 251, and generally 250–2.

152 ICRC, supra note 34, at 15. See also ICRC, supra note 37, at 22. For an example of scholars rejecting the existence of a ‘global’ NIAC see, among many, M. Milanovic and V. Hadzi-Vidanovic, ‘A taxonomy of armed conflict’, in N.D. White et al. (eds), Research Handbook on International Conflict and Security Law: Jus ad Bellum, Jus in Bello and Jus Post bellum (2012), 307–8.

153 UNSC, 2016 Report of the Secretary-general on ISIS, supra note 109, at 3, para. 7.

154 For a similar conclusion with respect to the links between Al-Qaeda and other affiliated groups, see Human Rrights Council, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, UN Doc. A/HRC/14/24/Add.6, 28 May 2010, at 18, para. 55. See also Sivakumaran, supra note 26, at 233.

155 See, along the same lines, Christiane Höhn, Adviser to the EU Counter-terrorism Coordinator, Council of the European Union, who rejected mixing all terrorist activity in the world into a global armed conflict and asserted that the EU follows the traditional approach of verifying whether in a certain country the two constitutive elements for a NIAC are met; C. Höhn, intervention at a conference on The EU-US Approaches to Counter-Terrorism, organized at the Université libre de Bruxelles (ULB) on 14 October 2014, available at cdi.ulb.ac.be/eu-us-approaches-counter-terrorism-retrouvez-le-podcast/.

156 See references in notes 2 and 77.