1 See, for example, the situations in Afghanistan, Mali, the Democratic Republic of the Congo and Somalia.

2 Since IHL treaties contain no specific provisions on this type of conflict.

3 The sui generis nature of the situation might lead the belligerents to decide not to apply the whole of IHL and instead pick and choose the rules to be applied. This would result in greater emphasis on the rights established by this body of law than on the obligations it imposes on the parties to the conflict. Such an approach would lead to considerable legal insecurity and risk weakening the protection provided under IHL.

4 In other words, the application of the law of IAC to all the parties, with no regard for legal, political (in the case of States) or practical (in the case of non-State armed groups) contingencies. On the application of the law of IAC to all the parties to a conflict, see David, Éric and Salmon, Jean, Droit international public, 26th ed., Vol. 3, Presses Universitaires de Bruxelles, Brussels, 2012, pp. 728 ff.Google Scholar; Benvenuti, Paolo, “The Implementation of International Humanitarian Law in the Framework of UN Peace-Keeping”, in Law in Humanitarian Crises: How Can International Humanitarian Law Be Made Effective in Armed Conflicts?, Office for the Official Publications of the European Communities, Luxembourg, 1995, pp. 96 ff.Google Scholar; Emanuelli, Claude, “Les forces des Nations Unies et le droit international humanitaire”, in Condorelli, Luigi et al. (eds), The United Nations and International Humanitarian Law, Pedone, Paris, 1996, pp. 357 ff.Google Scholar; Kolb, Robert, Droit humanitaire et opérations de paix internationales, 2nd ed., Helbing & Lichtenhahn, Brussels, 2006, pp. 57 ffGoogle Scholar.

5 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. 70–75 CrossRefGoogle Scholar, 89–93; Lubell, Noam, Extraterritorial Use of Force Against Non-State Actors, Oxford University Press, Oxford, 2010, pp. 92–102 CrossRefGoogle Scholar; Akande, Dapo, “Classification of Armed Conflicts: Relevant Legal Concepts”, in Wilmshurst, Elizabeth (ed.), International Law and the Classification of Conflicts, Oxford University Press, Oxford, 2012, pp. 56–70 Google Scholar; ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Report to the 31st International Conference of the Red Cross and Red Crescent, October 2011, pp. 7–12 Google Scholar, available at: www.icrc.org/eng/assets/files/red-cross-crescent-movement/31st-international-conference/31-int-conference-ihl-challenges-report-11-5-1-2-en.pdf (all internet references were accessed in September 2016).

6 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, adopted by the International Law Commission at its 53rd Session, 2001, Art. 16; Crawford, James, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries, Cambridge University Press, New York, 2002, pp. 148–151 Google Scholar; Dominicé, Christian, “Attribution of Conduct to Multiple States and the Implication of a State in the Act of Another State”, in Crawford, James, Pellet, Alain and Olleson, Simon (eds), Oxford Commentaries on International Law: The Law of International Responsibility, Oxford University Press, Oxford, 2010, pp. 285–287 Google Scholar; Rosenne, Shabtai, The International Law Commission's Draft Articles on State Responsibility, Part I, Articles 1–35, Martinus Nijhoff, Dordrecht, 1991, pp. 282–288 Google Scholar.

7 For more details on this approach, see Ferraro, Tristan, “The Applicability and Application of International Humanitarian Law to Multinational Forces”, International Review of the Red Cross, Vol. 95, No. 891/892, 2013 CrossRefGoogle Scholar; ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts above note 5, p. 21–23; ICRC, Commentary on the First Geneva Convention, 2nd ed., 2016, paras 445–446.

8 They have international legal personality – established explicitly or implicitly in their charters – distinct from that of their member States; see ICJ, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p. 178.

9 United Nations Organization Stabilization Mission in the Democratic Republic of the Congo.

10 International Security Assistance Force.

11 There is no longer any question today that it is by examining the purposes and functions of an international or regional organization, as explicitly or implicitly defined in its charter, that it can be determined what rules of international law are applicable ratione personae to it. It follows that international and regional organizations which have the material means to become involved in military operations also have, by extension, the subjective capacity to become belligerents within the meaning of IHL and therefore subjects of this body of law. The activities of an international organization cannot, however, be governed by IHL unless the forces it has at its disposal take part in military action that reaches the threshold required for it to be considered an armed conflict, be it international or non-international (see Robert Kolb, Gabriele Porretto and Sylvain Vité, L'application du droit international humanitaire et des droits de l'homme aux organisations internationales: Forces de paix et administrations civiles transitoires, Bruylant, Brussels, 2005, pp. 117–127 Google Scholar; Zwanenburg, Marten, Accountability of Peace Support Operations, Martinus Nijhoff, Dordrecht, 2005, pp. 151–158 Google Scholar). As international and regional organizations cannot be party to IHL treaties, when they are involved in an armed conflict they are bound by customary IHL.

12 Although it is hard to conceive of foreign intervention in the territory of a State where a NIAC is in progress not constituting support to one of the parties involved in the pre-existing NIAC, such situations do arise. One example is the initial US intervention in Afghanistan in October 2001 against the Taliban (triggering an IAC), at a time when the latter were involved in a NIAC against the Northern Alliance. The lack of a factual link between the two parallel conflicts meant that they were excluded from the scope of application of the ICRC's position, because the United States did not initially intervene in support of the Northern Alliance and did not exercise overall control over it. Several months after the launch of its military operations against the Taliban, however, the United States carried out actions in support of the Northern Alliance, thereby bringing the situation into the scope of application of the ICRC's position on the notion of armed conflict involving foreign intervention.

13 In general, these situations occur when government forces undertake action in pursuit of an armed group seeking to take refuge in the territory of a neighbouring State.

14 However, if the State into whose territory the NIAC has spilled over intervenes, undertaking military action in support of one of the parties, then the situation falls within the scope of application of the ICRC's position on the notion of armed conflict involving foreign intervention.

15 Overall control could conceivably precede the outbreak of the NIAC. This would be the case if a foreign power were to establish overall control over an organized armed group that had not yet undertaken any military operations against the State party. In such a situation, any hostilities would immediately be governed by the law of IAC.

16 International Criminal Tribunal for the former Yugoslavia (ICTY), The Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgment, Appeals Chamber, 15 July 1999, para. 104: “What is at issue is not the distinction between the two classes of responsibility. What is at issue is a preliminary question: that of the conditions on which under international law an individual may be held to act as a de facto organ of a State. Logically these conditions must be the same both in the case: (i) where the court's task is to ascertain whether an act performed by an individual may be attributed to a State, thereby generating the international responsibility of that State; and (ii) where the court must instead determine whether individuals are acting as de facto State officials, thereby rendering the conflict international and thus setting the necessary precondition for the grave breaches regime to apply. In both cases, what is at issue is not the distinction between State responsibility and individual criminal responsibility. Rather, the question is that of establishing the criteria for the legal imputability to a State of acts performed by individuals not having the status of State officials. In the one case these acts, if they prove to be attributable to a State, will give rise to the international responsibility of that State; in the other case, they will ensure that the armed conflict must be classified as international.”

17 Ascensio, Hervé, “La responsabilité selon la Cour internationale de Justice dans l'affaire du génocide bosniaque”, Revue Générale de Droit International Public, No. 2, 2007, p. 288Google Scholar.

18 Cassese, Antonio, “The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia”, European Journal of International Law, Vol. 18, No. 4, 2007, p. 656CrossRefGoogle Scholar. See also ICTY, Tadić, above note 16, para. 117.

19 The members of the group must then be considered de facto agents of the intervening third power. See ibid., para. 104; ICRC, Commentary on the First Geneva Convention, above note 7, paras 265–273.

20 Article 4A(2) of the Third Geneva Convention (GC III) states: “Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: … (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions” (emphasis added). According to the analysis of the ICTY Appeals Chamber – a view shared by the ICRC – armed conflict becomes international when the non-State party “belongs”, within the meaning of Article 4A(2) of GC III, to the intervening third power, and this belonging is determined based on the attribution of the actions of the former to the latter in accordance with the overall control criterion. See D. Akande, above note 5, pp. 57 ff.

21 Marten Zwanenburg, “International Organisations vs. Troop Contributing Countries: Which Should Be Considered as the Party to an Armed Conflict During Peace Operations?”, Proceedings of the Colloquium, Bruges, “International Organisations’ Involvement in Peace Operations: Applicable Legal Framework and the Issue of Responsibility”, 12th Bruges Colloquium, 20–21 October 2011, Collegium, No. 42, Autumn 2012, p. 26Google Scholar; Spinedi, Marina, “On the Non-Attribution of the Bosnian Serbs’ Conduct to Serbia”, Journal of International Criminal Justice, Vol. 5, 2007, pp. 832–833 CrossRefGoogle Scholar.

22 Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries, adopted by the International Law Commission at its 53rd Session, 2001; see in particular the Commentary on Article 8, pp. 47–49.

23 See below.

24 See D. Akande, above note 5, pp. 57 ff; Milanovic, Marko, “State Responsibility for Genocide”, European Journal of International Law, Vol. 17, No. 3, 2006 CrossRefGoogle Scholar; A. Cassese, above note 18, pp. 649–668.

25 Talmon, Stefan, “The Responsibility of Outside Powers for Acts of Secessionist Entities”, International and Comparative Law Quarterly, Vol. 58, July 2009, p. 496CrossRefGoogle Scholar.

26 ICJ, Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgement, ICJ Reports 1986, p. 14, para. 115. Effective control as reflected in this judgment means that the party subject to control was not only in the pay of or financed by the intervening foreign power and that its actions were supervised by it, but also that it received direct instructions from it.

27 This wavering is clearly reflected in the commentaries of the ILC on the Draft Articles on Responsibility of States for Internationally Wrongful Acts. Discussing the notion of control in its Commentary on Article 8, the ILC declines to choose between effective control and overall control, simply stating: “In any event it is a matter for appreciation in each case whether particular conduct was or was not carried out under the control of a State, to such an extent that the conduct controlled should be attributed to it” (p. 48).

28 ICTY, Tadić, above note 16, para. 131.

29 The concept of overall control appears in the Aleksovski case (ICTY, Case No. IT-95-14/1-T, Judgment, Trial Chamber, 25 June 1999). In this judgment, Judges Vohrah and Nieto-Navia concluded, in their joint opinion regarding the applicability of Article 2 of the Statute (para. 27), that “the Prosecution failed to discharge its burden of proving that, during the time-period and in the place of the indictment, the HVO was in fact acting under the overall control of the HV in carrying out the armed conflict against Bosnia and Herzegovina. The majority of the Trial Chamber finds that the HVO was not a de facto agent of Croatia …. Therefore, the Prosecution has failed to establish the internationality of the conflict to the satisfaction of a majority of the Trial Chamber.”

30 ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the confirmation of charges, Pre-Trial Chamber I, 29 January 2007, para. 211.

31 ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment pursuant to Art. 74 of the Statute, Trial Chamber I, 14 March 2012, para. 541.

32 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgement, ICJ Reports 2007, para. 404.

33 Proving effective control for every single operation would be virtually impossible, because it would require a level of proof unlikely to be attained. A fortiori, the “complete dependence” criterion, advocated by some authors (Marko Milanovic, for example) and used by the ICJ in 2007 in the Genocide case to determine responsibility for an internationally wrongful act, makes the attribution test even stricter. According to H. Ascensio, above note 17, pp. 290–292, “taken literally, the term [complete dependence] is absurd, because virtually the only actors that would meet the criteria are de jure organs with circumscribed powers! Any shred of discretionary power would destroy the hypothesis [for attributing the actions in question to a third State] …. With the criteria envisaged by the Court, no puppet State … would ever be identified for what it is: a fiction.” See also Griebel, Jörn and Plücken, Milan, “New Developments Regarding the Rules of Attribution? The International Court of Justice's Decision in Bosnia v. Serbia ”, Leiden Journal of International Law, Vol. 21, No. 3, 2008 CrossRefGoogle Scholar. It is important to note that although the ICJ used the “complete dependence” test to establish whether certain acts committed by Bosnian Serb militias could engage the international responsibility of the Serbian State, it nonetheless expressly stated that the less restrictive test of overall control could be used to classify a conflict in IHL. For the ICJ, then, both tests are valid but each should be used for different purposes.

34 It is important to clarify, however, that acceptance of this option – and the legal reasoning behind it – is not unanimous. A (minority) part of the doctrine holds that the use of the overall control test for classifying armed conflicts in IHL is based on a legal analysis that is faulty on two counts. First, some authors call into question the soundness of the reasoning in relation to overall control, arguing that it would be legally and conceptually inappropriate to use the secondary rules of public international law (attribution as defined in international law regulating responsibility) to determine the scope of application of primary rules of international law (IHL). In the view of these authors, although IHL is silent on this matter, it should be possible to deduce from this body of law attribution rules of its own to establish the link between a State and a non-State armed group. The second argument made by these authors is that the concept of overall control could not be used to attribute the overall actions of a non-State actor to a State. In this regard, they point out that the ICJ, in its 2007 decision in the Bosnia-Herzegovina Genocide case, specified that the effective control test could only be used to attribute individual and specific acts and that only the complete dependence criterion was suitable for attributing the overall actions of a de facto entity to a State. However, the proponents of this argument seem to have ignored the fact that the ICJ made a distinction between the situations in para. 404. It opened the door to the use of the overall control test in classifying conflicts in IHL, but indicated that it was insufficient to establish the international responsibility of a State for actions carried out by a non-State group. For a more detailed analysis of these arguments, see M. Milanovic, above note 24; Milanovic, Marko, “State Responsibility for Genocide: A Follow-Up”, European Journal of International Law, Vol. 18, No. 4, 2007 CrossRefGoogle Scholar; S. Talmon, above note 25; D. Akande, above note 5, pp. 57 ff.; Del Mar, Katherine, “The Requirement of ‘Belonging’ under International Humanitarian Law”, European Journal of International Law, Vol. 21, No. 1, 2010 Google Scholar; Meron, Theodor, “Classification of Armed Conflict in the Former Yugoslavia: Nicaragua's Fallout”, American Journal of International Law, Vol. 92, No. 2, 1998 CrossRefGoogle Scholar.

35 The legal implications for IHL application ratione materiae are examined below.

36 Although this initial belligerent relationship does not, in itself, involve intervention by a third party, it is essential, because it is the basic component onto which are grafted all the other belligerent relationships that are covered by the ICRC's position.

37 See David, Éric, Principes de droit des conflits armés, 5th ed., Bruylant, Brussels, 2012, p. 120Google Scholar; Kolb, Robert and Hyde, Richard, An Introduction to the International Law of Armed Conflicts, Hart Publishing, Oxford, 2008, pp. 75–76 Google Scholar; Fleck, Dieter (ed.), The Handbook of International Humanitarian Law, 2nd ed., Oxford University Press, Oxford, 2008, pp. 47–48 Google Scholar; Corn, Geoffrey S. et al. , The Law of Armed Conflict: An Operational Approach, Wolters Kluwer Law and Business, New York, 2012, pp. 72, 80Google Scholar.

38 See, for example, US Military Tribunal, Nuremberg, United States v. Wilhelm List, Case No. 47, February 1948; United Nations War Crimes Commission, Law Reports of Trials of War Criminals, Vol. 8, 1949, p. 59; ICTY, The Prosecutor v. Mladen Naletilić, aka “Tuta”, and Vinko Martinović, aka “Štela”, Case No. IT-98-34-T, Judgment, Trial Chamber, 31 March 2003, para. 211; ICTY, The Prosecutor v. Ljube Boškovski and Johan Tarčulovski, Case No. IT-04-82-T, Judgment, Trial Chamber II, 10 July 2008, para. 174.

39 For a more detailed analysis of the criteria for defining armed conflicts, see ICRC, “How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law?”, Opinion Paper, March 2008, available at: www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf; ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts above note 5, pp. 7–12; Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, Cambridge University Press, New York, 2010, pp. 149–156; E. Wilmshurst (ed.), above note 5; Daniel Bethlehem, Sandesh Sivakumaran, Noam Lubell and Philip Leach, “International Law Meeting Summary: Classification of Conflicts: The Way Forward”, Chatham House, 2012, available at: www.chathamhouse.org/sites/default/files/public/Research/International%20Law/011012summary.pdf; S. Vité, “Typology of Armed Conflicts in International Humanitarian Law” above note 5, pp. 69–94.

40 ICTY, Boškovski and Tarčulovski, above note 38, para. 176; ICTY, The Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Judgment, Trial Chamber, 26 February 2009, para. 125: “The existence of an armed conflict does not depend upon the views of the parties to the conflict.” See also International Criminal Tribunal for Rwanda, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment, Chamber I, 2 September 1998, para. 603: “If the application of international humanitarian law depended solely on the discretionary judgment of the parties to the conflict, in most cases there would be a tendency for the conflict to be minimized by the parties thereto.”

41 ICJ, Nicaragua, above note 26, p. 14.

42 ICTY, Tadić, above note 16, para. 84, and Decision on the defence motion for interlocutory appeal on jurisdiction, Appeals Chamber, 2 October 1995, para. 77: “the conflicts in the former Yugoslavia have both internal and international aspects”.

43 ICC, Lubanga, Decision on the confirmation of charges, above note 30, para. 209. See also ICC, Lubanga, Judgment pursuant to Art. 74 of the Statute, above note 31, paras 536, 565.

44 Sassòli, Marco, “The Legal Qualification of the Conflict in the Former Yugoslavia: Double Standards or New Horizons for International Humanitarian Law?”, in Yee, Sienho and Wang, Tieya (eds), International Law in the Post-Cold War World: Essays in Memory of Li Haopei, Routledge, London, 2001 Google Scholar; Condorelli, Luigi, “Les attentats du 11 septembre et leurs suites: Où va le droit international?”, Revue Générale de Droit International Public, No. 4, 2001 Google Scholar; Gasser, Hans-Peter, “Internationalized Non-International Armed Conflicts: Case Studies of Afghanistan, Kampuchea and Lebanon”, American University Law Review, Vol. 33, 1983 Google Scholar; 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, 2003 Google Scholar; Kolb, Robert, Ius in bello, le droit international des conflits armés, Précis, 2nd ed., Bruylant, Brussels, 2009, pp. 183–192 Google Scholar; D. Akande, above note 5, pp. 63–64; Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge University Press, Cambridge, 2004, pp. 26–28 CrossRefGoogle Scholar; Schindler, Dietrich, “International Humanitarian Law and Internationalized Internal Armed Conflicts”, International Review of the Red Cross, No. 230, September–October 1982, pp. 255 ffCrossRefGoogle Scholar.

45 This fragmented approach, endorsed by international jurisprudence, is not, however, without its critics. Some have questioned it, decrying the legal complexity involved in applying different sets of law-of-war rules in the same territory, depending on the nature of the parties to the conflict. See T. Meron, above note 34, pp. 236–238. In the same vein, see also ICTY, The Prosecutor v. Duško Tadić, aka “Dule”, Case No. IT-94-1-T, Decision on the defence motion for interlocutory appeal on jurisdiction, Appeals Chamber, 2 October 1995, separate opinion of Judge Li, para. 7; Aldrich, George H., “The Laws of War on Land”, American Journal of International Law, Vol. 94, No. 1, 2000, p. 63CrossRefGoogle Scholar; E. David and J. Salmon, above note 4, pp. 728 ff. These positions were, however, disregarded by the ICC in 2009 in the Bemba Gombo case, when the Pre-Trial Chamber decided that the conflict in the Central African Republic should be classified as non-international despite the intervention of foreign troops in support of the government in power (ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Decision on the confirmation of charges, Pre-Trial Chamber II, 15 June 2009, para. 246).

46 Besides the arguments outlined above, States are very clearly in favour of maintaining the IAC-NIAC distinction underlying the fragmented approach. One of the main reasons for this is their concern to preserve their sovereignty (States are averse to the idea of merging these two types of conflict for fear of legitimizing the actions of insurgent groups, being required to grant prisoner-of-war status to members of rebel groups and not being able to prosecute all the actions carried out by such groups in connection with the armed conflict). At the conferences of experts held in 1971 and 1972, the ICRC proposed that the whole of IHL should apply in the event of foreign intervention in an internal conflict. This proposal was not, however, accepted by the States. It was argued that the proposal would contribute to increasing the scale of such conflicts, as it would encourage insurgent parties to actively seek the intervention of third States in order to benefit from the application of the law of IAC (ICRC, “Report on the Work of the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts”, Geneva, August 1971, pp. 50 ff). See also Schindler, Dietrich, “The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols”, in Collected Courses of the Hague Academy of International Law, Vol. 163, 1979, p. 150Google Scholar. According to E. Wilmshurst, above note 5, p. 489, “there is still some support for taking a global view … and regarding them all as international. But what is perhaps the common view, and the view espoused by the contributors to this book, is that the only acceptable way of classifying mixed conflicts is to split them up into their component parts.”

47 Specifically, IHL considers – pursuant to Articles 2 and 3 common to the four Geneva Conventions of 1949 – that the law of IAC only applies when the opposing parties are all States or other entities with international legal personality. A contrario, IHL calls for the application of the law of NIAC in all situations in which a State or some other entity with international legal personality is fighting one or more non-State actors.

48 This identification is based on the four Geneva Conventions of 1949 and the two Additional Protocols of 1977; it does not refer to other applicable IHL treaties.

49 The term “multinational force” refers to the armed forces made available for a peace operation by troop-contributing countries. There is no clear-cut, recognized definition of peace operations in public international law. Generally speaking, the term “peace operations” covers both peacekeeping and peace enforcement operations conducted by international organizations, regional organizations or coalitions of States acting on behalf of the international community in pursuance of a UN Security Council resolution adopted under Chapters VI, VII or VIII of the UN Charter. The nature of armed conflicts involving multinational forces and the determination of the rules of IHL applicable to them has been the source of much controversy. For some authors, such situations are to be equated with IACs. In their view, as the military operations are decided, defined and carried out by international organizations, they are, by their very nature, to be included in this category. For these authors, the special status of international organizations and their international legal personality would prevail over the non-State status of the insurgent party and would be enough, in itself, to determine the nature of the conflict. See Claude Emanuelli, “Les forces des Nations Unies et le droit international humanitaire”, in Luigi Condorelli et al. (eds), Les Nations Unies et le droit international humanitaire/The United Nations and International Humanitarian Law: Proceedings of the International Symposium Held on the Occasion of the 50th Anniversary of the United Nations (Geneva, 19, 20 and 21 October 1995), Pedone, Paris, 1996, pp. 357 ff.; R. Kolb, above note 4, pp. 57 ff. However, this position (which does not consider the non-State component of the belligerent relationship and therefore disregards the fact that legal classification in IHL always takes into account the nature of the parties to the conflict) is not borne out by the practice of States and international organizations recently involved in conflict situations, which reveals consistent support for the fragmented approach advocated by the ICRC. See S. Vité, “Typology of Armed Conflicts in International Humanitarian Law” above note 5, pp. 87–88; E. Wilmshurst, above note 5, p. 487: “Although not without controversy, the better view is that such conflict is indeed non-international, regardless of the international component of the multinational force.”

50 Occupation law – as a branch of the law of IAC – applies when foreign intervention results in effective control over all or part of the territory in question. For more details on the notion of effective control, see Ferraro, Tristan, “Determining the Beginning and End of an Occupation under International Humanitarian Law”, International Review of the Red Cross, Vol. 94, No. 885, 2012 CrossRefGoogle Scholar.

51 Similarly, the fragmented approach will have a bearing on the legal basis for the ICRC's activities. In an IAC, the ICRC will carry out its humanitarian activities under a strong treaty-based mandate (specifically, the right granted to the ICRC under IHL to visit people detained in connection with an IAC), while in a NIAC it can only undertake activities if its offer to provide its services is accepted by the parties to the conflict (who are free to deny the ICRC access to detainees in a NIAC).

52 The application of the law of IAC and the law of NIAC in parallel in no way weakens the prohibition – established in Article 12 of GC III and Article 45 of GC IV – on transferring to the non-State party persons detained in the context of an IAC between the third State and the State party (because an insurgent group cannot be party to the Geneva Conventions). In the event that such a transfer were to be undertaken, it would not compromise the legal protection provided under the law of IAC for persons initially detained by the third State. Detainees transferred to the non-State party would continue to be protected under GC III or GC IV.

53 Armed Forces of the Democratic Republic of the Congo.

54 In this regard, the notion of control is of crucial importance in determining the legal framework applicable to armed conflicts involving foreign intervention. See above.

55 The concept of indirect effective control has been put forward recently to avoid the creation of a legal loophole allowing States to use proxies as a way of sidestepping their responsibilities under occupation law. Effective control can be exercised by proxy armed forces, as they are under the overall control of the foreign State. In such situations, a State would be considered an occupying power for the purposes of IHL when it exercises overall control over de facto local authorities or other local organized groups exercising effective control over all or part of a given territory. The existence and soundness of this theory are corroborated by a number of verdicts handed down by international courts. In the Tadić case, for example, the ICTY decided that “the relationship of de facto organs or agents to the foreign Power includes those circumstances in which the foreign Power ‘occupies’ or operates in certain territory solely through the acts of local de facto organs or agents” (ICTY, The Prosecutor v. Duško Tadić, aka “Dule”, Case No. IT-94-1-T, Judgment, Trial Chamber, 7 May 1997, para. 584). In the DRC v. Uganda case, the ICJ examined the question of whether Uganda exercised overall authority over the Congolese insurgent groups (ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, para. 77). This clearly shows that the ICJ had adopted the position established by the ICTY, accepting the possibility of an occupation carried out by an indirect effective authority. For more details on this theory, see Ferraro, T., above note 50; ICRC, Expert Meeting – Occupation and Other Forms of Administration of Foreign Territory, Geneva, March 2012, p. 23Google Scholar.